Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60799

(iii) Speeches;

(iv) Preliminary drafts;

(v) Marginalia.

(3) Subject to paragraph (i)(6) of this

section, any party or interested

governmental participant may request

from the deponent a paper copy of any

or all of the documents on the index

that have not already been provided

electronically.

(4) Subject to paragraph (i)(6) of this

section, the deponent shall bring a

paper copy of all documents on the

index that the deposing party or

interested governmental participant

requests that have not already been

provided electronically to an oral

deposition conducted pursuant to

paragraph (a) of this section, or in the

case of a deposition taken on written

questions pursuant to paragraph (e) of

this section, shall submit such

documents with the certified

deposition.

(5) Subject to paragraph (i)(6) of this

section, a party or interested

governmental participant may request

that any or all documents on the index

that have not already been provided

electronically, and on which it intends

to rely at hearing, be made

electronically available by the deponent.

(6) The deposing party or interested

governmental participant shall assume

the responsibility for the obligations set

forth in paragraphs (i)(1), (i)(3), (i)(4),

and (i)(5) of this section when deposing

someone other than a party or interested

governmental participant.

* * * * *

Dated at Rockville, MD, this 6th day of

November, 1997.

For the Nuclear Regulatory Commission.

John C. Hoyle,

Secretary of the Commission.

[FR Doc. 97–29884 Filed 11–12–97; 8:45 am]

BILLING CODE 7590–01–P

NATIONAL CREDIT UNION

ADMINISTRATION

12 CFR Part 792

The Freedom of Information Act and

Privacy Act

AGENCY: National Credit Union

Administration (NCUA).

ACTION: Proposed rule.

SUMMARY: NCUA proposes to revise its

regulations governing the disclosure of

information pursuant to the Freedom of

Information Act (FOIA) to reflect recent

changes to FOIA brought about by the

enactment of the Electronic Freedom of

Information Act Amendments of 1996

(E–FOIA). The proposed rule, among

other things, sets forth new procedures

NCUA will employ to implement

provisions of E–FOIA, such as

expedited treatment of requests and

multi-track processing. The proposed

rule also clarifies the information which

must be included in FOIA requests so

that NCUA can process them. Other

proposed changes to the rule are

designed to provide guidance to the

public on how to obtain records

contained in the files of the Office of

Inspector General.

DATES: Comments must be submitted on

or before January 12, 1998.

ADDRESSES: Comments should be

directed to Becky Baker, Secretary of the

Board. Mail or hand-deliver comments

to: National Credit Union

Administration, 1775 Duke Street,

Alexandria, Virginia 22314–3428. Fax

comments to (703) 518–6319. E-mail

comments to boardmail@ncua.gov.

Please send comments by one method

only.

FOR FURTHER INFORMATION CONTACT:

Dianne Salva, Staff Attorney, or Sheila

Albin, Associate General Counsel, (703)

518–6540.

SUPPLEMENTARY INFORMATION:

Background

The Freedom of Information Act

(FOIA) was enacted in 1966 to establish

the right of any member of the public to

obtain access to government

information. FOIA was amended several

times before 1996, when the Electronic

Freedom of Information Act

Amendments of 1996, Pub. L. 104–231,

was enacted. E–FOIA has twin goals of

making records contained in

government files more easily accessible

to the public and improving

administration of FOIA programs in the

agencies. In particular, Congress moved

to amend the FOIA because it found that

government agencies were increasingly

using computers to conduct agency

business and store valuable agency

records and information. When the

Senate passed FOIA in 1966, the

government is reported to have had just

1,826 computers in use. By 1994, in

addition to the proliferation of

individual personal computers used by

government employees, the number of

government computers had climbed to

almost 35,000. In recognition of the vast

amount of information the government

maintains in electronic format, E–FOIA

was designed to ensure continued

public access to government

information, including that maintained

in electronic format.

FOIA ensures that the public has

access to government information by

requiring agencies to disclose

information in three ways. First, FOIA

requires agencies to disclose basic

information about agency structure and

general rules of procedure within the

agency by publication in the Federal

Register. Second, FOIA requires

agencies to make certain categories of

records available for the public to

inspect and copy. Many agencies have

established public reading rooms to

comply with this requirement. And,

third, FOIA requires agencies to respond

to individual requests for other specific

agency records. Records must be

released unless one or more of FOIA’s

nine statutory exemptions applies.

Under E–FOIA, public access to

‘‘reading room’’ records, which are

those records that must be made

available for inspection and copying,

will be enhanced in two ways. The

categories of records which fall within

the ‘‘reading room’’ provision of FOIA

have been expanded. Previously, three

categories of records were required to be

made available for inspection and

copying: Final opinions, including

concurring and dissenting opinions, as

well as orders, made in the adjudication

of cases; statements of policy and

interpretations which have been

adopted by the agency and are not

published in the Federal Register; and

administrative staff manuals and

instructions to staff that affect a member

of the public. Under E–FOIA two new

categories have been added: Records

released under the FOIA after March 31,

1997, which the agency determines have

become or are likely to become the

subject of subsequent requests, and a

general index of the new category of

records.

Public access to reading room records

will be further enhanced by the

provision in E–FOIA which requires

that agencies make their reading room

records available electronically, if they

are created by the agency on or after

November 1, 1996. The ‘‘electronic

reading room’’ can be implemented by

placing records on the internet.

As for individual requests, E–FOIA

clarifies that reasonable efforts must be

made to search for records

electronically. It also requires agencies

to provide requesters with records in the

form or format the requester chooses, if

the agency can readily do so. Perhaps

most fundamental to the new law is its

provision that clarifies that records, if

they meet other legal requirements, are

subject to FOIA even though they are

maintained in electronic format.

The other goal of E–FOIA was to

improve the administration of FOIA

programs in the agencies. Congress

found that due to a lack of resources,

some agencies suffered stubborn
60800 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

backlogs. E–FOIA is designed to ensure

timely responses to FOIA requests by

requiring that specific types of requests

be answered on an expedited basis and

by encouraging a dialogue between the

agency and the requester to frame more

targeted requests. E–FOIA also enlarges

the time for response to requests from

10 to 20 business days. Agencies are

encouraged to employ multi-track

processing systems, so that requesters

who seek simple information are not

made to wait while the agency processes

more complex requests or requests for

voluminous material.

