This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

29

Vol. 63, No. 1

Friday, January 2, 1998

FEDERAL DEPOSIT INSURANCE

CORPORATION

12 CFR Part 309

RIN 3064–AC10

Disclosure of Information

AGENCY: Federal Deposit Insurance

Corporation (FDIC).

ACTION: Proposed rule.

SUMMARY: The FDIC proposes to amend

its regulations governing the public

disclosure of information to reflect

recent changes to the Freedom of

Information Act (FOIA) as a result of the

enactment of the Electronic Freedom of

Information Act Amendments of 1996

(E–FOIA). Among other things, this

proposed rule implements expedited

and ‘‘multi-track’’ FOIA processing

procedures; implements the processing

deadlines and appeal rights created by

E–FOIA; and describes the expanded

range of records available to the public

through the FDIC’s Public Reading

Room and the FDIC’s Internet World

Wide Web page.

DATES: Comments must be submitted on

or before February 2, 1998.

ADDRESSES: Send written comments to

Robert E. Feldman, Executive Secretary,

Attention: Comments/OES, Federal

Deposit Insurance Corporation, 550 17th

Street NW, Washington, DC 20429.

Comments may be hand delivered to the

guard station at the rear of the 17th

Street Building (located on F Street), on

business days between 7:00 a.m. and

5:00 p.m. (Fax number: (202) 898–3838;

Internet address: comments@fdic.gov).

Comments may be inspected and

photocopied in the FDIC Public

Information Center, Room 100, 801 17th

Street N.W., Washington D.C. 20429,

between 9:00 a.m. and 4:30 p.m. on

business days.

FOR FURTHER INFORMATION CONTACT:

Valerie J. Best, Assistant Executive

Secretary, Office of the Executive

Secretary, (202) 898–3812; Linda Rego,

Senior Attorney, Legal Division, (202)

898–7408.

SUPPLEMENTARY INFORMATION:

Section-by-Section Analysis

The Electronic Freedom of

Information Act Amendments of 1996

(E–FOIA), Public Law 104–231,

amended the Freedom of Information

Act (FOIA), 5 U.S.C. 552. Among other

things, E–FOIA requires agencies to

promulgate regulations that provide for

expedited processing of certain requests

for records and permits agencies to

promulgate regulations that provide for

multitrack processing of requests.

Changes are proposed to 12 CFR part

309 to comply with the E–FOIA

requirements for expedited processing.

The FDIC also is proposing to

implement multitrack processing. In

addition, the FDIC is proposing changes

to the section on fees and fee waivers,

and portions of this part have been

reorganized and streamlined.

Section 309.1 has been expanded to

clarify the purpose and scope of the

various sections found within part 309.

Section 309.4 has been streamlined by

eliminating the lengthy list of various

offices to contact for different categories

of publicly available records and,

instead, identifying the FDIC’s public

reading room, or ‘‘Public Information

Center’’, and the FDIC World Wide Web

page as primary sources of FDIC

information. This section also describes

the information that is made available

for inspection or copying, either in the

FDIC’s reading room or over the

Internet, as required by E–FOIA. The

FDIC notes that the records provided

over the Internet cover a much smaller

scope than those available in the FDIC’s

reading room because the E–FOIA

requirement to provide records over the

Internet covers only records created by

the FDIC after November 1, 1996.

However, the FDIC is increasing the

resources available over the Internet on

the FDIC World Wide Web page found

at: http://www.fdic.gov. The FDIC also

publishes a pamphlet entitled ‘‘Symbol

of Confidence’’ which describes the

FDIC’s structure and lists sources to

contact for information about the FDIC

or other assistance. The ‘‘Symbol of

Confidence’’ is available on the FDIC

World Wide Web page. Copies may also

be obtained through the FDIC’s Public

Information Center.

Section 309.5 describes the FDIC’s

procedures for processing FOIA

requests. This section has been

extensively revised to reflect the

changes required by E–FOIA. The

proposed rule provides for multitrack

processing. Fast-track processing will

apply to records that are easily

identifiable by the Freedom of

Information office staff (FOIA/PA Unit)

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 FOIA/PA Unit staff to

narrow the request so that it will qualify

for fast-track processing. The statutory

time limit for regular-track processing

would be extended to twenty business

days, pursuant to E–FOIA, 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 FDIC has

determined to expedite the response.

