Disclosure of Information

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 309

RIN 3064-AC10

Disclosure of Information

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Proposed rule.

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SUMMARY: The FDIC proposes to amend its regulations governing the

public disclosure of information to reflect recent changes to the

Freedom of Information Act (FOIA) as a result of the enactment of the

Electronic Freedom of Information Act Amendments of 1996 (E-FOIA).

Among other things, this proposed rule implements expedited and

``multi-track'' FOIA processing procedures; implements the processing

deadlines and appeal rights created by E-FOIA; and describes the

expanded range of records available to the public through the FDIC's

Public Reading Room and the FDIC's Internet World Wide Web page.

DATES: Comments must be submitted on or before February 2, 1998.

ADDRESSES: Send written comments to Robert E. Feldman, Executive

Secretary, Attention: Comments/OES, Federal Deposit Insurance

Corporation, 550 17th Street NW, Washington, DC 20429. Comments may be

hand delivered to the guard station at the rear of the 17th Street

Building (located on F Street), on business days between 7:00 a.m. and

5:00 p.m. (Fax number: (202) 898-3838; Internet address:

[email protected]). Comments may be inspected and photocopied in the

FDIC Public Information Center, Room 100, 801 17th Street N.W.,

Washington D.C. 20429, between 9:00 a.m. and 4:30 p.m. on business

days.

FOR FURTHER INFORMATION CONTACT: Valerie J. Best, Assistant Executive

Secretary, Office of the Executive Secretary, (202) 898-3812; Linda

Rego, Senior Attorney, Legal Division, (202) 898-7408.

SUPPLEMENTARY INFORMATION:

Section-by-Section Analysis

The Electronic Freedom of Information Act Amendments of 1996 (E-

FOIA), Public Law 104-231, amended the Freedom of Information Act

(FOIA), 5 U.S.C. 552. Among other things, E-FOIA requires agencies to

promulgate regulations that provide for expedited processing of certain

requests for records and permits agencies to promulgate regulations

that provide for multitrack processing of requests. Changes are

proposed to 12 CFR part 309 to comply with the E-FOIA requirements for

expedited processing. The FDIC also is proposing to implement

multitrack processing. In addition, the FDIC is proposing changes to

the section on fees and fee waivers, and portions of this part have

been reorganized and streamlined.

Section 309.1 has been expanded to clarify the purpose and scope of

the various sections found within part 309. Section 309.4 has been

streamlined by eliminating the lengthy list of various offices to

contact for different categories of publicly available records and,

instead, identifying the FDIC's public reading room, or ``Public

Information Center'', and the FDIC World Wide Web page as primary

sources of FDIC information. This section also describes the

information that is made available for inspection or copying, either in

the FDIC's reading room or over the Internet, as required by E-FOIA.

The FDIC notes that the records provided over the Internet cover a much

smaller scope than those available in the FDIC's reading room because

the E-FOIA requirement to provide records over the Internet covers only

records created by the FDIC after November 1, 1996. However, the FDIC

is increasing the resources available over the Internet on the FDIC

World Wide Web page found at: http://www.fdic.gov. The FDIC also

publishes a pamphlet entitled ``Symbol of Confidence'' which describes

the FDIC's structure and lists sources to contact for information about

the FDIC or other assistance. The ``Symbol of Confidence'' is available

on the FDIC World Wide Web page. Copies may also be obtained through

the FDIC's Public Information Center.

Section 309.5 describes the FDIC's procedures for processing FOIA

requests. This section has been extensively revised to reflect the

changes required by E-FOIA. The proposed rule provides for multitrack

processing. Fast-track processing will apply to records that are easily

identifiable by the Freedom of Information office staff (FOIA/PA Unit)

and that have already been cleared for release to the public. Fast-

track requests will be handled as expeditiously as possible, in the

order in which they are received.