Proposal

NCUA is proposing changes to 12 CFR

part 792 to implement both expedited

processing and multi-track processing.

In addition, changes are proposed to

incorporate the new processing

deadlines, appeal rights and other

disclosure procedures mandated by E–

FOIA. NCUA is also proposing a change

to reflect the delegation of authority

from NCUA’s Board to the Inspector

General to grant or deny initial requests

for records contained in Office of

Inspector General files. Subpart A has

been reorganized, streamlined and

rewritten in question and answer format

to improve its readability and simplify

its use. A description of the more

significant proposed changes is set forth

below. Due to the fact that the

regulation has been rewritten in

question and answer format, the section

numbers in the proposed rule in most

cases do not correlate to the section

numbers in the existing regulation.

Section 792.02 now reflects the

additional category of records NCUA

will make publicly available for

inspection and copying: Records

released under FOIA after March 31,

1997, which the agency determines have

become or are likely to become the

subject of subsequent requests.

Section 792.03 sets forth the indices

of records made available for public

inspection and copying and includes

the additional index of popular FOIA

responses.

Section 792.04 informs the public that

certain records created by NCUA after

November 1, 1996 are also available on

the NCUA website.

Section 792.06 clarifies that records

maintained in electronic format are

subject to FOIA.

Section 792.07 identifies the places

within NCUA where the public may

write to request records. The Office of

Inspector General has been added to

reflect that the NCUA Board delegated

authority to the Inspector General to

respond to initial FOIA requests for

records contained in Office of Inspector

General files.

Sections 792.08 and 792.09 clarify

administrative requirements and

procedures for submitting FOIA

requests. In order to improve

communications between the agency

and requesters, requesters are instructed

to include their name, address and

telephone number with their request. In

recognition of the new requirement that

agencies honor form or format requests,

requesters are also asked to designate

their form or format of choice, if other

than paper copy, at the time they make

their request.

Section 792.10 sets forth the

procedures for the multi-track

processing system comprised of a fasttrack and regular-track. Fast-track

processing will apply to records that are

easily identifiable by NCUA staff and

have been previously cleared for release

to the public. Fast-track requests will be

handled as expeditiously as possible in

the order 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 NCUA to try to narrow the

scope of the request so that it will

qualify for fast-track processing.

Section 792.12 was added to inform

requesters that, as long as it is

technically feasible and would not harm

an interest that a FOIA exemption is

intended to protect, then NCUA will

indicate where, why and how much

information was withheld from its

response.

Section 792.13 was added to advise

requesters that they may obtain

information in any readily reproducible

form or format they request. It also

clarifies that only one copy of a record

will be produced.

Section 792.15 sets forth the new

processing time limit of 20 working

days. It also sets forth the two

exceptions to the 20 working day time

limit: the suspension of time for the

payment of fees or if unusual

circumstances exist.

Section 792.16 describes the criteria

for determining whether unusual

circumstances exist. The criteria have

not changed. The proposed regulation

contains a new provision on aggregating

multiple requests which, together, cause

unusual circumstances to exist. NCUA

will now aggregate multiple requests

from the same requester or group of

requesters acting in concert, if it

believes they constitute a single request,

and if, taken together, the requests

satisfy the unusual circumstances

criteria. This section also contains a

new provision advising requesters that,

if NCUA sends them a notice extending

the processing time due to unusual

circumstances, it will also tell them that

they may reduce the scope of their

request so that it can be processed

within the statutory time frame or agree

to an alternative time frame.

Section 792.18 has been added to

implement the expedited processing

provision of E–FOIA. It sets forth the

criteria for a requester seeking to

establish a compelling need to support

a request for expedited processing. E–

FOIA permits two categories of requests

involving compelling needs to be

granted expedited treatment: Those

which entail an imminent threat to the

life or physical safety of an individual

or those which are filed by persons

primarily engaged in disseminating

information and involve an urgency to

inform the public concerning actual or

alleged government activity. For ease of

administration and consistency, the

proposed rule uses the term

‘‘representative of the news media’’ to

describe a person primarily engaged in

disseminating information, because the

term has been used for many years in

other provisions of the regulation and is

familiar to the public and agency staff.

In keeping with Congress’ express intent

that the specified criteria for compelling

need be narrowly applied, expedited

processing will only be granted in those

extraordinary cases meeting the specific

requirements of the regulation. H.R.

Rep. 795, 104th Cong., 2d Sess. 26

(1996). As the legislative history states,

‘‘the expedited process procedure is

intended to be limited to circumstances

in which a delay in obtaining

information can reasonably be foreseen

to cause a significant adverse

consequence to a recognized interest.’’

Id. To meet the criterion of an urgency

to inform the public concerning an

actual or alleged Federal Government

activity, the requester must show that a

delay in the release of the information

would compromise a significant

recognized interest, and that the

requested information pertains to a

matter of current exigency to the

American public. This section also

informs the public of the right of appeal

for denial of a request for expedited

processing.

Section 792.19 has been amended to

reflect that the current fee schedule is

available on the NCUA website. The

current regulation sets out that searches

for records responsive to a FOIA request

will be conducted by computer using

existing programming. The proposal

strikes the reference to existing

programming and adds language to say
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60801

that no modification of existing

programming or system will be made if

it would significantly interfere with the

operation of an NCUA automated

information system.

Section 792.28 clarifies that appeals

are permitted when NCUA denies a

request for a fee waiver or reduction.

Regulatory Procedures

Regulatory Flexibility Act

The Regulatory Flexibility Act

requires the NCUA to prepare an

analysis to describe any significant

economic impact any proposed

regulation may have on a substantial

number of small credit unions, meaning

those under $1 million in assets. The

NCUA Board has determined and

certifies that the proposed rule, if

adopted, will not have a significant

economic impact on a substantial

number of small credit unions. The

proposal simplifies some of the

procedures regarding the release of

information and requires disclosure of

information in certain instances in

accordance with law. The disclosure

requirements are imposed on the NCUA,

therefore, they should not have a

significant economic impact on a

substantial number of small credit

unions.