The time limit for expedited processing

is set at ten business days, with

expedited procedures available for an

appeal of the FDIC’s determination not

to provide expedited processing. Under

E–FOIA, 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 proposal 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 FDIC’s rules. To

demonstrate a compelling need, a

requester must submit a certified

statement, a sample of which may be

obtained from the FOIA/PA Unit.

Section 309.5(f) 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
30 Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules

not begin in cases (1) where advance

payment is required until payment is

received, or (2) where a person has

requested a waiver of the fees and has

not agreed to pay the fees if the waiver

request is denied.

Regulatory Flexibility Act Analysis

Pursuant to section 605(b) of the

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

et seq.), the FDIC certifies that the

proposed rule 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 FDIC; therefore,

they should not have a significant

economic impact on a substantial

number of small entities.

Paperwork Reduction Act Analysis

The collection of information

contained in this proposed rule is found

at 12 CFR 309.5(c) and has been

submitted to the Office of Management

and Budget (OMB) for review and

approval in accordance with the

requirements of the Paperwork

Reduction Act of 1995 (PRA) (44 U.S.C.

3501 et seq.). Comments are invited on:

(a) Whether the collection of

information is necessary for the proper

performance of the FDIC’s functions,

including whether the information has

practical utility; (b) the accuracy of the

estimates of the burden of the

information collection; (c) ways to

enhance the quality, utility, and clarity

of the information to be collected; and

(d) ways to minimize the burden of the

information collection on respondents,

including through the use of automated

collection techniques or other forms of

information technology.

Comments should be addressed to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, Attention: Desk Officer

Alexander Hunt, New Executive Office

Building, Room 3208, Washington, DC

20503, with copies of such comments to

Steven F. Hanft, Assistant Executive

Secretary (Regulatory Analysis), Federal

Deposit Insurance Corporation, Room

F–4080, 550 17th Street NW,

Washington, DC 20429. All comments

should refer to part 309. OMB is

required to make a decision concerning

the collections of information contained

in the proposed regulations between 30

and 60 days after the publication of this

document in the Federal Register.

Therefore, a comment to OMB is best

assured of having its full effect if OMB

receives it within 30 days of this

publication. This does not affect the

deadline for the public to comment to

the FDIC on the proposed regulation.

Title of collection: Requests for

records pursuant to the Freedom of

Information Act.

Summary of the collection: The name,

address and telephone number of the

requester; a statement whether the

requester is an educational institution,

noncommercial scientific institution, or

news media representative; a statement

agreeing to pay applicable fees or

requesting a waiver or reduction of fees;

and the form or format of responsive

information requested, if other than

paper copies.

Respondents: Persons who desire to

obtain records pursuant to the Freedom

of Information Act.

Estimate of Annual Burden:

Number of requests—1,000.

Time required to prepare a request—

15 minutes.

Total annual burden hours—250

hours.

List of Subjects in 12 CFR Part 309

Banks, banking, Credit, Freedom of

information, Privacy.

For the reasons set forth in the

preamble, the Federal Deposit Insurance

Corporation is proposing to amend title

12, chapter III, of the Code of Federal

Regulations as follows:

PART 309—DISCLOSURE OF

INFORMATION

1. The authority citation for part 309

continues to read as follows:

Authority: 5 U.S.C. 552; 12 U.S.C. 1819

‘‘Seventh’’ and ‘‘Tenth’’.

2. Section 309.1 is revised to read as

follows:

§ 309.1 Purpose and scope.

This part sets forth the basic policies

of the Federal Deposit Insurance

Corporation regarding information it

maintains and the procedures for

obtaining access to such information.

Section 309.2 sets forth definitions

applicable to this part 309. Section

309.3 describes the types of information

and documents typically published in

the Federal Register. Section 309.4

explains how to access public records

maintained on the Federal Deposit

Insurance Corporation’s World Wide

Web page and in the Federal Deposit

Insurance Corporation’s Public

Information Center or ‘‘PIC’’, and

describes the categories of records

generally found there. Section 309.5

implements the Freedom of Information

Act (5 U.S.C. 552). Section 309.6

authorizes the discretionary disclosure

of exempt records under certain limited

circumstances. Section 309.7 outlines

procedures for serving a subpoena or

other legal process to obtain information

maintained by the FDIC.

