[Federal Register Volume 74, Number 78 (Friday, April 24, 2009)]
[Proposed Rules]
[Pages 18659-18662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9375]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 /
Proposed Rules
[[Page 18659]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 4
[Docket ID OCC-2009-0008]
RIN 1557-AD22
Freedom of Information Act
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
proposing to amend its regulations governing the disclosure of
information pursuant to requests made under the Freedom of Information
Act (FOIA) to reflect recent changes to the FOIA made by the Openness
Promotes Effectiveness in Our National Government Act of 2007 (OPEN
Government Act) and to make other changes that update the OCC's FOIA
regulations.
DATES: Comments must be received by June 23, 2009.
ADDRESSES: Because paper mail in the Washington, DC area and at the OCC
is subject to delay, commenters are encouraged to submit comments by
the Federal eRulemaking Portal or e-mail, if possible. Please use the
title ``Freedom of Information Act Regulations'' to facilitate the
organization and distribution of the comments. You may submit comments
by any of the following methods:
Federal eRulemaking Portal--``Regulations.gov'': Go to
http://www.regulations.gov, under the ``More Search Options'' tab click
next to the ``Advanced Docket Search'' option where indicated, select
``Comptroller of the Currency'' from the agency drop-down menu, then
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0008''
to submit or view public comments and to view supporting and related
materials for this notice of proposed rulemaking. The ``How to Use This
Site'' link on the Regulations.gov home page provides information on
using Regulations.gov, including instructions for submitting or viewing
public comments, viewing other supporting and related materials, and
viewing the docket after the close of the comment period.
E-mail: [email protected].
Mail: Office of the Comptroller of the Currency, 250 E
Street, SW., Mail Stop 2-3, Washington, DC 20219.
Fax: (202) 874-5274.
Hand Delivery/Courier: 250 E Street, SW., Mail Stop 2-3,
Washington, DC 20219.
Instructions: You must include ``OCC'' as the agency name and
``Docket Number OCC-2009-0008'' in your comment. In general, OCC will
enter all comments received into the docket and publish them on the
Regulations.gov Web site without change, including any business or
personal information that you provide such as name and address
information, e-mail addresses, or phone numbers. Comments received,
including attachments and other supporting materials, are part of the
public record and subject to public disclosure. Do not enclose any
information in your comment or supporting materials that you consider
confidential or inappropriate for public disclosure.
You may review comments and other related materials that pertain to
this notice of proposed rulemaking by any of the following methods:
Viewing Comments Electronically: Go to http://www.regulations.gov, under the ``More Search Options'' tab click next
to the ``Advanced Document Search'' option where indicated, select
``Comptroller of the Currency'' from the agency drop-down menu, then
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0008''
to view public comments for this rulemaking action.
Viewing Comments Personally: You may personally inspect
and photocopy comments at the OCC, 250 E Street, SW., Washington, DC.
For security reasons, the OCC requires that visitors make an
appointment to inspect comments. You may do so by calling (202) 874-
4700. Upon arrival, visitors will be required to present valid
government-issued photo identification and submit to security screening
in order to inspect and photocopy comments.
Docket: You may also view or request available background
documents and project summaries using the methods described above.
FOR FURTHER INFORMATION CONTACT: Lee Walzer, Counsel, or Michele Meyer,
Assistant Director, Legislative and Regulatory Activities Division,
(202)-874-5090; or Frank Vance, Manager, Disclosure Services and
Administrative Operations, Communications Division, (202)-874-5378.
SUPPLEMENTARY INFORMATION:
I. Background
The OPEN Government Act,\1\ enacted on December 31, 2007, made
several amendments to the FOIA. The OPEN Government Act: revised
definitions contained in the FOIA; changed standards for recovering
attorneys fees in FOIA litigation; revised time limits for agencies to
act on FOIA requests; provided that search fees would not be charged if
an agency fails to comply with time limits if no unusual or exceptional
circumstances apply to the processing of the request; required agencies
to establish a tracking system enabling requesters to check the status
of their request; added new reporting requirements to agencies' annual
FOIA reports; and required agencies to describe the FOIA disclosures
relied upon in redacting records that they release to requesters. Many
provisions of the OPEN Government Act took effect upon enactment;
others (including some related to the proposed amendments to Part 4 in
this NPRM) were effective as of December 31, 2008. The legislation did
not require implementing regulations.
