[Federal Register Volume 74, Number 78 (Friday, April 24, 2009)]
[Proposed Rules]
[Pages 18659-18662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9375]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

========================================================================


Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 / 
Proposed Rules

[[Page 18659]]



DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 4

[Docket ID OCC-2009-0008]
RIN 1557-AD22


Freedom of Information Act

AGENCY: Office of the Comptroller of the Currency, Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of the Comptroller of the Currency (OCC) is 
proposing to amend its regulations governing the disclosure of 
information pursuant to requests made under the Freedom of Information 
Act (FOIA) to reflect recent changes to the FOIA made by the Openness 
Promotes Effectiveness in Our National Government Act of 2007 (OPEN 
Government Act) and to make other changes that update the OCC's FOIA 
regulations.

DATES: Comments must be received by June 23, 2009.

ADDRESSES: Because paper mail in the Washington, DC area and at the OCC 
is subject to delay, commenters are encouraged to submit comments by 
the Federal eRulemaking Portal or e-mail, if possible. Please use the 
title ``Freedom of Information Act Regulations'' to facilitate the 
organization and distribution of the comments. You may submit comments 
by any of the following methods:
    <bullet> Federal eRulemaking Portal--``Regulations.gov'': Go to 
http://www.regulations.gov, under the ``More Search Options'' tab click 
next to the ``Advanced Docket Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0008'' 
to submit or view public comments and to view supporting and related 
materials for this notice of proposed rulemaking. The ``How to Use This 
Site'' link on the Regulations.gov home page provides information on 
using Regulations.gov, including instructions for submitting or viewing 
public comments, viewing other supporting and related materials, and 
viewing the docket after the close of the comment period.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#e290878591cc818d8f8f878c9691a28d8181cc9690878391cc858d94"><span class="__cf_email__" data-cfemail="a2d0c7c5d18cc1cdcfcfc7ccd6d1e2cdc1c18cd6d0c7c3d18cc5cdd4">[email protected]</span></a>.
    <bullet> Mail: Office of the Comptroller of the Currency, 250 E 
Street, SW., Mail Stop 2-3, Washington, DC 20219.
    <bullet> Fax: (202) 874-5274.
    <bullet> Hand Delivery/Courier: 250 E Street, SW., Mail Stop 2-3, 
Washington, DC 20219.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket Number OCC-2009-0008'' in your comment. In general, OCC will 
enter all comments received into the docket and publish them on the 
Regulations.gov Web site without change, including any business or 
personal information that you provide such as name and address 
information, e-mail addresses, or phone numbers. Comments received, 
including attachments and other supporting materials, are part of the 
public record and subject to public disclosure. Do not enclose any 
information in your comment or supporting materials that you consider 
confidential or inappropriate for public disclosure.
    You may review comments and other related materials that pertain to 
this notice of proposed rulemaking by any of the following methods:
    <bullet> Viewing Comments Electronically: Go to http://www.regulations.gov, under the ``More Search Options'' tab click next 
to the ``Advanced Document Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0008'' 
to view public comments for this rulemaking action.
    <bullet> Viewing Comments Personally: You may personally inspect 
and photocopy comments at the OCC, 250 E Street, SW., Washington, DC. 
For security reasons, the OCC requires that visitors make an 
appointment to inspect comments. You may do so by calling (202) 874-
4700. Upon arrival, visitors will be required to present valid 
government-issued photo identification and submit to security screening 
in order to inspect and photocopy comments.
    <bullet> Docket: You may also view or request available background 
documents and project summaries using the methods described above.

FOR FURTHER INFORMATION CONTACT: Lee Walzer, Counsel, or Michele Meyer, 
Assistant Director, Legislative and Regulatory Activities Division, 
(202)-874-5090; or Frank Vance, Manager, Disclosure Services and 
Administrative Operations, Communications Division, (202)-874-5378.