3. Section 309.2(e) is revised to read

as follows:

§ 309.2 Definitions.

* * * * *

(e) The term record includes records,

files, documents, reports,

correspondence, books, and accounts, or

any portion thereof, in any form the

FDIC regularly maintains them.

* * * * *

4. Section 309.4 is revised to read as

follows:

§ 309.4 Publicly available records.

Many records are available upon

request or are available for public

inspection as noted below. To the extent

permitted by law, the FDIC may delete

identifying details when it makes

available or publishes a final opinion,

final order, statement of policy,

interpretation or staff manual or

instruction. If redaction is necessary, the

FDIC will, to the extent technically

feasible, indicate the amount of material

deleted at the place in the record where

such deletion is made unless that

indication in and of itself will

jeopardize the purpose for the redaction.

If applicable, fees for furnishing records

under this section are as set forth in

§ 309.5(f) except that all categories of

requesters shall be charged duplication

costs.

(a) FDIC World Wide Web page. (1)

The following types of documents

created on or after November 1, 1996,

may be found on the FDIC World Wide

Web page located at:

http://www.fdic.gov:

(i) Final opinions, including

concurring and dissenting opinions, as

well as final orders and written

agreements, made in the adjudication of

cases;

(ii) Statements of policy and

interpretations adopted by the Board of

Directors that are not published in the

Federal Register;

(iii) Administrative staff manuals and

instructions to staff that affect the

public;

(iv) Copies of all records released to

any person under § 309.5 that, because

of the nature of their subject matter, the

FDIC has determined are likely to be

requested again;

(v) A general index of the records

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

section.

(2) Information published on the

World Wide Web page is not subject to

the fees provision of § 309.5(f), and is

freely accessible.
Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules 31

(b) Public Information Center. (1) The

FDIC maintains a Public Information

Center or ‘‘PIC’’ that contains Corporate

records that the Freedom of Information

Act requires be made available for

regular inspection and copying, as well

as any records or information the FDIC,

in its discretion, has regularly made

available to the public. The PIC has

extensive materials of interest to the

public, including many Reports,

Summaries and Manuals used or

published by the Corporation that are

available for inspection and copying.

(2) The PIC is open from 9:00 am to

5:00 pm, Monday through Friday,

excepting Federal holidays. It is located

at 801 17th Street, NW, Washington, DC

20006. The PIC may be reached during

business hours by calling (800) 276–

6003.

(3) The PIC makes efforts to publish

records and information of the FDIC on

the World Wide Web page, located at

http://www.fdic.gov.

(4) The FDIC encourages the public to

explore the wealth of resources

available at the FDIC Public Information

Center and on the Web page designated

in paragraph (b)(3) of this section.

5. Section 309.5 is revised to read as

follows:

§ 309.5 Procedures for requesting records.

(a) Definitions. For purposes of this

section:

(1) Commercial use request means a

request from or on behalf of a requester

who seeks records 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. In determining whether a request

falls within this category, the FDIC will

determine the use to which a requester

will put the records requested and seek

additional information as it deems

necessary.

(2) Direct costs means those

expenditures the FDIC actually incurs in

searching for, duplicating, and, in the

case of commercial requesters,

reviewing records in response to a

request for records.

(3) Duplication means the process of

making a copy of a record necessary to

respond to a request for records or for

inspection of original records that

contain exempt material or that cannot

otherwise be directly inspected. Such

copies can take the form of paper copy,

microfilm, audiovisual records, or

machine readable records (e.g., magnetic

tape or computer disk).

(4) Educational institution means a

preschool, a public or private

elementary or secondary school, an

institution of undergraduate or graduate

higher education, an institution of

professional education, and an

institution of vocational education,

which operates a program or programs

of scholarly research.

(5) Noncommercial scientific

institution means an institution that is

not operated on a commercial basis as

that term is defined in paragraph (a)(1)

of this section, and which is operated

solely for the purpose of conducting

scientific research, the results of which

are not intended to promote any

particular product or industry.