All information requests that do not meet the fast-track processing

standards will be handled under regular processing procedures. A

requester who desires fast-track processing but whose request does not

meet those standards may contact the FOIA/PA Unit staff to narrow the

request so that it will qualify for fast-track processing. The

statutory time limit for regular-track processing would be extended to

twenty business days, pursuant to E-FOIA, from the previous ten

business days.

Expedited processing may be provided where a requester has

demonstrated a compelling need for the records, or where the FDIC has

determined to expedite the response. The time limit for expedited

processing is set at ten business days, with expedited procedures

available for an appeal of the FDIC's determination not to provide

expedited processing. Under E-FOIA, there are only two types of

circumstances that can meet the compelling need standard: Where failure

to obtain the records expeditiously could pose an imminent threat to

the life or physical safety of a person, or where the requester is a

person primarily engaged in disseminating information and there is an

urgency to inform the public concerning actual or alleged agency

activity. For ease of administration and consistency, the proposal uses

the term ``representative of the news media'', to describe a person

primarily engaged in disseminating information, because this term is

used for the FOIA fee schedule, and thus, is known to those familiar

with FOIA and the FDIC's rules. To demonstrate a compelling need, a

requester must submit a certified statement, a sample of which may be

obtained from the FOIA/PA Unit.

Section 309.5(f) contains the FOIA fee schedules and the standards

for waiver of fees. The fee schedule provisions have been revised to

clarify that the processing time of a FOIA request does

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not begin in cases (1) where advance payment is required until payment

is received, or (2) where a person has requested a waiver of the fees

and has not agreed to pay the fees if the waiver request is denied.

Regulatory Flexibility Act Analysis

Pursuant to section 605(b) of the Regulatory Flexibility Act (5

U.S.C. 601, et seq.), the FDIC certifies that the proposed rule will

not have a significant economic impact on a substantial number of small

entities. These amendments simplify some of the procedures regarding

release of information and require disclosure of information in certain

instances in accordance with law. The requirements to disclose apply to

the FDIC; therefore, they should not have a significant economic impact

on a substantial number of small entities.

Paperwork Reduction Act Analysis

The collection of information contained in this proposed rule is

found at 12 CFR 309.5(c) and has been submitted to the Office of

Management and Budget (OMB) for review and approval in accordance with

the requirements of the Paperwork Reduction Act of 1995 (PRA) (44

U.S.C. 3501 et seq.). Comments are invited on: (a) Whether the

collection of information is necessary for the proper performance of

the FDIC's functions, including whether the information has practical

utility; (b) the accuracy of the estimates of the burden of the

information collection; (c) ways to enhance the quality, utility, and

clarity of the information to be collected; and (d) ways to minimize

the burden of the information collection on respondents, including

through the use of automated collection techniques or other forms of

information technology.

Comments should be addressed to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Attention: Desk

Officer Alexander Hunt, New Executive Office Building, Room 3208,

Washington, DC 20503, with copies of such comments to Steven F. Hanft,

Assistant Executive Secretary (Regulatory Analysis), Federal Deposit

Insurance Corporation, Room F-4080, 550 17th Street NW, Washington, DC

20429. All comments should refer to part 309. OMB is required to make a

decision concerning the collections of information contained in the

proposed regulations between 30 and 60 days after the publication of

this document in the Federal Register. Therefore, a comment to OMB is

best assured of having its full effect if OMB receives it within 30

days of this publication. This does not affect the deadline for the

public to comment to the FDIC on the proposed regulation.

Title of collection: Requests for records pursuant to the Freedom

of Information Act.

Summary of the collection: The name, address and telephone number

of the requester; a statement whether the requester is an educational

institution, noncommercial scientific institution, or news media

representative; a statement agreeing to pay applicable fees or

requesting a waiver or reduction of fees; and the form or format of

responsive information requested, if other than paper copies.

Respondents: Persons who desire to obtain records pursuant to the

Freedom of Information Act.

Estimate of Annual Burden:

Number of requests--1,000.

