54356 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

1The regulatory citations contained in this final

rule refer to the regulation, as amended. As noted

above, the sections have been renumbered.

2The Board’s Rules have been implemented in a

manner consistent with these and other changes

described in this final rule.

PART 299—IMMIGRATION FORMS

2. The authority citation for part 299

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part

2.

3. Section 299.1 is amended by

adding the entries for Forms ‘‘I–864,’’

‘‘I–864A,’’ and ‘‘I–865’’ to the listing of

forms, in proper numerical sequence, to

read as follows:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition

date Title

* * * * *

I–864 ..... 10–06–97 Affidavit of Support

Under Section

213A of the Act.

I–864A ... 10–06–97 Contract Between

Sponsor and

Household Member.

I–865 ..... 10–06–97 Sponsor’s Notice of

Change of Address.

* * * * *

4. Section 299.5 is amended by

adding to the list of forms, in proper

numerical sequence, the entries for

Forms ‘‘I–864,’’ ‘‘I–864A’’ and ‘‘I–865’’

to read as follows:

§ 299.5 Display of control numbers.

* * * * *

INS form

No. INS form title

Currently

assigned

OMB control No.

* * * * *

I–864 ..... Affidavit of Support

under Section

213A of the Act.

1115–0214

I–864A ... Contract between

Sponsor and

Household Member.

1115–0214

I–865 ..... Sponsor’s Notice of

Change of Address.

1115–0215

* * * * *

Dated: October 8, 1997.

Doris Meissner,

Commissioner, Immigrant and Naturalization

Service.

[FR Doc. 97–27605 Filed 10–17–97; 8:45 am]

BILLING CODE 4410–10–M

FEDERAL RESERVE SYSTEM

12 CFR Part 261

[Docket No. R–0975]

Rules Regarding Availability of

Information

AGENCY: Board of Governors of the

Federal Reserve System.

ACTION: Final rule.

SUMMARY: The Board of Governors of the

Federal Reserve System (Board) hereby

amends its Rules Regarding Availability

of Information (Rules) to reflect recent

changes in the Freedom of Information

Act (FOIA) as a result of the Electronic

Freedom of Information Act

Amendments (EFOIA). In order to

account for future amendments to the

Rules, the sections have been

renumbered.

The review of the Board’s Rules that

produced this final rule was conducted

in accordance with section 303 of the

Riegle Community Development and

Regulatory Improvement Act of 1994. In

this regard, the amendments to the

Rules clarify certain provisions and

simplify the processing of requests for

access to information in certain

circumstances.

EFFECTIVE DATE: November 19, 1997.

FOR FURTHER INFORMATION CONTACT:

Elaine M. Boutilier, Senior Counsel,

(202/452–2418), Legal Division; or

Susanne K. Mitchell, Manager, Freedom

of Information Office (202/452–2407).

For the hearing impaired only, contact

Diane Jenkins, Telecommunications

Device for the Deaf (TDD)(202/452–

3544), Board of Governors of the Federal

Reserve System, 20th and Constitution,

N.W., Washington, D.C. 20551.

SUPPLEMENTARY INFORMATION: Last year,

Congress passed the Electronic Freedom

of Information Act Amendments of

1996, Public Law 104–231, which

amends the Freedom of Information Act,

5 U.S.C. 552. Among other things,

EFOIA requires agencies to promulgate

regulations that provide for expedited

processing of requests for records, and

permits agencies to promulgate

regulations that provide for multitrack

processing of requests. In addition to

amending its Rules to comply with

EFOIA, the Board has taken this

opportunity, in accordance with section

303 of the Riegle Community

Development and Regulatory

Improvement Act of 1994, to review and

streamline those Rules.1 In addition, the

Board is amending the Rules to take

account of various statutes that have

been enacted since the Rules were last

revised in 1988.2

To implement these changes, the

Board published proposed changes to

Subparts A, B, and D of its Rules on

June 10, 1997 (62 FR 31526). The Board

received four comments: one from a

Federal Reserve Bank, one from a

commercial bank, one from a credit

union, and one from a community

group. Three of the comments

supported the proposal; the community

group, however, opposed some of the

proposed changes. A discussion of the

specific comments is included in the

section-by-section analysis. In 1996, the

Board published for comment proposed

amendments to the Rules (61 FR 7436,

February 28, 1996) that primarily

concerned Subpart C of the Rules and

the definitions in Subpart A of terms

that are used in Subpart C. In addition,

the Board had proposed changes to

certain portions of Subpart B and

Subpart D, which were republished in

the June 1997 proposed rule. The

changes to Subparts A, B and D are

being adopted in this final rule; the

proposed amendments to Subpart C are

still under consideration.

Subpart A

Subpart A contains the General

Provisions, describing the authority,

purpose, and scope; listing the

definitions applicable to this part, and

explaining the responsibilities of the

Secretary of the Board as custodian of

the Board’s records. The changes to this

subpart are primarily in the ‘‘Authority’’

section to clarify the ability of the Board

to provide exempt records to certain

entities outside of the FOIA process in

specific circumstances. In addition,

certain definitions that were included in

the section on FOIA fees and fee

waivers have been moved forward to the

‘‘Definitions’’ section. One commenter

noted that the definition of ‘‘records’’

specifically excludes handwritten notes,

and questions the authority for this

exclusion. The intention was to exclude

personal notes that are not a part of

official Board records. This, however, is

accomplished by the exclusion of

personal files, so the reference to

handwritten notes has been deleted.

Section 261.3 is amended to clarify

that authority delegated to the General

Counsel and other officers of the Board

may be subdelegated. An additional

change to § 261.3(c) states that the

Secretary of the Board is the Board’s

agent for service of all process, and that
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54357

3These provisions are intended only to address

matters of the kind covered by Executive Order

12,600. This, however, does not preclude the Board

Continued

the Board will not accept process on

behalf of employees in connection with

purely private matters except as

specifically provided by law.

Subpart B

Subpart B is amended to comply with

the EFOIA requirements for expedited

processing. The Board also is

implementing multitrack processing. In

addition, the Board has revised the

section on fees and fee waivers; and

portions of this Subpart have been

reorganized and streamlined.

Section 261.10 lists the information

that the Board publishes on a regular or

intermittent basis. This section has been

streamlined. No substantive changes

have been made.

Section 261.11 describes the

information that is made available for

inspection or copying, either in the

Board’s reading room or over the

Internet, as required by EFOIA. The

records provided over the Internet cover

a much smaller scope than those

available in the Board’s reading room,

because the requirement to provide

records over the Internet covers only

records created by the Board after

November 1, 1996. One of the

commenters suggested that the Board

expand the categories of documents

provided over the Internet to include

policies, interpretations, orders, and

requests for comments, as well as

provide indexing and an appropriate

search mechanism on the website. The

Board is in the process of expanding the

information that is made available over

the Internet. Legal interpretations dating

from January 1996, and Press Releases,

which include some Board orders, have

been placed on the website. The

remaining Board orders dating after

November 1, 1996, will be provided in

the near future. Other information that

the Board believes is of interest to the

public is being provided as quickly as

the Board’s resources permit. With

regard to indexing or a search

mechanism, there is a general index

provided on the site, and the Board

expects to install a search mechanism

soon. Another commenter requested

that the Board place the text of the

public sections of its Community

Reinvestment Act examination reports

on its website. The Board expects to

have this information on its website by

the end of this year. This commenter

also noted that the Board has not placed

its administrative manuals on its

website. EFOIA requires such manuals

to be made available in the reading

room if they are not published and

offered for sale. All Board manuals of

this type are published and offered for

sale.

