Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15705

Service regulations at 8 CFR 100.4(c) (2)

and (3) will be amended by removing

Ranier, MN, and Eagle Pass, TX, and

adding Maverick County Airport.

Comments

Before adopting this proposal as a

final rule, consideration will be given to

any written comments timely submitted

to Customs. (Customs will serve as the

clearing house for comments received

and coordinate a response with the

Service.) Comments submitted will be

available for public inspection in

accordance with the Freedom of

Information Act (5 U.S.C. 552), § 1.4 of

the Treasury Department Regulations

(31 CFR 1.4), and § 103.11(b) of the

Customs Regulations (19 CFR

103.11(b)), on regular business days

between the hours of 9 a.m. and 4:30

p.m. at the Regulations Branch, Office of

Regulations and Rulings, U.S. Customs

Service, Franklin Court, 4th floor, 1099

14th St., NW, Washington, DC.

Authority

This change is proposed under the

authority of 5 U.S.C. 301, 8 U.S.C. 1103,

and 19 U.S.C. 2, 66, and 1624.

Inapplicability of the Regulatory

Flexibility Act and Executive Orders

12866, 12612, and 12606

Customs and the Service routinely

establish, expand, and consolidate ports

of entry throughout the United States to

accommodate the volume of Customsand Service-related activity in various

parts of the country. Although this

document is being issued with notice

for public comment, it is not subject to

the notice and public procedure

requirements of 5 U.S.C. 553 because it

relates to agency management and

organization. Accordingly, this

document is not subject to the

provisions of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.).

This document does not meet the

criteria for a ‘‘significant regulatory

action’’ as specified in E.O. 12866.

In accordance with the provisions of

E.O. 12612, it is certified that the

regulations proposed herein have been

assessed in light of the principles,

criteria, and requirements specified in

that E.O. and that they will not have

substantial direct effects on the States,

on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, the

preparation of a Federalism Assessment

is not warranted.

In accordance with the provisions of

E.O. 12606, the Commissioners of the

Customs and the Immigration and

Naturalization Services certify that they

have assessed these proposed

amendments in light of the criteria set

forth in that E.O., and determined that

the regulations proposed herein will not

have a significant impact on family

formation, maintenance, and general

well-being.

Drafting Information

The principal author of this document

was Gregory R. Vilders, Attorney, Office

of Regulations and Rulings, U.S.

Customs Service; however, personnel

from other offices and agencies

participated in its development.

List of Subjects

8 CFR Part 100

Administrative practice and

procedure, Organizations and functions

(Government agencies).

19 CFR Part 122

Administrative practice and

procedure, Air carriers, Aircraft,

Airports, Air transportation, Baggage,

Customs duties and inspection, Drug

traffic control, Imports, Reporting and

recordkeeping requirements.

Amendments to the Regulations

For the reasons stated above, it is

proposed to amend Part 100 of Chapter

I of title 8 of the Code of Federal

Regulations and Part 122 of Chapter I of

title 19 of the Code of Federal

Regulations as set forth below:

TITLE 8—ALIENS AND NATIONALITY

PART 100—STATEMENT OF

ORGANIZATION

1. The general authority citation for

part 100 continues to read as follows:

Authority: 8 U.S.C. 1103; 8 CFR part 2.

2. In § 100.4, it is proposed to amend

paragraph (c)(2) by:

a. Removing ‘‘Ranier, MN’’ from the

Class A listing under District No. 10—

St. Paul, Minnesota;

b. Removing ‘‘Eagle Pass, TX’’ from

the Class A listing under District No.

14—San Antonio, Texas; and

c. Adding, in proper alphabetical

sequence, ‘‘Maverick, TX’’ to the Class

A listing under District No. 14—San

Antonio, Texas.

3. In § 100.4, it is proposed to amend

paragraph (c)(3) by:

a. Removing ‘‘Ranier, MN,

International Seaplane Base’’ from the

listing under District No. 10—St. Paul,

Minnesota;

b. Removing ‘‘Eagle Pass, TX, Eagle

Pass Airport’’ from the listing under

District No.14—San Antonio, Texas; and

c. Adding, in proper alphabetical

sequence, ‘‘Maverick, TX, Maverick

County Airport’’ to the Class A listing

under District No.14—San Antonio,

Texas.

TITLE 19—CUSTOMS DUTIES

PART 122—AIR COMMERCE

REGULATIONS

1. The authority citation for Part 122

continues to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66,

1433, 1436, 1459, 1590, 1594, 1623, 1624,

1644,; 49 U.S.C.App. 1509.

2. In § 122.13, it is proposed to amend

the list of international airports by

removing ‘‘Eagle Pass, Tex.—Eagle Pass

Municipal Airport’’ and ‘‘Ranier,

Minn.—Ranier International Seaplane

Base’’ and adding, in appropriate

alphabetical order, ‘‘Maverick, Tex.—

Maverick County Airport’’.

George J. Weise,

Commissioner of Customs.

Approved: February 23, 1995.

Dennis M. O’Connell,

Acting Deputy Assistant Secretary of the

Treasury.

Dated: January 30, 1995.

Doris Meissner,

Commissioner of Immigration and

Naturalization Service.

[FR Doc. 95–7502 Filed 3–24–95; 8:45am]

BILLING CODE 4820–02–P

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the

Currency

12 CFR Parts 4, 10, 11, and 18

Office of the Secretary

31 CFR Part 1

[Docket No. 95–06]

RIN 1557–AA67

Description of Office, Availability and

Release of Information, Contracting

Outreach Program; Municipal

Securities Dealers; Securities

Exchange Act Disclosure Rules;

Disclosure of Financial and Other

Information by National Banks;

Disclosure of Records

AGENCY: Office of the Comptroller of the

Currency and Office of the Secretary,

Treasury.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Office of the Comptroller

of the Currency (OCC) proposes to

revise its rules that describe the agency
15706 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

and its rules that govern the availability

and release of information. By clarifying

these rules, this proposal will help the

banking industry and the public better

interact with the OCC. This proposal

also makes technical and clarifying

amendments to the OCC’s rules

governing municipal securities dealers,

disclosures under the Securities

Exchange Act, and the disclosure of

financial and other information by

national banks, and, under delegated

authority, to the Department of the

Treasury’s rules regarding disclosure of

records. This proposal is another

component of the OCC’s Regulation

Review Program, which is intended to

update and streamline OCC regulations

and to reduce unnecessary regulatory

costs and other burdens.

DATES: Comments must be received by

May 26, 1995.

ADDRESSES: Comments should be

directed to: Communications Division,

Office of the Comptroller of the

Currency, 250 E Street, SW.,

Washington, DC 20219, Attention:

Docket No. 95–06. Comments will be

available for public inspection and

photocopying at the same location.

FOR FURTHER INFORMATION CONTACT:

Andrew T. Gutierrez, Attorney,

Legislative and Regulatory Activities

Division, (202) 874–5090 (except with

respect to proposed 12 CFR part 4,

subpart C); Lester N. Scall, Senior

Attorney, Administrative and Internal

Law Division, (202) 874–4460, or Daniel

L. Cooke, Attorney, Legislative and

Regulatory Activities Division, (202)

874–5090 (with respect to proposed 12

CFR part 4, subpart C).

SUPPLEMENTARY INFORMATION:

Background

The OCC proposes to amend 12 CFR

parts 4, 10, 11, and 18, and, under

delegated authority, 31 CFR part 1 as a

component of its Regulation Review

Program. One goal of the Regulation

Review Program is to review all of the

OCC’s rules and to eliminate provisions

that do not contribute significantly to

maintaining the safety and soundness of

national banks or to accomplishing the

OCC’s other statutory responsibilities.

Another goal of the Regulation Review

Program is to improve clarity and to

better communicate the standards that

the rules intend to convey. In the case

of the current proposal, improved

clarity will promote better and more

efficient interaction between the OCC

and the banking industry and the public

at large.

Part 4

Subpart A—Description of Office

The OCC proposes to revise the

description of the OCC contained in

current § 4.1a and relocate that

information to a new subpart A.

Specifically, the proposal provides

separate descriptions of the functions

and responsibilities of the OCC

generally in § 4.2, the Comptroller of the

Currency in § 4.3, the Washington office

in § 4.4, and the district and field offices

in § 4.5. The proposal eliminates from

current § 4.1a all detailed job

descriptions of OCC positions

subordinate to the Comptroller of the

Currency. These changes update and

clarify the regulation, and eliminate

unnecessary provisions.

The OCC will continue to provide the

public with current and accurate

descriptions of the functions of its major

departments and divisions in the OCC’s

annual report to Congress. The annual

report, required under 12 U.S.C. 14,

consists of the four issues of the

Quarterly Journal published each year.

The first issue of each year contains the

Comptroller’s Report of Operations,

which describes in detail the functions

of the major departments and divisions

of the OCC. The OCC believes that the

Quarterly Journal is a better source of

current and detailed descriptions of

specific departments, divisions, and

officials. Additionally, persons may

contact the OCC’s Communications

Division for further information

concerning the OCC’s organizational

structure.

The OCC also proposes to eliminate

the information contained in current

§ 4.11, which describes the frequency of

national bank examinations and

provides a partial list of required

national bank reports. These changes

eliminate information that merely

repeats statutory provisions, or is

otherwise unnecessary. For a current

description of the frequency of bank

examinations, persons may refer to 12

U.S.C. 1820(d), as amended by section

306 of the Riegle Community

Development and Regulatory

Improvement Act of 1994, Public Law

103–325, 108 Stat. 2160. For a current

listing of required national bank reports,

persons may contact the OCC’s

Communications Division.

Subpart B—Availability of Information

Under the FOIA

In General

The OCC proposes to revise its rules

regarding the availability of information

under the Freedom of Information Act

(FOIA) (5 U.S.C. 552), currently found

in §§ 4.13–4.17a, and 4.18(d), and

relocate the rules to a new subpart B,

consisting of §§ 4.11–4.17. This subpart

updates, clarifies, reorganizes, and

streamlines the rules to better

communicate to the public the

standards, policies, and procedures that

the OCC applies in administering the

FOIA. The OCC does not intend this

subpart B to materially affect current

OCC standards, policies, or procedures.

Each section in the new subpart B is

described below.

Section 4.11—Purpose and Scope

Proposed § 4.11 sets forth the purpose

of subpart B—namely, to describe the

standards, policies, and procedures that

the OCC applies in administering the

FOIA. This section also sets forth the

scope of subpart B by briefly describing

each section in the subpart. This section

explicitly does not apply to a request for

records pursuant to the Privacy Act (5

U.S.C. 552a). A person requesting

records from the OCC pursuant to the

Privacy Act should refer to 31 CFR part

1, subpart C, and appendix J of that

subpart.

Section 4.12—Information Available

Under the FOIA

Proposed § 4.12 delineates the scope

of information that the FOIA requires

the OCC to disclose to the public. This

section clarifies, reorganizes, and

streamlines the OCC’s rules, but does

not materially affect current OCC

standards, policies, or procedures.

Paragraph (a), derived from current

§ 4.16(a), declares that, in accordance

with the FOIA, all information in the

OCC’s possession is available to the

public, except the exempt records

described in paragraph (b).

Paragraph (b), derived from current

§ 4.16(b), describes the nine types of

records that the FOIA exempts from

disclosure (see 5 U.S.C. 552(b)).

However, paragraph (b)(8) differs

somewhat from its current counterpart,

§ 4.16(b)(8). Current § 4.16(b)(8), which

describes the FOIA exemption

concerning bank supervisory records,

contains language not found in the

statute. The additional language in the

current regulation may confuse rather

than clarify the FOIA exemption. Thus,

proposed paragraph (b)(8) eliminates, as

unnecessary, this language. This change

is clarifying in nature, and merely

amends the OCC’s rule to better reflect

the statute. This change does not

materially affect current OCC standards,

policies, or procedures.

Paragraph (c), added in accordance

with 5 U.S.C. 552(c)(1), states that the

OCC may deny the existence of exempt

records in certain circumstances where
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15707

disclosure of the existence of the

records may interfere with criminal law

enforcement proceedings. This addition

clarifies the OCC’s rules by properly

reflecting an applicable FOIA provision.

Paragraph (d), derived from current

§ 4.16(c), states that on a case-by-case

basis, even if a record is exempt under

paragraph (b), the OCC may elect not to

apply the exemption to the requested

record. The OCC’s discretionary

disclosure of an exempt record under

this paragraph does not affect the

applicability of an exemption to any

other record.

Paragraph (e), derived from current

§ 4.16(d), explains that the OCC

provides non-exempt portions of a

requested record to the extent that those

portions are reasonably segregable from

exempt portions.

Section 4.13—Publication in the Federal

Register

Proposed § 4.13 sets forth the first of

three methods by which the OCC

provides information to the public

under the FOIA. This section clarifies

the OCC’s rules, but does not materially

affect current OCC standards, policies,

or procedures.

This section, derived from current

§ 4.14(a), lists the types of information

that the OCC publishes in the Federal

Register for the guidance of the public.

Generally, the OCC publishes in the

Federal Register proposed and final

rules, and certain notices and policy

statements of concern to the general

public (such as notices of certain

Federal preemption interpretations, in

accordance with 12 U.S.C. 43).

Section 4.14—Public Inspection and

Copying

Proposed § 4.14 sets forth the second

method by which the OCC provides

information to the public under the

FOIA. This section updates, clarifies,

reorganizes, and streamlines the rules,

but does not materially affect current

OCC standards, policies, or procedures.

Information covered under this

section is readily available to the public

for inspection and copying. Any person

seeking this information may contact

the Disclosure Officer in the OCC’s

Communications Division at the address

specified in paragraph (c) to schedule an

appropriate time to inspect and copy

documents.

Paragraph (a) lists the seven types of

information that this section covers.