Time required to prepare a request--15 minutes.

Total annual burden hours--250 hours.

List of Subjects in 12 CFR Part 309

Banks, banking, Credit, Freedom of information, Privacy.

For the reasons set forth in the preamble, the Federal Deposit

Insurance Corporation is proposing to amend title 12, chapter III, of

the Code of Federal Regulations as follows:

PART 309--DISCLOSURE OF INFORMATION

1. The authority citation for part 309 continues to read as

follows:

Authority: 5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and

``Tenth''.

2. Section 309.1 is revised to read as follows:

Sec. 309.1 Purpose and scope.

This part sets forth the basic policies of the Federal Deposit

Insurance Corporation regarding information it maintains and the

procedures for obtaining access to such information. Section 309.2 sets

forth definitions applicable to this part 309. Section 309.3 describes

the types of information and documents typically published in the

Federal Register. Section 309.4 explains how to access public records

maintained on the Federal Deposit Insurance Corporation's World Wide

Web page and in the Federal Deposit Insurance Corporation's Public

Information Center or ``PIC'', and describes the categories of records

generally found there. Section 309.5 implements the Freedom of

Information Act (5 U.S.C. 552). Section 309.6 authorizes the

discretionary disclosure of exempt records under certain limited

circumstances. Section 309.7 outlines procedures for serving a subpoena

or other legal process to obtain information maintained by the FDIC.

3. Section 309.2(e) is revised to read as follows:

Sec. 309.2 Definitions.

* * * * *

(e) The term record includes records, files, documents, reports,

correspondence, books, and accounts, or any portion thereof, in any

form the FDIC regularly maintains them.

* * * * *

4. Section 309.4 is revised to read as follows:

Sec. 309.4 Publicly available records.

Many records are available upon request or are available for public

inspection as noted below. To the extent permitted by law, the FDIC may

delete identifying details when it makes available or publishes a final

opinion, final order, statement of policy, interpretation or staff

manual or instruction. If redaction is necessary, the FDIC will, to the

extent technically feasible, indicate the amount of material deleted at

the place in the record where such deletion is made unless that

indication in and of itself will jeopardize the purpose for the

redaction. If applicable, fees for furnishing records under this

section are as set forth in Sec. 309.5(f) except that all categories of

requesters shall be charged duplication costs.

(a) FDIC World Wide Web page. (1) The following types of documents

created on or after November 1, 1996, may be found on the FDIC World

Wide Web page located at:

http://www.fdic.gov:

(i) Final opinions, including concurring and dissenting opinions,

as well as final orders and written agreements, made in the

adjudication of cases;

(ii) Statements of policy and interpretations adopted by the Board

of Directors that are not published in the Federal Register;

(iii) Administrative staff manuals and instructions to staff that

affect the public;

(iv) Copies of all records released to any person under Sec. 309.5

that, because of the nature of their subject matter, the FDIC has

determined are likely to be requested again;

(v) A general index of the records referred to in paragraph (a)(4)

of this section.

(2) Information published on the World Wide Web page is not subject

to the fees provision of Sec. 309.5(f), and is freely accessible.

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(b) Public Information Center. (1) The FDIC maintains a Public

Information Center or ``PIC'' that contains Corporate records that the

Freedom of Information Act requires be made available for regular

inspection and copying, as well as any records or information the FDIC,

in its discretion, has regularly made available to the public. The PIC

has extensive materials of interest to the public, including many

Reports, Summaries and Manuals used or published by the Corporation

that are available for inspection and copying.

(2) The PIC is open from 9:00 am to 5:00 pm, Monday through Friday,

excepting Federal holidays. It is located at 801 17th Street, NW,

Washington, DC 20006. The PIC may be reached during business hours by

calling (800) 276-6003.

(3) The PIC makes efforts to publish records and information of the

FDIC on the World Wide Web page, located at http://www.fdic.gov.