Section 261.12 describes the

procedures for requesting records that

are not published or routinely made

available for inspection. This section

includes the requirement that FOIA

requests not be combined with any

other requests to the Board except

requests under the Privacy Act. This

requirement is intended to ensure that

FOIA requests are delivered promptly to

the Board’s Freedom of Information

Office (FOI Office) when they are

received, which may not occur if the

FOIA request is included in a request

for other action by the Board. One

commenter opposed this amendment on

grounds that it would prohibit a

requester from combining a FOIA

request with comments submitted in

connection with an application under

the Bank Holding Company Act of 1956

(BHCA), 12 U.S.C. 1841 et seq. The

commenter believes that it should be

permissible to combine a FOIA request

with substantive comments regarding an

application, or in the alternative, a

process should be established for

making requests under the Board’s ex

parte rules for processing BHCA

applications. A separate, clearly

identified FOIA request delivered

directly to the Secretary insures a faster

FOIA response, however, because

comment letters are not routinely sent to

the FOIA office for action. Procedures

for BHCA applications are set forth in

the Board’s Regulation Y, which was

recently revised after notice and

comment.

Section 261.13 describes the Board’s

procedures for processing FOIA

requests. This section has been

extensively revised to reflect the

changes required by EFOIA. In the

review process, one sentence was

inadvertently dropped from the section

when it was published for comment.

The existing rule states that the

Secretary will assign responsible staff to

process particular requests. This

provision has been restored to section

261.13(d) to provide the Secretary with

the authority to assign the requests to

the appropriate staff at the Board.

The revised regulation provides for

multitrack processing. Fast-track

processing will apply to records that are

easily identifiable by the FOI Office staff

and that have already been cleared for

release to the public. Fast-track requests

will be handled as expeditiously as

possible, in the order in which they are

received. All information requests that

do not meet the fast-track processing

standards will be handled under regular

processing procedures. A requester who

desires fast-track processing but whose

request does not meet those standards

may contact the FOI Office staff to

narrow the request so that it will qualify

for fast-track processing. The statutory

time limit for regular-track processing is

extended to twenty business days, from

the previous ten business days.

Expedited processing may be

provided where a requester has

demonstrated a compelling need for the

records, or where the Board has

determined to expedite the response.

The time limit for determination

whether to grant expedited processing is

set at ten days, with expedited

procedures for an appeal of the

Secretary’s determination not to provide

expedited processing. Under EFOIA,

there are only two types of

circumstances that can meet the

compelling need standard: where failure

to obtain the records expeditiously

could pose an imminent threat to the

life or physical safety of a person, or

where the requester is a person

primarily engaged in disseminating

information and there is an urgency to

inform the public concerning actual or

alleged agency activity. For ease of

administration and consistency, the

section uses the term ‘‘representative of

the news media,’’ to describe a person

primarily engaged in disseminating

information, because this term is used

for the FOIA fee schedule, and thus, is

known to those familiar with FOIA and

the Board’s Rules. To demonstrate a

compelling need, a requester must

submit a certified statement. A form for

the certified statement may be obtained

from the FOI Office. One commenter

objected that the definition of

‘‘compelling need’’ does not include

public interest requesters who wish to

comment on pending BHCA

applications. The definition of

compelling need is established by

EFOIA, not the Board.

Section 261.14 lists the exemptions

from disclosure under FOIA. This

section has been reorganized and

streamlined, but no substantive changes

have been made.

Sections 261.15 and 261.16, which

were previously located in Subpart D,

have been moved to Subpart B for

clarity, since they apply only to FOIA

requests. Accordingly, a separate

Subpart D is no longer necessary. These

provisions implement Executive Order

12,600, June 23, 1987, by establishing

certain predisclosure notification

procedures for confidential business or

financial information that may be

exempt under (b)(4) of the FOIA, 5

U.S.C. 552(b)(4).3
54358 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

or its staff from giving notice to submitters in other

situations where, for example, documents obtained

pursuant to a confidentiality commitment are

subpoenaed in civil litigation. The Board exercises

its discretion in such cases consistent with

applicable law. The Board does not disclose its

receipt of federal grand jury subpoenas, however,

except in accordance with law following

consultation with appropriate law enforcement

authorities.

Section 261.15 sets forth the

procedures for requesting confidential

treatment. The Board wishes to

emphasize that failure to properly

segregate confidential material from

other material may result in the release

of that material without prior notice to

the submitter. This is particularly

important in light of the Board’s

intention, in connection with processing

BHCA applications, to provide, upon

request, the public portion of an

application within three business days

of the request. In order to meet this

deadline, the Board’s and Reserve

Bank’s staff must rely on the applicant

to properly designate the material

submitted. A careful review of the

material designated as ‘‘Confidential’’

will be made and any information

improperly labeled as ‘‘Confidential’’

will be provided to requesters

immediately upon identification as

publicly available.

Section 261.16 sets forth the

procedures for responding to a FOIA

request for information that has been

designated by the submitter as

confidential. It provides for notice to the

submitter that permits the submitter to

provide written objections to the release

of the confidential information. Section

261.16(e) describes the information that

a submitter should include in its written

submission objecting to the release of

the documents, including whether the

information was provided voluntarily

under the standards set by the court

case, Critical Mass Energy Project v.

NRC, 975 F. 2d. 871 (D.C. Cir. 1992). If

the information was not provided

voluntarily, the submitter must provide

detailed facts and arguments showing

either the likelihood of substantial

competitive harm resulting from release

of the information, or that release would

impair the Board’s ability to obtain

necessary information in the future.

Section 261.17 contains the FOIA fee

schedules and the standards for waiver

of fees. The fee schedule provisions

have been revised to clarify that the

processing time of a FOIA request does

not begin until payment is received in

cases where advance payment is

required. Where a person has requested

a waiver of the fees and has not agreed

to pay the fees, the processing time does

not begin until a fee waiver has been

granted, or if the waiver is denied, until

the requester has agreed to pay the

applicable fees. One commenter

objected to this provision, stating that it

unfairly affects nonprofit groups with

limited budgets that must promise to

pay the fees for an application in order

to receive it in a timely manner. This

commenter requested that the Board

establish a procedure to certify groups,

on an ongoing basis, for fee waivers,

instead of making the determination on

a case-by-case basis.

FOIA, itself, establishes certain

categories that receive favorable

treatment with regard to fees, e.g., the

news media and educational

institutions. FOIA also provides for fee

waivers where disclosure of the

information is in the public interest (not

based on the requester’s status). Thus, a

requester must meet the standards for a

fee waiver in each request. This

requirement is supported by the

legislative history (see, 132 Cong. Rec.

H. 9463 (Oct.8, 1986)(Rep. English)) and

court decisions (see, National Wildlife

Federation v. Hamilton, No. 95–017–

BU(D. Mont. July 15, 1996)). The Board

reviews each fee waiver request

pursuant to the standards set forth in

the Act and its Rules. If a non-profit

community group demonstrates in its

request for a waiver of fees that the

requested information will be

distributed to the public and will

contribute significantly to the public

understanding of the activities of the

Board, then the requester should qualify

under the Act and the Board’s Rules for

a waiver of the fees.

The standards under which the

Secretary may grant a request for waiver

of fees have been modified to reflect the

development of case law in this area.

Additionally, the regulation provides for

administrative appeal of a denial of a

waiver request, which reflects the

Board’s current procedure of permitting

such administrative appeals.

Subpart C

The sections in Subpart C have been

renumbered to be consistent with the

renumbering of Subparts A and B in this

proposal. No substantive changes have

been made at this time. Proposed

changes to this Subpart were published

in 1996 (61 FR 7436, February 28, 1996),

and the comments received on these

changes are still under consideration.

Regulatory Flexibility Act Analysis

Pursuant to section 605(b) of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.), the Board certifies that the

amendments will not have a significant

economic impact on a substantial

number of small entities. These

amendments simplify some of the

procedures regarding release of

information and require disclosure of

information in certain instances in

accordance with law. The requirements

to disclose apply to the Board, therefore

they should not have a significant

economic impact on a substantial

number of small entities.