Paperwork Reduction Act Analysis

These regulations, if adopted, will

impose no additional information

collection, reporting or record keeping

requirements subject to the approval of

the Office of Management and Budget

pursuant to the Paperwork Reduction

Act of 1995, 44 U.S.C. 3501, et seq.

Executive Order 12,612

The NCUA Board certifies that the

proposal will not have a substantial

direct effect on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among various levels of

government.

List of Subjects in 12 CFR Part 792

Administrative practice and

procedure, Confidential business

information, Credit unions, Freedom of

Information Act, Privacy.

By the National Credit Union

Administration Board on October 22, 1997.

Hattie M. Ulan,

Acting Secretary of the Board.

For the reasons set forth in the

preamble, NCUA proposes to amend 12

CFR part 792 as follows:

PART 792—[AMENDED]

1. The authority citation for part 792

is revised to read as follows:

Authority: 5 U.S.C. 301, 552, 552a, 552b;

12 U.S.C. 1752a(d), 1766, 1789, 1795f; E.O.

12600, 52 FR 23781, 3 CFR, 1987 Comp., p.

235; E.O. 12958, 60 FR 19825, 3 CFR, 1995

Comp., p.333.

§§ 792.20–792.37 (Subpart B)

[Redesignated as §§ 792.52–792.69 (Subpart

E)]

2. Redesignate subpart B (§§ 792.20–

792.37) as subpart E (§§ 792.52–792.69)

and reserve subpart B.

3. Revise subpart A of part 792 to read

as follows:

Subpart A—The Freedom of

Information Act

General Purpose

Sec.

792.01 What is the purpose of this subpart?

Records Publicly Available

792.02 What records does NCUA make

available to the public for inspection and

copying?

792.03 How will I know which records to

request?

792.04 How can I obtain these records?

792.05 What is the significance of records

made available and indexed?

Records Available Upon Request

792.06 Can I obtain other records?

792.07 Where do I send my request?

792.08 What must I include in my request?

792.09 What if my request does not meet

the requirements of this section?

792.10 What will NCUA do with my

request?

792.11 What kind of records are exempt

from public disclosure?

792.12 How will I know what records were

determined to be exempt?

792.13 Can I get the records in different

forms or formats?

792.14 Who is responsible for responding to

my request?

792.15 How long will it take to process my

request?

792.16 What unusual circumstances can

delay NCUA’s response?

792.17 What can I do if the time limit

passes and I still have not received a

response?

Expedited Processing

792.18 What if my request is urgent and I

cannot wait for the records?

Fees

792.19 How does NCUA calculate the fees

for processing my request?

792.20 What are the charges for each fee

category?

792.21 Will NCUA provide a fee estimate?

792.22 What will NCUA charge for other

services?

792.23 Can I avoid charges by sending

multiple, small requests?

792.24 Can NCUA charge me interest if I

fail to pay my bill?

792.25 Will NCUA charge me if the records

are not found or are determined to be

exempt?

792.26 Will I be asked to pay the fees in

advance?

Fee Waiver or Reduction

792.27 Can fees be reduced or waived?

Appeals

792.28 What if I am not satisfied with the

response I receive?

Submitter Notice

792.29 If I send NCUA confidential

commercial information, can it be

disclosed under FOIA?

Release of Exempt Records

792.30 Is there a prohibition against

disclosure of exempt records?
60802 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

792.31 Can exempt records be disclosed to

credit unions, financial institutions and

state or federal agencies?

792.32 Can exempt records be disclosed to

investigatory agencies?

Subpart A—The Freedom of

Information Act

General Purpose

§ 792.01 What is the purpose of this

subpart?

This subpart describes the procedures

you must follow to obtain records from

NCUA under the Freedom of

Information Act (FOIA), (5 U.S.C. 552).

Records Publicly Available

§ 792.02 What records does NCUA make

available to the public for inspection and

copying?

Except for records that are exempt

from public disclosure under FOIA as

amended (5 U.S.C. 552) or are promptly

published and copies are available for

purchase, NCUA routinely makes the

following five types of records available

for you to inspect and copy:

(a) Final opinions, including

concurring and dissenting opinions, and

orders made in the adjudication of

cases;

(b) Statements of policy and

interpretations which have been

adopted by the agency but not

published in the Federal Register;

(c) Administrative staff manuals and

instructions to staff that affect a member

of the public;

(d) Copies of all records, regardless of

form or format, which have been

released after March 31, 1997, in

response to a FOIA request and which,

because of the nature of their subject

matter, NCUA determines have been or

are likely to become the subject of

subsequent requests; and

(e) Indices of the documents referred

to in this paragraph.

§ 792.03 How will I know which records to

request?

NCUA maintains current indices

providing identifying information for

the public for any matter referred to in

§ 792.02, issued, adopted, or

promulgated after July 4, 1967. The

listing of material in an index is for the

convenience of possible users and does

not constitute a determination that all of

the items listed will be disclosed. NCUA

has determined that publication of the

indices is unnecessary and impractical.

You may obtain copies of indices by

making a request to the Office of

Administration, at NCUA, 1775 Duke

Street, Alexandria, VA 22314–2387 or,

as indicated, on the NCUA website. The

indices are available for public

inspection and copying and are

provided at their duplication cost. The

indices are:

(a) NCUA Publications List: Manuals

relating to general and technical

information, booklets published by

NCUA, and the Credit Union Directory.

The NCUA Publications list is available

on the NCUA Website.

(b) Directives Control Index: A list of

statements of policy, NCUA

Instructions, Bulletins, Letters to Credit

Unions, and certain internal manuals.

(c) Popular FOIA Index: Records

released in response to a FOIA request,

which NCUA determines are likely to be

the subject of subsequent requests

because of the nature of their subject

matter. The Popular FOIA Index will be

available on the NCUA website on or

before December 31, 1999.

§ 792.04 How can I obtain these records?