(6) Representative of the news media

means any person primarily engaged in

gathering news for, or a free-lance

journalist who can demonstrate a

reasonable expectation of having his or

her work product published or

broadcast by, an entity that is organized

and operated to publish or broadcast

news to the public. The term news

means information that is about current

events or that would be of current

interest to the general public.

(7) Review means the process of

examining records located in response

to a request for records to determine

whether any portion of any record is

permitted to be withheld as exempt

information. It includes processing any

record for disclosure, e.g., doing all that

is necessary to excise them or otherwise

prepare them for release.

(8) Search includes all time spent

looking for material that is responsive to

a request, including page-by-page or

line-by-line identification of material

within records. Searches may be done

manually and/or by computer using

existing programming.

(b) Making a request for records. (1)

The request shall be submitted in

writing to the Office of the Executive

Secretary:

(i) By completing the online request

form located on the FDIC World Wide

Web page, found at http://

www.fdic.gov;

(ii) By facsimile clearly marked

Freedom of Information Act Request to

(202) 898–8778; or

(iii) By sending a letter to the Office

of the Executive Secretary, ATTN:

FOIA/PA Unit, 550 17th Street, NW,

Washington, DC 20429.

(2) The request shall contain the

following information:

(i) The name and address of the

requester, an electronic mail address, if

available, and the telephone number at

which the requester may be reached

during normal business hours;

(ii) Whether the requester is an

educational institution, noncommercial

scientific institution, or news media

representative;

(iii) A statement agreeing to pay the

applicable fees, or a statement

identifying a maximum fee that is

acceptable to the requester, or a request

for a waiver or reduction of fees that

satisfies paragraph (f)(1)(x) of this

section; and

(iv) The preferred form and format of

any responsive information requested, if

other than paper copies.

(3) A request for identifiable records

shall reasonably describe the records in

a way that enables the FDIC’s staff to

identify and produce the records with

reasonable effort and without unduly

burdening or significantly interfering

with any of the FDIC’s operations.

(c) Defective requests. The FDIC 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

part. The FDIC may return a defective

request, specifying the deficiency. The

requester may submit a corrected

request, which will be treated as a new

request.

(d) Processing requests—(1) Receipt of

requests. Upon receipt of any request

that satisfies paragraph (b) of this

section, the FOIA/PA Unit, Office of the

Executive Secretary, shall assign the

request to the appropriate processing

schedule pursuant to this section. The

date of receipt for any request, including

one that is addressed incorrectly or that

is referred by another agency, is the date

the Office of the Executive Secretary

actually receives the request.

(2) Multi-track processing. (i) The

FDIC provides different levels of

processing for categories of requests

under this part. Requests for records

that are readily identifiable by the Office

of the Executive Secretary 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 (d)(3) of this

section.

(ii) The FDIC will make the

determination whether a request

qualifies for fast-track processing. A

requester may contact the FOIA/PA Unit

to learn whether a particular request has

been assigned to fast-track processing. If

the request has not qualified for fasttrack processing, the requester will be

given an opportunity to refine the

request in order to qualify for fast-track

processing. Changes made to requests to

obtain faster processing must be in

writing.

(3) Expedited processing. Where a

person requesting expedited access to

records has demonstrated a compelling

need for the records, or where the FDIC

has determined to expedite the

response, the FDIC shall process the
32 Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules

request as soon as practicable. To show

a compelling need for expedited

processing, the requester shall provide a

statement demonstrating 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 can establish that

they are primarily engaged in

information dissemination as their main

professional occupation or activity, and

there is urgency to inform the public of

the government activity involved in the

request; and

(iii) The requester’s statement must be

certified to be true and correct to the

best of the person’s knowledge and

belief and explain in detail the basis for

requesting expedited processing.

(4) Denial of expedited processing. A

requester seeking expedited processing

will be notified whether expedited

processing has been granted within ten

(10) working days of the receipt of the

request. If the requester is denied

expedited processing, the requester may

file an appeal pursuant to the

procedures set forth in paragraph (h) of

this section, and the FDIC shall respond

to the appeal within ten (10) working

days after receipt of the appeal.