Paperwork Reduction Act Analysis

In accordance with the Paperwork

Reduction Act of 1995 (44 U.S.C. 3506;

5 CFR 1320 Appendix A.1), the Board

reviewed the rule under the authority

delegated to the Board by the Office of

Management and Budget. The Federal

Reserve may not conduct or sponsor,

and an organization is not required to

respond to, this information collection

unless it displays a currently valid OMB

control number. The OMB control

number is 7100–0281.

The collection of information

requirements in this regulation are

found in 12 CFR 261.12, 261.13, 261.16,

and 261.17. (The hour burden for

requests for confidential treatment made

under 261.15 are included in the hour

burden associated with the information

collections for which the respondent

desires confidential treatment.) The

information will be used to fulfill

requests for information made under the

Freedom of Information Act, or to

determine the appropriateness of

fulfilling such requests. The

respondents may include small entities.

This information is required to obtain a

benefit (5 U.S.C. 552). Generally,

requests made under 12 CFR 261.12,

261.13, 261.16, and 12 CFR 261.17 are

not exempt from disclosure under the

Freedom of Information Act.

The annual hour burden estimates are

presented in the following table. There

is estimated to be no annual cost burden

over the annual hour burden, and no

associated capital or start up cost. One

comment specifically addressing the

burden estimates was received from a

federal credit union, stating that the

burden estimates seemed accurate.
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54359

Estimated

annual frequency

Estimated response time

(hours)

Estimated

annual burden hours

Initial request (261.12 (b) and (c) and 261.13(c)) .................................................................................. 4,900 .5 2,450

Limits on an earlier request that included a request for expedited processing that has been denied

(261.13(b)(2)) ...................................................................................................................................... 100 .5 50

Appeal of denial of request (261.13(i)) .................................................................................................. 30 2 60

Written objections by submitter to release of data (261.16(e)) ............................................................. 30 2 60

Request to waive or reduce fees (261.17(f)) ......................................................................................... 100 .5 50

Total ............................................................................................................................................. .................... ...................... 2,670

The Federal Reserve has a continuing

interest in the public’s opinions of its

collections of information. At any time,

comments regarding the burden

estimate, or any other aspect of this

collection of information, including

suggestions for reducing the burden,

may be sent to: Secretary, Board of

Governors of the Federal Reserve

System, 20th and C Streets, N.W.,

Washington, DC 20551; and to the

Office of Management and Budget,

Paperwork Reduction Project (7100–

0281), Washington, DC 20503.

List of Subjects in 12 CFR Part 261

Confidential business information,

Federal Reserve System, Freedom of

Information, Reporting and

recordkeeping requirements.

For the reasons set forth in the

preamble, the Board amends 12 CFR

part 261 as follows:

PART 261—RULES REGARDING

AVAILABILITY OF INFORMATION

1. The authority citation for part 261

is revised to read as follows:

Authority: 5 U.S.C. 552; 12 U.S.C. 248(i)

and (k), 321 et seq., 611 et seq., 1442,

1817(a)(2)(A), 1817(a)(8), 1818(u) and (v),

1821(o), 1821(t), 1830, 1844, 1951 et seq.,

2601, 2801 et seq., 2901 et seq., 3101 et seq.,

3401 et seq.; 15 U.S.C. 77uu(b), 78q(c)(3); 29

U.S.C. 1204; 31 U.S.C. 5301 et seq.; 42 U.S.C.

3601; 44 U.S.C. 3510.

Subpart D—[Removed]

2. Subpart D, consisting of §§ 261.15

through 261.17, is removed.

§§ 261.11–261.14 [Redesignated as

§§ 261.20–261.23]

3. Sections 261.11 through 261.14 in

Subpart C are redesignated as §§ 261.20

through 261.23, respectively, in Subpart

C.

4. Subparts A and B are revised to

read as follows:

Subpart A—General Provisions

Sec.

261.1 Authority, purpose, and scope.

261.2 Definitions.

261.3 Custodian of records; certification;

service; alternative authority.

Subpart B—Published Information and

Records Available to Public; Procedures for

Requests

261.10 Published information.

261.11 Records available for public

inspection and copying.

261.12 Records available to public upon

request.

261.13 Processing requests.

261.14 Exemptions from disclosure.

261.15 Request for confidential treatment.

261.16 Request for access to confidential

commercial or financial information.

261.17 Fee schedules; waiver of fees.

Subpart A—General Provisions

§ 261.1 Authority, purpose, and scope.

(a) Authority. (1) This part is issued

by the Board of Governors of the Federal

Reserve System (the Board) pursuant to

the Freedom of Information Act, 5

U.S.C. 552; Sections 9, 11, and 25A of

the Federal Reserve Act, 12 U.S.C. 248(i)

and (k), 321 et seq., (including 326), 611

et seq.; Section 22 of the Federal Home

Loan Bank Act, 12 U.S.C 1442; the

Federal Deposit Insurance Act, 12

U.S.C. 1817(a)(2)(A), 1817(a)(8), 1818(u)

and (v), 1821(o); section 5 of the Bank

Holding Company Act, 12 U.S.C. 1844;

the Bank Secrecy Act, 12 U.S.C. 1951 et

seq., and Chapter 53 of Title 31; the

Home Mortgage Disclosure Act, 12

U.S.C. 2801 et seq.; the Community

Reinvestment Act, 12 U.S.C. 2901 et

seq.; the International Banking Act, 12

U.S.C. 3101 et seq.; the Right to

Financial Privacy Act, 12 U.S.C. 3401 et

seq.; the Securities and Exchange Act,

15 U.S.C. 77uuu(b), 78q(c)(3); the

Employee Retirement Income Security

Act, 29 U.S.C. 1204; the Money

Laundering Suppression Act, 31 U.S.C.

5301, the Fair Housing Act, 42 U.S.C.

3601; the Paperwork Reduction Act, 44

U.S.C. 3510; and any other applicable

law that establishes a basis for the

exercise of governmental authority by

the Board.

(2) This part establishes mechanisms

for carrying out the Board’s statutory

responsibilities under statutes in

paragraph (a)(1) of this section to the

extent those responsibilities require the

disclosure, production, or withholding

of information. In this regard, the Board

has determined that the Board, or its

delegees, may disclose exempt

information of the Board, in accordance

with the procedures set forth in this

part, whenever it is necessary or

appropriate to do so in the exercise of

any of the Board’s supervisory or

regulatory authorities, including but not

limited to, authority granted to the

Board in the Federal Reserve Act, 12

U.S.C. 221 et seq., the Bank Holding

Company Act, 12 U.S.C. 1841 et seq.,

and the International Banking Act, 12

U.S.C. 3101 et seq. The Board has

determined that all such disclosures,

made in accordance with the rules and

procedures specified in this part, are

authorized by law.

(3) The Board has also determined

that it is authorized by law to disclose

information to a law enforcement or

other federal or state government agency

that has the authority to request and

receive such information in carrying out

its own statutory responsibilities, or in

response to a valid order of a court of

competent jurisdiction or of a duly

constituted administrative tribunal.

(b) Purpose. This part sets forth the

categories of information made available

to the public, the procedures for

obtaining documents and records, the

procedures for limited release of exempt

and confidential supervisory

information, and the procedures for

protecting confidential business

information.

(c) Scope. (1) This subpart A contains

general provisions and definitions of

terms used in this part.

(2) Subpart B of this part implements

the Freedom of Information Act (FOIA)

(5 U.S.C. 552).

(3) Subpart C of this part sets forth:

(i) The kinds of exempt information

made available to supervised

institutions, supervisory agencies, law

enforcement agencies, and others in

certain circumstances;

(ii) The procedures for disclosure; and

(iii) The procedures with respect to

subpoenas, orders compelling

production, and other process.

§ 261.2 Definitions.

For purposes of this part:
54360 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

(a) Board’s official files means the

Board’s central records.

(b) 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.