You may obtain these types of records

or information in the following ways:

(a) You may obtain copies of the

records referenced in § 792.02 by

obtaining the index referred to in

§ 792.03 and following the ordering

instructions it contains, or by making a

request to the FOIA Officer, NCUA,

Office of General Counsel at 1775 Duke

Street, Alexandria, Virginia 22314–

3428.

(b) If they were created by NCUA on

or after November 1, 1996, records

referenced in § 792.02 are available on

the NCUA website, found at

http://www.ncua.gov.

§ 792.05 What is the significance of

records made available and indexed?

The records referred to in § 792.02

may be relied on, used, or cited as

precedent by NCUA against a party,

provided:

(a) The materials have been indexed

and either made available or published;

or

(b) The party has actual and timely

notice of the materials’ contents.

Records Available Upon Request

§ 792.06 Can I obtain other records?

Except with respect to records

routinely made available under § 792.02

or published in the Federal Register, or

to the extent that records are exempt

under the FOIA, if you make a request

for records in accordance with this

section, NCUA will make such records

available to you, including records

maintained in electronic format, as long

as you agree to pay the actual, direct

costs.

§ 792.07 Where do I send my request?

(a) You must send your request to one

of NCUA’s Information Centers. The

Central Office, Regional Offices, Office

of Inspector General and the Asset

Management and Assistance Center are

designated as Information Centers for

the NCUA. The Freedom of Information

Officer of the Office of General Counsel

is responsible for the operations of the

Information Center maintained at the

Central Office. The Regional Directors

are responsible for the operation of the

Information Centers in their Regional

Offices. The Inspector General is

responsible for the operation of the

Office of Inspector General Information

Center.

(b) If you think that the records are

located at one of NCUA’s Regional

Offices, then you should send your

request to the appropriate Regional

Director, whose address can be found in

§ 790.2(c) of this chapter.

(c) If you think that the records are

located at the Asset Management and

Assistance Center, then you should send

your request to the President, Asset

Management and Assistance Center,

4807 Spicewood Springs Road, Suite

5100, Austin, Texas 78759–8490.

(d) If you think that the records you

want are in the files of the Office of

Inspector General, then you should send

your request to the Inspector General,

NCUA, 1775 Duke Street, Alexandria,

Virginia 22314–3428.

(e) When you are not sure of the

location of records, or if you think that

the records you want are located in the

Central Office, you should send your

request to the Freedom of Information

Officer at NCUA, Office of the General

Counsel, 1775 Duke Street, Alexandria,

Virginia 22314–3428.

§ 792.08 What must I include in my

request?

Your request must include the

following:

(a) Your name, address and a

telephone number where you can be

reached during normal business hours.

(b) A reasonable description of the

records you seek. A reasonable

description is one which enables an

NCUA employee, who is familiar with

the subject area of the request, to locate

the record with a reasonable amount of

effort.

(c) A statement agreeing to pay all

applicable fees or to pay fees up to a

certain maximum amount, or requesting

a fee reduction or waiver in accordance

with § 792.27. If the actual fees are

expected to exceed the maximum

amount you indicate in your request,

NCUA will contact you to see if you are

willing to pay the estimated fees. If you

do not want to pay the estimated fees,

your request will be closed and no bill

will be sent.
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60803

(d) If other than paper copy, you must

identify the form and format of

responsive information you are

requesting.

§ 792.09 What if my request does not meet

the requirements of this subpart?

NCUA need not accept or process

your request if it does not comply with

the requirements of this subpart. NCUA

may return such a request to you with

an explanation of the deficiency. You

may then submit a corrected request,

which will be treated as a new request.

§ 792.10 What will NCUA do with my

request?

(a) On receipt of any request, the

Information Center assigns it to the

appropriate processing schedule,

pursuant to paragraph (b) of this section.

The date of receipt for any request,

including one that is addressed

incorrectly or that is referred to NCUA

by another agency, is the date the

appropriate Information Center actually

receives the request.

(b) NCUA has a multi-track processing

system. Requests for records that are

readily identifiable by the Information

Center and have already been cleared

for public release may qualify for fasttrack processing. All other requests will

be handled under normal processing

procedures.

(c) The Information Center will make

the determination whether a request

qualifies for fast-track processing. You

may contact the Information Center to

learn whether your request has been

assigned to fast-track processing. If your

request has not qualified for fast-track

processing, you will be given an

opportunity to limit the scope of

material requested in order to qualify for

fast-track processing. Limitations of

requests must be in writing.

(d) In accordance with sound

administrative procedure, the

Information Center will normally

process requests in the order they are

received in the separate processing

tracks. However, in NCUA’s discretion a

particular request may be processed out

of turn.

(e) Upon a determination by the

appropriate Information Center to

comply with your initial request for

records, the records will be made

promptly available to you. If we notify

you of a denial of your request, we will

include the names and titles or

positions of each person responsible for

the denial.

§ 792.11 What kind of records are exempt

from public disclosure?

(a) All records of NCUA or any officer,

employee, or agent thereof, are

confidential, privileged and exempt

from disclosure, except as otherwise

provided in this part, if they are:

(1) Records specifically authorized

under criteria established by an

Executive Order to be kept secret in the

interest of national defense or foreign

policy and are in fact properly classified

pursuant to an Executive Order.

(2) Records related solely to NCUA

internal personnel rules and practices.

This exemption applies to internal rules

or instructions which must be kept

confidential in order to assure effective

performance of the functions and

activities for which NCUA is

responsible and which do not materially

affect members of the public. This

exemption also applies to manuals and

instructions to the extent that release of

the information contained therein

would permit circumvention of laws or

regulations.

(3) Specifically exempted from

disclosure by statute, where the statute

either makes nondisclosure mandatory

or establishes particular criteria for

withholding information.

(4) Records which contain trade

secrets and commercial or financial

information which relate to the

business, personal or financial affairs of

any person or organization, are

furnished to NCUA, and are confidential

or privileged. This exemption includes,

but is not limited to, various types of

confidential sales and cost statistics,

trade secrets, and names of key

customers and personnel. Assurances of

confidentiality given by staff are not

binding on NCUA.