(5) Priority of responses. Consistent

with sound administrative process the

FDIC processes requests in the order

they are received in the separate

processing tracks. However, in the

agency’s discretion, or upon a court

order in a matter to which the FDIC is

a party, a particular request may be

processed out of turn.

(6) Notification. (i) The time for

response to requests will be 20 working

days except:

(A) In the case of expedited treatment

under paragraph (d)(3) of this section;

(B) Where the running of such time is

suspended for the calculation of a cost

estimate for the requester if the FDIC

determines that the processing of the

request may exceed the requester’s

maximum fee provision or if the charges

are likely to exceed $250 as provided for

in paragraph (f)(1)(v) of this section;

(C) Where the running of such time is

suspended for the payment of fees

pursuant to paragraphs (d)(6)(i)(B) and

(f)(1) of this section; or

(D) In unusual circumstances, as

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

(ii) In unusual circumstances as

referred to in paragraph (d)(6)(i)(D) of

this section, the time limit may be

extended for a period of:

(A) Ten (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

(B) Such alternative time period as

agreed to by the requester or as

reasonably determined by the FDIC

when the FDIC notifies the requester

that the request cannot be processed in

the specified time limit.

(iii) Unusual circumstances may arise

when:

(A) The records are in facilities, such

as field offices or storage centers, that

are not located at the FDIC’s

Washington office;

(B) The records requested are

voluminous or are not in close

proximity to one another; or

(C) There is a need to consult with

another agency or among two or more

components of the FDIC having a

substantial interest in the

determination.

(7) Response to request. In response to

a request that satisfies the requirements

of paragraph (b) of this section, a search

shall be conducted of records

maintained by the FDIC in existence on

the date of receipt of the request, and a

review made of any responsive

information located. The FDIC shall

notify the requester of:

(i) The FDIC’s determination of the

request;

(ii) The reasons for the determination;

(iii) If the response is a denial of an

initial request or if any information is

withheld, the FDIC will advise the

requester in writing:

(A) If the denial is in part or in whole;

(B) The name and title of each person

responsible for the denial (when other

than the person signing the

notification);

(C) The exemptions relied on for the

denial; and

(D) The right of the requester to

appeal the denial to the FDIC’s General

Counsel within 30 business days

following receipt of the notification, as

specified in paragraph (h) of this

section.

(e) 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 FDIC

or makes other acceptable arrangements,

or the FDIC deems it appropriate to send

the documents by another means.

(2) The FDIC shall provide a copy of

the record in any form or format

requested if the record is readily

reproducible by the FDIC in that form or

format, but the FDIC need not provide

more than one copy of any record to a

requester.

(3) By arrangement with the requester,

the FDIC may elect to send the

responsive records electronically if a

substantial portion of the request is in

electronic format. If the information

requested is made pursuant to the

Privacy Act of 1974, 5 U.S.C. 552a, it

will not be sent by electronic means

unless reasonable security measures can

be provided.

(f) Fees—(1) General rules. (i) Persons

requesting records of the FDIC shall be

charged for the direct costs of search,

duplication, and review as set forth in

paragraphs (f)(2) and (f)(3) of this

section, unless such costs are less than

the FDIC’s cost of processing the

requester’s remittance.

(ii) Requesters will be charged for

search and review costs even if

responsive records are not located or, if

located, are determined to be exempt

from disclosure.

(iii) Multiple requests seeking similar

or related records from the same

requester or group of requesters will be

aggregated for the purposes of this

section.

(iv) If the FDIC determines that the

estimated costs of search, duplication,

or review of requested records will

exceed the dollar amount specified in

the request, or if no dollar amount is

specified, the FDIC will advise the

requester of the estimated costs (if

greater than the FDIC’s cost of

processing the requester’s remittance).

The requester must agree in writing to

pay the costs of search, duplication, and

review prior to the FDIC initiating any

records search.

(v) If the FDIC estimates that its

search, duplication, and review costs

will exceed $250.00, the requester must

pay an amount equal to 20 percent of

the estimated costs prior to the FDIC

initiating any records search.

(vi) The FDIC shall ordinarily collect

all applicable fees under the final

invoice before releasing copies of

requested records to the requester.