SUPPLEMENTARY INFORMATION:

I. Background

    The OPEN Government Act,\1\ enacted on December 31, 2007, made 
several amendments to the FOIA. The OPEN Government Act: revised 
definitions contained in the FOIA; changed standards for recovering 
attorneys fees in FOIA litigation; revised time limits for agencies to 
act on FOIA requests; provided that search fees would not be charged if 
an agency fails to comply with time limits if no unusual or exceptional 
circumstances apply to the processing of the request; required agencies 
to establish a tracking system enabling requesters to check the status 
of their request; added new reporting requirements to agencies' annual 
FOIA reports; and required agencies to describe the FOIA disclosures 
relied upon in redacting records that they release to requesters. Many 
provisions of the OPEN Government Act took effect upon enactment; 
others (including some related to the proposed amendments to Part 4 in 
this NPRM) were effective as of December 31, 2008. The legislation did 
not require implementing regulations.
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    \1\ Public Law 110-175, 110th Cong., 1st Sess., 121 Stat. 2524 
(2007).
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    Twelve CFR part 4, subpart B, sets forth OCC policies regarding the 
availability of information under the FOIA and procedures for 
requesters to follow when seeking such information. The OCC is 
proposing to amend subpart B of 12 CFR part 4 to reflect the changes to 
the FOIA made by the OPEN Government Act and to make additional changes 
to subpart B that would update or simplify existing regulations.

II. Description of the Proposal

Required Description of FOIA Exemptions Used To Justify Non-Disclosure

    The FOIA requires agencies to indicate the amount of information

[[Page 18660]]

deleted from any material released pursuant to a FOIA request, unless 
that disclosure would harm an interest protected by one of the 
enumerated exemptions under which the deletion was initially made.\2\ 
Prior to the OPEN Government Act, the FOIA required agencies, when 
technically feasible, to indicate the amount of information deleted at 
the place in the record where the deletion was made.
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    \2\ 5 U.S.C. 552(b) (2007).
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    The OPEN Government Act amended the FOIA by adding the requirement 
that an agency detail the specific FOIA exemption under which material 
is deleted from information sought by a FOIA requester. If technically 
feasible, the agency should indicate the exemption under which the 
deletion was made at the place in the record where the agency deleted 
the material, and should indicate the amount of material that has been 
deleted.\3\ This provision took effect upon enactment of the OPEN 
Government Act.
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    \3\ OPEN Government Act, Sec.  12, amending 5 U.S.C. 552(b).
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    The OCC is therefore proposing to amend its FOIA regulation at 12 
CFR 4.12(d) to provide that the OCC will list any exemption under which 
material was deleted, unless doing so would harm an interest protected 
by an exemption under Sec.  4.12(b). Where technically feasible, the 
OCC will indicate the amount of information redacted and the exemption 
relied upon for the redaction.

Time Period for Responding to a FOIA Request

    The FOIA provides that an agency must determine whether to comply 
with a FOIA request within 20 days (not including Saturdays, Sundays, 
and legal holidays) of receipt of the request.\4\ The OPEN Government 
Act further provides that the 20-day period may not be tolled, except 
that an agency may make one request to the requester for additional 
information. An agency also may toll the 20-day period to clarify 
issues related to the fees being charged for a FOIA request. The OPEN 
Government Act states that the tolling period ends once an agency has 
received the requested information or resolved any fee issues. Finally, 
the OPEN Government Act provides that an agency may not assess search 
or duplication fees if the agency fails to comply with FOIA time 
limits, if no ``unusual or exceptional circumstances'' apply to the 
processing of the request. All of these amendments are effective as of 
December 31, 2008.
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    \4\ 5 U.S.C. 552(a)(6)(A)(i).
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    The OCC is proposing to revise 12 CFR 4.15 to provide for the 20-
day response period permitted by the statute and to specify that the 
20-day period does not include Saturdays, Sundays, and holidays. The 
OCC is also proposing to amend 12 CFR 4.15 to provide for the 20-day 
time period to be tolled when the OCC: (1) makes a one-time request for 
additional information from the requester; or (2) needs to clarify a 
fee-related issue with the requester. The tolling period would end upon 
receipt of the requested information or resolution of the fee issue, as 
the case may be.\5\
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    \5\ The OPEN Government Act did not amend or repeal the FOIA 
provisions permitting agencies to extend the time for replying to 
FOIA requests in unusual circumstances. Id. at 552(a)(6)(B) and (C). 
Therefore the OCC's rules continue to extend the time in such cases 
for up to an additional 10 business days. 12 CFR 4.15(f)(3).
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    Finally, the OCC is proposing to amend 12 CFR 4.17 to clarify that 
a requester will not be required to pay any otherwise applicable search 
or duplication fees if the OCC fails to comply with applicable time 
limits, if no ``unusual'' or ``exceptional'' circumstances, as 
described in the FOIA and set forth in OCC regulations, apply to the 
processing of the FOIA request.\6\
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    \6\ See id. at 552(a)(6)(B)-(C); 12 CFR 4.15(f)(3).
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Definition of ``Representative of the News Media''