(5) Inter-agency or intra-agency

memoranda or letters which would not

be available by law to a private party in

litigation with NCUA. This exemption

preserves the existing freedom of NCUA

officials and employees to engage in full

and frank written or taped

communications with each other and

with officials and employees of other

agencies. It includes, but is not limited

to, inter-agency and intra-agency

reports, memoranda, letters,

correspondence, work papers, and

minutes of meetings, as well as staff

papers prepared for use within NCUA or

in concert with other governmental

agencies.

(6) Personnel, medical, and similar

files (including financial files), the

disclosure of which without written

permission would constitute a clearly

unwarranted invasion of personal

privacy. Files exempt from disclosure

include, but are not limited to:

(i) The personnel records of the

NCUA;

(ii) The personnel records voluntarily

submitted by private parties in response

to NCUA’s requests for proposals; and

(iii) Files containing reports, records

or other material pertaining to

individual cases in which disciplinary

or other administrative action has been

or may be taken.

(7) Records or information compiled

for law enforcement purposes, but only

to the extent that the production of such

law enforcement records or information:

(i) Could reasonably be expected to

interfere with enforcement proceedings;

(ii) Would deprive a person of a right

to a fair trial or an impartial

adjudication;

(iii) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy;

(iv) Could reasonably be expected to

disclose the identity of a confidential

source, including a state, local, or

foreign agency or authority or any

private institution which furnished

information on a confidential basis, and,

in the case of a record or information

compiled by a criminal law enforcement

authority in the course of a criminal

investigation on or by an agency

conducting a lawful national security

intelligence investigation, information

furnished by the confidential source;

(v) Would disclose techniques and

procedures for law enforcement

investigation or prosecutions, or would

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law; or

(vi) Could reasonably be expected to

endanger the life or physical safety of

any individual. This includes, but is not

limited to, information relating to

enforcement proceedings upon which

NCUA has acted or will act in the

future.

(8) Contained in or related to

examination, operating or condition

reports prepared by, or on behalf of, or

for the use of NCUA or any agency

responsible for the regulation or

supervision of financial institutions.

This includes all information, whether

in formal or informal report form, the

disclosure of which would harm the

financial security of credit unions or

would interfere with the relationship

between NCUA and credit unions.

(b) We will provide any reasonably

segregable portion of a record that is

requested after deleting those portions

that are exempt from disclosure under

this section.

§ 792.12 How will I know what records

NCUA has determined to be exempt?

As long as it is technically feasible

and does not threaten an interest

protected by the FOIA, we will:

(a) Mark the place where we redacted

information from documents released to
60804 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

you and note the exemption that

protects the information from public

disclosure; or

(b) Make reasonable efforts to include

with our response to you an estimate of

the volume of information withheld.

§ 792.13 Can I get the records in different

forms or formats?

NCUA will provide a copy of the

record in any form or format requested,

such as computer disk, if the record is

readily reproducible by us in that form

or format, but we will not provide more

than one copy of any record.

§ 792.14 Who is responsible for

responding to my request?

The appropriate Regional Director, the

Inspector General, the President of the

Asset Management and Assistance

Center, or the Freedom of Information

Officer, or, in their absence, their

designee, is responsible for making the

initial determination on whether to

grant or deny a request for information.

This official may refer a request to an

NCUA employee who is familiar with

the subject area of the request. Other

NCUA staff members may aid the

official by providing information,

advice, recommending a decision, or

implementing a decision, but no NCUA

employee other than an authorized

official may make the initial

determination. Referral of a request by

the official to an employee will not

affect the time limitation imposed in

§ 792.15 unless the request involves an

unusual circumstance as provided in

§ 792.16.

§ 792.15 How long will it take to process

my request?

NCUA will respond to requests within

20 working days, except:

(a) Where the running of such time is

suspended for payment of fees pursuant

to § 792.26;

(b) In unusual circumstances, as

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

§ 792.16, the time limit may be extended

for:

(1) An additional 10 working days as

provided by written notice to you,

stating the reasons for the extension and

the date on which a determination will

be sent; or

(2) Such alternative time period as

mutually agreed by you and the

Information Office, when NCUA notifies

you that the request cannot be processed

in the specified time limit.

§ 792.16 What unusual circumstances can

delay NCUA’s response?

(a) In unusual circumstances, the time

limits for responding to your request (or

your appeal) may be extended by

NCUA. If NCUA extends the time it will

provide you with written notice, setting

forth the reasons for such extension and

the date on which a determination is

expected to be dispatched. Our notice

will not specify a date that would result

in an extension for more than 10

working days, except as set forth in

paragraph (c) of this section. The

unusual circumstances that can delay

NCUA’s response to your request are:

(1) The need to search for, and collect

the requested records from field

facilities or other establishments that are

separate from the office processing the

request;

(2) The need to search for, collect, and

appropriately examine a voluminous

amount of separate and distinct records

which are demanded in a single request;

or

(3) The need for consultation, which

will be conducted with all practicable

speed, with another agency having

substantial interest in the determination

of the request or among two or more

components of NCUA having

substantial subject-matter interest

therein.

(b) If you, or you and a group of others

acting in concert, submit multiple

requests which NCUA believes actually

constitute a single request, which would

otherwise satisfy the unusual

circumstances criteria specified in this

section, and the requests involve related

matters, then NCUA may aggregate

those requests and the provisions of

§ 792.15(b) will apply.

(c) If NCUA sends you an extension

notice, it will also advise you that you

can either limit the scope of your

request so that it can be processed

within the statutory time limit or agree

to an alternative time frame for

processing your request.

§ 792.17 What can I do if the time limit

passes and I still have not received a

response?

You can file suit against NCUA

because you will be deemed to have

exhausted your administrative remedies

if NCUA fails to comply with the time

limit provisions of this subpart. But if

NCUA can show that exceptional

circumstances exist and that it is

exercising due diligence in responding

to your request, the court may retain

jurisdiction and allow NCUA to

complete its review of the records. In

determining whether exceptional

circumstances exist, the court will

consider your refusal to reasonably

modify the scope of your request or

arrange an alternative time frame for

processing after being given the

opportunity to do so by NCUA, when it

notifies you of the existence of unusual

circumstances as set forth in § 792.16.