(c)(1) Confidential supervisory

information means:

(i) Exempt information consisting of

reports of examination, inspection and

visitation, confidential operating and

condition reports, and any information

derived from, related to, or contained in

such reports;

(ii) Information gathered by the Board

in the course of any investigation,

suspicious activity report, cease-anddesist orders, civil money penalty

enforcement orders, suspension,

removal or prohibition orders, or other

orders or actions under the Financial

Institutions Supervisory Act of 1966,

Pub.L. 89-695, 80 Stat. 1028 (codified as

amended in scattered sections of 12

U.S.C.), the Bank Holding Company Act

of 1956, 12 U.S.C. 1841 et seq.,the

Federal Reserve Act, 12 U.S.C. 221 et

seq., the International Banking Act of

1978, Pub.L. 95–369, 92 Stat. 607

(codified as amended in scattered

sections of 12 U.S.C.), and the

International Lending Supervision Act

of 1983, 12 U.S.C. 3901 et seq.; except—

(A) Such final orders, amendments, or

modifications of final orders, or other

actions or documents that are

specifically required to be published or

made available to the public pursuant to

12 U.S.C. 1818(u), or other applicable

law, including the record of litigated

proceedings; and

(B) The public section of Community

Reinvestment Act examination reports,

pursuant to 12 U.S.C. 2906(b); and

(iii) Any documents prepared by, on

behalf of, or for the use of the Board, a

Federal Reserve Bank, a federal or state

financial institutions supervisory

agency, or a bank or bank holding

company or other supervised financial

institution.

(2) Confidential supervisory

information does not include

documents prepared by a supervised

financial institution for its own business

purposes and that are in its possession.

(d) Direct costs mean those

expenditures that the Board actually

incurs in searching for, reviewing, and

duplicating documents in response to a

request made under § 261.12.

(e) Duplication refers to the process of

making a copy of a document in

response to a request for disclosure of

records or for inspection of original

records that contain exempt material or

that otherwise cannot be inspected

directly. Among others, such copies

may take the form of paper, microform,

audiovisual materials, or machinereadable documentation (e.g., magnetic

tape or disk).

(f) Educational institution refers to a

preschool, a public or private

elementary or secondary school, or an

institution of undergraduate higher

education, graduate higher education,

professional education, or an institution

of vocational education, which operates

a program of scholarly research.

(g) Exempt information means

information that is exempt from

disclosure under § 261.14.

(h) Noncommercial scientific

institution refers to an institution that is

not operated on a ‘‘commercial’’ basis

(as that term is used in this section) and

that is operated solely for the purpose

of conducting scientific research, the

results of which are not intended to

promote any particular product or

industry.

(i)(1) Records of the Board include:

(i) In written form, or in nonwritten

or machine-readable form; all

information coming into the possession

and under the control 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 that

constitute part of the Board’s official

files; or

(ii) That 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 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.

(j) Report of examination means the

report prepared by the Board, or other

federal or state financial institution

supervisory agency, concerning the

examination of a financial institution,

and includes reports of inspection and

reports of examination of U.S. branches

or agencies of foreign banks and

representative offices of foreign

organizations, and other institutions

examined by the Federal Reserve

System.

(k) Report of inspection means the

report prepared by the Board concerning

its inspection of a bank holding

company and its bank and nonbank

subsidiaries.

(l) Representative of the news media

refers to any person actively gathering

news for an entity that is organized and

operated to publish or broadcast news to

the public.

(1) The term ‘‘news’’ means

information that is about current events

or that would be of current interest to

the public.

(2) Examples of news media entities

include, but are not limited to,

television or radio stations broadcasting

to the public at large, and publishers of

periodicals (but only in those instances

when they can qualify as disseminators

of ‘‘news’’) who make their products

available for purchase or subscription

by the general public.

(3) ‘‘Freelance’’ journalists may be

regarded as working for a news

organization if they can demonstrate a

solid basis for expecting publication

through that organization, even though

they are not actually employed by it.

(m)(1) Review refers to the process of

examining documents, located in

response to a request for access, to

determine whether any portion of a

document is exempt information. It

includes doing all that is necessary to

excise the documents and otherwise to

prepare them for release.

(2) Review does not include time

spent resolving general legal or policy

issues regarding the application of

exemptions.

(n)(1) Search means a reasonable

search, by manual or automated means,

of the Board’s official files and any other

files containing Board records as seem

reasonably likely in the particular

circumstances to contain information of

the kind requested. For purposes of

computing fees under § 261.17, search

time includes all time spent looking for

material that is responsive to a request,

including line-by-line identification of

material within documents. Such

activity is distinct from ‘‘review’’ of

material to determine whether the

material is exempt from disclosure.

(2) Search does not mean or include

research, creation of any document, or

extensive modification of an existing

program or system that would

significantly interfere with the operation

of the Board’s automated information

systems.

(o) Supervised financial institution

includes a bank, bank holding company

(including subsidiaries), U.S. branch or

agency of a foreign bank, or any other

institution that is supervised by the

Board.
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54361

§ 261.3 Custodian of records; certification;

service; alternative authority.

(a) Custodian of records. The

Secretary of the Board (Secretary) is the

official custodian of all Board records,

including records that are in the

possession or control of the Board, any

Federal Reserve Bank, or any Board or

Reserve Bank employee.

(b) Certification of record. The

Secretary may certify the authenticity of

any Board record, or any copy of such

record, for any purpose, and for or

before any duly constituted federal or

state court, tribunal, or agency.

(c) Service of subpoenas or other

process. Subpoenas or other judicial or

administrative process, demanding

access to any Board records or making

any claim against the Board, shall be

addressed to and served upon the

Secretary of the Board at the Board’s

office at 20th and C Streets, N.W.,

Washington, D.C. 20551. Neither the

Board nor the Secretary are agents for

service of process on behalf of any

employee in respect of purely private

legal disputes, except as specifically

provided by law.

(d) Alternative authority. Any action

or determination required or permitted

by this part to be done by the Secretary,

the General Counsel, or the Director of

any Division may be done by any

employee who has been duly designated

for this purpose by the Secretary,

General Counsel, or the appropriate

Director.

Subpart B—Published Information and

Records Available to Public;

Procedures for Requests

§ 261.10 Published information.

(a) 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 the nature and

requirements of procedures;

(3) Rules of procedure, descriptions of

forms available and the place where

they may be obtained, and instructions

on the scope and contents of all papers,

reports, and examinations;

(4) Substantive rules, interpretations

of general applicability, and statements

of general policy;

(5) Every amendment, revision, or

repeal of the foregoing in paragraphs

(a)(1) through (a)(4) of this section;

(6) Notices of proposed rulemaking;

(7) Notices of applications received

under the Bank Holding Company Act

of 1956 (12 U.S.C. 1841 et seq.) and the

Change in Bank Control Act (12 U.S.C.

1817);

(8) Notices of all Board meetings,

pursuant to the Government in the

Sunshine Act (5 U.S.C. 552b);

(9) Notices identifying the Board’s

systems of records, pursuant to the

Privacy Act of 1974 (5 U.S.C. 552a); and

(10) Notices of agency data collection

forms being reviewed under the

Paperwork Reduction Act (5 U.S.C. 3501

et seq.).

(b) Board’s Reports to Congress. The

Board’s annual report to Congress

pursuant to the Federal Reserve Act (12

U.S.C. 247), which is made public upon

its submission to Congress, contains a

full account of the Board’s operations

during the year, the policy actions by

the Federal Open Market Committee, an

economic review of the year, and

legislative recommendations to

Congress. The Board also makes

periodic reports to Congress under

certain statutes, including but not

limited to the Freedom of Information

Act (5 U.S.C. 552); the Government in

the Sunshine Act (5 U.S.C. 552b); the

Full Employment and Balanced Growth

Act of 1978 (12 U.S.C. 225a); and the

Privacy Act (5 U.S.C. 552a).