    The OCC is proposing to amend 12 CFR 4.17(a)(8) to amend the 
definition of ``representative of the news media'' to comport with the 
new definition in FOIA, as amended by the OPEN Government Act, that 
took effect upon the legislation's enactment. Prior to enactment of the 
OPEN Government Act, the FOIA allowed an agency to assess ``reasonable 
standard charges'' \7\ for document duplication when a FOIA request is 
made by a representative of the media,\8\ but the statute did not 
define what it meant to be a ``representative of the news media,'' 
particularly with respect to freelance journalists who might be working 
independently.
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    \7\ For commercial FOIA requesters, in contrast, an agency can 
assess document search and review charges, in addition to the 
duplication fees. 5 U.S.C. 552(a)(4)(A)(ii)(I).
    \8\ Id. at 552(a)(4)(A)(ii)(II) (2006), amended by OPEN 
Government Act, Sec.  3.
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    The OCC's current definition of ``requester who is a representative 
of the news media'' defines such a person as one ``who seeks records 
for the purpose of gathering news (i.e., information about current 
events or of current interest to the public) on behalf of, or a 
freelance journalist who reasonably expects to have his or her work 
product published or broadcast by, an entity organized and operated to 
publish or broadcast news to the public.'' \9\
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    \9\ 12 CFR 4.17(a)(8).
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    The OPEN Government Act amended FOIA to add a definition of 
``representative of the news media'' and clarifies that a freelance 
journalist should be deemed as working for the media if the journalist 
can demonstrate a ``solid basis'' for expecting publication.\10\ The 
OPEN Government Act further permitted an agency to consider the past 
publication history of a requester in determining whether the requester 
in fact qualifies as a ``representative of the news media.'' The OPEN 
Government Act also recognized that such representatives could work in 
new forms of media, including electronic dissemination of news through 
telecommunications providers.
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    \10\ See OPEN Government Act, Sec.  3, amending 5 U.S.C. 
552(a)(4)(A).
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    The NPRM would amend the existing definition to clarify the 
circumstances in which a freelance writer is deemed to be working as a 
representative of the news media. Consistent with the OPEN Government 
Act, freelance writers would be regarded as representatives of the news 
media if they can demonstrate a ``solid basis'' for expecting 
publication. The revised definition furthermore would permit the OCC to 
consider a requester's publication history in assessing whether the 
requester should be deemed a representative of the news media. The OCC 
invites comment on whether the new regulatory definition could be 
enhanced or clarified with, for example, additional examples of bases 
for expecting publication that would satisfy the standard for a 
requester to be recognized as a representative of a media outlet.

Tracking and Contact Information

    The OPEN Government Act requires agencies to provide tracking 
numbers for requesters to follow the progress of their FOIA 
requests.\11\ To facilitate the ability of requesters to determine the 
progress of their FOIA requests, the OPEN Government Act likewise 
required agencies to establish by December 31, 2008, a telephone line 
or Internet service providing information about the status of a FOIA 
request to the person using the assigned tracking number.\12\
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    \11\ Id., Sec.  7, amending 5 U.S.C. 552(a).
    \12\ Id.
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    The OCC has developed an Internet Web site at https://
appsec.occ.gov/

[[Page 18661]]

publicaccesslink/ designed to provide tracking services to FOIA 
requesters so that they can monitor the status of their requests. This 
rulemaking proposes to establish a new section 4.18 that provides the 
Internet address and explains that a tracking number will be assigned 
to every FOIA request. The new section 4.18 also addresses how 
individuals without Internet access could continue to receive status 
updates about their FOIA requests. To facilitate the operation of the 
new tracking service, the OCC is also proposing to amend 12 CFR 4.15(c) 
to include a request for an electronic mail address in the requester's 
contact information, where such information is available and the 
requester chooses to provide it.
    The OCC invites comments on any aspect of the proposed rule.