(4) The FDIC encourages the public to explore the wealth of

resources available at the FDIC Public Information Center and on the

Web page designated in paragraph (b)(3) of this section.

5. Section 309.5 is revised to read as follows:

Sec. 309.5 Procedures for requesting records.

(a) Definitions. For purposes of this section:

(1) Commercial use request means a request from or on behalf of a

requester who seeks records for a use or purpose that furthers the

commercial, trade, or profit interests of the requester or the person

on whose behalf the request is made. In determining whether a request

falls within this category, the FDIC will determine the use to which a

requester will put the records requested and seek additional

information as it deems necessary.

(2) Direct costs means those expenditures the FDIC actually incurs

in searching for, duplicating, and, in the case of commercial

requesters, reviewing records in response to a request for records.

(3) Duplication means the process of making a copy of a record

necessary to respond to a request for records or for inspection of

original records that contain exempt material or that cannot otherwise

be directly inspected. Such copies can take the form of paper copy,

microfilm, audiovisual records, or machine readable records (e.g.,

magnetic tape or computer disk).

(4) Educational institution means a preschool, a public or private

elementary or secondary school, an institution of undergraduate or

graduate higher education, an institution of professional education,

and an institution of vocational education, which operates a program or

programs of scholarly research.

(5) Noncommercial scientific institution means an institution that

is not operated on a commercial basis as that term is defined in

paragraph (a)(1) of this section, and which is operated solely for the

purpose of conducting scientific research, the results of which are not

intended to promote any particular product or industry.

(6) Representative of the news media means any person primarily

engaged in gathering news for, or a free-lance journalist who can

demonstrate a reasonable expectation of having his or her work product

published or broadcast by, an entity that is organized and operated to

publish or broadcast news to the public. The term news means

information that is about current events or that would be of current

interest to the general public.

(7) Review means the process of examining records located in

response to a request for records to determine whether any portion of

any record is permitted to be withheld as exempt information. It

includes processing any record for disclosure, e.g., doing all that is

necessary to excise them or otherwise prepare them for release.

(8) Search includes all time spent looking for material that is

responsive to a request, including page-by-page or line-by-line

identification of material within records. Searches may be done

manually and/or by computer using existing programming.

(b) Making a request for records. (1) The request shall be

submitted in writing to the Office of the Executive Secretary:

(i) By completing the online request form located on the FDIC World

Wide Web page, found at http://www.fdic.gov;

(ii) By facsimile clearly marked Freedom of Information Act Request

to (202) 898-8778; or

(iii) By sending a letter to the Office of the Executive Secretary,

ATTN: FOIA/PA Unit, 550 17th Street, NW, Washington, DC 20429.

(2) The request shall contain the following information:

(i) The name and address of the requester, an electronic mail

address, if available, and the telephone number at which the requester

may be reached during normal business hours;

(ii) Whether the requester is an educational institution,

noncommercial scientific institution, or news media representative;

(iii) A statement agreeing to pay the applicable fees, or a

statement identifying a maximum fee that is acceptable to the

requester, or a request for a waiver or reduction of fees that

satisfies paragraph (f)(1)(x) of this section; and

(iv) The preferred form and format of any responsive information

requested, if other than paper copies.

(3) A request for identifiable records shall reasonably describe

the records in a way that enables the FDIC's staff to identify and

produce the records with reasonable effort and without unduly burdening

or significantly interfering with any of the FDIC's operations.

(c) Defective requests. The FDIC need not accept or process a

request that does not reasonably describe the records requested or that

does not otherwise comply with the requirements of this part. The FDIC

may return a defective request, specifying the deficiency. The

requester may submit a corrected request, which will be treated as a

new request.

(d) Processing requests--(1) Receipt of requests. Upon receipt of

any request that satisfies paragraph (b) of this section, the FOIA/PA

Unit, Office of the Executive Secretary, shall assign the request to

the appropriate processing schedule pursuant to this section. The date

of receipt for any request, including one that is addressed incorrectly

or that is referred by another agency, is the date the Office of the

Executive Secretary actually receives the request.