(c) Federal Reserve Bulletin. This

publication is issued monthly and

contains economic and statistical

information, articles relating to the

economy or Board activities, and

descriptions of recent actions by the

Board.

(d) Other published information.

Among other things, the Board

publishes the following information:

(1) Weekly publications. The Board

issues the following publications

weekly:

(i) A statement showing the condition

of each Federal Reserve Bank and a

consolidated statement of the condition

of all Federal Reserve Banks, pursuant

to 12 U.S.C. 248(a);

(ii) An index of applications received

and the actions taken on the

applications, as well as other matters

issued, adopted, or promulgated by the

Board; and

(iii) A statement showing changes in

the structure of the banking industry

resulting from mergers and the

establishment of branches.

(2) Press releases. The Board

frequently issues statements to the press

and public regarding monetary and

credit actions, regulatory actions,

actions taken on certain types of

applications, and other matters.

(3) Call Report and other data. Certain

data from Reports of Condition and

Income submitted to the Board are

available through the National

Technical Information Service and may

be obtained by the procedure described

in § 261.11(c)(2).

(4) Federal Reserve Regulatory

Service. This is a multivolume looseleaf

service published by the Board,

containing statutes, regulations,

interpretations, rulings, staff opinions,

and procedural rules under which the

Board operates. Portions of the service

are also published as separate looseleaf

handbooks relating to consumer and

community affairs, monetary policy and

reserve requirements, payments

systems, and securities credit

transactions. The service and each

handbook contain subject and citation

indexes, are updated monthly, and may

be subscribed to on a yearly basis.

(e) Index to Board actions. The

Board’s Freedom of Information Office

maintains an index to Board actions,

which is updated weekly and provides

identifying information about any

matters issued, adopted, and

promulgated by the Board since July 4,

1967. Copies of the index may be

obtained upon request to the Freedom of

Information Office subject to the current

schedule of fees in § 261.17.

(f) Obtaining Board publications. The

Publications Services Section maintains

a list of Board publications that are

available to the public. In addition, a

partial list of publications is published

in the Federal Reserve Bulletin. All

publications issued by the Board,

including available back issues, may be

obtained from Publications Services,

Board of Governors of the Federal

Reserve System, 20th Street and

Constitution Avenue, N.W.,

Washington, D.C. 20551 (pedestrian

entrance is on C Street, N.W.).

Subscription or other charges may apply

to some publications.

§ 261.11 Records available for public

inspection and copying.

(a) Types of records made available.

Unless they were published promptly

and made available for sale or without

charge, the following records shall be

made available for inspection and

copying at the Freedom of Information

Office:

(1) Final opinions, including

concurring and dissenting opinions, as

well as final orders and written

agreements, made in the adjudication of

cases;

(2) Statements of policy and

interpretations adopted by the Board

that are not published in the Federal

Register;

(3) Administrative staff manuals and

instructions to staff that affect the

public;

(4) Copies of all records released to

any person under § 261.12 that, because
54362 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

of the nature of their subject matter, the

Board has determined are likely to be

requested again;

(5) A general index of the records

referred to in paragraph (a)(4) of this

section; and

(6) The public section of Community

Reinvestment Act examination reports.

(b) Reading room procedures. (1)

Information available under this section

is available for inspection and copying,

from 9:00 a.m. to 5:00 p.m. weekdays,

at the Freedom of Information Office of

the Board of Governors of the Federal

Reserve System, 20th Street and

Constitution Avenue, N.W.,

Washington, D.C. 20551 (the pedestrian

entrance is on C Street, N.W.).

(2) The Board may determine that

certain classes of publicly available

filings shall be made available for

inspection and copying only at the

Federal Reserve Bank where those

records are filed.

(c) Electronic records. (1) Except as set

forth in paragraph (c)(2) of this section,

information available under this section

that was created by the Board on or after

November 1, 1996, shall also be

available on the Board’s internet site

(which can be found at http://

www.bog.frb.fed.us).

(2) NTIS. The publicly available

portions of Reports of Condition and

Income of individual banks and certain

other data files produced by the Board

are distributed by the National

Technical Information Service. Requests

for these public reports should be

addressed to: Sales Office, National

Technical Information Service, U.S.

Department of Commerce, 5285 Port

Royal Road, Springfield, Virginia 22161,

(703) 487–4650.

(3) Privacy protection. The Board may

delete identifying details from any

record to prevent a clearly unwarranted

invasion of personal privacy.

§ 261.12 Records available to public upon

request.

(a) Types of records made available.

All records of the Board that are not

available under §§ 261.10 and 261.11

shall be made available upon request,

pursuant to the procedures and

exceptions in this Subpart B.

(b) Procedures for requesting records.

(1) A request for identifiable records

shall reasonably describe the records in

a way that enables the Board’s staff to

identify and produce the records with

reasonable effort and without unduly

burdening or significantly interfering

with any of the Board’s operations.

(2) The request shall be submitted in

writing to the Freedom of Information

Office, Board of Governors of the

Federal Reserve System, 20th & C Street,

N.W., Washington, D.C. 20551; or sent

by facsimile to the Freedom of

Information Office, (202) 872–7562 or

7565. The request shall be clearly

marked FREEDOM OF INFORMATION

ACT REQUEST.

(3) A request may not be combined

with any other request to the Board

except for a request under 12 CFR

261a.3(a) (Rules Regarding Access to

and Review of Personal Information

under the Privacy Act of 1974) and a

request made under § 261.23(b)(1)(ii).

(c) Contents of request. The request

shall contain the following information:

(1) The name and address of the

requester, and the telephone number at

which the requester can be reached

during normal business hours;

(2) Whether the requested information

is intended for commercial use, and

whether the requester is an educational

or noncommercial scientific institution,

or news media representative;

(3) A statement agreeing to pay the

applicable fees, or a statement

identifying any desired fee limitation, or

a request for a waiver or reduction of

fees that satisfies § 261.17(h); and

(4) If the request is being made in

connection with on-going litigation, a

statement indicating whether the

requester will seek discretionary release

of exempt information from the General

Counsel upon denial of the request by

the Secretary. A requester who intends

to make such a request to the General

Counsel may also address the factors set

forth in § 261.23(b).

(d) Defective requests. The Board need

not accept or process a request that does

not reasonably describe the records

requested or that does not otherwise

comply with the requirements of this

section. The Board may return a

defective request, specifying the

deficiency. The requester may submit a

corrected request, which will be treated

as a new request.

(e) Oral requests. The Freedom of

Information Office may honor an oral

request for records, but if the requester

is dissatisfied with the Board’s response

and wishes to seek review, the requester

must submit a written request, which

shall be treated as an initial request.

§ 261.13 Processing requests.

(a) Receipt of requests. Upon receipt

of any request that satisfies § 261.12(b),

the Freedom of Information Office shall

assign the request to the appropriate

processing schedule, pursuant to

paragraph (b) of this section. The date

of receipt for any request, including one

that is addressed incorrectly or that is

referred to the Board by another agency

or by a Federal Reserve Bank, is the date

the Freedom of Information Office

actually receives the request.

(b) Multitrack processing. (1) The

Board provides different levels of

processing for categories of requests

under this section. Requests for records

that are readily identifiable by the

Freedom of Information Office and that

have already been cleared for public

release may qualify for fast-track

processing. All other requests shall be

handled under normal processing

procedures, unless expedited processing

has been granted pursuant to paragraph

(c)(2) of this section.

(2) The Freedom of Information Office

will make the determination whether a

request qualifies for fast-track

processing. A requester may contact the

Freedom of Information Office to learn

whether a particular request has been

assigned to fast-track processing. If the

request has not qualified for fast-track

processing, the requester will be given

an opportunity to limit the request in

order to qualify for fast-track processing.

Limitations of requests must be in

writing.