Expedited Processing

§ 792.18 What if my request is urgent and

I cannot wait for the records?

You may request expedited

processing of your request if you can

show a compelling need for the records.

In cases where your request for

expedited processing is granted or if

NCUA has determined to expedite the

response, it will be processed as soon as

practicable.

(a) To demonstrate a compelling need

for expedited processing, you must

provide a certified statement. The

statement, certified by you to be true

and correct to the best of your

knowledge and belief, must demonstrate

that:

(1) The failure to obtain the records

on an expedited basis could reasonably

be expected to pose an imminent threat

to the life or physical safety of an

individual; or

(2) The requester is a representative of

the news media, as defined in § 792.20,

and there is urgency to inform the

public concerning actual or alleged

NCUA activity.

(b) In response to a request for

expedited processing, the Information

Center will notify you of the

determination within ten days of receipt

of the request. If the Information Center

denies your request for expedited

processing, you may file an appeal

pursuant to the procedures set forth in

§ 792.28, and NCUA will expeditiously

respond to the appeal.

(c) Priority of responses. The

Information Center will normally

process requests in the order they are

received in the separate processing

tracks. However, in NCUA’s discretion,

a particular request may be processed

out of turn.

Fees

§ 792.19 How does NCUA calculate the

fees for processing my request?

We will charge fees that recoup the

full allowable direct costs we incur,

unless those costs are less than our cost

of processing your remittance. Direct

costs means those expenditures which

NCUA actually incurs in searching for,

duplicating and reviewing documents to

respond to a FOIA request. Search

means all time spent looking for

material that is responsive to a request,

including page-by-page or line-by-line

identification of material within

documents. Searches may be done

manually or by computer. Search does

not include modification of an existing

program or system that would

significantly interfere with the operation

of an automated information system.
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60805

Review means examining documents

to determine whether any portion

should be withheld and preparing

documents for disclosure. Fees are

subject to change as costs increase. The

current rate schedule is available on our

website at http://www.ncua.gov.

We may contract with the private

sector to locate, reproduce or

disseminate records. In no case will

NCUA contract out responsibilities

which the FOIA requires us alone to

discharge, such as determining the

applicability of an exemption, or

determining whether to waive or reduce

fees. The following labor and

duplication rate calculations apply:

(a) NCUA will charge fees at the

following rates for manual searches for

and review of records:

(1) If search/review is done by clerical

staff, the hourly rate for CU–5, plus 16

percent of that rate to cover benefits;

(2) If search/review is done by

professional staff, the hourly rate for

CU–13, plus 16 percent of that rate to

cover benefits.

(b) NCUA will charge fees at the

hourly rate for CU–13, plus 16 percent

of that rate to cover benefits, plus the

hourly cost of operating the computer

for computer searches for records.

(c) NCUA will charge the following

duplication fees:

(1) The per-page fee for paper copy

reproduction of a document is $.25;

(2) The fee for documents generated

by computer is the hourly fee for the

computer operator, plus the cost of

materials (computer paper, tapes, labels,

etc.);

(3) If any other method of duplication

is used, NCUA will charge the actual

direct cost of duplication.

§ 792.20 What are the charges for each fee

category?

The fee category definitions are:

(a) Commercial use request means a

request from or on behalf of one who

seeks information for a use or purpose

that furthers the commercial, trade, or

profit interests of the requester or the

person on whose behalf the request is

made.

(b) Educational institution means a

preschool, an elementary or secondary

school, an institution of undergraduate

higher education, an institution of

graduate higher education, an

institution of professional education,

and an institution of vocational

education operating a program or

programs of scholarly research.

(c) Noncommercial scientific

institution means an institution that is

not operated for a ‘‘commercial’’

purpose as that term is used in

paragraph (a) of this section and is

operated solely for the purpose of

conducting scientific research, the

results of which are not intended to

promote any particular product or

industry.

(d) Representative of the news media

means any person actively gathering

news for an entity that is organized and

operated to publish or broadcast news to

the public.

Included within the meaning of

public is the credit union community.

The term news means information that

is about current events or that would be

of current interest to the public. You

may consult the following chart to find

the fees applicable to your request:

If your fee category is You’ll receive And you’ll be

charged

Commercial use ......................................................................... 0 hours free search ...................................................................

0 hours free review ....................................................................

0 free pages ...............................................................................

Search time.

Review time.

Duplication.

Educational institution, noncommercial scientific institution,

newsmedia.

Unlimited free search hours

Unlimited free review hours

100 free pages ........................................................................... Duplication.

All others .................................................................................... 2 hours free search ...................................................................

Unlimited free review hours

100 free pages ...........................................................................

Search time.

Duplication.

§ 792.21 Will NCUA provide a fee

estimate?

NCUA will notify you of the

estimated amount if fees are likely to

exceed $25, unless you have indicated

in advance a willingness to pay fees as

high as those anticipated. You will then

have the opportunity to confer with

NCUA personnel to reformulate the

request to meet your needs at a lower

cost.

§ 792.22 What will NCUA charge for other

services?

Complying with requests for special

services is entirely at the discretion of

NCUA. NCUA will recover the full costs

of providing such services to the extent

it elects to provide them.

§ 792.23 Can I avoid charges by sending

multiple, small requests?

You may not file multiple requests,

each seeking portions of a document or

similar documents, solely in order to

avoid payment of fees. If this is done,

NCUA may aggregate any such requests

and charge you accordingly.

§ 792.24 Can NCUA charge me interest if I

fail to pay my bill?

NCUA can assess interest charges on

an unpaid bill starting on the 31st day

following the date of the bill. If you fail

to pay your bill within 30 days, interest

will be at the rate prescribed in 31

U.S.C. 3717, and will accrue from the

date of the billing.

§ 792.25 Will NCUA charge me if the

records are not found or are determined to

be exempt?