These types of information are: (1) Final

orders, agreements, or other enforceable

documents made in the adjudication of

a case (paragraph (a)(1), derived from

current § 4.15(a)(1)); (2) final opinions

made in the adjudication of a case

(paragraph (a)(2), derived from current

§ 4.15(a)(2)); (3) statements of general

policy or interpretations of general

applicability not published in the

Federal Register (paragraph (a)(3),

derived from current § 4.15(a)(3)); (4)

administrative staff manuals or

instructions to staff that may affect a

member of the public (paragraph (a)(4),

derived from current § 4.15(a)(4)); (5) a

current index identifying each

document described in paragraphs

(a)(1)–(4) that the OCC issued, adopted,

or promulgated after July 4, 1967 (a date

set under 5 U.S.C. 552(a)(2)) (paragraph

(5), derived from current § 4.15(b)); (6)

a list of OCC publications available

(paragraph (a)(6), derived from current

§ 4.14(b)); and (7) a list of OCC forms

available, and specific forms and

instructions (paragraph (a)(7), derived

from current § 4.13).

Paragraph (a) eliminates several items

unnecessarily listed in current § 4.15(a).

Current § 4.15(a)(6)–(9) involves

securities disclosure documents already

addressed in other regulations, and

contains outdated references to

regulations; and current § 4.15(a)(10)

involves requests for staff no-objection

positions and staff responses. Currently,

requesters may obtain these documents

upon specific request. While the new

subpart B does not specifically mention

these documents, they, like all OCC

records not exempt from the FOIA, will

remain available to the public.

Paragraph (a) also eliminates current

§ 4.15(a)(11), which involves transcripts

of public hearings. The OCC currently

contracts with a commercial service to

produce these documents and provide

them upon request. The OCC refers

persons seeking a transcript of a public

hearing to this contractor.

Paragraph (b), derived from current

§ 4.15(c) explains that the OCC, to the

extent necessary to prevent an invasion

of personal privacy, may redact

identifying details from any document

described in paragraph (a) before

making the document available for

public inspection and copying. The

OCC provides a justification for any

redaction if the basis of that redaction

is not evident.

Section 4.15—Specific Requests for

Records

Proposed § 4.15 sets forth the third

method by which the OCC provides

information to the public under the

FOIA. This section updates, clarifies,

reorganizes, and streamlines the rules,

but does not materially affect current

OCC standards, policies, or procedures.

Paragraph (a), derived from current

§ 4.16(a), provides that any OCC record

not exempt from disclosure is available

to any person upon specific request.

Paragraph (b), derived from current

§ 4.17 (b), (c), and (d)(1), identifies

where a person must submit a request

for records or an administrative appeal

of a denial of a request for records.

Paragraph (b)(1) directs a person to

submit a request generally to the

Disclosure Officer in the OCC’s

Communications Division. Paragraph

(b)(2) lists a few exceptions to this

general rule. Unlike the current

regulation, paragraph (b)(2) does not

include a specific provision relating to

the public sections of Community

Reinvestment Act (CRA) evaluations.

Current § 4.17(b)(2)(ii) indicates that

these public sections are available from

the CRA Contact in the OCC’s

Department of Compliance

Management. In the proposed

regulation, these public sections are

available from the Disclosure Officer

under the general rule in paragraph

(b)(1).

Paragraph (c), derived from current

§§ 4.17 (d)(2), (d)(3), and (g), and

4.17a(b), describes the required contents

of a request for records, indicates that

the OCC’s Director of Communications

or that person’s designee initially

determines whether to grant or deny a

request for records, and explains the

procedures that the OCC follows in

granting or denying a request for

records.

Paragraph (d), derived from current

§§ 4.17(e) and 4.17a(c), describes the

procedures a requester must follow to

appeal a denial of a request for records,

indicates that the Comptroller or the

Comptroller’s designee determines

whether to grant or deny an appeal, and

explains the procedures that the OCC

follows in granting or denying an

appeal.

Paragraph (e)(1), added in accordance

with 5 U.S.C. 552(a)(4)(B), provides that

if the OCC denies an appeal, or fails to

make an initial or appellate

determination within the time limits set

forth in paragraph (f), the requester may

commence action to compel disclosure

in an appropriate United States district

court. This addition clarifies the OCC’s

current rules by including statutory

language that provides the context of

paragraph (e)(2). Paragraph (e)(2),

derived from current § 4.17(f), identifies

the OCC’s Chief Counsel as the officer

on whom a litigant under paragraph

(e)(1) must serve process.

Paragraph (f), derived from current

§ 4.17a(d), sets forth the time limits that

the OCC must follow in making initial

and appellate determinations under this

section. In general, the OCC determines

whether to grant or deny a request for
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records within ten business days after

the date of receipt of the request, and

determines whether to grant or deny an

administrative appeal within 20

business days after the date of receipt of

the appeal.

Paragraph (g), derived from current

§ 4.17a(a), explains how the OCC

determines the date of receipt of a

request or appeal for purposes of the

time limits set forth in paragraph (f).

Section 4.16—Predisclosure Notice for

Confidential Commercial Information

Proposed § 4.16, derived from current

§ 4.18(d), sets forth predisclosure notice

procedures that the OCC follows, in

accordance with Executive Order 12600

(3 CFR, 1987 Comp., p. 235), when the

OCC receives a request under § 4.15 for

disclosure of records that arguably are

exempt from disclosure under

exemption 4 of the FOIA (5 U.S.C.

552(b)(4); proposed § 4.12(b)(4)) as

confidential commercial information.

This section clarifies and reorganizes

the rules, but does not materially affect

current OCC standards, policies, or

procedures.

Section 4.17—Fees for Services

Proposed § 4.17, derived from current

§ 4.17(h), describes the fees that the

OCC assesses for the services it renders

in providing information under the

FOIA. This section clarifies, reorganizes,

and streamlines the rules, but does not

materially affect current OCC standards,

policies, or procedures.

Subpart C—Release of Non-public OCC

Information

In General

The OCC proposes to amend and

relocate to a new subpart C, current

§§ 4.18 and 4.19 to clarify the

procedures that must be followed by

persons who seek non-public OCC

information and to clarify the

restrictions on dissemination of nonpublic OCC information. Non-public

OCC information, as that term is used in

this proposal, is information,

confidential or otherwise, that is not

available to the public pursuant to the

FOIA. FOIA specifically exempts from

disclosure several categories of

information including records contained

in or related to examination, operating,

or condition reports concerning

financial institutions.

In recent years, requests for nonpublic OCC information, particularly

requests arising from litigation, have

increased substantially. These requests

have caused the OCC concerns about

burden and confidentiality. Persons

requesting information have sought

confidential OCC records, such as

reports of examination and other OCC

summary information, large portions of

records and files about specific banks,

and testimonial appearances or

interviews of OCC employees or former

employees. The OCC recognizes a

public need in individual cases for

certain information, but is concerned

that a candid dialogue in the bank

examination and supervision process be

maintained. The OCC is aware that

release of non-public OCC information

may inhibit open consultation between

banks and the OCC. The OCC, therefore,

has attempted to balance its need to

preserve appropriate confidentiality and

the public interest in ensuring effective

consultations between banks and the

OCC, on the one hand, and the needs of

parties requesting information from the

OCC, on the other hand.

To this end, the proposal provides

new detail in defining non-public OCC

information, listing the information

requesters must include in their

requests for non-public OCC

information, and identifying the

standards the OCC uses to decide

requests. The proposal also explains the

OCC procedural response to service of

subpoenas on the OCC and its

employees and former employees,

restricts the further dissemination of

released information and testimony, and

states the fee schedule for records

search, copying, certification, and

testimony.

The OCC, as other Federal agencies,

has authority, pursuant to the 5 U.S.C.

301, the ‘‘housekeeping’’ statute, to

prescribe procedures for the production

of agency records, property, and

testimony. This proposal is issued

pursuant to 5 U.S.C. 301, which is

intended to allow agencies to control

the burdens associated with production

of non-public information. See Moore v.

Armour Pharmaceutical Co., 927 F.2d

1194 (11th Cir. 1991). The proposal is

also based on 5 U.S.C. 552 and recent

judicial interpretation of the bank

examination privilege. See In Re:

Subpoena Served Upon the Comptroller

of the Currency, and the Secretary of the

Board of Governors of the Federal

Reserve System, 967 F.2d 630, 634 (D.C.

Cir. 1992); and Schreiber v. Society for

Savings Bancorp, Inc., 11 F.3d 217 (D.C.

Cir. 1993) (describing the type of

information that is privileged and

subject to a balancing test). In Re

Subpoena and Schreiber have clarified

the responsibilities of Federal bank

regulatory agencies in the discovery

process. These cases and Moore have

led the OCC to conclude that it should

amend §§ 4.18 and 4.19.

Courts have upheld the privileged

nature of certain types of information

generated in the government’s

supervision of banks. Consistent with

the In Re Subpoena and Schreiber

decisions, this proposal provides for the

OCC’s case-by-case determination of

privilege and provides an orderly

mechanism for the OCC to assert or

waive privilege. Also consistent with

these decisions, the proposal allows the

OCC to reconcile its need to preserve

the confidential nature of its bank

examination functions with its

responsibility to provide access to

information in appropriate situations.

The proposal also is intended to provide

an efficient mechanism for the OCC to

release relevant non-privileged records.

The non-public OCC information

covered by this proposal includes

information about failed banks and

operating banks. This is consistent with

Congress’s view that, even when

regulatory information about a failed

bank is used by the FDIC, the privileges

available to the bank regulatory agencies

are not intended to be waived. See H.R.

Conf. Rep. No. 222, 101st Cong., 1st

Sess. 440–41 (1989), reprinted in 1989

U.S.C.C.A.N. 86, 479–80 (explaining

section 11(o) of the Federal Deposit

Insurance Act (12 U.S.C. 1821(o)) as

amended by section 909 of the Financial

Institutions Reform, Recovery, and

Enforcement Act of 1989, Public Law

101–73, 103 Stat. 183, 477). See also

The Housing and Community

Development Act of 1992, Public Law

102–550, 1544, 106 Stat. 3672, 4069.

This proposal is not intended to affect

the policies and procedures the OCC

follows in providing information and

assistance for criminal cases and

investigations. It also does not change

the OCC’s policies for releasing nonpublic OCC information to other Federal

agencies that require such information

in support of their civil investigations

and cases. The proposal is furthermore

not intended to supersede information

sharing agreements that the OCC has

with other Federal agencies. However,

the OCC anticipates that, under the

proposal, government agencies will use

the OCC’s procedures as guidance when

seeking non-public OCC information.

Section 4.31—Purpose and Scope

Proposed § 4.31 sets out the purposes

and scope of this portion of part 4. As

stated in paragraph (a), the proposal

seeks to achieve several purposes. First,

it is intended to provide an orderly

mechanism for the OCC to process

requests for non-public information.

Second, it is intended to provide

information to requesters while

preserving the confidentiality of the
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15709

information. Third, it is intended to

ensure that the released information is

used in the public interest. Fourth, it is

intended to provide a mechanism for

the OCC to assert evidentiary privileges

when necessary. Finally, it is intended

to protect the interests of the OCC in

fulfilling its mission, which includes

fostering candid communication

between banks and the OCC to ensure

effective supervision.

Paragraph (b) describes the scope of

subpart C by specifying the types of

litigation to which subpart C applies

and the type of information covered by

the regulation.

Section 4.32—Definitions

Proposed § 4.32 adds new definitions

for the following terms: ‘‘compelling

need,’’ ‘‘complete request,’’ ‘‘non-public

OCC information,’’ ‘‘showing that the

information has high relevance,’’ and

‘‘testimony.’’ The new definitions

should make the rule easier to interpret

and apply.

In particular, the definition of ‘‘nonpublic OCC information’’ clarifies the

precise scope of the rule by defining the

type of information to which the rule

applies. The OCC intends that the

definition of ‘‘non-public OCC

information’’ include records generated

by the OCC as well as certain records

not generated by the OCC. ‘‘Non-public

OCC information’’ includes interviews

with OCC employees as well as

employee testimony.

Section 4.33—Requirements for a

Request of Records or Testimony

Proposed § 4.33 specifies the

information that requesters must

provide to the OCC when seeking nonpublic OCC information. The OCC

intends this new section to ensure that

it will not unnecessarily compromise

the essential confidentiality, and

consequently the open information

exchange of the examination and

supervisory process. Paragraph (a)

specifies what all requests must contain,

the additional showing the requester

must make if a response is sought in less

than 60 days, and the additional

submissions a requester must make in

adversarial situations.

Paragraph (b) specifies the additional

information that a requester must

provide when requesting records.

Paragraph (c) specifies the additional

information that a requester must

provide when seeking testimony.

Section 4.34—Where to Submit a

Request

Proposed § 4.34(a) specifies that

requests for non-public OCC

information, requests for authentication

of a record, and notifications regarding

the issuance of subpoenas or other

compulsory process must be addressed

to the OCC’s Litigation Division in

Washington, DC.

Paragraph (b) permits a person who is

requesting public OCC information

along with non-public OCC information

to submit a combined request for both

to the Litigation Division in

Washington, DC. If a requester decides

to submit a combined request under this

section, the OCC will process the

combined request under this subpart

and not under subpart B (FOIA).

Section 4.35—Consideration of Requests

Proposed § 4.35 sets out the issues

and factors that the OCC will consider

in acting on requests. The OCC intends

this new section to alert requesters to

the reasons the OCC could use to deny

a request and to assist requesters in

determining whether and how to file a

request. Paragraph (a) lists the bases for

denial and states that the OCC will

weigh the requirements prescribed in

§ 4.33. Paragraph (a) also provides that

the OCC may require a requester to

submit additional information, states

that the OCC may independently seek

information from other persons or

sources, and prescribes the OCC’s

normal processing time.

Paragraph (b) specifies the additional

considerations that apply to requests for

testimony.

Paragraph (c) states that the OCC also

may respond to certain requests by

authorizing others in possession of the

requested records to release the records.

Section 4.36—Parties With Access to

OCC Information; Restriction on

Dissemination

Proposed § 4.36 prohibits persons and

entities from disseminating non-public

OCC information without OCC

approval. The OCC intends this section

to preserve the confidentiality of nonpublic OCC information.