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\1\ Public Law 110-175, 110th Cong., 1st Sess., 121 Stat. 2524
(2007).
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Twelve CFR part 4, subpart B, sets forth OCC policies regarding the
availability of information under the FOIA and procedures for
requesters to follow when seeking such information. The OCC is
proposing to amend subpart B of 12 CFR part 4 to reflect the changes to
the FOIA made by the OPEN Government Act and to make additional changes
to subpart B that would update or simplify existing regulations.
II. Description of the Proposal
Required Description of FOIA Exemptions Used To Justify Non-Disclosure
The FOIA requires agencies to indicate the amount of information
[[Page 18660]]
deleted from any material released pursuant to a FOIA request, unless
that disclosure would harm an interest protected by one of the
enumerated exemptions under which the deletion was initially made.\2\
Prior to the OPEN Government Act, the FOIA required agencies, when
technically feasible, to indicate the amount of information deleted at
the place in the record where the deletion was made.
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\2\ 5 U.S.C. 552(b) (2007).
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The OPEN Government Act amended the FOIA by adding the requirement
that an agency detail the specific FOIA exemption under which material
is deleted from information sought by a FOIA requester. If technically
feasible, the agency should indicate the exemption under which the
deletion was made at the place in the record where the agency deleted
the material, and should indicate the amount of material that has been
deleted.\3\ This provision took effect upon enactment of the OPEN
Government Act.
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\3\ OPEN Government Act, Sec. 12, amending 5 U.S.C. 552(b).
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The OCC is therefore proposing to amend its FOIA regulation at 12
CFR 4.12(d) to provide that the OCC will list any exemption under which
material was deleted, unless doing so would harm an interest protected
by an exemption under Sec. 4.12(b). Where technically feasible, the
OCC will indicate the amount of information redacted and the exemption
relied upon for the redaction.
Time Period for Responding to a FOIA Request
The FOIA provides that an agency must determine whether to comply
with a FOIA request within 20 days (not including Saturdays, Sundays,
and legal holidays) of receipt of the request.\4\ The OPEN Government
Act further provides that the 20-day period may not be tolled, except
that an agency may make one request to the requester for additional
information. An agency also may toll the 20-day period to clarify
issues related to the fees being charged for a FOIA request. The OPEN
Government Act states that the tolling period ends once an agency has
received the requested information or resolved any fee issues. Finally,
the OPEN Government Act provides that an agency may not assess search
or duplication fees if the agency fails to comply with FOIA time
limits, if no ``unusual or exceptional circumstances'' apply to the
processing of the request. All of these amendments are effective as of
December 31, 2008.
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\4\ 5 U.S.C. 552(a)(6)(A)(i).
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The OCC is proposing to revise 12 CFR 4.15 to provide for the 20-
day response period permitted by the statute and to specify that the
20-day period does not include Saturdays, Sundays, and holidays. The
OCC is also proposing to amend 12 CFR 4.15 to provide for the 20-day
time period to be tolled when the OCC: (1) makes a one-time request for
additional information from the requester; or (2) needs to clarify a
fee-related issue with the requester. The tolling period would end upon
receipt of the requested information or resolution of the fee issue, as
the case may be.\5\
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\5\ The OPEN Government Act did not amend or repeal the FOIA
provisions permitting agencies to extend the time for replying to
FOIA requests in unusual circumstances. Id. at 552(a)(6)(B) and (C).
Therefore the OCC's rules continue to extend the time in such cases
for up to an additional 10 business days. 12 CFR 4.15(f)(3).