(c) Expedited processing. When a

person requesting expedited access to

records has demonstrated a compelling

need for the records, or when the Board

has determined to expedite the

response, the Board shall process the

request as soon as practicable.

(1) To demonstrate a compelling need

for expedited processing, the requester

shall provide a certified statement, a

sample of which may be obtained from

the Freedom of Information Office. The

statement, which must be certified to be

true and correct to the best of the

requester’s knowledge and belief, shall

demonstrate that:

(i) The failure to obtain the records on

an expedited basis could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual; or

(ii) The requester is a representative of

the news media, as defined in § 261.2,

and there is urgency to inform the

public concerning actual or alleged

Board activity.

(2) In response to a request for

expedited processing, the Secretary

shall notify a requester of the

determination within ten calendar days

of receipt of the request. If the Secretary

denies a request for expedited

processing, the requester may file an

appeal pursuant to the procedures set

forth in paragraph (i) of this section, and

the Board shall respond to the appeal

within ten working days after the appeal

was received by the Board.

(d) Priority of responses. The

Secretary will assign responsible staff to

process particular requests. The
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54363

Freedom of Information Office will

normally process requests in the order

they are received in the separate

processing tracks, except when

expedited processing is granted.

However, in the Secretary’s discretion,

or upon a court order in a matter to

which the Board is a party, a particular

request may be processed out of turn.

(e) Time limits. The time for response

to requests shall be 20 working days,

except:

(1) In the case of expedited treatment

under paragraph (c) of this section;

(2) Where the running of such time is

suspended for payment of fees pursuant

to § 261.17(b)(2);

(3) In unusual circumstances, as

defined in 5 U.S.C. 552(a)(6)(B). In such

circumstances, the time limit may be

extended for a period of time not to

exceed:

(i) 10 working days as provided by

written notice to the requester, setting

forth the reasons for the extension and

the date on which a determination is

expected to be dispatched; or

(ii) Such alternative time period as

mutually agreed to by the Freedom of

Information Office and the requester

when the Freedom of Information Office

notifies the requester that the request

cannot be processed in the specified

time limit.

(f) Response to request. In response to

a request that satisfies § 261.12(b), an

appropriate search shall be conducted of

records of the Board in existence on the

date of receipt of the request, and a

review made of any responsive

information located. The Secretary shall

notify the requester of:

(1) The Board’s determination of the

request;

(2) The reasons for the determination;

(3) The amount of information

withheld;

(4) The right of the requester to appeal

to the Board any denial or partial denial,

as specified in paragraph (i) of this

section; and

(5) In the case of a denial of a request,

the name and title or position of the

person responsible for the denial.

(g) Referral to another agency. To the

extent a request covers documents that

were created by, obtained from, or

classified by another agency, the Board

may refer the request to that agency for

a response and inform the requester

promptly of the referral.

(h) Providing responsive records. (1)

Copies of requested records shall be sent

to the requester by regular U.S. mail to

the address indicated in the request,

unless the requester elects to take

delivery of the documents at the

Freedom of Information Office or makes

other acceptable arrangements, or the

Board deems it appropriate to send the

documents by another means.

(2) The Board shall provide a copy of

the record in any form or format

requested if the record is readily

reproducible by the Board in that form

or format, but the Board need not

provide more than one copy of any

record to a requester.

(i) Appeal of denial of request. Any

person denied access to Board records

requested under § 261.12 may file a

written appeal with the Board, as

follows:

(1) The appeal shall prominently

display the phrase FREEDOM OF

INFORMATION ACT APPEAL on the

first page, and shall be addressed to the

Freedom of Information Office, Board of

Governors of the Federal Reserve

System, 20th & C Street, N.W.,

Washington, D.C. 20551; or sent by

facsimile to the Freedom of Information

Office, (202) 872–7562 or 7565.

(2) An initial request for records may

not be combined in the same letter with

an appeal.

(3) The appeal shall be filed within 10

working days of the date on which the

denial was issued, or the date on which

documents in partial response to the

request were transmitted to the

requester, whichever is later. The Board

may consider an untimely appeal if:

(i) It is accompanied by a written

request for leave to file an untimely

appeal; and

(ii) The Board determines, in its

discretion and for good and substantial

cause shown, that the appeal should be

considered.

(4) The Board shall make a

determination regarding any appeal

within 20 working days of actual receipt

of the appeal by the Freedom of

Information Office, and the

determination letter shall notify the

appealing party of the right to seek

judicial review.

(5) The Secretary may reconsider a

denial being appealed if intervening

circumstances or additional facts not

known at the time of the denial come to

the attention of the Secretary while an

appeal is pending.

§ 261.14 Exemptions from disclosure.

(a) Types of records exempt from

disclosure. Pursuant to 5 U.S.C. 552(b),

the following records of the Board are

exempt from disclosure under this part:

(1) National defense. Any information

that is 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

the Executive Order.

(2) Internal personnel rules and

practices. Any information related

solely to the internal personnel rules

and practices of the Board.

(3) Statutory exemption. Any

information specifically exempted from

disclosure by statute (other than 5

U.S.C. 552b), if the statute:

(i) Requires that the matters be

withheld from the public in such a

manner as to leave no discretion on the

issue; or

(ii) Establishes particular criteria for

withholding or refers to particular types

of matters to be withheld.

(4) Trade secrets; commercial or

financial information. Any matter that is

a trade secret or that constitutes

commercial or financial information

obtained from a person and that is

privileged or confidential.

(5) Inter- or intra-agency

memorandums. Information contained

in inter- or intra-agency memorandums

or letters that would not be available by

law to a party (other than an agency) in

litigation with an agency, including, but

not limited to:

(i) Memorandums;

(ii) Reports;

(iii) Other documents prepared by the

staffs of the Board or Federal Reserve

Banks; and

(iv) Records of deliberations of the

Board and of discussions at meetings of

the Board, any Board committee, or

Board staff, that are not subject to 5

U.S.C. 552b (the Government in the

Sunshine Act).

(6) Personnel and medical files. Any

information contained in personnel and

medical files and similar files the

disclosure of which would constitute a

clearly unwarranted invasion of

personal privacy.

(7) Information compiled for law

enforcement purposes. Any records or

information compiled for law

enforcement purposes, to the extent

permitted under 5 U.S.C. 552(b)(7);

including information relating to

administrative enforcement proceedings

of the Board.

(8) Examination, inspection,

operating, or condition reports, and

confidential supervisory information.

Any matter that is contained in or

related to examination, operating, or

condition reports prepared by, on behalf

of, or for the use of an agency

responsible for the regulation or

supervision of financial institutions,

including a state financial institution

supervisory agency.

(b) Segregation of nonexempt

information. The Board shall provide

any reasonably segregable portion of a

record that is requested after deleting
54364 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

those portions that are exempt under

this section.

(c) Discretionary release. (1) Except

where disclosure is expressly prohibited

by statute, regulation, or order, the

Board may release records that are

exempt from mandatory disclosure

whenever the Board or designated Board

members, the Secretary of the Board, the

General Counsel of the Board, the

Director of the Division of Banking

Supervision and Regulation, or the

appropriate Federal Reserve Bank,

acting pursuant to this part or 12 CFR

part 265, determines that such

disclosure would be in the public

interest.

(2) The Board may make any exempt

information furnished in connection

with an application for Board approval

of a transaction available to the public

in accordance with § 261.12, and

without prior notice and to the extent it

deems necessary, may comment on such

information in any opinion or statement

issued to the public in connection with

a Board action to which such

information pertains.

(d) Delayed release. Publication in the

Federal Register or availability to the

public of certain information may be

delayed if immediate disclosure would

likely:

(1) Interfere with accomplishing the

objectives of the Board in the discharge

of its statutory functions;

(2) Interfere with the orderly conduct

of the foreign affairs of the United

States;

(3) Permit speculators or others to

gain unfair profits or other unfair

advantages by speculative trading in

securities or otherwise;

(4) Result in unnecessary or

unwarranted disturbances in the

securities markets;

(5) Interfere with the orderly

execution of the objectives or policies of

other government agencies; or

(6) Impair the ability to negotiate any

contract or otherwise harm the

commercial or financial interest of the

United States, the Board, any Federal

Reserve Bank, or any department or

agency of the United States.