Paragraph (a), which embodies

current § 4.18(a), prohibits current and

former OCC employees from

disseminating non-public OCC

information. This paragraph also adds a

new provision, which states the OCC’s

policy of objecting to subpoenas for

non-public OCC information when

subpoenas are used in lieu of the

request procedures of this subpart.

Paragraph (b), which embodies some

of current § 4.18(c), prohibits persons

who are not current or former OCC

employees from disseminating nonpublic OCC information. This paragraph

applies to any person in possession of

non-public OCC information, including

banks and related individuals and

entities. It states the OCC’s policy of

seeking the return of non-public OCC

information from banks or related

individuals and entities when

necessary. This proposal does not retain

the portion of current paragraph

§ 4.18(c) that states that examination

reports are the property of the OCC.

That provision will be included in

revisions of part 7 (proposed § 7.4000,

which addresses books and records of

national banks).

Commenters are specifically asked to

address whether ‘‘consultants,’’

meaning outside professionals who

perform services for a bank, should be

included in the list of bank-connected

persons who are eligible to receive OCC

examination reports, or portions thereof,

without first obtaining the express

approval of the OCC or whether a bank

could seek OCC approval for release to

particular categories of professional

advisors, for all or specified portions of

the bank’s examination report. Under

current § 4.18(c), attorneys, auditors,

and independent auditors are included

in the list of persons eligible to receive

reports. Commenters are also asked to

address: (1) Whether release to other

professional advisors, if permitted,

should be limited to certain types of

advisors, and/or certain portions of the

examination report, and (2) the nature of

the confidentiality undertaking that

would be required before any material

could be provided.

Paragraph (c), which embodies

current § 4.18(b), preserves the OCC’s

current policies and procedures for

sharing information with other

government agencies. This proposal

deletes the last sentence of current

paragraph 4.18(b), which prohibits

persons and other entities from

disclosing OCC non-public information,

because it would be redundant in light

of the general prohibition on

dissemination of information stated in

§ 4.36(b)(1).

Paragraph (d) makes clear that nonpublic OCC information does not lose

its non-public status when released to a

person or entity. The paragraph states

that the possession of non-public OCC

information by any entity or individual

is not a waiver of the OCC’s right to

control further use or dissemination of

information.

Section 4.37—Limitation on

Dissemination of Released Information

Proposed § 4.37 permits the OCC to

condition release of non-public OCC

information on the issuance of a

protective order and the sealing of

transcripts. The OCC intends this new

section to enable the OCC to prevent the

further dissemination of the
15710 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

information. A model stipulation and

protective order is printed at appendix

A to this subpart. The section also

specifies that the OCC may authorize

the use of the same records or testimony

in another case.

Section 4.38—Procedures for Sharing

and Using OCC Records in Litigation

Proposed section 4.38(a) requires

parties to a case to share released

records among litigants. This

requirement eliminates the need for

requesters to file duplicative requests.

Paragraph (b) requires all requesters to

retrieve released non-public OCC

information from court files and

requires all parties to destroy nonpublic OCC information covered by a

protective order. The OCC intends these

new provisions to ensure the

confidentiality of the information.

Paragraph (c) informs requesting

litigants that the OCC will authenticate

its documents for use as evidence.

Section 4.39—Fees for Services

Proposed § 4.39 sets out the fee

schedules that apply when the OCC

provides records or authorizes

testimony from current or former

employees.

Paragraph (a) addresses fees for

document searches, copying, and

certifications, and adopts the standards

of subpart B, § 4.17, concerning

document releases under the FOIA. This

paragraph also specifies that the OCC

may contract with commercial copiers

and requires requesters to pay the costs

of that copying.

Paragraph (b) addresses testimony and

adopts the standards of 28 U.S.C. 1821.

This paragraph also specifies that, when

current OCC employees testify, the

requester must pay the witness fees to

the OCC.

Subpart D—Contracting Outreach

Program

The OCC proposes to relocate its rules

regarding the contracting outreach

program from current subpart C to a

new subpart D, and to renumber them.

These changes do not amend or affect in

any way the substance of the rules.

Part 10

The OCC proposes to eliminate forms

and instructions from its rules regarding

municipal securities dealers. The

Municipal Securities Rulemaking Board

(MSRB) created the forms found in part

10, Forms MSD–4 and MSD–5, to

provide for uniform municipal

securities dealer filings among the

Federal financial institution supervisory

agencies. While part 10 continues to

require certain persons to file Forms

MSD–4 and MSD–5, the OCC considers

it unnecessary to incorporate these

detailed forms and instructions into

OCC regulations. The OCC also is

concerned that a lag between MSRB

revision of a form and appearance of the

revised form in OCC regulations may

cause confusion for bank filers.

Moreover, national banks that act as

municipal securities dealers do not copy

and enlarge the forms from the OCC’s

regulations in practice, contrary to the

OCC’s expectations at the time it

included the forms in its regulations.

Instead, the majority of national bank

municipal securities dealers obtain

forms directly from the OCC. Therefore,

the OCC finds it unnecessary to publish

the forms in its regulation. The

proposal, however, adds a provision

indicating that the OCC’s Chief National

Bank Examiner’s Office will provide

copies of Forms MSD–4 and MSD–5,

with instructions, to any bank that

requests them. The OCC also proposes

to make technical amendments to the

rules. These changes clarify the rules,

eliminate unnecessary provisions, and

help to ensure that banks are using

current forms for their filings.

Part 11

The OCC proposes to make technical

amendments to its rules regarding

disclosure under various provisions of

the Securities Exchange Act of 1934 (15

U.S.C. 78l, 78m, 78n, 78p, and 78w).

The proposal updates the reference to

the name of the division that receives

filings, and specifies the division that

receives requests for copies of filings,

among other minor changes. These

changes simply update and clarify the

regulation.

Part 18

The OCC proposes to amend its rules

regarding annual financial disclosures

by national banks to conform the OCC’s

rules to language adopted in the

Financial Institutions Reform, Recovery,

and Enforcement Act of 1989 (FIRREA),

Pub.L. 101–73, 103 Stat. 187, that

describes persons subject to

administrative enforcement action by

the Federal banking agencies.

Specifically, section 901(b) of FIRREA

amended 12 U.S.C. 1811 et seq., by

substituting the term ‘‘institutionaffiliated party’’ for the terms

‘‘director,’’ ‘‘officer,’’ ‘‘employee,’’

‘‘agent,’’ and ‘‘other person participating

in the conduct of the affairs of a bank.’’

The term ‘‘institution-affiliated party’’ is

defined at 12 U.S.C. 1813(u). The

proposal makes similar amendments to

the provision that indicates the parties

subject to administrative action for

violations of part 18. The OCC also

proposes to make technical amendments

to the regulation. These changes update

and clarify the regulation, and conform

the regulation to statutory language.

31 CFR Part 1

The OCC proposes to amend

appendix J of subpart A and appendix

J of subpart C. Subpart A contains the

Department of the Treasury’s FOIA

rules, and subpart C contains the

Department of the Treasury’s Privacy

Act rules. The various appendices to

subparts A and C contain standardized

information about components of the

Department of the Treasury, including

officials and addresses relevant to the

implementation of the FOIA and the

Privacy Act. Appendix J in subpart A

and appendix J in subpart B, entitled

‘‘Office of the Comptroller of the

Currency,’’ contain information about

the OCC.

The Department of the Treasury, at 31

CFR 1.1(d) and 1.20, has authorized the

head of each of its components to

substitute the officials designated and

change the addresses specified in the

appendices corresponding to that

component. Pursuant to this grant of

authority, the OCC proposes to amend

the OCC administrative information in

appendix J of subpart A and appendix

J of subpart C. These changes update

regulatory information specific to the

OCC.

Derivation Table for 12 CFR Part 4

This table directs readers to the

provisions of the current 12 CFR part 4,

if any, on which the revised 12 CFR part

4 is based.

Revised provision Current provision Comments

Subpart A:

§ 4.1 ............................................................................................. § 4.1 ............................................. Significantly modified.

§§ 4.2–4.5 .................................................................................... § 4.1a ........................................... Significantly modified.

Subpart B:

§ 4.11 ........................................................................................... § 4.1 ............................................. Significantly modified.

§ 4.12(a) ...................................................................................... § 4.16(a) ....................................... Modified.
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15711

Revised provision Current provision Comments

(b) ......................................................................................... § 4.16(b) ....................................... Modified.

(c) ......................................................................................... ...................................................... Added (see 5 U.S.C. 552(c)(1)).

(d) ......................................................................................... § 4.16(c) ....................................... Modified.

(e) ......................................................................................... § 4.16(d) ....................................... Modified.

§ 4.13 ........................................................................................... § 4.14(a) ....................................... Significantly modified.

§ 4.14(a)(1)–(4) ........................................................................... § 4.15(a)(1)–(4) ............................ Modified.

(a)(5) ........................................................................................... § 4.15(b) ....................................... Modified.

(a)(6) .................................................................................... § 4.14(b) ....................................... Modified.

(a)(7) .................................................................................... § 4.13 ........................................... Modified.

(b) ......................................................................................... § 4.15(c) ....................................... Modified.

(c) ......................................................................................... ...................................................... Added.

§ 4.15(a) ...................................................................................... § 4.16(a) ....................................... Modified.

(b) ......................................................................................... § 4.17(b), (c), and (d)(1) .............. Significantly modified.

(c) ......................................................................................... §§ 4.17(d)(2), (d)(3), and (g), and

4.17a(b).

Significantly modified.

(d) ......................................................................................... §§ 4.17(e) and 4.17a(c) ............... Modified.

(e)(1) .................................................................................... ...................................................... Added (see 5 U.S.C. 552(a)(4)(B)).

(e)(2) .................................................................................... § 4.17(f) ........................................ Modified.

(f) .......................................................................................... § 4.17a(d) ..................................... Modified.

(g) ......................................................................................... § 4.17a(a) ..................................... Modified.

§ 4.16 ........................................................................................... § 4.18(d) ....................................... Modified.

§ 4.17 ........................................................................................... § 4.17(h) ....................................... Modified.

Subpart C:

§ 4.31 ........................................................................................... ...................................................... Added.

§ 4.32 ........................................................................................... ...................................................... Added.

§ 4.33 ........................................................................................... § 4.19 ........................................... Significantly modified.

§ 4.34 ........................................................................................... ...................................................... Added.

§ 4.35 ........................................................................................... § 4.19 ........................................... Significantly modified.

§ 4.36(a) ...................................................................................... §§ 4.18(a) and 4.19 ..................... Significantly modified.

(b) ......................................................................................... §§ 4.18(c) and 7.6025(c) ............. Significantly modified.

(c) ......................................................................................... § 4.18(b) ....................................... Modified.

(d) ......................................................................................... ...................................................... Added.

§ 4.37 ........................................................................................... ...................................................... Added.

§ 4.38 ........................................................................................... ...................................................... Added.

§ 4.39 ........................................................................................... ...................................................... Added.

Subpart D:

§§ 4.61–4.66 ................................................................................ §§ 4.61–4.74 ................................ Renumbered.

Regulatory Flexibility Act

It is hereby certified that this

regulation will not have a significant

economic impact on a substantial

number of small entities. Accordingly, a

regulatory flexibility analysis is not

required. This regulation is primarily

clarifying in nature and has no material

impact on national banks, regardless of

size.

Executive Order 12866

The OCC has determined that this

proposal is not a significant regulatory

action under Executive Order 12866.

Paperwork Reduction Act

The collections of information

contained in this proposed rule have

been submitted to the Office of

Management and Budget for review in

accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C.

3504(h)). Comments on the collections

of information should be sent to the

Office of Management and Budget,

Paperwork Reduction Project (1557–

AA67), Washington, DC 20503, with

copies to the Legislative and Regulatory

Activities Division (1557–AA67), Office

of the Comptroller of the Currency, 250

E Street, SW, Washington, DC 20219.

The collections of information in this

proposed rule are found in 12 CFR 4.33

and 4.35 through 4.38. The OCC needs

this information to provide a more

efficient mechanism for expeditiously

processing requests for non-public

information and for testimony. The

likely respondents are businesses and

individuals. The estimated annual

burden per respondent varies from two

to ten burden hours, depending on

individual circumstances, with an

average of 2.6 hours.

Estimated number of respondents: 110

Estimated annual frequency of

responses: 2.3

Estimated total annual reporting

burden: 646 hours

List of Subjects

12 CFR Part 4

Administrative practice and

procedure, Confidential business

information, Freedom of information,

National banks, Organization and

functions (Government agencies),

Reporting and recordkeeping

requirements, Women and minority

businesses.

12 CFR Part 10

National banks, Reporting and

recordkeeping requirements, Securities.

12 CFR Part 11

Confidential business information,

National banks, Reporting and

recordkeeping requirements, Securities.

12 CFR Part 18

National banks, Reporting and

recordkeeping requirements.

31 CFR Part 1

Confidential business information,

Courts, Freedom of information,

Government employees, Privacy.

Authority and Issuance

For the reasons set out in the

preamble, chapter I of title 12, and

subtitle A of title 31, of the Code of

Federal Regulations are proposed to be

amended as follows:

Comptroller of the Currency

12 CFR Chapter I

1. Part 4 is revised to read as follows:
15712 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

PART 4—DESCRIPTION OF OFFICE,

AVAILABILITY AND RELEASE OF

INFORMATION, CONTRACTING

OUTREACH PROGRAM

Subpart A—Description of Office

Sec.

4.1 Purpose.

4.2 Office of the Comptroller of the

Currency.

4.3 Comptroller of the Currency.

4.4 Washington office.

4.5 District and field offices.

Subpart B—Availability of Information

Under the Freedom of Information Act

4.11 Purpose and scope.

4.12 Information available under the FOIA.

4.13 Publication in the Federal Register.

4.14 Public inspection and copying.

4.15 Specific requests for records.

4.16 Predisclosure notice for confidential

commercial information.

4.17 Fees for services.

Subpart C—Release of Non-Public OCC

Information

4.31 Purpose and scope.

4.32 Definitions.

4.33 Requirements for a request of records

or testimony.