(2) Multi-track processing. (i) The FDIC provides different levels

of processing for categories of requests under this part. Requests for

records that are readily identifiable by the Office of the Executive

Secretary and that have already been cleared for public release may

qualify for fast-track processing. All other requests shall be handled

under normal processing procedures, unless expedited processing has

been granted pursuant to paragraph (d)(3) of this section.

(ii) The FDIC will make the determination whether a request

qualifies for fast-track processing. A requester may contact the FOIA/

PA Unit to learn whether a particular request has been assigned to

fast-track processing. If the request has not qualified for fast-track

processing, the requester will be given an opportunity to refine the

request in order to qualify for fast-track processing. Changes made to

requests to obtain faster processing must be in writing.

(3) Expedited processing. Where a person requesting expedited

access to records has demonstrated a compelling need for the records,

or where the FDIC has determined to expedite the response, the FDIC

shall process the

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request as soon as practicable. To show a compelling need for expedited

processing, the requester shall provide a statement demonstrating that:

(i) The failure to obtain the records on an expedited basis could

reasonably be expected to pose an imminent threat to the life or

physical safety of an individual; or

(ii) The requester can establish that they are primarily engaged in

information dissemination as their main professional occupation or

activity, and there is urgency to inform the public of the government

activity involved in the request; and

(iii) The requester's statement must be certified to be true and

correct to the best of the person's knowledge and belief and explain in

detail the basis for requesting expedited processing.

(4) Denial of expedited processing. A requester seeking expedited

processing will be notified whether expedited processing has been

granted within ten (10) working days of the receipt of the request. If

the requester is denied expedited processing, the requester may file an

appeal pursuant to the procedures set forth in paragraph (h) of this

section, and the FDIC shall respond to the appeal within ten (10)

working days after receipt of the appeal.

(5) Priority of responses. Consistent with sound administrative

process the FDIC processes requests in the order they are received in

the separate processing tracks. However, in the agency's discretion, or

upon a court order in a matter to which the FDIC is a party, a

particular request may be processed out of turn.

(6) Notification. (i) The time for response to requests will be 20

working days except:

(A) In the case of expedited treatment under paragraph (d)(3) of

this section;

(B) Where the running of such time is suspended for the calculation

of a cost estimate for the requester if the FDIC determines that the

processing of the request may exceed the requester's maximum fee

provision or if the charges are likely to exceed $250 as provided for

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

(C) Where the running of such time is suspended for the payment of

fees pursuant to paragraphs (d)(6)(i)(B) and (f)(1) of this section; or

(D) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B).

(ii) In unusual circumstances as referred to in paragraph

(d)(6)(i)(D) of this section, the time limit may be extended for a

period of:

(A) Ten (10) working days as provided by written notice to the

requester, setting forth the reasons for the extension and the date on

which a determination is expected to be dispatched; or

(B) Such alternative time period as agreed to by the requester or

as reasonably determined by the FDIC when the FDIC notifies the

requester that the request cannot be processed in the specified time

limit.

(iii) Unusual circumstances may arise when:

(A) The records are in facilities, such as field offices or storage

centers, that are not located at the FDIC's Washington office;

(B) The records requested are voluminous or are not in close

proximity to one another; or

(C) There is a need to consult with another agency or among two or

more components of the FDIC having a substantial interest in the

determination.

(7) Response to request. In response to a request that satisfies

the requirements of paragraph (b) of this section, a search shall be

conducted of records maintained by the FDIC in existence on the date of

receipt of the request, and a review made of any responsive information

located. The FDIC shall notify the requester of:

(i) The FDIC's determination of the request;

(ii) The reasons for the determination;

(iii) If the response is a denial of an initial request or if any

information is withheld, the FDIC will advise the requester in writing:

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

(B) The name and title of each person responsible for the denial

(when other than the person signing the notification);

(C) The exemptions relied on for the denial; and

(D) The right of the requester to appeal the denial to the FDIC's

General Counsel within 30 business days following receipt of the

notification, as specified in paragraph (h) of this section.