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Finally, the OCC is proposing to amend 12 CFR 4.17 to clarify that
a requester will not be required to pay any otherwise applicable search
or duplication fees if the OCC fails to comply with applicable time
limits, if no ``unusual'' or ``exceptional'' circumstances, as
described in the FOIA and set forth in OCC regulations, apply to the
processing of the FOIA request.\6\
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\6\ See id. at 552(a)(6)(B)-(C); 12 CFR 4.15(f)(3).
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Definition of ``Representative of the News Media''
The OCC is proposing to amend 12 CFR 4.17(a)(8) to amend the
definition of ``representative of the news media'' to comport with the
new definition in FOIA, as amended by the OPEN Government Act, that
took effect upon the legislation's enactment. Prior to enactment of the
OPEN Government Act, the FOIA allowed an agency to assess ``reasonable
standard charges'' \7\ for document duplication when a FOIA request is
made by a representative of the media,\8\ but the statute did not
define what it meant to be a ``representative of the news media,''
particularly with respect to freelance journalists who might be working
independently.
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\7\ For commercial FOIA requesters, in contrast, an agency can
assess document search and review charges, in addition to the
duplication fees. 5 U.S.C. 552(a)(4)(A)(ii)(I).
\8\ Id. at 552(a)(4)(A)(ii)(II) (2006), amended by OPEN
Government Act, Sec. 3.
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The OCC's current definition of ``requester who is a representative
of the news media'' defines such a person as one ``who seeks records
for the purpose of gathering news (i.e., information about current
events or of current interest to the public) on behalf of, or a
freelance journalist who reasonably expects to have his or her work
product published or broadcast by, an entity organized and operated to
publish or broadcast news to the public.'' \9\
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\9\ 12 CFR 4.17(a)(8).
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The OPEN Government Act amended FOIA to add a definition of
``representative of the news media'' and clarifies that a freelance
journalist should be deemed as working for the media if the journalist
can demonstrate a ``solid basis'' for expecting publication.\10\ The
OPEN Government Act further permitted an agency to consider the past
publication history of a requester in determining whether the requester
in fact qualifies as a ``representative of the news media.'' The OPEN
Government Act also recognized that such representatives could work in
new forms of media, including electronic dissemination of news through
telecommunications providers.
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\10\ See OPEN Government Act, Sec. 3, amending 5 U.S.C.
552(a)(4)(A).
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The NPRM would amend the existing definition to clarify the
circumstances in which a freelance writer is deemed to be working as a
representative of the news media. Consistent with the OPEN Government
Act, freelance writers would be regarded as representatives of the news
media if they can demonstrate a ``solid basis'' for expecting
publication. The revised definition furthermore would permit the OCC to
consider a requester's publication history in assessing whether the
requester should be deemed a representative of the news media. The OCC
invites comment on whether the new regulatory definition could be
enhanced or clarified with, for example, additional examples of bases
for expecting publication that would satisfy the standard for a
requester to be recognized as a representative of a media outlet.
Tracking and Contact Information
The OPEN Government Act requires agencies to provide tracking
numbers for requesters to follow the progress of their FOIA
requests.\11\ To facilitate the ability of requesters to determine the
progress of their FOIA requests, the OPEN Government Act likewise
required agencies to establish by December 31, 2008, a telephone line
or Internet service providing information about the status of a FOIA
request to the person using the assigned tracking number.\12\
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\11\ Id., Sec. 7, amending 5 U.S.C. 552(a).
\12\ Id.
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The OCC has developed an Internet Web site at https://
appsec.occ.gov/
[[Page 18661]]
publicaccesslink/ designed to provide tracking services to FOIA
requesters so that they can monitor the status of their requests. This
rulemaking proposes to establish a new section 4.18 that provides the
Internet address and explains that a tracking number will be assigned
to every FOIA request. The new section 4.18 also addresses how
individuals without Internet access could continue to receive status
updates about their FOIA requests. To facilitate the operation of the
new tracking service, the OCC is also proposing to amend 12 CFR 4.15(c)
to include a request for an electronic mail address in the requester's
contact information, where such information is available and the
requester chooses to provide it.