NCUA may assess fees for time spent

searching and reviewing, even if it fails

to locate the records or if records

located are determined to be exempt

from disclosure.

§ 792.26 Will I be asked to pay fees in

advance?

NCUA will require you to give an

assurance of payment or an advance

payment only when:

(a) NCUA estimates or determines that

allowable charges that you may be

required to pay are likely to exceed

$250. NCUA will notify you of the likely

cost and obtain satisfactory assurance of

full payment where you have a history

of prompt payment of FOIA fees, or

require an advance payment of an

amount up to the full estimated charges

in the case where you have no history

of payment; or

(b) You have previously failed to pay

a fee charged in a timely fashion. NCUA

may require you to pay the full amount

owed, plus any applicable interest, or

demonstrate that you have, in fact, paid

the fee, and to make an advance

payment of the full amount of the

estimated fee before we begin to process

a new request or a pending request from

you.

(c) If you are required to make an

advance payment of fees, then the

administrative time limits prescribed in

§ 792.16 will begin only after NCUA has

received the fee payments described.
60806 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules

Fee Waiver or Reduction

§ 792.27 Can fees be reduced or waived?

You may request that NCUA waive or

reduce fees if disclosure of the

information you request is in the public

interest because it is likely to contribute

significantly to public understanding of

the operations or activities of the

government, and is not primarily in

your commercial interest.

(a) NCUA will make a determination

of whether the public interest

requirement above is met based on the

following factors:

(1) Whether the subject of the

requested records concerns the

operations or activities of the

government;

(2) Whether the disclosure is likely to

contribute to an understanding of

government operations or activities;

(3) Whether disclosure of the

requested information will contribute to

public understanding; and

(4) Whether the disclosure is likely to

contribute significantly to public

understanding of government operations

or activities,

(b) If the public interest requirement

is met, NCUA will make a

determination on the commercial

interest requirement based upon the

following factors:

(1) Whether you have a commercial

interest that would be furthered by the

requested disclosure; and if so

(2) Whether the magnitude of your

commercial interest is sufficiently large

in comparison with the public interest

in disclosure, that disclosure is

primarily in your commercial interest.

(c) If the required public interest

exists and your commercial interest is

not primary in comparison, NCUA will

waive or reduce fees.

(d) If you are not satisfied with our

determination on your fee waiver or

reduction request, you may submit an

appeal to the General Counsel in

accordance with § 792.28.

Appeals

§ 792.28 What if I am not satisfied with the

response I receive?

If you are not satisfied with NCUA’s

response to your request, you can file an

administrative appeal. Your appeal

must be in writing and must be filed

within 30 days from receipt of the initial

determination (in cases of denials of an

entire request, or denial of a request for

fee waiver or reduction), or from receipt

of any records being made available

pursuant to the initial determination (in

cases of partial denials.) In its response

to your initial request, the Freedom of

Information Act Officer, Inspector

General, President of the Asset

Management and Assistance Center, or

responsible Regional Director, (or

designee,) will notify you that you may

appeal any adverse determination to the

Office of General Counsel. The General

Counsel, or designee, as set forth in this

paragraph, will:

(a) Make a determination with respect

to any appeal within 20 days (except

Saturdays, Sundays, and legal public

holidays) after the receipt of such

appeal. If, on appeal, the denial of the

request for records is, in whole or in

part, upheld, the Office of General

Counsel will notify you of the

provisions for judicial review of that

determination under FOIA. Where you

do not address your request or appeal to

the proper official, the time limitations

stated above will be computed from the

receipt of the request or appeal by the

proper official.

(b) The General Counsel is the official

responsible for determining all appeals

from initial determinations. In case of

this person’s absence, the appropriate

officer acting in the General Counsel’s

stead will make the appellate

determination, unless such officer was

responsible for the initial determination,

in which case the Vice-Chairman of the

NCUA Board will make the appellate

determination.

(c) All appeals should be addressed to

the General Counsel in the Central

Office and should be clearly identified

as such on the envelope and in the letter

of appeal by using the indicator ‘‘FOIAAPPEAL.’’ Failure to address an appeal

properly may delay commencement of

the time limitation stated in paragraph

(a)(1) of this section, to take account of

the time reasonably required to forward

the appeal to the Office of General

Counsel.

§ 792.29 If I send NCUA confidential

commercial information can it be disclosed

under FOIA?

(a) If you submit confidential

commercial information to NCUA , it

may be disclosed in response to a FOIA

request in accordance with this section.

(b) For purposes of this section:

(1) Confidential commercial

information means commercial or

financial information provided to NCUA

by a submitter that arguably is protected

from disclosure under § 792.11(a)(4)

because disclosure could reasonably be

expected to cause substantial

competitive harm.

(2) Submitter means any person or

entity who provides business

information, directly or indirectly, to

NCUA.

(c) Submitters of business information

must use good faith efforts to designate,

by appropriate markings, either at the

time of submission or at a reasonable

time thereafter, those portions of their

submissions deemed to be protected

from disclosure under § 792.11(a)(4).

Such a designation shall expire ten

years after the date of submission.

(d) We will provide a submitter with

written notice of a FOIA request or

administrative appeal encompassing

designated business information when:

(1) The information has been

designated in good faith by the

submitter as confidential commercial

information deemed protected from

disclosure under § 792.11(a)(4); or

(2) NCUA has reason to believe that

the information may be protected from

disclosure under § 792.11(a)(4).

(e) A copy of the notice to the

submitter will also be provided to the

FOIA requester.

(f) Through the notice described in

paragraph (d) of this section, NCUA will

afford the submitter a reasonable period

of time within which to provide a

detailed written statement of any

objection to disclosure. The statement

must describe why the information is

confidential commercial information

and why it should not be disclosed.

(g) Whenever we decide that we must

disclose confidential commercial

information over the objection of the

submitter, we will send both the

submitter and the FOIA requester,

within a reasonable number of days

prior to the specified disclosure date, a

written notice which will include:

(1) A statement of the reasons for

which the submitter’s disclosure

objection was not sustained; and

(2) A description of the information to

be disclosed; and

(3) A specified disclosure date.