(e) Providing responsive records. (1) Copies of requested records

shall be sent to the requester by regular U.S. mail to the address

indicated in the request, unless the requester elects to take delivery

of the documents at the FDIC or makes other acceptable arrangements, or

the FDIC deems it appropriate to send the documents by another means.

(2) The FDIC shall provide a copy of the record in any form or

format requested if the record is readily reproducible by the FDIC in

that form or format, but the FDIC need not provide more than one copy

of any record to a requester.

(3) By arrangement with the requester, the FDIC may elect to send

the responsive records electronically if a substantial portion of the

request is in electronic format. If the information requested is made

pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, it will not be sent

by electronic means unless reasonable security measures can be

provided.

(f) Fees--(1) General rules. (i) Persons requesting records of the

FDIC shall be charged for the direct costs of search, duplication, and

review as set forth in paragraphs (f)(2) and (f)(3) of this section,

unless such costs are less than the FDIC's cost of processing the

requester's remittance.

(ii) Requesters will be charged for search and review costs even if

responsive records are not located or, if located, are determined to be

exempt from disclosure.

(iii) Multiple requests seeking similar or related records from the

same requester or group of requesters will be aggregated for the

purposes of this section.

(iv) If the FDIC determines that the estimated costs of search,

duplication, or review of requested records will exceed the dollar

amount specified in the request, or if no dollar amount is specified,

the FDIC will advise the requester of the estimated costs (if greater

than the FDIC's cost of processing the requester's remittance). The

requester must agree in writing to pay the costs of search,

duplication, and review prior to the FDIC initiating any records

search.

(v) If the FDIC estimates that its search, duplication, and review

costs will exceed $250.00, the requester must pay an amount equal to 20

percent of the estimated costs prior to the FDIC initiating any records

search.

(vi) The FDIC shall ordinarily collect all applicable fees under

the final invoice before releasing copies of requested records to the

requester.

(vii) The FDIC may require any requester who has previously failed

to pay the charges under this section within 30 calendar days of

mailing of the invoice to pay in advance the total estimated costs of

search, duplication, and review. The FDIC may also require a requester

who has any charges outstanding in excess of 30 calendar days following

mailing of the invoice to pay the full amount due, or demonstrate that

the fee has been paid in full, prior to the FDIC initiating any

additional records search.

(viii) The FDIC may begin assessing interest charges on unpaid

bills on the 31st day following the day on which the invoice was sent.

Interest will be at the rate prescribed in section 3717 of title

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31 of the United States Code and will accrue from the date of the

invoice.

(ix) The time limit for the FDIC to respond to a request will not

begin to run until the FDIC has received the requester's written

agreement under paragraph (f)(1)(iv) of this section, and advance

payment under paragraph (f)(1) (v) or (vii) of this section, or payment

of outstanding charges under paragraph (f)(1)(vii) or (viii) of this

section.

(x) As part of the initial request, a requester may ask that the

FDIC waive or reduce fees if disclosure of the records is in the public

interest because it is likely to contribute significantly to public

understanding of the operations or activities of the government and is

not primarily in the commercial interest of the requester.

Determinations as to a waiver or reduction of fees will be made by the

Executive Secretary (or designee) and the requester will be notified in

writing of his/her determination. A determination not to grant a

request for a waiver or reduction of fees under this paragraph may be

appealed to the FDIC's General Counsel (or designee) pursuant to the

procedure set forth in paragraph (h) of this section.

(2) Chargeable fees by category of requester. (i) Commercial use

requesters shall be charged search, duplication and review costs.

(ii) Educational institutions, non-commercial scientific

institutions and news media representatives shall be charged

duplication costs, except for the first 100 pages.