The OCC invites comments on any aspect of the proposed rule.
III. Solicitation of Comments on Use of Plain Language
The OCC also requests comment on whether the proposed rule is
written clearly and is easy to understand. On June 1, 1998, the
President issued a memorandum directing each agency in the Executive
branch to write its rules in plain language. This directive applies to
all new proposed and interim rulemaking documents issued on or after
January 1, 1999. In addition, Public Law 106-102 requires each Federal
agency to use plain language in all proposed and interim rules
published after January 1, 2000. The OCC invites comments on how to
make this rule clearer. For example, you may wish to discuss:
(1) Whether we have organized the material to suit your needs;
(2) Whether the requirements of the rule are clear; or
(3) Whether there is something else we could do to make the rule
easier to understand.
IV. Regulatory Analysis
Regulatory Flexibility Act
Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise
required under Section 604 of the RFA is not required if the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities and publishes its certification
and a short, explanatory statement in the Federal Register along with
its rule. The proposed rule would not have such an impact on small
entities because the changes being proposed affect mainly the OCC and
its processing of FOIA requests, and impose no costs on filers of these
requests. Accordingly, pursuant to Section 605(b) of the RFA, the OCC
hereby certifies that this proposal will not have a significant
economic impact on a substantial number of small entities. Accordingly,
a regulatory flexibility analysis is not needed.
Executive Order 12,866
The OCC has determined that this proposal is not a significant
regulatory action under Executive Order 12,866. We have concluded that
the changes made by this rule will not have an annual effect on the
economy of $100 million or more. The OCC further concludes that this
proposal does not meet any of the other standards for a significant
regulatory action set forth in Executive Order 12866.
Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3506), we have reviewed the proposed rule to assess
any information collections. There are no collections of information as
defined by the Paperwork Reduction Act.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law
104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency
prepare a budgetary impact statement before promulgating any rule
likely to result in a Federal mandate that may result in the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year. If a
budgetary impact statement is required, Section 205 of the Unfunded
Mandates Act also requires an agency to identify and consider a
reasonable number of regulatory alternatives before promulgating a
rule. The OCC has determined that this proposed rule will not result in
expenditures by State, local, and Tribal governments, or by the private
sector, of $100 million or more in any one year. Accordingly, this
proposal is not subject to Section 202 of the Unfunded Mandates Act.
List of Subjects
12 CFR Part 1
Banks, Banking, National banks.
12 CFR Part 4
National banks, Reporting and recordkeeping requirements,
Administrative practice and procedure, Freedom of Information Act,
Records.
For the reasons set forth in the preamble, chapter I of title 12 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 4--ORGANIZATION AND AVAILABILITY OF INFORMATION UNDER THE
FREEDOM OF INFORMATION ACT
1. The authority citation for part 4 continues to read as follows:
Authority: 12 U.S.C. 93a. Subpart A also issued under 5 U.S.C.
552; Subpart B also issued under 5 U.S.C. 552; E.O. 12600 (3 CFR
1987 Comp., p. 235). Subpart C also issued under 5 U.S.C. 301, 552;
12 U.S.C. 161, 481, 482, 484(a), 1442, 1817(a)(3), 1818(u) and (v),
1820(d)(6), 1820(k), 1821(c), 1821(o), 1821(t), 1831m, 1831p-1,
1831o, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq.,
3101 et seq., 3401 et seq.; 15 U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C.
641, 1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 9701; 42 U.S.C. 3601; 44
U.S.C. 3506, 3510. Subpart D also issued under 12 U.S.C. 1833e.
2. Amend Sec. 4.12(d) by adding two sentences at the end of the
paragraph to read as follows:
Sec. 4.12 Information available under the FOIA.