4.34 Where to submit a request.

4.35 Consideration of requests.

4.36 Persons and entities with access to

OCC information; restriction on

dissemination.

4.37 Limitation on dissemination of

released information.

4.38 Procedures for sharing and using OCC

records in litigation.

4.39 Fees for services.

Appendix A to Subpart C—Model

Stipulation for Protective Order and Model

Protective Order

Subpart D—Minority-, Women-, and

Individuals With Disabilities—Owned

Business Contracting Outreach Program;

Contracting for Goods and Services

4.61 Purpose.

4.62 Definitions.

4.63 Policy.

4.64 Promotion.

4.65 Certification.

4.66 Oversight and monitoring.

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.

Subpart C also issued under 5 U.S.C. 301,

552; 12 U.S.C. 481, 482, 1821(o), 1821(t); 18

U.S.C. 641, 1905, 1906; 31 U.S.C. 9701.

Subpart D also issued under 12 U.S.C. 1833e.

Subpart A—Description of Office

§ 4.1 Purpose.

This subpart describes the general

purpose and structure of the Office of

the Comptroller of the Currency (OCC),

and provides the OCC’s principal

addresses.

§ 4.2 Office of the Comptroller of the

Currency.

The OCC regulates national banks and

Federal branches and agencies of foreign

banks generally through its power to

examine banks, to approve or deny

applications for new charters or for

changes in corporate or banking

structure, to approve or deny activities,

to take supervisory actions against

banks, and to issue rules and

regulations.

§ 4.3 Comptroller of the Currency.

The Comptroller of the Currency

(Comptroller), as head of the OCC, is

responsible for all OCC programs and

functions. The Comptroller is appointed

by the President, by and with the advice

and consent of the Senate, for a term of

five years. The Comptroller serves as a

member of the board of the Federal

Deposit Insurance Corporation, a

member of the Federal Financial

Institutions Examination Council, and a

member of the board of the

Neighborhood Reinvestment

Corporation. The Comptroller is advised

and assisted by a policy group and by

other OCC employees, who perform the

duties and functions that the

Comptroller directs.

§ 4.4 Washington office.

The Washington office of the OCC is

the main office and headquarters of the

OCC. The Washington office directs

OCC policy, oversees OCC operations,

and is responsible for the direct

supervision of certain national banks,

including the largest national banks and

other national banks requiring special

supervision. The Washington office is

located at 250 E Street, SW,

Washington, DC 20219.

§ 4.5 District and field offices.

(a) District offices. Each district office

of the OCC is responsible for the direct

supervision of the national banks and

Federal branches and agencies of foreign

banks in its district, with the exception

of the national banks supervised by the

Washington office. The six district

offices cover the United States, Puerto

Rico, the Virgin Islands, Guam, and the

Northern Mariana Islands. The office

address and the geographical

composition of each district follows:

District Office address Geographical composition

Northeastern ............ Office of the Comptroller of the Currency, 1114 Avenue of

the Americas, Suite 3900, New York, NY 10036.

Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New

York, Pennsylvania, Puerto Rico, Rhode Island, Vermont,

Virgin Islands.

Southeastern ........... Office of the Comptroller of the Currency, Marquis One

Tower, Suite 600, 245 Peachtree Center Ave., NE, Atlanta, GA 30303.

Alabama, Florida, Georgia, Mississippi, North Carolina,

South Carolina, Tennessee, Virginia, West Virginia.

Central ..................... Office of the Comptroller of the Currency, One Financial

Place, Suite 2700, 440 South LaSalle Street, Chicago, IL

60605.

Illinois, Indiana, Kentucky, Michigan, Ohio, Wisconsin.

Midwestern .............. Office of the Comptroller of the Currency, 2345 Grand

Ave., Suite 700, Kansas City, MO 64108.

Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South Dakota.

Southwestern ........... Office of the Comptroller of the Currency, 1600 Lincoln

Plaza, 500 N. Akard Street, Dallas, TX 75201.

Arkansas, Louisiana, New Mexico, Oklahoma, Texas.

Western ................... Office of the Comptroller of the Currency, 50 Fremont

Street, Suite 3900, San Francisco, CA 94105.

Alaska, Arizona, California, Colorado, Guam, Hawaii,

Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington, Wyoming, Utah.
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15713

(b) Field offices and duty stations.

Field offices and duty stations support

bank supervisory responsibilities of the

district offices.

Subpart B—Availability of Information

Under the Freedom of Information Act

§ 4.11 Purpose and scope.

(a) Purpose. This subpart sets forth

the standards, policies, and procedures

that the OCC applies in administering

the Freedom of Information Act (FOIA)

(5 U.S.C. 552).

(b) Scope. (1) This subpart delineates

the range of information that the FOIA

requires the OCC to disclose to the

public (§ 4.12). This subpart also

describes the three methods by which

the OCC discloses information under

the FOIA and, where applicable, sets

forth the procedures that a person must

follow to obtain that information. The

three methods are:

(i) Publication in the Federal Register

(§ 4.13);

(ii) Public inspection and copying

(§ 4.14); and

(iii) Specific requests for records

(§ 4.15).

(2) This subpart also sets forth

predisclosure notice procedures that the

OCC follows, in accordance with

Executive Order 12600 (3 CFR, 1987

Comp., p.235), when the OCC receives

a request under § 4.15 for disclosure of

records that arguably are exempt from

disclosure as confidential commercial

information (§ 4.16). Finally, this

subpart describes the fees that the OCC

assesses for the services it renders in

providing information under the FOIA

(§ 4.17).

(3) This subpart does not apply to a

request for records pursuant to the

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

requesting records from the OCC

pursuant to the Privacy Act should refer

to 31 CFR part 1, subpart C and

appendix J of subpart C.

§ 4.12 Information available under the

FOIA.

(a) General. In accordance with the

FOIA, OCC records are available to the

public, except the exempt records

described in paragraph (b) of this

section.

(b) Exemptions from availability. The

following records, or portions thereof,

are exempt from disclosure under the

FOIA:

(1) A record that is specifically

authorized, under criteria established by

an Executive order, to be kept secret in

the interest of national defense or

foreign policy, and that is properly

classified pursuant to that Executive

order;

(2) A record relating solely to the

internal personnel rules and practices of

an agency;

(3) A record specifically exempted

from disclosure by statute (other than 5

U.S.C. 552b), provided that the statute

requires that the matters be withheld

from the public in such a manner as to

leave no discretion on the issue,

establishes particular criteria for

withholding, or refers to particular types

of matters to be withheld;

(4) A record that is privileged or

contains trade secrets and commercial

or financial information, furnished in

confidence, that relates to the business,

personal, or financial affairs of any

person (see § 4.16 for notice

requirements regarding disclosure of

confidential commercial information);

(5) An intra-agency or interagency

memorandum or letter not routinely

available by law to a private party in

litigation, including, but not limited to,

memoranda, reports, and other

documents prepared by OCC employees,

and records of deliberations and

discussions at meetings of OCC

employees;

(6) A personnel, medical, or similar

record, including a financial record, or

any portion thereof, where disclosure

would constitute a clearly unwarranted

invasion of personal privacy;

(7) A record or information compiled

for law enforcement purposes, but only

to the extent that the OCC reasonably

believes that producing the record or

information may:

(i) Interfere with enforcement

proceedings;

(ii) Deprive a person of the right to a

fair trial or an impartial adjudication;

(iii) Constitute an unwarranted

invasion of personal privacy;

(iv) Disclose the identity of a

confidential source, including a State,

local, or foreign agency or authority, or

any private institution that furnished

information on a confidential basis;

(v) Disclose information furnished by

a confidential source, in the case of a

record or information compiled by a

criminal law enforcement authority in

the course of a criminal investigation, or

by an agency conducting a lawful

national security intelligence

investigation;

(vi) Disclose techniques and

procedures for law enforcement

investigations or prosecutions, or

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure reasonably could be expected

to risk circumvention of the law; or

(vii) Endanger the life or physical

safety of any individual;

(8) A record contained in or related to

an examination, operating, or condition

report prepared by, on behalf of, or for

the use of the OCC or any other agency

responsible for regulating or supervising

financial institutions; and

(9) A record containing or relating to

geological and geophysical information

and data, including maps, concerning

wells.

(c) Special exclusion. Whenever a

request pursuant to § 4.15 involves

records described in paragraph (b)(7)(i)

of this section, the OCC may treat the

records as not subject to the

requirements of this subpart if, but only

for as long as, the following conditions

exist:

(1) The investigation or proceeding

involves a possible violation of criminal

law; and

(2) The OCC has reason to believe

that:

(i) The subject of the investigation or

proceeding is not aware of its pendency;

and

(ii) Disclosure of the existence of the

records may interfere with enforcement

proceedings.

(d) Discretionary disclosure of exempt

records. Even if a record is exempt

under paragraph (b) of this section, the

OCC may elect, on a case-by-case basis,

not to apply the exemption to the

requested record. The OCC’s election

not to apply an exemption to a

requested record under this paragraph

(d) has no precedential significance as

to the application or nonapplication of

the exemption to any other requested

record, regardless of who requests the

record or when the OCC receives the

request.

(e) Segregability. The OCC provides

copies of reasonably segregable portions

of a record to any person properly

requesting the record pursuant to § 4.15,

after redacting any portion that is

exempt under paragraph (b) of this

section.

§ 4.13 Publication in the Federal Register.

The OCC generally publishes in the

Federal Register certain documents for

the guidance of the public, including

the following:

(a) Proposed and final rules; and

(b) Certain notices and policy

statements of concern to the general

public.

§ 4.14 Public inspection and copying.

(a) Available information. Subject to

the exemptions listed in § 4.12(b), the

OCC makes the following information

readily available for public inspection

and copying:

(1) Any final order, agreement, or

other enforceable document made in the

adjudication of a case, including a final

order published pursuant to 12 U.S.C.

1818(u);
15714 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

(2) Any final opinion made in the

adjudication of a case;

(3) Any statement of general policy or

interpretation of general applicability

not published in the Federal Register;

(4) Any administrative staff manual or

instruction to staff that may affect a

member of the public;

(5) A current index identifying the

information referred to in paragraphs

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

issued, adopted, or promulgated after

July 4, 1967;

(6) A list of available OCC

publications; and

(7) A list of available OCC forms, and

specific forms and instructions.

(b) Redaction of identifying details. To

the extent necessary to prevent an

invasion of personal privacy, the OCC

may redact identifying details from any

information described in paragraph (a)

of this section before making the

information available for public

inspection and copying.

(c) Address. The information

described in paragraph (a) of this

section is available from the Disclosure

Officer, Communications Division,

Office of the Comptroller of the

Currency, 250 E Street, SW,

Washington, DC 20219.

§ 4.15 Specific requests for records.

(a) Available information. Subject to

the exemptions described in § 4.12(b),

any OCC record is available to any

person upon specific request in

accordance with this section.

(b) Where to submit request or

appeal—(1) General. Except as provided

in paragraph (b)(2) of this section, a

person requesting a record or filing an

administrative appeal under this section

must submit the request or appeal to the

Disclosure Officer, Communications

Division, Office of the Comptroller of

the Currency, 250 E Street, SW,

Washington, DC 20219.

(2) Exceptions—(i) District office

records. A person requesting the public

portion of any filing or application

described in part 5 of this chapter must

submit the request to the OCC’s Deputy

Comptroller of the appropriate district

office at the address listed in § 4.5(a).

(ii) Records at the Federal Deposit

Insurance Corporation. A person

requesting any of the following records,

other than blank forms, must submit the

request to the Federal Deposit Insurance

Corporation, 550–17th Street, N.W.,

Washington, DC 20429:

(A) Consolidated Report of Condition

and Income;

(B) Annual Report of Trust Assets;

(C) Uniform Bank Performance

Report; and

(D) Special Report.

(iii) Records of another agency. When

the OCC receives a request for records

in its possession that another Federal

agency either generated or provided to

the OCC, the OCC promptly informs the

requester and immediately forwards the

request to that agency for processing in

accordance with that agency’s

regulations.

(c) Request for records—(1) Content of

request for records. A person requesting

records under this section must state, in

writing:

(i) The requester’s full name, address,

and telephone number;

(ii) A reasonable description of the

records sought (including sufficient

detail to enable OCC employees who are

familiar with the subject matter of the

request to locate the records with a

reasonable amount of effort);

(iii) A statement agreeing to pay all

fees that the OCC assesses under § 4.17;

(iv) A description of how the

requester intends to use the records, if

a requester seeks placement in a lower

fee category (i.e., a fee category other

than ‘‘commercial use requester’’) under

§ 4.17; and

(v) Whether the requester prefers the

OCC to deliver a copy of the records or

to allow the requester to inspect the

records at the appropriate OCC office.

(2) Initial determination. (i) The

OCC’s Director of Communications or

that person’s designee initially

determines whether to grant a request

for records that are covered under

paragraph (b)(1) of this section.

(ii) The Deputy Comptroller for the

appropriate district office or that

person’s designee initially determines

whether to grant a request for records

that are covered under paragraph

(b)(2)(i) of this section.

(3) If request is granted. If the OCC

grants a request for records, in whole or

in part, the OCC promptly discloses the

records in one of two ways, depending

on the requester’s stated preference:

(i) The OCC may deliver a copy of the

records to the requester. If the OCC

delivers a copy of the records to the

requester, the OCC duplicates the

records at reasonable and proper times

that do not interfere with their use by

the OCC or preclude other persons from

making inspections; or

(ii) The OCC may allow the requester

to inspect the records at reasonable and

proper times that do not interfere with

their use by the OCC or preclude other

persons from making inspections. If the

OCC allows the requester to inspect the

records, the OCC may place a reasonable

limit on the number of records that a

person may inspect during a day.

(4) If request is denied. If the OCC

denies a request for records, in whole or

in part, the OCC notifies the requester

by mail. The notification is dated and

contains a brief statement of the reasons

for the denial, sets forth the name and

title or position of the official making

the decision, and advises the requester

of the right to an administrative appeal

in accordance with paragraph (d) of this

section.