III. Solicitation of Comments on Use of Plain Language

    The OCC also requests comment on whether the proposed rule is 
written clearly and is easy to understand. On June 1, 1998, the 
President issued a memorandum directing each agency in the Executive 
branch to write its rules in plain language. This directive applies to 
all new proposed and interim rulemaking documents issued on or after 
January 1, 1999. In addition, Public Law 106-102 requires each Federal 
agency to use plain language in all proposed and interim rules 
published after January 1, 2000. The OCC invites comments on how to 
make this rule clearer. For example, you may wish to discuss:
    (1) Whether we have organized the material to suit your needs;
    (2) Whether the requirements of the rule are clear; or
    (3) Whether there is something else we could do to make the rule 
easier to understand.

IV. Regulatory Analysis

Regulatory Flexibility Act

    Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise 
required under Section 604 of the RFA is not required if the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities and publishes its certification 
and a short, explanatory statement in the Federal Register along with 
its rule. The proposed rule would not have such an impact on small 
entities because the changes being proposed affect mainly the OCC and 
its processing of FOIA requests, and impose no costs on filers of these 
requests. Accordingly, pursuant to Section 605(b) of the RFA, the OCC 
hereby certifies that this proposal will not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
a regulatory flexibility analysis is not needed.

Executive Order 12,866

    The OCC has determined that this proposal is not a significant 
regulatory action under Executive Order 12,866. We have concluded that 
the changes made by this rule will not have an annual effect on the 
economy of $100 million or more. The OCC further concludes that this 
proposal does not meet any of the other standards for a significant 
regulatory action set forth in Executive Order 12866.

Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3506), we have reviewed the proposed rule to assess 
any information collections. There are no collections of information as 
defined by the Paperwork Reduction Act.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency 
prepare a budgetary impact statement before promulgating any rule 
likely to result in a Federal mandate that may result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. If a 
budgetary impact statement is required, Section 205 of the Unfunded 
Mandates Act also requires an agency to identify and consider a 
reasonable number of regulatory alternatives before promulgating a 
rule. The OCC has determined that this proposed rule will not result in 
expenditures by State, local, and Tribal governments, or by the private 
sector, of $100 million or more in any one year. Accordingly, this 
proposal is not subject to Section 202 of the Unfunded Mandates Act.

List of Subjects

12 CFR Part 1

    Banks, Banking, National banks.

12 CFR Part 4

    National banks, Reporting and recordkeeping requirements, 
Administrative practice and procedure, Freedom of Information Act, 
Records.
    For the reasons set forth in the preamble, chapter I of title 12 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 4--ORGANIZATION AND AVAILABILITY OF INFORMATION UNDER THE 
FREEDOM OF INFORMATION ACT

    1. The authority citation for part 4 continues to read as follows:

    Authority: 12 U.S.C. 93a. Subpart A also issued under 5 U.S.C. 
552; Subpart B also issued under 5 U.S.C. 552; E.O. 12600 (3 CFR 
1987 Comp., p. 235). Subpart C also issued under 5 U.S.C. 301, 552; 
12 U.S.C. 161, 481, 482, 484(a), 1442, 1817(a)(3), 1818(u) and (v), 
1820(d)(6), 1820(k), 1821(c), 1821(o), 1821(t), 1831m, 1831p-1, 
1831o, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq., 
3101 et seq., 3401 et seq.; 15 U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 
641, 1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 9701; 42 U.S.C. 3601; 44 
U.S.C. 3506, 3510. Subpart D also issued under 12 U.S.C. 1833e.
    2. Amend Sec.  4.12(d) by adding two sentences at the end of the 
paragraph to read as follows:


Sec.  4.12   Information available under the FOIA.