(vii) The FDIC may require any

requester who has previously failed to

pay the charges under this section

within 30 calendar days of mailing of

the invoice to pay in advance the total

estimated costs of search, duplication,

and review. The FDIC may also require

a requester who has any charges

outstanding in excess of 30 calendar

days following mailing of the invoice to

pay the full amount due, or demonstrate

that the fee has been paid in full, prior

to the FDIC initiating any additional

records search.

(viii) The FDIC may begin assessing

interest charges on unpaid bills on the

31st day following the day on which the

invoice was sent. Interest will be at the

rate prescribed in section 3717 of title
Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules 33

1Classification of a record as exempt from

disclosure under the provisions of this paragraph

(g) shall not be construed as authority to withhold

the record if it is otherwise subject to disclosure

under the Privacy Act of 1974 (5 U.S.C. 552a) or

other federal statute, any applicable regulation of

FDIC or any other federal agency having

jurisdiction thereof, or any directive or order of any

court of competent jurisdiction.

31 of the United States Code and will

accrue from the date of the invoice.

(ix) The time limit for the FDIC to

respond to a request will not begin to

run until the FDIC has received the

requester’s written agreement under

paragraph (f)(1)(iv) of this section, and

advance payment under paragraph (f)(1)

(v) or (vii) of this section, or payment of

outstanding charges under paragraph

(f)(1)(vii) or (viii) of this section.

(x) As part of the initial request, a

requester may ask that the FDIC waive

or reduce fees if disclosure of the

records is in the public interest because

it is likely to contribute significantly to

public understanding of the operations

or activities of the government and is

not primarily in the commercial interest

of the requester. Determinations as to a

waiver or reduction of fees will be made

by the Executive Secretary (or designee)

and the requester will be notified in

writing of his/her determination. A

determination not to grant a request for

a waiver or reduction of fees under this

paragraph may be appealed to the

FDIC’s General Counsel (or designee)

pursuant to the procedure set forth in

paragraph (h) of this section.

(2) Chargeable fees by category of

requester. (i) Commercial use requesters

shall be charged search, duplication and

review costs.

(ii) Educational institutions, noncommercial scientific institutions and

news media representatives shall be

charged duplication costs, except for the

first 100 pages.

(iii) Requesters not described in

paragraph (f)(2) (i) or (ii) of this section

shall be charged the full reasonable

direct cost of search and duplication,

except for the first two hours of search

time and first 100 pages of duplication.

(3) Fee schedule. The dollar amount

of fees which the FDIC may charge to

records requesters will be established by

the Chief Financial Officer of the FDIC

(or designee). The FDIC may charge fees

that recoup the full allowable direct

costs it incurs. Fees are subject to

change as costs change.

(i) Manual searches for records. The

FDIC will charge for manual searches

for records at the basic rate of pay of the

employee making the search plus 16

percent to cover employee benefit costs.

Where a single class of personnel (e.g.,

all clerical, all professional, or all

executive) is used exclusively, the FDIC,

at its discretion, may establish and

charge an average rate for the range of

grades typically involved.

(ii) Computer searches for records.

The fee for searches of computerized

records is the actual direct cost of the

search, including computer time,

computer runs, and the operator’s time

apportioned to the search. The fee for a

computer printout is the actual cost.

The fees for computer supplies are the

actual costs. The FDIC may, at its

discretion, establish and charge a fee for

computer searches based upon a

reasonable FDIC-wide average rate for

central processing unit operating costs

and the operator’s basic rate of pay plus

16 percent to cover employee benefit

costs.

(iii) Duplication of records. (A) The

per-page fee for paper copy

reproduction of documents is the

average FDIC-wide cost based upon the

reasonable direct costs of making such

copies.

(B) For other methods of reproduction

or duplication, the FDIC will charge the

actual direct costs of reproducing or

duplicating the documents.

(iv) Review of records. The FDIC will

charge commercial use requesters for

the review of records at the time of

processing the initial request to

determine whether they are exempt

from mandatory disclosure at the basic

rate of pay of the employee making the

search plus 16 percent to cover

employee benefit costs. Where a single

class of personnel (e.g., all clerical, all

professional, or all executive) is used

exclusively, the FDIC, at its discretion,

may establish and charge an average rate

for the range of grades typically

involved. The FDIC will not charge at

the administrative appeal level for

review of an exemption already applied.