(d) Administrative appeal of a

denial—(1) Procedure. A requester must

submit an administrative appeal of

denial of a request for records in writing

within 35 days of the date of the initial

determination. The appeal must include

the circumstances and arguments

supporting disclosure of the requested

records.

(2) Appellate determination. The

Comptroller or the Comptroller’s

designee determines whether to grant an

appeal of a denial of a request for OCC

records.

(3) If appeal is granted. If the OCC

grants an appeal, in whole or in part, the

OCC treats the request as if it were

originally granted, in whole or in part,

by the OCC in accordance with

paragraph (c)(3) of this section.

(4) If appeal is denied. If the OCC

denies an appeal, in whole or in part,

the OCC notifies the requester by mail.

The notification contains a brief

statement of the reasons for the denial,

sets forth the name and title or position

of the official making the decision, and

advises the requester of the right to

judicial review of the denial under 5

U.S.C. 552(a)(4)(B).

(e) Judicial review—(1) General. If the

OCC denies an appeal pursuant to

paragraph (d) of this section, or if the

OCC fails to make a determination

within the time limits specified in

paragraph (f) of this section, the

requester may commence an action to

compel disclosure of records, pursuant

to 5 U.S.C. 552(a)(4)(B), in the United

States district court in:

(i) The district where the requester

resides;

(ii) The district where the requester’s

principal place of business is located;

(iii) The district where the records are

located; or

(iv) The District of Columbia.

(2) Service of process. In commencing

an action described in paragraph (e)(1)

of this section, the requester, in addition

to complying with the Federal Rules of

Civil Procedure for service upon the

United States or agencies thereof, must

serve process on the Chief Counsel,

Office of the Comptroller of the

Currency, 250 E Street, SW,

Washington, DC 20219.

(f) Time limits—(1) Request. The OCC

makes an initial determination to grant

or deny a request for records within ten
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15715

business days 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.

(2) Appeal. The OCC makes a

determination to grant or deny an

administrative appeal within 20

business days after the date of receipt of

the appeal, as described in paragraph (g)

of this section, except as stated in

paragraph (f)(3) of this section.

(3) Extension of time. The time limits

set forth in paragraphs (f)(1) and (2) of

this section may be extended as follows:

(i) In unusual circumstances. The

OCC may extend the time limits in

unusual circumstances for a maximum

of ten business days. If the OCC extends

the time limits, the OCC provides

written notice to the person making the

request or appeal, containing the reason

for the extension and the date on which

the OCC expects to make a

determination. Unusual circumstances

exist when the OCC requires additional

time to:

(A) Search for and collect the

requested records from field facilities or

other buildings that are separate from

the office processing the request or

appeal;

(B) Search for, collect, and

appropriately examine a voluminous

amount of requested records;

(C) Consult with another agency that

has a substantial interest in the

determination of the request; or

(D) Allow two or more components of

the OCC that have substantial interest in

the determination of the request to

consult with each other;

(ii) By agreement. A requester may

agree to extend the time limits for any

amount of time; or

(iii) By judicial action. If a requester

commences an action pursuant to

paragraph (e) of this section for failure

to comply with the time limits set forth

in this paragraph (f), the court with

jurisdiction may, pursuant to 5 U.S.C.

552(a)(6)(C), allow the OCC additional

time to complete the review of the

records requested.

(g) Date of receipt of request or

appeal—(1) Request. The date of receipt

of a request for records is the date that

the appropriate OCC office, as indicated

in paragraphs (b)(1) and (b)(2)(i) of this

section, receives a request that satisfies

the requirements of paragraph (c)(1) of

this section, except as provided in

§ 4.17(d).

(2) Appeal. The date of receipt of an

appeal is the date that the OCC office

identified in paragraph (b)(1) of this

section receives a request that satisfies

the requirements of paragraph (d)(1) of

this section, except as provided in

§ 4.17(d).

§ 4.16 Predisclosure notice for confidential

commercial information.

(a) Definitions. For purposes of this

section, the following definitions apply:

(1) Confidential commercial

information means records that arguably

contain material exempt from release

under Exemption 4 of the FOIA (5

U.S.C. 552(b)(4); § 4.12(b)(4)), because

disclosure reasonably could cause

substantial competitive harm to the

submitter.

(2) Submitter means any person or

entity that provides confidential

commercial information to the OCC.

This term includes, but is not limited to,

corporations, State governments, foreign

governments, and banks and their

employees, officers, directors, and

principal shareholders.

(b) Notice to submitter—(1) When

provided. In accordance with Executive

Order 12600 (3 CFR, 1987 Comp.,

p.235), when the OCC receives a request

under § 4.15 for disclosure of

confidential commercial information,

the OCC provides a submitter with

prompt written notice of the receipt of

that request, except as provided in

paragraph (b)(2) of this section, in the

following circumstances:

(i) With respect to confidential

commercial information submitted to

the OCC prior to January 1, 1988, where:

(A) The records are less than ten years

old and the submitter designated the

information as confidential commercial

information;

(B) The OCC reasonably believes that

disclosure of the information may cause

substantial competitive harm to the

submitter; or

(C) The information is subject to a

prior express OCC commitment of

confidentiality; or

(ii) With respect to confidential

commercial information submitted to

the OCC on or after January 1, 1988,

where:

(A) The submitter in good faith

designated the information as

confidential commercial information;

(B) The OCC designated the class of

information to which the requested

information belongs as confidential

commercial information; or

(C) The OCC reasonably believes that

disclosure of the information may cause

substantial competitive harm to the

submitter.

(2) Exceptions. The OCC does not

provide notice under paragraph (b)(1) of

this section if the OCC determines that:

(i) It will not disclose the information;

(ii) The information already has been

disclosed officially to the public;

(iii) The OCC is required by law (other

than 5 U.S.C. 552) to disclose the

information;

(iv) The OCC acquired the

information in the course of a lawful

investigation of a possible violation of

criminal law;

(v) The submitter did not designate

the requested information as

confidential commercial information

under paragraph (b)(1)(ii)(A) of this

section, if the submitter had an

opportunity to do so at the time of

submission of the information or a

reasonable time thereafter, unless the

OCC has substantial reason to believe

that disclosure of the information would

result in competitive harm; or

(vi) The OCC determines that the

submitter’s designation under paragraph

(b)(1)(ii)(A) of this section appears

obviously frivolous; however, the OCC

provides the submitter with written

notice of any final administrative

determination to disclose the

information, at least ten business days

prior to the date that the OCC intends

to disclose the information.

(3) Content of notice. The OCC either

describes in the notice the exact nature

of the confidential commercial

information requested or includes with

the notice copies of the records or

portions of records containing that

information.

(4) Expiration of notice period. The

OCC provides notice under this

paragraph (b) with respect to

information that the submitter

designated under paragraph (b)(1)(ii)(A)

of this section only for a period of ten

years after the date of the submitter’s

designation, unless the submitter

requests and justifies to the OCC’s

satisfaction a specific notice period of

greater duration.

(5) Certification of confidentiality. If

possible, the submitter should support

the claim of confidentiality with a

statement or certification (by an officer

or authorized representative, for an

entity), that the requested information is

confidential commercial information

that the submitter has not disclosed to

the public.

(c) Notice to requester. If the OCC

provides notice to a submitter under

paragraph (b) of this section, the OCC

notifies the person requesting

confidential commercial information

(requester) that it has provided notice to

the submitter. The OCC also advises the

requester that there is a delay in its

decision of whether to grant or deny

access to the information sought, that

this delay may be considered a denial of

access to the information, and that the

requester may proceed with an

administrative appeal or seek judicial

review. However, the requester may

agree to a voluntary extension of time to

allow the OCC to review the submitter’s
15716 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

objection to disclosure (see

§ 4.15(f)(3)(ii)).

(d) Opportunity to object to

disclosure. Within ten days after

receiving notice under paragraph (b) of

this section, the submitter may provide

the OCC with a detailed statement of

objection to disclosure of the

information. That statement must

specify the grounds for withholding any

of the information under any exemption

of the FOIA. Any statement that the

submitter provides under this paragraph

(d) may be subject to disclosure under

the FOIA.

(e) Notice of intent to disclose. The

OCC considers carefully a submitter’s

objection and specific grounds for

nondisclosure prior to determining

whether to disclose the requested

information. If the OCC decides to

disclose information over the objection

of the submitter, the OCC provides to

the submitter, with a copy to the

requester, a written notice that includes:

(1) A statement of the OCC’s reasons

for not sustaining the submitter’s

objections to disclosure;

(2) A description of the information to

be disclosed;

(3) The anticipated disclosure date

(specifically, ten business days after the

OCC mails the written notice required

under this paragraph (e)); and

(4) A statement that the submitter

must notify the OCC immediately if the

submitter intends to seek injunctive

relief.

(f) Notice of requester’s lawsuit.

Whenever the OCC receives service of

process indicating that a requester has

brought suit seeking to compel the OCC

to disclose information covered by

paragraph (b)(1) of this section, the OCC

promptly notifies the submitter.

§ 4.17 Fees for services.

(a) Definitions. For purposes of this

section, the following definitions apply:

(1) Actual costs means those

expenditures that the OCC incurs in

providing services (including searching

for, reviewing, and duplicating records)

in response to a request for records

under § 4.15.

(2) Search means the process of

locating a record in response to a

request, including page-by-page or lineby-line identification of material within

a record. The OCC may perform a search

manually or by electronic means.

(3) Review means the process of

examining a record located in response

to a request to determine which portions

of that record should be released. It also

includes processing a record for

disclosure.

(4) Duplication means the process of

copying a record in response to a

request. A copy may take the form of a

paper copy, microform, audiovisual

materials, or machine readable material

(e.g., magnetic tape or disk), among

others.

(5) Commercial use requester means a

person 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.

(6) Educational institution requester

means a person who seeks records on

behalf of a public or private educational

institution, including a preschool, an

elementary or secondary school, an

institution of undergraduate or graduate

higher education, an institution of

professional education, or an institution

of vocational education that operates a

program of scholarly research.

(7) Noncommercial scientific

institution requester means a person

who is not a ‘‘commercial use

requester,’’ as that term is defined in

paragraph (a)(5) of this section, and who

seeks records on behalf of an institution

operated solely for the purpose of

conducting scientific research, the

results of which are not intended to

promote any particular product or

industry.

(8) Requester who is a representative

of the news media means a person 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 free-lance

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.

(b) Fees—(1) General. The hourly and

per page rate that the OCC generally

charges requesters is set forth in the

‘‘Notice of Comptroller of the Currency

Fees’’ (Notice) described in § 8.8 of this

chapter. Any interested person may

request a copy of the Notice from the

OCC by mail or may obtain a copy at the

location described in § 4.14(c). The OCC

may contract with a commercial service

to search for, duplicate, or disseminate

records, provided that the OCC

determines that the fee assessed upon a

requester is no greater than if the OCC

performed the tasks itself. In no case

may the OCC contract out

responsibilities that the FOIA provides

that the OCC alone may discharge, such

as determining the applicability of an

exemption or whether to waive or

reduce a fee.

(2) Fee categories. The OCC assesses

a fee based on the fee category in which

the OCC places the requester. If the

request states how the requester intends

to use the requested records (see

§ 4.15(c)(1)(iv)), the OCC may place the

requester in a lower fee category;

otherwise, the OCC categorizes the

requester as a ‘‘commercial use

requester.’’ If the OCC reasonably

doubts the requester’s stated intended

use, or if that use is not clear from the

request, the OCC may place the

requester in the ‘‘commercial use’’

category or may seek additional

clarification. The fee categories are as

follows:

(i) Commercial use requesters. The

OCC assesses a fee for a requester in this

category for the actual cost of search,

review, and duplication. A requester in

this category does not receive any free

search, review, or duplication services.

(ii) Educational institution requesters,

noncommercial scientific institution

requesters, and requesters who are

representatives of the news media. The

OCC assesses a fee for a requester in this

category for the actual cost of

duplication. A requester in this category

receives 100 free pages.

(iii) All other requesters. The OCC

assesses a fee for a requester who does

not fit into either of the above categories

for the actual cost of search and

duplication. A requester in this category

receives 100 free pages and two hours

of free search time.

(3) Special services. The OCC may

comply with a request for special

services. The OCC may recover the

actual cost of providing any special

services.

(4) Waiving or reducing a fee. The

OCC may waive or reduce a fee under

this section whenever, in its opinion,

disclosure of records is in the public

interest because the disclosure:

(i) Is likely to contribute significantly

to public understanding of the

operations or activities of the

government; and

(ii) Is not primarily in the commercial

interest of the requester.

(5) Fee for unsuccessful search. The

OCC may assess a fee for time spent

searching for records, even if the OCC

does not locate the records requested.

(c) Payment of fees.—(1) General. The

OCC generally assesses a fee when it

delivers the records in response to the

request, if any. A requesters must send

payment within 30 calendar days of the

billing date to the Communications

Division, Office of the Comptroller of

the Currency, 250 E Street, SW,

Washington, DC 20219.

(2) Fee likely to exceed $25. If the

OCC estimates that a fee is likely to

exceed $25, the OCC notifies the

requester of the estimated fee, unless the

requester has indicated in advance a

willingness to pay a fee as high as that

anticipated. If so notified by the OCC,
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the requester may confer with OCC

employees to revise the request to

reflect a lower fee.

(3) Fee likely to exceed $250. If the

OCC estimates that a fee is likely to

exceed $250, the OCC notifies the

requester of the estimated fee. In this

circumstance, the OCC may require, as

a condition to processing the request,

that the requester:

(i) Provide satisfactory assurance of

full payment, if the requester has a

history of prompt payment; or

(ii) Pay the estimated fee in full, if the

requester does not have a history of

prompt payment.

(4) Failure to pay a fee. If the

requester fails to pay a fee within 30

days of the date of the billing, the OCC

may require, as a condition to

processing any further request, that the

requester pay any unpaid fee, plus

interest (as provided in paragraph (c)(5)

of this section), and any estimated fee in

full for that further request.