(iii) Requesters not described in paragraph (f)(2) (i) or (ii) of

this section shall be charged the full reasonable direct cost of search

and duplication, except for the first two hours of search time and

first 100 pages of duplication.

(3) Fee schedule. The dollar amount of fees which the FDIC may

charge to records requesters will be established by the Chief Financial

Officer of the FDIC (or designee). The FDIC may charge fees that recoup

the full allowable direct costs it incurs. Fees are subject to change

as costs change.

(i) Manual searches for records. The FDIC will charge for manual

searches for records at the basic rate of pay of the employee making

the search plus 16 percent to cover employee benefit costs. Where a

single class of personnel (e.g., all clerical, all professional, or all

executive) is used exclusively, the FDIC, at its discretion, may

establish and charge an average rate for the range of grades typically

involved.

(ii) Computer searches for records. The fee for searches of

computerized records is the actual direct cost of the search, including

computer time, computer runs, and the operator's time apportioned to

the search. The fee for a computer printout is the actual cost. The

fees for computer supplies are the actual costs. The FDIC may, at its

discretion, establish and charge a fee for computer searches based upon

a reasonable FDIC-wide average rate for central processing unit

operating costs and the operator's basic rate of pay plus 16 percent to

cover employee benefit costs.

(iii) Duplication of records. (A) The per-page fee for paper copy

reproduction of documents is the average FDIC-wide cost based upon the

reasonable direct costs of making such copies.

(B) For other methods of reproduction or duplication, the FDIC will

charge the actual direct costs of reproducing or duplicating the

documents.

(iv) Review of records. The FDIC will charge commercial use

requesters for the review of records at the time of processing the

initial request to determine whether they are exempt from mandatory

disclosure at the basic rate of pay of the employee making the search

plus 16 percent to cover employee benefit costs. Where a single class

of personnel (e.g., all clerical, all professional, or all executive)

is used exclusively, the FDIC, at its discretion, may establish and

charge an average rate for the range of grades typically involved. The

FDIC will not charge at the administrative appeal level for review of

an exemption already applied. When records or portions of records are

withheld in full under an exemption which is subsequently determined

not to apply, the FDIC may charge for a subsequent review to determine

the applicability of other exemptions not previously considered.

(v) Other services. Complying with requests for special services,

other than a readily produced electronic form or format, is at the

FDIC's discretion. The FDIC may recover the full costs of providing

such services to the requester.

(4) Publication of fee schedule and effective date of changes. (i)

The fee schedule is made available on the FDIC World Wide Web page,

found at

http://www.fdic.gov.

(ii) The fee schedule will be set forth in the ``Notice of Federal

Deposit Insurance Corporation Records Fees'' issued in December of each

year or in such ``Interim Notice of Federal Deposit Insurance

Corporation Records Fees'' as may be issued. Copies of such notices may

be obtained at no charge from the Office of the Executive Secretary,

FOIA/PA Unit, 550 17th Street, NW, Washington, D.C. 20429, and are

available on the Web page as noted in paragraph (f)(4)(i) of this

section.

(iii) The fees implemented in the December or Interim Notice will

be effective 30 days after issuance.

(5) Use of contractors. The FDIC may contract with independent

contractors to locate, reproduce, and/or disseminate records; provided,

however, that the FDIC has determined that the ultimate cost to the

requester will be no greater than it would be if the FDIC performed

these tasks itself. In no case will the FDIC contract out

responsibilities which the Freedom of Information Act (FOIA) (5 U.S.C.

552) provides that the FDIC alone may discharge, such as determining

the applicability of an exemption or whether to waive or reduce fees.