(e) Prohibition against disclosure.

Except as provided in this part, no

officer, employee, or agent of the Board

or any Federal Reserve Bank shall

disclose or permit the disclosure of any

unpublished information of the Board to

any person (other than Board or Reserve

Bank officers, employees, or agents

properly entitled to such information for

the performance of official duties).

§ 261.15 Request for confidential

treatment.

(a) Submission of request. Any

submitter of information to the Board

who desires confidential treatment

pursuant to 5 U.S.C. 552(b)(4) and

§ 261.14 (a)(4) shall file a request for

confidential treatment with the Board

(or in the case of documents filed with

a Federal Reserve Bank, with that

Federal Reserve Bank) at the time the

information is submitted or a reasonable

time after submission.

(b) Form of request. Each request for

confidential treatment shall state in

reasonable detail the facts supporting

the request and its legal justification.

Conclusory statements that release of

the information would cause

competitive harm 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

separated from information for which

confidential treatment is not requested.

Failure to segregate confidential

information from other material may

result in release of the nonsegregated

material to the public without notice to

the submitter.

(d) Exceptions. This section does not

apply to:

(1) Data collected on forms that are

approved pursuant to the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.)

and are deemed confidential by the

Board. Any such form deemed

confidential by the Board shall so

indicate on the face of the form or in its

instructions. The data may, however, be

disclosed in aggregate form in such a

manner that individual company data is

not disclosed or derivable.

(2) Any comments submitted by a

member of the public on applications

and regulatory proposals being

considered by the Board, unless the

Board or the Secretary determines that

confidential treatment is warranted.

(3) A determination by the Board to

comment upon information submitted

to the Board in any opinion or statement

issued to the public as described in

§ 261.14(c).

(e) Special procedures. The Board

may establish special procedures for

particular documents, filings, or types of

information by express provisions in

this part or by instructions on particular

forms that are approved by the Board.

These special procedures shall take

precedence over this section.

§ 261.16 Request for access to

confidential commercial or financial

information.

(a) Request for confidential

information. A request by a submitter

for confidential treatment of any

information shall be considered in

connection with a request for access to

that information. At their discretion,

appropriate Board or staff members

(including Federal Reserve Bank staff)

may act on the request for

confidentiality prior to any request for

access to the documents.

(b) Notice to the submitter. When a

request for access is received pursuant

to the Freedom of Information Act (5

U.S.C. 552):

(1) The Secretary shall notify a

submitter of the request, if:

(i) The submitter requested

confidential treatment of the

information pursuant to 5 U.S.C.

552(b)(4); and

(ii) The request by the submitter for

confidential treatment was made within

10 years preceding the date of the

request for access.

(2) Absent a request for confidential

treatment, the Secretary may notify a

submitter of a request for access to

information provided by the submitter if

the Secretary reasonably believes that

disclosure of the information may cause

substantial competitive harm to the

submitter.

(3) The notice given to the submitter

shall:

(i) Be given as soon as practicable

after receipt of the request for access;

(ii) Describe the request; and

(iii) Give the submitter a reasonable

opportunity, not to exceed ten working

days from the date of notice, to submit

written objections to disclosure of the

information.

(c) Exceptions to notice to submitter.

Notice to the submitter need not be

given if:

(1) The Secretary determines that the

request for access should be denied;

(2) The requested information

lawfully has been made available to the

public;

(3) Disclosure of the information is

required by law (other than 5 U.S.C.

552); or

(4) The submitter’s claim of

confidentiality under 5 U.S.C. 552(b)(4)

appears obviously frivolous or has

already been denied by the Secretary,

except that in this last instance the

Secretary shall give the submitter

written notice of the determination to

disclose the information at least five

working days prior to disclosure.

(d) Notice to requester. At the same

time the Secretary notifies the

submitter, the Secretary also shall notify
Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations 54365

the requester that the request is subject

to the provisions of this section.

(e) Written objections by submitter.

Upon receipt of notice of a request for

access to its information, the submitter

may provide written objections to

release of the information. Such

objections shall state whether the

information was provided voluntarily or

involuntarily to the Board.

(1) If the information was voluntarily

provided to the Board, the submitter

shall provide detailed facts showing that

the information is customarily withheld

from the public.

(2) If the information was not

provided voluntarily to the Board, the

submitter shall provide detailed facts

and arguments showing:

(i) The likelihood of substantial harm

that would be caused to the submitter’s

competitive position; or

(ii) That release of the information

would impair the Board’s ability to

obtain necessary information in the

future.

(f) Determination by Secretary. The

Secretary’s determination whether or

not to disclose any information for

which confidential treatment has been

requested pursuant to this section shall

be communicated to the submitter and

the requester immediately. If the

Secretary determines to disclose the

information and the submitter has

objected to such disclosure pursuant to

paragraph (e) of this section, the

Secretary shall provide the submitter

with the reasons for disclosure, and

shall delay disclosure for ten working

days from the date of the determination.

(g) Notice of lawsuit. (1) The Secretary

shall promptly notify any submitter of

information covered by this section of

the filing of any suit against the Board

to compel disclosure of such

information.

(2) The Secretary shall promptly

notify the requester of any suit filed

against the Board to enjoin the

disclosure of any documents requested

by the requester.

§ 261.17 Fee schedules; waiver of fees.

(a) Fee schedules. The fees applicable

to a request for records pursuant to

§§ 261.11 and 261.12 are set forth in

Appendix A to this section. These fees

cover only the full allowable direct costs

of search, duplication, and review. No

fees will be charged where the average

cost of collecting the fee (calculated at

$5.00) exceeds the amount of the fee.

(b) Payment procedures. The

Secretary may assume that a person

requesting records pursuant to § 261.12

will pay the applicable fees, unless the

request includes a limitation on fees to

be paid or seeks a waiver or reduction

of fees pursuant to paragraph (f) of this

section.

(1) Advance notification of fees. If the

estimated charges are likely to exceed

$100, the Freedom of Information Office

shall notify the requester of the

estimated amount, unless the requester

has indicated a willingness to pay fees

as high as those anticipated. Upon

receipt of such notice, the requester may

confer with the Freedom of Information

Office to reformulate the request to

lower the costs. The time period for

responding to requests under

§ 261.13(e), and the processing of the

request will be suspended until the

requester agrees to pay the applicable

fees.

(2) Advance payment. The Secretary

may require advance payment of any fee

estimated to exceed $250. The Secretary

may also require full payment in

advance where a requester has

previously failed to pay a fee in a timely

fashion. The time period for responding

to requests under § 261.13(e), and the

processing of the request will be

suspended until the Freedom of

Information Office receives the required

payment.

(3) Late charges. The Secretary may

assess interest charges when fee

payment is not made within 30 days of

the date on which the billing was sent.

Interest is at the rate prescribed in 31

U.S.C. 3717 and accrues from the date

of the billing.

(c) Categories of uses. The fees

assessed depend upon the intended use

for the records requested. In

determining which category is

appropriate, the Secretary shall look to

the intended use set forth in the request

for records. Where a requester’s

description of the use is insufficient to

make a determination, the Secretary

may seek additional clarification before

categorizing the request.

(1) Commercial use. The fees for

search, duplication, and review apply

when records are requested for

commercial use.

(2) Educational, research, or media

use. The fees for duplication apply

when records are not sought for

commercial use, and the requester is a

representative of the news media or an

educational or noncommercial scientific

institution, whose purpose is scholarly

or scientific research. The first 100

pages of duplication, however, will be

provided free.