(5) Interest on unpaid fee. The OCC

may assess interest charges on an

unpaid fee beginning on the 31st day

following the billing date. The OCC

charges interest at the rate prescribed in

31 U.S.C. 3717.

(d) Tolling of time limits. Under the

circumstances described in paragraphs

(c)(2), (3), and (4) of this section, the

time limits set forth in § 4.15(f) (i.e., ten

business days from the receipt of a

request for records and 20 business days

from the receipt of an administrative

appeal, plus any permissible extension)

begin only after the OCC receives a

revised request (if any), under paragraph

(c)(2) of this section, an assurance of

payment under paragraph (c)(3)(i) of

this section, or the required payments

under paragraph (c)(3)(i) or (c)(4) of this

section.

(e) Aggregating requests. When the

OCC reasonably believes that a requester

or group of requesters is attempting to

break a request into a series of requests

for the purpose of evading the

assessment of a fee, the OCC may

aggregate the requests and assess a fee

accordingly.

Subpart C—Release of Non-Public

OCC Information

§ 4.31 Purpose and scope.

(a) Purpose. The purposes of this

subpart are to:

(1) Afford an orderly mechanism for

the OCC to process expeditiously

requests for non-public OCC

information, and, when appropriate, for

the OCC to assert evidentiary privileges

in litigation;

(2) Balance the public’s interest in

obtaining access to relevant and

necessary information with the

countervailing public interest of

maintaining the effectiveness of the

OCC supervisory process and the

confidentiality of OCC supervisory

information;

(3) Ensure that the OCC’s information

is used in a manner that supports the

public interest and the interests of the

OCC;

(4) Ensure that OCC resources are

used in the most efficient manner

consistent with the OCC’s statutory

mission;

(5) Prevent undue burden on the OCC;

(6) Limit the expenditure of

government resources for private

purposes; and

(7) Maintain the OCC’s impartiality

among private litigants.

(b) Scope. (1) This subpart applies to

requests for, and dissemination of, nonpublic OCC information, including

requests for records or testimony arising

out of civil lawsuits and administrative

proceedings to which the OCC is not a

party. Lawsuits and administrative

proceedings to which the OCC is not a

party include proceedings in which a

Federal agency is a party in opposition

to the private requester.

(2) This subpart does not apply to:

(i) A request for a record or testimony

in a proceeding in which the OCC is a

party;

(ii) A request for a record that is

required to be disclosed under the

Freedom of Information Act (FOIA) (5

U.S.C. 552), as described in § 4.12; or

(iii) A request for a record or

testimony by:

(A) An agency with authority to

investigate violations of criminal law; or

(B) A Federal agency for use in civil

or administrative enforcement

proceedings.

§ 4.32 Definitions.

(a) Compelling need means that the

requester has demonstrated, with as

much detail as is necessary under the

circumstances, that the requested

information could contribute

substantially to the resolution of one or

more specifically identified issues in the

case and that the relevant material

contained in the testimony is not

available from any other source.

Sources, without limitation, include the

books and records of other persons or

entities and non-public OCC records

that have been, or might be, released.

(b) Complete request means a request

containing sufficient information to

allow the OCC to make an informed

decision.

(c) Showing that the information has

high relevance means demonstrating,

with as much detail as is necessary

under the circumstances, that the

requested information could contribute

substantially to the resolution of one or

more specifically identified issues in the

case.

(d) Non-public OCC information

means information that the OCC is not

required to release under the FOIA (5

U.S.C. 552) or that the OCC has not yet

published or made available pursuant to

12 U.S.C. 1818(u) and includes:

(1) A record created or obtained by

the OCC in connection with the OCC’s

performance of its responsibilities, such

as a record concerning supervision,

licensing, regulation, and examination

of a national bank, a bank holding

company, or an affiliate;

(2) A record compiled by the OCC in

connection with the OCC’s enforcement

responsibilities;

(3) A report of examination,

supervisory correspondence, an

investigatory file compiled by the OCC

in connection with an investigation, and

any internal agency memorandum,

whether the information is in the

possession of the OCC or some other

individual or entity;

(4) Confidential OCC information

obtained by a third party or otherwise

incorporated in the records of a third

party, including another government

agency;

(5) Testimony from, or an interview

with, a current or former OCC

employee, officer, or agent concerning

information acquired by that person in

the course of his or her performance of

official duties or due to that person’s

official status; and

(6) Confidential information relating

to no longer operating national banks,

their subsidiaries and affiliates, as well

as confidential information relating to

operating national banks, their

subsidiaries and affiliates.

(e) Testimony means an interview or

sworn testimony on the record.

§ 4.33 Requirements for a request of

records or testimony.

(a) Generally.—(1) Form of request. A

person seeking non-public OCC

information must submit a request in

writing to the OCC. The requester must

explain, in as detailed a description as

is necessary under the circumstances,

the bases for the request and how the

requested non-public OCC information

relates to the issues in the lawsuit or

matter.

(2) Expedited requests. A requester

seeking a response in less than 60 days

must explain why the request was not

submitted earlier and why the OCC

should expedite the request.

(3) Requests arising from adversarial

matters. Where the requested
15718 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

information is to be used in connection

with an adversarial matter:

(i) The OCC generally will require that

the lawsuit or administrative action has

been filed before it will consider the

request;

(ii) The request must include:

(A) A copy of the complaint or other

pleading setting forth the assertions in

the case;

(B) The caption and docket number of

the case;

(C) The name, address, and phone

number of counsel to each party in the

case; and

(D) A description of any prior judicial

decisions or pending motions in the

case that may bear on the asserted

relevance of the requested information;

(iii) The request must address any

potential privileges the OCC may assert

to withhold the information by:

(A) Showing that the information has

high relevance to the purpose for which

it is sought;

(B) Showing that other evidence

reasonably suited to the requester’s

needs is not available from any other

source;

(C) Showing that the need for the

information clearly outweighs any

public interest considerations in

maintaining the confidentiality of the

OCC information and outweighs the

burden on the OCC to produce the

information;

(D) Explaining how the issues in the

case and the status of the case warrant

that the OCC waive privilege; and

(E) Identifying any other issue that

may bear on the question of waiver of

privilege by the OCC.

(b) Requests for records. If the request

is for a record, the requester must

adequately describe the record or

records sought by type and date.

(c) Requests for testimony.—(1)

Generally. A requester seeking

testimony:

(i) Must show a compelling need for

the requested information; and

(ii) Should request OCC testimony

with sufficient time to obtain the

testimony in deposition form.

(2) Trial or hearing testimony. A

requester seeking testimony at a trial or

hearing must show that a deposition

would not suffice.

§ 4.34 Where to submit a request.

(a) A request for non-public OCC

information: A person requesting

information under this subpart,

requesting authentication of a record

under § 4.38(c), or submitting a

notification of the issuance of a

subpoena or compulsory process under

§ 4.36, must send the request or

notification to: Office of the Comptroller

of the Currency, 250 E Street, SW,

Washington, DC 20219, Attention:

Director, Litigation Division.

(b) Combined requests for non-public

and other OCC information: A person

requesting public OCC information and

non-public OCC information under this

subpart may submit a combined request

for both to the address in paragraph (a)

of this section. If a requester decides to

submit a combined request under this

section, the OCC will process the

combined request under this subpart

and not under subpart B of this part

(FOIA).

§ 4.35 Consideration of requests.

(a) In general—(1) OCC discretion.

The OCC decides whether to release

non-public OCC information based on

its weighing of all appropriate factors

including, but not limited to, the

requestor’s fulfilling of the requirements

enumerated in § 4.33. Each decision is

at the sole discretion of the Comptroller

or the Comptroller’s delegate and is a

final agency decision.

(2) Bases for denial. The OCC may

deny a request for non-public OCC

information for reasons that include, but

are not limited to, the following:

(i) The requester was unsuccessful in

showing that the information has high

relevance to the purpose for which it is

sought;

(ii) The requester seeks testimony and

the requestor did not show a compelling

need for the information;

(iii) The request arises from an

adversarial matter and other evidence

reasonably suited to the requester’s need

is available from another source;

(iv) The request for information

should not be granted based on reasons

stated in the Federal Rules of Civil

Procedure, including Rule 26(b) (28

U.S.C. appendix);

(v) A lawsuit or administrative action

has not yet been filed and the request

was made in connection with potential

litigation; or

(vi) The production of the information

would be contrary to the public interest

or overly burdensome to the OCC.

(3) Additional information. A

requester must submit a complete

request. The OCC may require the

requester to provide additional

information to complete a request.

Consistent with the purposes stated in

§ 4.31, the OCC may inquire into the

circumstances of any case underlying

the request and rely on sources of

information other than the requester,

including other parties.

(4) Time required by the OCC to

decide. The OCC generally will process

requests in the order in which they are

received. The OCC will notify the

requester in writing of the final

decision. Absent exigent or unusual

circumstances, the OCC will respond to

a request within 60 days from the date

that the OCC receives a request that it

deems a complete request. Consistent

with § 4.33(a)(2), the OCC weighs a

request to respond to a request for

information in less than 60 days against

the unfairness to other requesters whose

pending requests may be delayed and

the burden imposed on the OCC by the

expedited processing.

(b) Testimony. (1) The OCC generally

will not authorize a current OCC

employee to provide expert or opinion

evidence for a private party.

(2) The OCC may restrict the scope of

any authorized testimony and may act

to ensure that the scope of testimony

given by the OCC employee adheres to

the scope authorized by the OCC.

(3) Once a request for testimony has

been submitted, and before the

requested testimony occurs, a party to

the relevant case, who did not join in

the request and who wishes to question

the witness beyond the scope of

testimony sought by the request, must

timely submit the party’s own request

for OCC information pursuant to this

subpart.

(4) The OCC may offer the requester

the employee’s written declaration in

lieu of testimony.

(c) Release of non-public OCC

information by others. In appropriate

cases, the OCC may respond to a request

for information by authorizing a party to

the case who is in possession of nonpublic OCC information to release the

information to the requester. An OCC

authorization to release records does not

preclude the party in possession from

asserting its own privilege, arguing that

the records are not relevant, or asserting

any other argument for which it has

standing to protect the records from

release.

§ 4.36 Persons and entities with access to

OCC information; restriction on

dissemination.

(a) OCC employees or former

employees—(1) Generally. Except as

authorized by this subpart or otherwise

by the OCC, no OCC employee or former

employee may, in any manner, disclose

or permit the disclosure of any nonpublic OCC information, whether by

giving the information or a copy thereof

to any person, by allowing any person

to inspect, examine, or copy the

information or copy thereof, or

otherwise, to anyone other than an

employee of the Comptroller who is

entitled to the information for the

performance of OCC duties.
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15719

(2) Duty of person served. Any OCC

employee or former employee

subpoenaed or otherwise requested to

provide information covered by this

subpart must immediately notify the

OCC’s Litigation Division. The OCC will

attempt to have the compulsory process

withdrawn and may register appropriate

objections when an employee or former

employee receives a subpoena, the

subpoena requires the employee or

former employee to appear or produce

OCC information, and no authorization

pursuant to this subpart has been given

by the OCC to appear or provide

information. If necessary, the employee

or former employee shall appear as

required and respectfully decline to

produce the information sought citing

this subpart C and United States ex rel.

Touhy v. Ragen, 340 U.S. 462 (1951).

(b) Non-OCC employees or entities. (1)

No person or other entity may, without

OCC approval, in any manner, disclose

information covered by this subpart,

whether by giving the information or a

copy thereof to any person, by allowing

any person to inspect, examine, or copy

the information or a copy thereof, or

otherwise.

(2) Except pursuant to a final decision

rendered in accordance with

§ 4.35(a)(1), a national bank or holding

company, or any director, officer, or

employee thereof, may not, under any

circumstances, make public or disclose

in any manner non-public OCC

information, including information

contained in, or related to, OCC reports

of examination, to any person or

organization not officially connected

with the bank as officer, director,

employee, attorney, auditor, or

independent auditor.

(3) Any person who discloses or uses

non-public OCC information except as

expressly permitted by the Comptroller

of the Currency may be subject to the

penalties provided in 18 U.S.C. 641.

(4) The OCC may require any person

in possession of OCC records to return

the records to the OCC.

(c) Disclosure to government agencies.

When not prohibited by law, the

Comptroller may make available to the

Board of Governors of the Federal

Reserve System, to the Federal Deposit

Insurance Corporation, and, in the

Comptroller’s sole discretion, to certain

other government agencies of the United

States and foreign governments, a copy

of a report of examination or other nonpublic OCC information for their use,

when necessary, in the performance of

their official duties. All reports,

documents, and papers made available

pursuant to this subpart are OCC

property.

(d) Intention of OCC not to waive

rights. The possession by any of the

entities or individuals described in

paragraphs (a), (b), and (c) of this

section of non-public OCC information

does not constitute a waiver by the OCC

of its right to control, or impose

limitations on, the subsequent use and

dissemination of the information.

§ 4.37 Limitation on dissemination of

released information.

(a) Records. The OCC may condition

a decision to release non-public OCC

information on entry of a protective

order by the court or administrative

tribunal presiding in the particular case

or, in non-adversarial matters, on a

written agreement of confidentiality. In

a case in which a protective order has

already been entered, the OCC may

condition approval for release of nonpublic OCC information upon the

inclusion of additional or amended

provisions in the protective order. The

OCC may authorize a party who

obtained records for use in one case to

provide them to another party in

another case.

(b) Testimony. The OCC may

condition its authorization of deposition

testimony on an agreement of the parties

to appropriate limitations, such as an

agreement to keep the transcript of the

testimony under seal or to make the

transcript available only to the parties,

the court, and the jury. Upon request or

on its own initiative, the OCC may

allow use of a transcript in other

litigation. The OCC may require the

requester, at the requester’s expense, to

furnish the OCC with a copy of the

transcript. The OCC employee whose

deposition was transcribed does not

waive his or her right to review the

transcript and to note errors.

§ 4.38 Procedures for sharing and using

OCC records in litigation.

(a) Responsibility of litigants to share

released records. The requester must

promptly notify other parties to a case

of the release of non-public OCC

information obtained pursuant to this

subpart, and, upon entry of a protective

order, must provide copies of OCC

information, including OCC information

obtained pursuant to § 4.15, to the other

parties.