When records or portions of records are

withheld in full under an exemption

which is subsequently determined not

to apply, the FDIC may charge for a

subsequent review to determine the

applicability of other exemptions not

previously considered.

(v) Other services. Complying with

requests for special services, other than

a readily produced electronic form or

format, is at the FDIC’s discretion. The

FDIC may recover the full costs of

providing such services to the requester.

(4) Publication of fee schedule and

effective date of changes. (i) The fee

schedule is made available on the FDIC

World Wide Web page, found at

http://www.fdic.gov.

(ii) The fee schedule will be set forth

in the ‘‘Notice of Federal Deposit

Insurance Corporation Records Fees’’

issued in December of each year or in

such ‘‘Interim Notice of Federal Deposit

Insurance Corporation Records Fees’’ as

may be issued. Copies of such notices

may be obtained at no charge from the

Office of the Executive Secretary, FOIA/

PA Unit, 550 17th Street, NW,

Washington, D.C. 20429, and are

available on the Web page as noted in

paragraph (f)(4)(i) of this section.

(iii) The fees implemented in the

December or Interim Notice will be

effective 30 days after issuance.

(5) Use of contractors. The FDIC may

contract with independent contractors

to locate, reproduce, and/or disseminate

records; provided, however, that the

FDIC has determined that the ultimate

cost to the requester will be no greater

than it would be if the FDIC performed

these tasks itself. In no case will the

FDIC contract out responsibilities which

the Freedom of Information Act (FOIA)

(5 U.S.C. 552) provides that the FDIC

alone may discharge, such as

determining the applicability of an

exemption or whether to waive or

reduce fees.

(g) Exempt information. A request for

records may be denied if the requested

record contains information which falls

into one or more of the following

categories.1 If the requested record

contains both exempt and nonexempt

information, the nonexempt portions

which may reasonably be segregated

from the exempt portions will be

released to the requester. If redaction is

necessary, the FDIC will, to the extent

technically feasible, indicate the amount

of material deleted at the place in the

record where such deletion is made

unless that indication in and of itself

will jeopardize the purpose for the

redaction. The categories of exempt

records are as follows:

(1) Records that are 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 such Executive

Order;

(2) Records related solely to the

internal personnel rules and practices of

the FDIC;

(3) Records specifically exempted

from disclosure by statute, provided that

such 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 and commercial or

financial information obtained from a

person that is privileged or confidential;

(5) Interagency or intra-agency

memoranda or letters that would not be
34 Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 / Proposed Rules

available by law to a private party in

litigation with the FDIC;

(6) Personnel, medical, and similar

files (including financial files) the

disclosure of which would constitute a

clearly unwarranted invasion of

personal privacy;

(7) Records compiled for law

enforcement purposes, but only to the

extent that the production of such law

enforcement records:

(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

records on a confidential basis;

(v) Would disclose techniques and

procedures for law enforcement

investigations 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;

(8) Records that are contained in or

related to examination, operating, or

condition reports prepared by, on behalf

of, or for the use of the FDIC or any

agency responsible for the regulation or

supervision of financial institutions; or

(9) Geological and geophysical

information and data, including maps,

concerning wells.

(h) Appeals. (1) Appeals should be

addressed to the Office of the Executive

Secretary, FDIC, 550 17th Street, NW,

Washington, DC 20429.

(2) A person whose initial request for

records under this section, or whose

request for a waiver of fees under

paragraph (f)(1)(x) of this section, has

been denied, either in part or in whole,

has the right to appeal the denial to the

FDIC’s General Counsel (or designee)

within 30 business days after receipt of

notification of the denial. Appeals of

denials of initial requests or for a waiver

of fees must be in writing and include

any additional information relevant to

consideration of the appeal.

(3) Except in the case of an appeal for

expedited treatment under paragraph

(d)(3) of this section, the FDIC will

notify the appellant in writing within 20

business days after receipt of the appeal

and will state:

(i) Whether it is granted or denied in

whole or in part;

(ii) The name and title of each person

responsible for the denial (if other than

the person signing the notification);

(iii) The exemptions relied upon for

the denial in the case of initial requests

for records; and

(iv) The right to judicial review of the

denial under the FOIA.