* * * * *
    (d) Segregability. * * * The OCC will note the location and extent 
of any deletion, and identify the FOIA exemption under which material 
has been redacted, unless doing so would harm an interest protected by 
the exemption under paragraph (b) of this section pursuant to which the 
redaction was made. Where technically feasible, the amount of 
information redacted and the exemption pursuant to which the redaction 
was made will be indicated at the site(s) of the redaction.
    3. Amend Sec.  4.15 by:
    a. Revising the section heading, paragraph (c)(1) introductory 
text, paragraph (c)(1)(i), and paragraph (f)(1); and
    b. Removing the word ``or'' at the end of paragraph (f)(3)(ii), 
removing the period at the end of paragraph (f)(3)(iii) and by adding 
in lieu thereof ``; or'', and adding paragraph (f)(3)(iv).
    The revisions and addition read as follows.


Sec.  4.15  How to request records.

* * * * *
    (c) Request for records--(1) Contact information and what the 
request for records must include. A person requesting records under 
this section must state, in writing:
    (i) The requester's full name, address, telephone number and, at 
the requester's option, electronic mail address.
* * * * *
    (f) Time limits for responding to FOIA requests. -- (1) Request. 
The OCC makes an initial determination to grant or deny a request for 
records within 20 days

[[Page 18662]]

(excluding Saturday, Sundays, and holidays) after the date of receipt 
of the request, as described in paragraph (g) of this section, except 
as stated in paragraph (f)(3) of this section.
* * * * *
    (3) * * *
    (iv) Tolling of time limits. (A) The OCC may toll the 20-day time 
period to:
    (1) Make one request for additional information from the requester; 
or
    (2) Clarify the applicability or amount of any fees, if necessary, 
with the requester.
    (B) The tolling period ends upon the OCC's receipt of information 
from the requester or resolution of the fee issue.
* * * * *
    4. Amend Sec.  4.17 by:
    a. Revising the section heading, and paragraph (a)(8);
    b. Adding paragraph (b)(6); and
    c. Removing, in the parenthetical in paragraph (d), the phrase ``10 
business days'', and by adding in lieu thereof the phrase ``20 business 
days''.
    The revisions and addition are set forth below.


Sec.  4.17  FOIA request fees.

    (a) * * *
    (8) Requester who is a representative of the news media means any 
person who, or entity that, gathers information of potential interest 
to a segment of the public, uses editorial skills to turn the raw 
materials into a distinct work, and distributes that work to an 
audience. A freelance journalist shall be regarded as working for a 
news media entity if the person can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by that entity. A publication contract 
is one example of a basis for expecting publication that ordinarily 
would satisfy this standard. The OCC also may consider the past 
publication record of the requester in determining whether she or he 
qualifies as a ``representative of the news media.''
* * * * *
    (b) * * *
    (6) No fee if the time limit passes and the requester has not 
received a response. The OCC will not assess search and/or duplication 
fees, as applicable, if it fails to respond to a requester's FOIA 
request within the time limits specified under 12 CFR 4.15, and no 
``unusual'' circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and 
Sec.  4.15(f)(3)(i)) or ``exceptional'' circumstances (as defined in 5 
U.S.C. 552(a)(6)(C)) apply to the processing of the request
* * * * *
    5. Add Sec.  4.18 to read as follows:


Sec.  4.18  How to track a FOIA request.

    (a) Tracking number. The OCC will issue a tracking number to all 
FOIA requesters within 5 days of the receipt of the request (as 
described in Sec.  4.15(g)) in the OCC's Communications Department. The 
tracking number will be sent via electronic mail if the requester has 
provided an electronic mail address. Otherwise, the OCC will mail the 
tracking number to the requester's physical address, as provided in the 
FOIA request.
    (b) Web site. FOIA requesters may check the status of their FOIA 
request(s) at https://appsec.occ.gov/publicaccesslink/.
    (c) If a requester does not have Internet access. Requesters 
without Internet access may continue to contact the Disclosure Officer, 
Communications Division, Office of the Comptroller of the Currency, at 
(202) 874-4700 to check the status of their FOIA request(s).

    Dated: April 17, 2009.
John C. Dugan,
Comptroller of the Currency.
[FR Doc. E9-9375 Filed 4-23-09; 8:45 am]
BILLING CODE 4810-33-P


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