(b) Retrieval and destruction of

released records. At the conclusion of

an action:

(1) The requester must retrieve any

non-public OCC information from the

court’s file as soon as the court no

longer requires the information;

(2) Each party must destroy the nonpublic OCC information covered by the

protective order; and

(3) Each party must certify to the OCC

that the non-public OCC information

covered by the protective order has been

destroyed.

(c) Authentication for use as evidence.

Upon request, the OCC authenticates

released records to facilitate their use as

evidence. Requesters who require

authenticated records or certificates of

nonexistence of records should, as early

as possible, request certificates from the

OCC’s Litigation Division pursuant to

§ 4.34(a).

§ 4.39 Fees for services.

(a) Fees for records search, copying,

and certification. The requester must

pay a fee to the OCC or to an OCC

contracted commercial copier for any

records search, copying, or certification

in accordance with the standards

specified in § 4.17. The OCC may

require a requester to remit payment

prior to providing the requested

information.

(b) Witness fees and mileage. A

person whose request for testimony of a

current OCC employee is approved

must, upon completion of the

testimonial appearance, tender

promptly to the OCC payment for the

witness fees and mileage. The litigant

must compute these amounts in

accordance with 28 U.S.C. 1821. A

litigant whose request for testimony of

a former OCC employee is approved

must tender promptly to the witness any

witness fees or mileage due in

accordance with 28 U.S.C. 1821.

Appendix A to Subpart C—Model

Stipulation for Protective Order and

Model Protective Order

I. Model Stipulation

Case Caption

Model Stipulation for Protective Order

Whereas, counsel for llllllllll

have applied to the Comptroller of the

Currency (hereinafter ‘‘Comptroller’’)

pursuant to 12 C.F.R. Part 4, Subpart C, for

permission to have made available, in

connection with the captioned action, certain

records; and

Whereas, such records are deemed by the

Comptroller to be confidential and

privileged, pursuant to 12 U.S.C. 481; 5

U.S.C. 552(b)(8); 18 U.S.C. 641, 1906; and 12

C.F.R. 4.12, and Part 4, Subpart C; and

Whereas, following consideration by the

Comptroller of the application of the above

described party, the Comptroller has

determined that the particular circumstances

of the captioned action warrant making

certain possibly relevant records as denoted

in Appendix ‘‘A’’ to this Stipulation [records

to be specified by type and date] available to

the parties in this action, provided that

appropriate protection of their confidentiality

can be secured;

Therefore, it is hereby stipulated by and

between the parties hereto, through their
15720 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

respective attorneys that they will be bound

by the following protective order which may

be entered by the Court without further

notice.

Dated this llllll day of

llllllll, 19lll.

lllllllllllllllllllll

Attorney for Plaintiff

lllllllllllllllllllll

Attorney for Defendant

II. Model Protective Order

Case Caption

Model Protective Order

Whereas, counsel for llllllllll

have applied to the Comptroller of the

Currency (hereinafter Comptroller’’) pursuant

to 12 C.F.R. Part 4, Subpart C, for permission

to have made available, in connection with

the captioned action, certain records; and

Whereas, such records are deemed by the

Comptroller to be confidential and

privileged, pursuant to 12 U.S.C. 481; 5

U.S.C. 552(b)(8); 18 U.S.C. 641, 1906; and 12

C.F.R. 4.12, and Part 4, Subpart C;

Whereas, following consideration by the

Comptroller of the application of the above

described party, the Comptroller has

determined that the particular circumstances

of the captioned action warrant making

certain possibly relevant records available to

the parties in this action, provided that

appropriate protection of their confidentiality

can be secured;

Now, therefore, it is ordered That:

1. The records, as denoted in Appendix

‘‘A’’ to the Stipulation for this Protective

Order, upon being furnished [or released for

use] by the Comptroller, shall be disclosed

only to the parties to this action, their

counsel, and the court [and the jury].

2. The parties to this action and their

counsel shall keep such records and any

information contained in such records

confidential and shall in no way divulge the

same to any person or entity, save and except

to such experts, consultants and non-party

witnesses to whom the records and their

contents shall be disclosed, solely for the

purpose of properly preparing for and trying

the action.

3. No person to whom information and

records covered by this Order are disclosed

shall make any copies or otherwise use such

information or records or their contents for

any purpose whatsoever, except in

connection with this action.

4. Any party or other person who wishes

to use the records or their contents in any

other action shall make a separate

application to the Comptroller pursuant to 12

C.F.R. part 4, subpart C.

5. Should any records covered by this

Order be filed with the Court or utilized as

exhibits at depositions in the captioned

action, or should information or records or

their contents covered by this Order be

disclosed in the transcripts of depositions or

the trial in the captioned action, such

records, exhibits and transcripts shall be filed

in sealed envelopes or other sealed

containers marked with the title of this

action, identifying each document and article

therein and bearing a statement substantially

in the following form:

Confidential

Pursuant to the Order of the Court dated

lllllllll this envelope containing

the above-identified papers filed by (the

name of the party) is not to be opened nor

the contents thereof displayed or revealed

except to the parties to this action or their

counsel or by further Order of the Court.

6. For Jury Trial: Any party offering any of

the records into evidence shall offer only

those pages, or portions thereof, that are

relevant and material to the issues to be

decided in the action and shall block out any

portion of any page that contains information

not relevant or material. Furthermore, the

name of any person or entity contained on

any page of the records who is not a party

to this action, or whose name is not

otherwise relevant or material to the action,

shall be blocked out prior to the admission

of such page into evidence. Any

disagreement regarding what portion of any

page that should be blocked out in this

manner shall be resolved by the Court in

camera, and the Court shall decide its

admissibility into evidence.

7. At the conclusion of this action, all

parties shall certify to the Comptroller that

the records covered by this Order have been

destroyed. Furthermore, counsel for

lllllll, pursuant to 12 C.F.R. 4.38(b),

shall retrieve any records covered by this

Order that may have been filed with the

Court.

So Ordered

lllllllllllllllllllll

Judge

Dated: lllllllllllllllll

Subpart D—Minority-, Women-, and

Individuals With Disabilities-Owned

Business Contracting Outreach

Program; Contracting for Goods and

Services

§ 4.61 Purpose.

Pursuant to the Financial Institutions

Reform, Recovery, and Enforcement Act

of 1989, Sec. 1216(c), Public Law 101–

73, 103 Stat. 183, 529 (12 U.S.C.

1833e(c)) and consistent with the

Rehabilitation Act of 1973, as amended

(29 U.S.C. 701 et seq.), this subpart

establishes the OCC Minority-,

Women-, and Individuals with

Disabilities-Owned Business

Contracting Outreach Program

(Outreach Program). The Outreach

Program is intended to ensure that firms

owned and operated by minorities,

women, and individuals with

disabilities have the opportunity to

participate, to the maximum extent

possible, in all contracting activities of

the OCC.

§ 4.62 Definitions.

(a) Minority- and/or women-owned

(small and large) businesses and entities

owned by minorities and women

(MWOB) means firms at least 51 percent

unconditionally-owned by one or more

members of a minority group or by one

or more women who are citizens of the

United States. In the case of publiclyowned companies, at least 51 percent of

each class of voting stock must be

unconditionally-owned by one or more

members of a minority group or by one

or more women who are citizens of the

United States. In the case of a

partnership, at least 51 percent of the

partnership interest must be

unconditionally-owned by one or more

members of a minority group or by one

or more women who are citizens of the

United States. Additionally, for the

foregoing cases, the management and

daily business operations must be

controlled by one or more such

individuals.

(b) Minority means any African

American, Native American (means

American Indian, Eskimo, Aleut and

Native Hawaiian), Hispanic American,

Asian-Pacific American, or

Subcontinent-Asian American.

(c) Individual with disabilities-owned

(small and large) businesses and entities

owned by individuals with disabilities

(IDOB) means firms at least 51 percent

unconditionally-owned by one or more

members who are individuals with

disabilities and citizens of the United

States. In the case of publicly-owned

companies, at least 51 percent of each

class of voting stock must be

unconditionally-owned by one or more

members who are individuals with

disabilities and who are citizens of the

United States. In the case of a

partnership, at least 51 percent of the

partnership interest must be

unconditionally-owned by one or more

members who are individuals with

disabilities and citizens of the United

States. Additionally, for the foregoing

cases, the management and daily

business operations must be controlled

by one or more such individuals.

(d) Individual with disabilities means

any person who has a physical or

mental impairment which substantially

limits one or more of such person’s

major life activities, has a record of such

an impairment, or is regarded as having

such an impairment. For purposes of

this part, it does not include an

individual who is currently engaging in

the illegal use of drugs nor an

individual who has a currently

contagious disease or infection and

who, by reason of such disease or

infection, would constitute a direct

threat to the health or safety of other

individuals or who, by reason of the

currently contagious disease or

infection, is unable to perform the

duties of the job as defined by the IDOB.

(e) Unconditional ownership means

ownership that is not subject to

conditions or similar arrangements
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15721

which cause the benefits of the

Outreach Program to accrue to persons

other than the participating MWOB or

IDOB.

§ 4.63 Policy.

The OCC policy is to ensure that

MWOBs and IDOBs have the

opportunity to participate, to the

maximum extent possible, in contracts

awarded by the OCC. The OCC awards

contracts consistent with the principles

of full and open competition and best

value acquisition, and with the concept

of contracting for agency needs at the

lowest practicable cost. The OCC

ensures that MWOBs and IDOBs have

the opportunity to participate fully in

all contracting activities that the OCC

enters into for goods and services,

whether generated by the headquarters

office in Washington, DC, or any other

office of the OCC. Contracting

opportunities may include small

purchase awards, contracts above the

small purchase threshold, and delivery

orders issued against other

governmental agency contracts.

§ 4.64 Promotion.

(a) Scope. The OCC, under the

direction of the Deputy Comptroller for

Resource Management, engages in

promotion and outreach activities

designed to identify MWOBs and IDOBs

capable of providing goods and services

needed by the OCC, to facilitate

interaction between the OCC and the

MWOBs and IDOBs community, and to

indicate the OCC’s commitment to

doing business with that community.

The Outreach Program is designed to

facilitate OCC’s participation in

business promotion events sponsored by

other government agencies and attended

by minorities, women and individuals

with disabilities. Once the OCC has

identified a prospective participant, it

will assist the minority- or womenowned business or individual with

disabilities-owned business in

understanding the OCC’s needs and

contracting process.

(b) Outreach activities. OCC’s

Outreach Program includes the

following:

(1) Obtaining various lists and

directories of MWOBs and IDOBs

maintained by government agencies;

(2) Contacting appropriate firms for

participation in the OCC’s Outreach

Program;

(3) Participating in business

promotion events comprised of or

attended by MWOBs and IDOBs to

explain OCC contracting opportunities

and to obtain names of potential

MWOBs and IDOBs;

(4) Ensuring that the OCC contracting

staff understands and actively promotes

this Outreach Program; and

(5) Registering MWOBs and IDOBs in

the Department of the Treasury’s

database to facilitate their participation

in the competitive procurement process

for OCC contracts. This database is used

by OCC procurement staff to identify

firms to be solicited for OCC

procurements.

§ 4.65 Certification.

(a) Objective. To preserve the integrity

and foster the Outreach Program’s

objectives, each prospective MWOB or

IDOB must demonstrate that it meets the

ownership and control requirements for

participation in the Outreach Program.

(b) Process-MWOB. A prospective

MWOB may demonstrate its eligibility

for participation in the Outreach

Program by:

(1) Submitting a valid MWOB

certification received from another

government agency whose definition of

MWOB is substantially similar to that

specified in § 4.62(a);

(2) Self-certifying MWOB ownership

status by filing with the OCC a

completed and signed certification form

as prescribed by the Federal Acquisition

Regulation, 48 CFR 53.301–129; or

(3) Submitting a valid MWOB

certification received from the Small

Business Administration.

(c) Process-IDOB. A prospective IDOB

may demonstrate its eligibility for

participation in the Outreach Program

by:

(1) Submitting a valid IDOB

certification received from another

government agency whose definition of

IDOB is substantially similar to that

specified in § 4.62(c); or

(2) Self-certifying IDOB ownership

status by filing with the OCC a

completed and signed certification as

prescribed in the Federal Acquisition

Regulation, 48 CFR 53.301–129, and

adding an additional certifying

statement to read as follows:

I certify that I am an individual with

disabilities as defined in 12 CFR 4.62(d), and

that my firm, (Name of Firm) qualifies as an

individual with disabilities-owned business

as defined in 12 CFR 4.62(c).

§ 4.66 Oversight and monitoring.

The Deputy Comptroller for Resource

Management shall appoint an Outreach

Program Manager, who shall appoint an

Outreach Program Specialist. The

Outreach Program Manager is primarily

responsible for program advocacy,

oversight and monitoring.

PART 10—MUNICIPAL SECURITIES

DEALERS

2. The authority citation for part 10 is

revised to read as follows:

Authority: 12 U.S.C. 93a; 15 U.S.C. 78o–

4(c)(5), and 78q–78w.

§ 10.1 [Amended]

3. In § 10.1, the introductory text is

amended by revising the term

‘‘Comptroller of the Currency’’ to read

‘‘Office of the Comptroller of the

Currency (OCC)’’.

§ 10.2 [Amended]

4. In § 10.2, paragraph (b) is amended

by revising the term ‘‘Rulemaking

board’’ to read ‘‘Rulemaking Board’’.

5. In § 10.3, paragraph (a) is revised,

paragraphs (b) and (c) are amended by

revising the term ‘‘Comptroller of the

Currency’’ to read ‘‘OCC’’, and a new

paragraph (d) is added to read as

follows:

§ 10.3 Filing of documents.

(a) All documents required to be filed

with the OCC in accordance with this

part are to be filed at the Chief National

Bank Examiner’s Office, Office of the

Comptroller of the Currency, 250 E

Street, SW, Washington, DC 20219.

