[Federal Register Volume 75, Number 67 (Thursday, April 8, 2010)]
[Rules and Regulations]
[Pages 17849-17851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7940]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules
and Regulations
[[Page 17849]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 4
[Docket ID OCC-2010-0008]
RIN 1557-AD22
Freedom of Information Act
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Final rule.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
amending its regulations governing the disclosure of information
pursuant to requests made under the Freedom of Information Act (FOIA)
to reflect changes to the FOIA made by the Openness Promotes
Effectiveness in Our National Government Act of 2007 (OPEN Government
Act) \1\ and to make other changes that update the OCC's FOIA
regulations.
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\1\ Public Law 110-175, 110th Cong., 1st Sess., 121 Stat. 2524
(2007).
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DATES: Effective Date: This final rule is effective May 10, 2010.
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: 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 requests; added
new reporting requirements to agencies' annual FOIA reports; and
required agencies to describe the FOIA exemptions 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 amendments to Part 4 in this final rule) were
effective as of December 31, 2008.
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. On April 24, 2009,
the OCC published a notice of proposed rulemaking (NPRM) \2\ to amend
part 4 to comport with changes to the FOIA made by the OPEN Government
Act, enacted on December 31, 2007. The comment period closed on June
23, 2009. The OCC received no comments on the NPRM and, accordingly, we
are adopting the regulatory changes as proposed.
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\2\ See 74 FR 18,659 (April 24, 2009).
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II. Description of the Final Rule
The final rule is substantively identical to the proposal, with
minor wording changes to improve technical descriptions.
Required Description of FOIA Exemptions Used To Justify Non-Disclosure
The OPEN Government Act amended the FOIA by requiring 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\
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\3\ OPEN Government Act, section 12, amending 5 U.S.C. 552(b).
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The OCC is adopting its proposed amendment to 12 CFR 4.12(d) to
provide that the OCC will indicate the amount of information deleted,
and the exemption pursuant to which the deletion was made, on the
released portion of the material, 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
deleted and the exemption relied upon for the deletion at the place
where such deletion was made.
Time Period for Responding to a FOIA Request
The OCC is adopting its proposed revision of 12 CFR 4.15 to provide
for the 20-day response period to a FOIA request permitted by the
statute and to specify that the 20-day period does not include
Saturdays, Sundays, and holidays. The OCC is also amending 12 CFR 4.15
to provide that the 20-day time period may 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.\4\
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\4\ 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 adopting as proposed its amendment to 12 CFR
4.17 to clarify that a requester will not be required to pay any
otherwise applicable search or duplication fees, as relevant, 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.\5\
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\5\ See 5 U.S.C. 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 adopting as proposed its amendment to the definition of
``representative of the news media'' in 12 CFR 4.17(a)(8) to comport
with the new definition in FOIA, as amended by the OPEN Government Act.
The final rule clarifies the circumstances in which a freelance writer
will be deemed to be working as a representative of the news media.
Consistent with the OPEN Government Act, freelance writers will be
regarded as representatives of the news media if they can demonstrate a
[[Page 17850]]
``solid basis'' for expecting publication. The definition further
permits the OCC to consider a requester's publication history in
assessing whether the requester should be deemed a representative of
the news media.
Tracking and Contact Information
To comply with the OPEN Government Act's requirements, the OCC
launched an Internet Web site at https://appsec.occ.gov/publicaccesslink/ in December, 2008, to provide the public the ability
to check the status of a FOIA request online using an assigned tracking
number. The final rule includes a new Sec. 4.18, which provides the
Internet address and explains that a tracking number will be assigned
to every FOIA request. The new Sec. 4.18 also addresses how
individuals without Internet access can continue to receive status
updates about their FOIA requests. To facilitate the operation of the
new tracking service, the OCC is also amending 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.
III. 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 final rule will 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. 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 12866
The OCC has determined that the final rule is not a significant
regulatory action under 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 final 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 final 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 in 12 CFR Part 4
National banks, Reporting and recordkeeping requirements,
Administrative practice and procedure, Freedom of Information Act,
Records.
0
For the reasons set forth in the preamble, chapter I of title 12 of the
Code of Federal Regulations is amended as follows:
PART 4--ORGANIZATION AND AVAILABILITY OF INFORMATION UNDER THE
FREEDOM OF INFORMATION ACT
0
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.
0
2. Amend Sec. 4.12 by adding two sentences at the end of paragraph (d)
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 deleted, on the released portion of the material, unless doing
so would harm an interest protected by the exemption under paragraph
(b) of this section pursuant to which the deletion 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 deletion.
0
3. Amend Sec. 4.15 by:
0
a. Revising the section heading, the heading for paragraph (c)(1),
paragraph (c)(1)(i), the heading for paragraph (f), and paragraph
(f)(1); and
0
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) * * * (1) Contact information and what the request for records
must include. * * *
(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) The OCC makes
an initial determination to grant or deny a request for records within
20 days (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 requested
information from the requester or resolution of the fee issue.
* * * * *
0
4. Amend Sec. 4.17 by:
0
a. Revising the section heading, and paragraph (a)(8);
0
b. Adding paragraph (b)(6); and
0
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.
[[Page 17851]]
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 OCC has not responded
to the request. The OCC will not assess search 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.
* * * * *
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5. Add Sec. 4.18 to subpart B 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 2, 2010.
John C. Dugan,
Comptroller of the Currency.
[FR Doc. 2010-7940 Filed 4-7-10; 8:45 am]
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