* * * * *
(d) Segregability. * * * The OCC will note the location and extent
of any deletion, and identify the FOIA exemption under which material
has been redacted, unless doing so would harm an interest protected by
the exemption under paragraph (b) of this section pursuant to which the
redaction was made. Where technically feasible, the amount of
information redacted and the exemption pursuant to which the redaction
was made will be indicated at the site(s) of the redaction.
3. Amend Sec. 4.15 by:
a. Revising the section heading, paragraph (c)(1) introductory
text, paragraph (c)(1)(i), and paragraph (f)(1); and
b. Removing the word ``or'' at the end of paragraph (f)(3)(ii),
removing the period at the end of paragraph (f)(3)(iii) and by adding
in lieu thereof ``; or'', and adding paragraph (f)(3)(iv).
The revisions and addition read as follows.
Sec. 4.15 How to request records.
* * * * *
(c) Request for records--(1) Contact information and what the
request for records must include. A person requesting records under
this section must state, in writing:
(i) The requester's full name, address, telephone number and, at
the requester's option, electronic mail address.
* * * * *
(f) Time limits for responding to FOIA requests. -- (1) Request.
The OCC makes an initial determination to grant or deny a request for
records within 20 days
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(excluding Saturday, Sundays, and holidays) after the date of receipt
of the request, as described in paragraph (g) of this section, except
as stated in paragraph (f)(3) of this section.
* * * * *
(3) * * *
(iv) Tolling of time limits. (A) The OCC may toll the 20-day time
period to:
(1) Make one request for additional information from the requester;
or
(2) Clarify the applicability or amount of any fees, if necessary,
with the requester.
(B) The tolling period ends upon the OCC's receipt of information
from the requester or resolution of the fee issue.
* * * * *
4. Amend Sec. 4.17 by:
a. Revising the section heading, and paragraph (a)(8);
b. Adding paragraph (b)(6); and
c. Removing, in the parenthetical in paragraph (d), the phrase ``10
business days'', and by adding in lieu thereof the phrase ``20 business
days''.
The revisions and addition are set forth below.
Sec. 4.17 FOIA request fees.
(a) * * *
(8) Requester who is a representative of the news media means any
person who, or entity that, gathers information of potential interest
to a segment of the public, uses editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience. A freelance journalist shall be regarded as working for a
news media entity if the person can demonstrate a solid basis for
expecting publication through that entity, whether or not the
journalist is actually employed by that entity. A publication contract
is one example of a basis for expecting publication that ordinarily
would satisfy this standard. The OCC also may consider the past
publication record of the requester in determining whether she or he
qualifies as a ``representative of the news media.''
* * * * *
(b) * * *
(6) No fee if the time limit passes and the requester has not
received a response. The OCC will not assess search and/or duplication
fees, as applicable, if it fails to respond to a requester's FOIA
request within the time limits specified under 12 CFR 4.15, and no
``unusual'' circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and
Sec. 4.15(f)(3)(i)) or ``exceptional'' circumstances (as defined in 5
U.S.C. 552(a)(6)(C)) apply to the processing of the request
* * * * *
5. Add Sec. 4.18 to read as follows:
Sec. 4.18 How to track a FOIA request.
(a) Tracking number. The OCC will issue a tracking number to all
FOIA requesters within 5 days of the receipt of the request (as
described in Sec. 4.15(g)) in the OCC's Communications Department. The
tracking number will be sent via electronic mail if the requester has
provided an electronic mail address. Otherwise, the OCC will mail the
tracking number to the requester's physical address, as provided in the
FOIA request.
(b) Web site. FOIA requesters may check the status of their FOIA
request(s) at https://appsec.occ.gov/publicaccesslink/.
(c) If a requester does not have Internet access. Requesters
without Internet access may continue to contact the Disclosure Officer,
Communications Division, Office of the Comptroller of the Currency, at
(202) 874-4700 to check the status of their FOIA request(s).
Dated: April 17, 2009.
John C. Dugan,
Comptroller of the Currency.
[FR Doc. E9-9375 Filed 4-23-09; 8:45 am]
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