* * * * *

(d) Forms MSD–4 and MSD–5, with

instructions, may be obtained from the

Chief National Bank Examiner’s Office

at the address listed in paragraph (a) of

this section.

§ 10.4 [Amended]

6. In § 10.4, paragraphs (a)(1),

(a)(2)(ii), (b)(2)(ii), (c)(1), and (d)(2) are

amended by revising the term

‘‘Comptroller of the Currency’’ to read

‘‘OCC’’, and paragraph (b)(2)(i) is

amended by revising the term ‘‘board’’

to read ‘‘Board’’.

6a. The undesignated centerheading

preceding § 10.41 is removed.

§ 10.41 [Removed]

7. Section 10.41 is removed.

§ 10.42 [Removed]

8. Section 10.42 is removed.

PART 11—SECURITIES EXCHANGE

ACT DISCLOSURE RULES

9. The authority citation for part 11 is

revised to read as follows:

Authority: 12 U.S.C. 93a; 15 U.S.C. 78l,

78m, 78n, 78p, and 78w.

§ 11.1 [Amended]

10. In § 11.1, paragraph (a) is

amended in the first sentence by

revising the term ‘‘Comptroller’’ to read

‘‘Office of the Comptroller of the
15722 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

Currency (OCC)’’, and in the second

sentence by revising the term

‘‘Comptroller’’ to read ‘‘OCC’’.

§ 11.2 [Amended]

11. In § 11.2, paragraph (a) is

amended by revising the term

‘‘Comptroller’’ to read ‘‘OCC’’, and

paragraph (c) is amended by revising the

term ‘‘Comptroller’’ to read ‘‘OCC’’.

12. Section 11.3 is revised to read as

follows:

§ 11.3 Filing requirements and inspection

of documents.

(a) All papers required to be filed with

the OCC pursuant to the 1934 Act or

regulations thereunder shall be

submitted in quadruplicate to the

Securities and Corporate Practices

Division, Office of the Comptroller of

the Currency, 250 E Street, SW,

Washington, DC 20219. Material may be

filed by delivery to the OCC through the

mail or otherwise. The date on which

papers are actually received by the OCC

shall be the date of filing, if the person

or bank filing the papers has complied

with all applicable requirements.

(b) Copies of registration statements,

definitive proxy solicitation materials,

reports, and annual reports to

shareholders required by this part

(exclusive of exhibits) are available from

the Disclosure Officer, Communications

Division, Office of the Comptroller of

the Currency, at the address listed in

paragraph (a) of this section.

13. In § 11.4, paragraph (a) is revised

to read as follows:

§ 11.4 Filing fees.

(a) The OCC may require filing fees to

accompany certain filings made under

this part before it will accept the filing.

The OCC provides an applicable fee

schedule for such filings in the ‘‘Notice

of Comptroller of the Currency Fees’’

described in § 8.8 of this chapter.

* * * * *

PART 18—DISCLOSURE OF

FINANCIAL AND OTHER

INFORMATION BY NATIONAL BANKS

14. The authority citation for part 18

continues to read as follows:

Authority: 12 U.S.C. 93a, 161, and 1818.

§ 18.1 [Amended]

15. In § 18.1, paragraph (a) is

amended by revising the term ‘‘Office’s

supervisory efforts’’ to read

‘‘supervisory efforts of the Office of the

Comptroller of the Currency (OCC)’’.

16. In § 18.4, paragraph (a)(1)(ii) is

amended by revising the term ‘‘Non

accrual Loans and Leases’’ to read

‘‘Nonaccrual Loans, Leases, and Other

Assets’’, and paragraphs (b) and (d) are

amended by revising the term ‘‘Office’’

to read ‘‘OCC’’ each place it appears.

17. In § 18.5, paragraph (a) is revised

to read as follows:

§ 18.5 Alternative annual disclosure

statements.

* * * * *

(a) In the case of a national bank

having a class of securities registered

pursuant to section 12 of the Securities

Exchange Act of 1934 (15 U.S.C. 78l), by

its annual report to security holders for

meetings at which directors are to be

elected;

* * * * *

18. Section 18.9 is amended by

revising the term ‘‘Office of the

Comptroller of the Currency’’ to read

‘‘OCC’’.

19. Section 18.10 is revised to read as

follows:

§ 18.10 Prohibited conduct and penalties.

(a) No national bank or institutionaffiliated party shall, directly or

indirectly:

(1) Disclose or cause to be disclosed

false or misleading information in the

annual disclosure statement, or omit or

cause the omission of material or

required information in the annual

disclosure statement; or

(2) Represent that the OCC, or any

employee thereof, has passed upon the

accuracy or completeness of the annual

disclosure statement.

(b) For purposes of this part,

institution-affiliated party means:

(1) Any director, officer, employee, or

controlling stockholder (other than a

bank holding company) of, or agent for,

a national bank;

(2) Any other person who has filed or

is required to file a change-in-control

notice with the OCC under 12 U.S.C.

1817(j);

(3) Any shareholder (other than a

bank holding company), consultant,

joint venture partner, and any other

person as determined by the OCC (by

regulation or case-by-case) who

participates in the conduct of the affairs

of a national bank; and

(4) Any independent contractor

(including any attorney, appraiser, or

accountant) who knowingly or

recklessly participates in:

(i) Any violation of any law or

regulation;

(ii) Any breach of fiduciary duty; or

(iii) Any unsafe or unsound practice,

which caused or is likely to cause more

than a minimal financial loss to, or a

significant adverse effect on, the

national bank.

(c) Conduct that violates paragraph (a)

of this section also may constitute an

unsafe or unsound banking practice or

otherwise serve as a basis for

enforcement action by the OCC

including, but not limited to, the

assessment of civil money penalties

against the bank or any institutionaffiliated party who violates this part.

Office of the Secretary of the Treasury

31 CFR Subtitle A

PART 1—DISCLOSURE OF RECORDS

20. The authority citation for part 1

continues to read as follows:

Authority: 5 U.S.C. 301 and 31 U.S.C. 321.

Subpart A also issued under 5 U.S.C. 552, as

amended. Subpart C also issued under 5

U.S.C. 552a.

21. Under the authority of 12 U.S.C.

93a and 31 CFR 1.1(d), appendix J of

subpart A of 31 CFR part 1 is amended

by revising paragraphs 2. through 5. to

read as follows:

Appendix J—Office of the Comptroller

of the Currency

* * * * *

2. Public reading room. The Office of the

Comptroller of the Currency will make

materials available for review on an ad hoc

basis when necessary. Contact the Disclosure

Officer, Communications Division, Office of

the Comptroller of the Currency, 250 E Street

SW., Washington, DC 20219.

3. Requests for records. Initial

determinations under 31 CFR 1.5(g) as to

whether to grant requests for records of the

Office of the Comptroller of the Currency will

be made by the Freedom of Information

Officer or the official so designated. Requests

may be mailed or delivered in person to:

Disclosure Officer, Communications

Division, Office of the Comptroller of the

Currency, 250 E Street, SW., Washington, DC

20219.

4. Administrative appeal of initial

determination to deny records. Appellate

determinations under 31 CFR 1.5(h) with

respect to records of the Officer of the

Comptroller of the Currency will be made by

the Comptroller or the Comptroller’s

designee. Appeals may be mailed or

delivered in person to: Disclosure Officer,

Communications Division, Officer of the

Comptroller of the Currency, 250 E Street,

SW., Washington, DC 20219.

5. Delivery of process. Service of process

will be received by the Chief Counsel and

shall be delivered to such officer at the

following location: Office of the Comptroller

of the Currency, 250 E Street, SW.,

Washington, DC 20219.

22. Under the authority of 12 U.S.C.

93a and 31 CFR 1.20, appendix J of

subpart C of 31 CFR part 1 is amended

by revising paragraphs 2. through 6. to

read as follows:

Appendix J—Office of the Comptroller

of the Currency

* * * * *

2. Requests for notification and access to

records and accountings of disclosures.
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15723

Initial determinations under 31 CFR 1.26,

whether to grant requests for notification and

access to records and accountings of

disclosures for the Office of the Comptroller

of the Currency, will be made by the head of

the organizational unit having immediate

custody of the records requested or an official

designated by this official. This is indicated

in the appropriate system notice in ‘‘Privacy

Act Issuances’’ published annually by the

Office of the Federal Register. Requests for

information and specific guidance on where

to send requests for records shall be mailed

or delivered personally to: Disclosure Officer,

Communications Division, Office of the

Comptroller of the Currency, 250 E Street,

SW., Washington, DC 20219.

3. Requests for amendment of records.

Initial determination under 31 CFR 1.27 (a)

through (d), whether to grant requests to

amend records will be made by the head of

the organizational unit having immediate

custody of the records or the delegate of such

official. Requests for amendment shall be

mailed or delivered personally to: Disclosure

Officer, Communications Division, Office of

the Comptroller of the Currency, 250 E Street,

SW, Washington, DC 20219.

4. Administrative appeal of initial

determinations refusing amendment of

records. Appellate determinations refusing

amendment of records under 31 CFR 1.27(e)

including extensions of time on appeal, with

respect to records of the Office of the

Comptroller of the Currency will be made by

the Comptroller of the Currency or the

Comptroller’s designee. Appeals shall be

mailed or delivered personally to: Disclosure

Officer, Communications Division, Office of

the Comptroller of the Currency, 250 E Street,

SW, Washington, DC 20219.

5. Statements of disagreement. ‘‘Statements

of Disagreement’’ under 31 CFR 1.27(e)(4)(i)

shall be filed with the OCC’s Director of

Communications at the address indicated in

the letter of notification within 35 days of the

date of such notification and should be

limited to one page.

6. Service of process. Service of process

will be received by the Office of the Chief

Counsel of the Comptroller of the Currency

or the delegate of such official and shall be

delivered to the following location: Office of

the Comptroller of the Currency, 250 E Street,

SW, Washington, DC 20219.

* * * * *

Dated: March 9, 1995.

Eugene A. Ludwig,

Comptroller of the Currency.

[FR Doc. 95–7099 Filed 3–24–95; 8:45 am]

BILLING CODE 4810–33–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 95–ASO–8]

Proposed Amendment to Class E

Airspace; Millington, TN

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: This notice proposes to

amend the Class E airspace area at

Memphis NAS/Millington Municipal,

TN. A VOR/DME RWY 18 Standard

Instrument Approach Procedure (SIAP)

has been developed for Charles W.

Baker Airport. Additional controlled

airspace extending upward from 700

feet above the surface (AGL) is needed

to accommodate this SIAP and for

instrument flight rules (IFR) operations

at the airport. If approved, the operating

status of the airport will change from

VFR to include IFR operations

concurrent with publication of the

SIAP. This amendment would also

make a technical correction to the

location of the Memphis NAS/

Millington Municipal Airport. The

correct location of the Memphis NAS/

Millington Municipal Airport is

Millington, TN.

DATES: Comments must be received on

or before May 10, 1995.

ADDRESSES: Send comments on the

proposal in triplicate to: Federal

Aviation Administration, Docket No.

95–ASO–8, Manager, System

Management Branch, ASO–530, P.O.

Box 20636, Atlanta, Georgia 30320.

The official docket may be examined

in the Office of the Assistant Chief

Counsel for Southern Region, Room 550,

1701 Columbia Avenue, College Park,

Georgia 30337, telephone (404) 305–

5586.

FOR FURTHER INFORMATION CONTACT:

Michael J. Powderly, System

Management Branch, Air Traffic

Division, Federal Aviation

Administration, P.O. Box 20636,

Atlanta, Georgia 30320; telephone (404)

305–5570.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested parties are invited to

participate in this proposed rulemaking

by submitting such written data, views

or arguments as they may desire.

Comments that provide the factual basis

supporting the views and suggestions

presented are particularly helpful in

developing reasoned regulatory

decisions on the proposal. Comments

are specifically invited on the overall

regulatory, aeronautical, economic,

environmental, and energy-related

aspects of the proposal.

Communications should identify the

airspace docket and be submitted in

triplicate to the address listed above.

Commenters wishing the FAA to

acknowledge receipt of their comments

on this notice must submit with those

comments a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Airspace Docket No. 95–ASO–8.’’ The

postcard will be date/time stamped and

returned to the commenter. All

communications received before the

specified closing date for comments will

be considered before taking action on

the proposed rule. The proposal

contained in this notice may be changed

in light of the comments received. All

comments submitted will be available

for examination in the Office of the

Assistant Chief Counsel for Southern

Region, Room 550, 1701 Columbia

Avenue, College Park, Georgia 30337,

both before and after the closing date for

comments. A report summarizing each

substantive public contact with FAA

personnel concerned with this

rulemaking will be filed in the docket.

Availability of NPRMs

Any person may obtain a copy of this

Notice of Proposed Rulemaking (NPRM)

by submitting a request to the Federal

Aviation Administration, Manager,

System Management Branch, ASO–530,

Air Traffic Division, P.O. Box 20636,

Atlanta, Georgia 30320.

Communications must identify the

notice number of this NPRM. Persons

interested in being placed on a mailing

list for future NPRMs should also

request a copy of Advisory Circular No.

11–2A which describes the application

procedure.

The Proposal

The FAA is considering an

amendment to part 71 of the Federal

Aviation Regulations (14 CFR part 71) to

amend the Class E airspace area at

Memphis NAS/Millington Municipal,

TN. A VOR/DME RWY 18 SIAP has

been developed for Charles W. Baker

Airport. Additional controlled airspace

extending upward from 700 feet above

the surface (AGL) is needed to

accommodate this SIAP and for IFR

operations at the airport: If approved,

the operating status of the airport will

change from VFR to include IFR

operations concurrent with publication

of the SIAP. This amendment would

also make a technical correction to the

location of the Memphis NAS/

Millington Municipal Airport. The

correct location of the Memphis NAS/

Millington Municipal Airport is

Millington, TN. Class E airspace

designations for airspace areas

extending upward from 700 feet or more

above the surface are published in

Paragraph 6005 of FAA Order 7400.9B

dated July 18, 1994, and effective

September 16, 1994, which is

incorporated by reference in CFR 71.1.

The Class E airspace designation listed