(h) If a requester brings suit to compel

disclosure of confidential commercial

information, we will promptly notify

the submitter.

(i) The notice requirements of

paragraph (d) of this section do not

apply if:

(1) We determine that the information

should not be disclosed;

(2) The information has been lawfully

published or has been officially made

available to the public;

(3) Disclosure of the information is

required by law; or

(4) The designation made by the

submitter in accordance with paragraph

(c) of this section appears obviously

frivolous; except that in such case,

NCUA will provide the submitter with

written notice of any final

administrative decision to disclose the

information within a reasonable number

of days prior to the specified disclosure

date.
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Proposed Rules 60807

Release of Exempt Information:

§ 792.30 Is there a prohibition against

disclosure of exempt records?

Except as provided in §§ 792.31–

792.32, and subpart C of this part, no

officer, employee, or agent of NCUA or

of any federally-insured credit union

shall disclose or permit the disclosure of

any exempt records of NCUA to any

person other than those NCUA or credit

union officers, employees, or agents

properly entitled to such information for

the performance of their official duties.

§ 792.31 Can exempt records be disclosed

to credit unions, financial institutions and

state or federal agencies?

The NCUA Board, in its sole

discretion, or any person designated by

it in writing, may make available to

certain governmental agencies and

insured financial institutions copies of

reports of examination and other

documents, papers or information for

their use, when necessary, in the

performance of their official duties or

functions. All reports, documents and

papers made available pursuant to this

paragraph shall remain the property of

NCUA. No person, agency or employee

shall disclose the reports or exempt

records without NCUA’s express written

authorization.

§ 792.32 Can exempt records be disclosed

to investigatory agencies?

The NCUA Board, or any person

designated by it in writing, in its

discretion and in appropriate

circumstances, may disclose to proper

federal or state authorities copies of

exempt records pertaining to

irregularities discovered in credit

unions which may constitute either

unsafe or unsound practices or

violations of federal or state, civil or

criminal law.

[FR Doc. 97–28586 Filed 11–12–97; 8:45 am]

BILLING CODE 7535–01–U

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 96–NM–232–AD]

RIN 2120–AA64

Airworthiness Directives; Boeing

Model 757–200 Series Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes the

adoption of a new airworthiness

directive (AD) that is applicable to

certain Boeing Model 757–200 series

airplanes. This proposal would require

modification of certain passenger doors.

This proposal is prompted by reports

that certain passenger doors could not

be opened due to the escape slide shelf

assembly and escape slide falling onto

the girt bar lifting mechanism of the

door. The actions specified by the

proposed AD are intended to prevent

the escape slide shelf assembly and

escape slide from falling on the girt bar

of a passenger door due to failed rivets

of the escape slide shelf assembly, and

consequent inability to open the

passenger door and to use the escape

slide at that door during an emergency

evacuation of the airplane.

DATES: Comments must be received by

December 29, 1997.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Transport

Airplane Directorate, ANM–103,

Attention: Rules Docket No. 96–NM–

232–AD, 1601 Lind Avenue, SW.,

Renton, Washington 98055–4056.

Comments may be inspected at this

location between 9:00 a.m. and 3:00

p.m., Monday through Friday, except

Federal holidays.

The service information referenced in

the proposed rule may be obtained from

Boeing Commercial Airplane Group,

P.O. Box 3707, Seattle, Washington

98124–2207. This information may be

examined at the FAA, Transport

Airplane Directorate, 1601 Lind

Avenue, SW., Renton, Washington.

FOR FURTHER INFORMATION CONTACT:

Keith Ladderud, Aerospace Engineer,

Airframe Branch, ANM–120S, FAA,

Seattle Aircraft Certification Office,

1601 Lind Avenue, SW., Renton,

Washington; telephone (425) 227–2780;

fax (425) 227–1181.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in the making of the

proposed rule by submitting such

written data, views, or arguments as

they may desire. Communications shall

identify the Rules Docket number and

be submitted in triplicate to the address

specified above. All communications

received on or before the closing date

for comments, specified above, will be

considered before taking action on the

proposed rule. The proposals contained

in this notice may be changed in light

of the comments received.

Comments are specifically invited on

the overall regulatory, economic,

environmental, and energy aspects of

the proposed rule. All comments

submitted will be available, both before

and after the closing date for comments,

in the Rules Docket for examination by

interested persons. A report

summarizing each FAA-public contact

concerned with the substance of this

proposal will be filed in the Rules

Docket.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this notice

must submit a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Docket Number 96–NM–232–AD.’’ The

postcard will be date stamped and

returned to the commenter.

Availability of NPRMs

Any person may obtain a copy of this

NPRM by submitting a request to the

FAA, Transport Airplane Directorate,

ANM–103, Attention: Rules Docket No.

96–NM–232–AD, 1601 Lind Avenue,

SW., Renton, Washington 98055–4056.

Discussion

The FAA has received reports

indicating that various passenger doors

(Number 1, 2, or 4) could not be opened.

Investigation revealed that the escape

slide shelf assembly and escape slide

had fallen onto the girt bar lifting

mechanism of the passenger door due to

failure of four rivets of the shelf

assembly. Such failure, if not corrected,

could result in inability to open the

Number 1, 2, or 4 passenger door, and

consequent inability to use the escape

slide at the door during an emergency

evacuation of the airplane.

Explanation of Relevant Service

Information

The FAA has reviewed and approved

Boeing Service Bulletin 757–25–0175,

dated May 30, 1996, and Revision 1,

dated March 6, 1997, which describes

procedures for modifying the escape

slide shelf assemblies of the Number 1,

2, and 4 passenger doors. The

modification entails replacing the four

existing rivets of the escape slide shelf

assembly of the passenger doors with

steel rivets. The modification will

ensure that the escape slide shelf

assembly and escape slide do not fall

onto the girt bar lifting mechanism.

Explanation of Requirements of

Proposed Rule

Since an unsafe condition has been

identified that is likely to exist or

develop on other products of this same

type design, the proposed AD would

require modification of the escape slide

shelf assemblies of the Numbers 1, 2,