(3) All other uses. For all other

requests, the fees for document search

and duplication apply. The first two

hours of search time and the first 100

pages of duplication, however, will be

provided free.

(d) Nonproductive search. Fees for

search and review may be charged even

if no responsive documents are located

or if the request is denied.

(e) Aggregated requests. A requester

may not file multiple requests at the

same time, solely in order to avoid

payment of fees. If the Secretary

reasonably believes that a requester is

separating a request into a series of

requests for the purpose of evading the

assessment of fees, the Secretary may

aggregate any such requests and charge

accordingly. It is considered reasonable

for the Secretary to presume that

multiple requests of this type made

within a 30-day period have been made

to avoid fees.

(f) Waiver or reduction of fees. A

request for a waiver or reduction of the

fees, and the justification for the waiver,

shall be included with the request for

records to which it pertains. If a waiver

is requested and the requester has not

indicated in writing an agreement to pay

the applicable fees if the waiver request

is denied, the time for response to the

request for documents, as set forth in

§ 261.13(e), shall not begin until a

waiver has been granted; or if the waiver

is denied, until the requester has agreed

to pay the applicable fees.

(1) Standards for determining waiver

or reduction. The Secretary shall grant

a waiver or reduction of fees where it is

determined both that disclosure of the

information is in the public interest

because it is likely to contribute

significantly to public understanding of

the operation or activities of the

government, and that the disclosure of

information is not primarily in the

commercial interest of the requester. In

making this determination, the

following factors shall be considered:

(i) Whether the subject of the records

concerns the operations or activities of

the government;

(ii) Whether disclosure of the

information is likely to contribute

significantly to public understanding of

government operations or activities;

(iii) Whether the requester has the

intention and ability to disseminate the

information to the public;

(iv) Whether the information is

already in the public domain;

(v) Whether the requester has a

commercial interest that would be

furthered by the disclosure; and, if so,

(vi) Whether the magnitude of the

identified commercial interest of the

requester is sufficiently large, in

comparison with the public interest in

disclosure, that disclosure is primarily

in the commercial interest of the

requester.
54366 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations

(2) Contents of request for waiver. A

request for a waiver or reduction of fees

shall include:

(i) A clear statement of the requester’s

interest in the documents;

(ii) The use proposed for the

documents and whether the requester

will derive income or other benefit for

such use;

(iii) A statement of how the public

will benefit from such use and from the

Board’s release of the documents;

(iv) A description of the method by

which the information will be

disseminated to the public; and

(v) If specialized use of the

information is contemplated, a

statement of the requester’s

qualifications that are relevant to that

use.

(3) Burden of proof. The burden shall

be on the requester to present evidence

or information in support of a request

for a waiver or reduction of fees.

(4) Determination by Secretary. The

Secretary shall make a determination on

the request for a waiver or reduction of

fees and shall notify the requester

accordingly. A denial may be appealed

to the Board in accordance with

§ 261.13(j).

(g) Employee requests. In connection

with any request by an employee,

former employee, or applicant for

employment, for records for use in

prosecuting a grievance or complaint of

discrimination against the Board, fees

shall be waived where the total charges

(including charges for information

provided under the Privacy Act of 1974

(5 U.S.C. 552a) are $50 or less; but the

Secretary may waive fees in excess of

that amount.

(h) Special services. The Secretary

may agree to provide, and set fees to

recover the costs of, special services not

covered by the Freedom of Information

Act, such as certifying records or

information and sending records by

special methods such as express mail or

overnight delivery.

APPENDIX A TO § 261.17.—FREEDOM

OF INFORMATION FEE SCHEDULE

Duplication:

Photocopy, per standard page .... $0.10

Paper copies of microfiche, per

frame ........................................ .10

Duplicate microfiche, per microfiche ......................................... .35

Search and review:

Clerical/Technical, hourly rate ..... 20.00

Professional/Supervisory, hourly

rate ........................................... 38.00

Manager/Senior Professional,

hourly rate ................................ 65.00

Computer search and production:

Computer operator search, hourly rate ....................................... 32.00

APPENDIX A TO § 261.17.—FREEDOM

OF INFORMATION FEE SCHEDULE—

Continued

Tapes (cassette) per tape ........... 6.00

Tapes (cartridge), per tape ......... 9.00

Tapes (reel), per tape ................. 18.00

Diskettes (31⁄2′′), per diskette ..... 4.00

Diskettes (51⁄4′′), per diskette ..... 5.00

Computer Output (PC), per

minute ...................................... .10

Computer Output (mainframe) .... (1)

1Actual cost.

By order of the Board of Governors of the

Federal Reserve System, October 10, 1997.

William W. Wiles,

Secretary of the Board.

[FR Doc. 97–27566 Filed 10–17–97; 8:45 am]

BILLING CODE 6210–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 96–NM–137–AD; Amendment

39–10159; AD 97–21–06]

RIN 2120–AA64

Airworthiness Directives;

Construcciones Aeronauticas, S.A.

(CASA) Model CN–235 Series

Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule.

SUMMARY: This amendment adopts a

new airworthiness directive (AD),

applicable to certain CASA Model CN–

235 series airplanes, that requires

repetitive inspections of the torsion

tubes and fittings of the elevator and

rudder assemblies to detect stress

corrosion cracking, and replacement of

cracked parts. This action also requires

accomplishment of a modification that

constitutes terminating action for the

repetitive inspections. This amendment

is prompted by reports indicating that

stress corrosion cracking in these parts

has been found on some airplanes. The

actions specified by this AD are

intended to prevent loss of control of

the elevator and/or rudder, due to

failure of the elevator and/or rudder

assemblies as a result of stress corrosion

cracking.

DATES: Effective November 24, 1997.

The incorporation by reference of

certain publications listed in the

regulations is approved by the Director

of the Federal Register as of November

24, 1997.

ADDRESSES: The service information

referenced in this AD may be obtained

from Construcciones Aeronauticas, S.A.,

Getafe, Madrid, Spain. This information

may be examined at the Federal

Aviation Administration (FAA),

Transport Airplane Directorate, Rules

Docket, 1601 Lind Avenue, SW.,

Renton, Washington; or at the Office of

the Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Greg

Dunn, Aerospace Engineer,

Standardization Branch, ANM–113,

FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,

Washington 98055–4056; telephone

(425) 227–2799; fax (425) 227–1149.

SUPPLEMENTARY INFORMATION: A

proposal to amend part 39 of the Federal

Aviation Regulations (14 CFR part 39) to

include an airworthiness directive (AD)

that is applicable to certain CASA

Model CN–235 series airplanes was

published in the Federal Register on

February 7, 1997 (62 FR 5785). That

action proposed to require repetitive

inspections of the torsion tubes and

fittings of the elevator and rudder

assemblies to detect stress corrosion

cracking, and replacement of discrepant

parts. In addition, that action proposed

to require eventual installation of newly

designed torsion tube assemblies on all

airplanes, which, when accomplished,

would constitute terminating action for

the required inspections.

Interested persons have been afforded

an opportunity to participate in the

making of this amendment. No

comments were submitted in response

to the proposal or the FAA’s

determination of the cost to the public.

Conclusion

The FAA has determined that air

safety and the public interest require the

adoption of the rule as proposed.

Cost Impact

The FAA estimates that 1 CASA

Model CN–235 series airplane of U.S.

registry will be affected by this AD.

It will take approximately 6 work

hours per airplane to accomplish each

required visual inspection, at an average

labor rate of $60 per work hour. Based

on these figures, the cost impact of the

required inspection on the single

affected U.S. operator is estimated to be

$360, per inspection cycle.

It will take approximately 40 work

hours to accomplish the required

terminating modification, at an average

labor rate of $60 per work hour. (The

work hour figure does not include the

time needed for preparation of the

airplane or equipment; familiarization

with the service bulletin; curing times

for adhesive, sealant, paint, etc.; tool