(4) If a requester is appealing for

denial of expedited treatment, the FDIC

will notify the appellant within 10

business days after receipt of the appeal

of the FDIC’s disposition.

(i) Records of another agency. If a

requested record is the property of

another federal agency or department,

and that agency or department, either in

writing or by regulation, expressly

retains ownership of such record, upon

receipt of a request for the record the

FDIC will promptly inform the requester

of this ownership and immediately shall

forward the request to the proprietary

agency or department either for

processing in accordance with the

latter’s regulations or for guidance with

respect to disposition.

By Order of the Board of Directors.

Dated at Washington, D.C., this 9th day of

December 1997.

Federal Deposit Insurance Corporation.

Robert E. Feldman,

Executive Secretary.

[FR Doc. 97–34037 Filed 12–31–97; 8:45 am]

BILLING CODE 6714–01–P

RAILROAD RETIREMENT BOARD

20 CFR Part 200

RIN: 3220–AB33

General Administration

AGENCY: Railroad Retirement Board.

ACTION: Proposed rule.

SUMMARY: The Railroad Retirement

Board (Board) proposes to revise its

regulations to eliminate the list of Board

forms and their descriptions found

therein. The Board also proposes to

remove the tables which cross-reference

Board forms to OMB information

collection control numbers and sections

in the Code of Federal Regulations. The

purpose of these proposed revisions is

to eliminate either out-of-date

information or information already

provided elsewhere in a more usable

fashion.

EFFECTIVE DATE: Comments must be

received by March 3, 1998.

ADDRESSES: Secretary to the Board,

Railroad Retirement Board, 844 Rush

Street, Chicago, Illinois 60611.

FOR FURTHER INFORMATION CONTACT:

Thomas W. Sadler, Senior Attorney,

Railroad Retirement Board, 844 Rush

Street, Chicago, Illinois 60611, (312)

751–4513, TDD (312) 754–4701.

SUPPLEMENTARY INFORMATION: Section

200.3 of the Board’s regulations

currently purports to list all Board

forms. This listing is not required by

any authority currently in effect and is

out-of-date.

Section 200.3 also contains a table

which lists Board forms, their OMB

information control numbers, and where

the information collection is found in

the text of the Code of Federal

Regulations. Such tables are not

required since the Board lists the OMB

control number on its forms and in the

text of any regulation requiring

information collection. See 5 CFR

1320.3(f).

The revised regulation will provide

that Board forms may be obtained from

Board headquarters or from local Board

offices.

The Board, with the agreement of the

Office of Management and Budget, has

determined that this is not a significant

regulatory action under Executive Order

12866; therefore, no regulatory impact

analysis is required. There are no

information collections associated with

this rule.

List of Subjects in 20 CFR Part 200

Railroad employees, Railroad

retirement.

For the reasons set out in the

preamble, Part 200, Title 20, Chapter II,

of the Code of Federal Regulations is

proposed to be amended as follows:

PART 200—GENERAL

ADMINISTRATION

1. The authority citation for part 200

continues to read as follows:

Authority: 45 U.S.C. 231f(b)(5) and 45 U.S.C.

362; § 200.4 also issued under 5 U.S.C. 552;

§ 200.5 also issued under 5 U.S.C. 552a;

§ 200.6 also issued under 5 U.S.C. 552b;

§ 200.7 also issued under 31 U.S.C. 3717.

2. Section 200.3, ‘‘Designation of

forms and display of assigned OMB

control numbers,’’ is revised to read as

follows: § 200.3 Obtaining forms from

the Railroad Retirement Board.

Forms used by the Board, including

applications for benefits and

informational publications, may be

obtained from the Board’s headquarters

at 844 Rush Street, Chicago, Illinois

60611, and from local Board offices.

Dated: December 19, 1997.

By Authority of the Board.

Beatrice Ezerski,

Secretary to the Board.

[FR Doc. 97–34186 Filed 12–31–97; 8:45 am]

BILLING CODE 7905–01–P