(g) Exempt information. A request for records may be denied if the

requested record contains information which falls into one or more of

the following categories.1 If the requested record contains

both exempt and nonexempt information, the nonexempt portions which may

reasonably be segregated from the exempt portions will be released to

the requester. If redaction is necessary, the FDIC will, to the extent

technically feasible, indicate the amount of material deleted at the

place in the record where such deletion is made unless that indication

in and of itself will jeopardize the purpose for the redaction. The

categories of exempt records are as follows:

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\1\ Classification of a record as exempt from disclosure under

the provisions of this paragraph (g) shall not be construed as

authority to withhold the record if it is otherwise subject to

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

federal statute, any applicable regulation of FDIC or any other

federal agency having jurisdiction thereof, or any directive or

order of any court of competent jurisdiction.

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(1) Records that are specifically authorized under criteria

established by an Executive Order to be kept secret in the interest of

national defense or foreign policy and are in fact properly classified

pursuant to such Executive Order;

(2) Records related solely to the internal personnel rules and

practices of the FDIC;

(3) Records specifically exempted from disclosure by statute,

provided that such statute:

(i) Requires that the matters be withheld from the public in such a

manner as to leave no discretion on the issue; or

(ii) Establishes particular criteria for withholding or refers to

particular types of matters to be withheld;

(4) Trade secrets and commercial or financial information obtained

from a person that is privileged or confidential;

(5) Interagency or intra-agency memoranda or letters that would not

be

[[Page 34]]

available by law to a private party in litigation with the FDIC;

(6) Personnel, medical, and similar files (including financial

files) the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy;

(7) Records compiled for law enforcement purposes, but only to the

extent that the production of such law enforcement records:

(i) Could reasonably be expected to interfere with enforcement

proceedings;

(ii) Would deprive a person of a right to a fair trial or an

impartial adjudication;

(iii) Could reasonably be expected to constitute an unwarranted

invasion of personal privacy;

(iv) Could reasonably be expected to disclose the identity of a

confidential source, including a state, local, or foreign agency or

authority or any private institution which furnished records on a

confidential basis;

(v) Would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical

safety of any individual;

(8) Records that are contained in or related to examination,

operating, or condition reports prepared by, on behalf of, or for the

use of the FDIC or any agency responsible for the regulation or

supervision of financial institutions; or

(9) Geological and geophysical information and data, including

maps, concerning wells.

(h) Appeals. (1) Appeals should be addressed to the Office of the

Executive Secretary, FDIC, 550 17th Street, NW, Washington, DC 20429.

(2) A person whose initial request for records under this section,

or whose request for a waiver of fees under paragraph (f)(1)(x) of this

section, has been denied, either in part or in whole, has the right to

appeal the denial to the FDIC's General Counsel (or designee) within 30

business days after receipt of notification of the denial. Appeals of

denials of initial requests or for a waiver of fees must be in writing

and include any additional information relevant to consideration of the

appeal.

(3) Except in the case of an appeal for expedited treatment under

paragraph (d)(3) of this section, the FDIC will notify the appellant in

writing within 20 business days after receipt of the appeal and will

state:

(i) Whether it is granted or denied in whole or in part;

(ii) The name and title of each person responsible for the denial

(if other than the person signing the notification);

(iii) The exemptions relied upon for the denial in the case of

initial requests for records; and

(iv) The right to judicial review of the denial under the FOIA.

(4) If a requester is appealing for denial of expedited treatment,

the FDIC will notify the appellant within 10 business days after

receipt of the appeal of the FDIC's disposition.

(i) Records of another agency. If a requested record is the

property of another federal agency or department, and that agency or

department, either in writing or by regulation, expressly retains

ownership of such record, upon receipt of a request for the record the

FDIC will promptly inform the requester of this ownership and

immediately shall forward the request to the proprietary agency or

department either for processing in accordance with the latter's

regulations or for guidance with respect to disposition.

By Order of the Board of Directors.

Dated at Washington, D.C., this 9th day of December 1997.

Federal Deposit Insurance Corporation.

Robert E. Feldman,

Executive Secretary.

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

BILLING CODE 6714-01-P