The Freedom of Information Act and Privacy Act

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR PART 792

The Freedom of Information Act and Privacy Act

AGENCY: National Credit Union Administration (NCUA).

ACTION: Final rule.

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SUMMARY: NCUA is revising its regulations governing the disclosure of

information under the Freedom of Information Act (FOIA) to reflect

recent changes to FOIA brought about by the enactment of the Electronic

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

regulation sets forth new procedures NCUA will employ to implement

provisions of E-FOIA, such as expedited treatment of requests and

multi-track processing. The rule also clarifies the information that

must be included in FOIA requests so that NCUA can process them. Other

changes to the rule provide guidance to the public on how to obtain

records contained in the files of the Office of Inspector General. A

change to the fee provision reflects a recalculation of the agency's

duplication costs.

DATES: This regulation is effective April 24, 1998.

FOR FURTHER INFORMATION CONTACT: Dianne Salva, Staff Attorney, or

Sheila Albin, Associate General Counsel, (703) 518-6540.

SUPPLEMENTARY INFORMATION:

Background

On October 2, 1996, the President signed into law the Electronic

Freedom of Information Act Amendments of 1996, Public Law 104-231. E-

FOIA has twin goals of making records contained in government files

more easily accessible to the public and improving administration of

FOIA programs in the agencies. In particular, Congress moved to amend

the FOIA because it found that government agencies were increasingly

using computers to conduct agency business and store valuable agency

records and information. In recognition of the vast amount of

information the government maintains in electronic format, E-FOIA was

designed to ensure continued public access to government information,

including that maintained in electronic format. This final rule revises

the NCUA's information disclosure regulations, 12 CFR part 792, to

comply with E-FOIA.

On November 13, 1997, NCUA published a proposed rule, (62 FR

60799), and, in response, received five comments from the public. The

comments received generally supported the proposal. Several commenters

applauded the breadth of information available on the NCUA website, but

also asked that NCUA consider expanding the categories of information

available on the website and emphasized the need to update the website

information expeditiously. NCUA has a wide variety of records on its

website and more information is added regularly. One commenter asked

that information on the website be made available in various electronic

formats. These comments have been forwarded to the NCUA staff

responsible for maintenance of the website for consideration.

One commenter expressed confusion over the mechanics of the multi-

track system. NCUA believes that a multi-track processing system is the

most efficient and fair way to process FOIA requests. If requests were

processed on a strict first-in first-out basis, a request that could be

easily answered, such as one for a press release, would be processed

only after an earlier-received, complex request requiring extensive

search and review. Accordingly, the multi-track system remains

incorporated in this final rule. One commenter expressed confusion over

the interaction between the treatment of an expedited request and the

multi-track processing system, as well as the standards that will be

applied to determine to which track a request is assigned. To address

such confusion, NCUA's final rule clarifies that the multi-track system

includes a fast track, an expedited track and a regular track. The

types of requests that will enter the fast track are described in the

proposal as those that seek records which are readily identifiable or

have already been cleared for public release. In general, requests

placed on the fast track will be those seeking records that are not

voluminous and do not require extensive review to determine the

applicability of any FOIA exemptions. The commenter asked that NCUA

explain, by example, what type of records would meet that standard.

Generally speaking, records that will qualify for the fast track will

be those that have previously been released publicly by NCUA under

FOIA, and that can be quickly located at the Information Center

handling the request. Examples of such documents include NCUA letters

to credit unions, reports to Congress, call report data as available on

the NCUA website or listings of credit unions in a geographical area.

NCUA received four comments suggesting that it establish a specific

time limit for processing requests under the multi-track or expedited

processing

[[Page 14337]]

systems. NCUA carefully considered the comments concerning setting

specific time frames for fast track or expedited requests. The

procedure for the multi-track system will be that, when a request is

received, the Information Center will review it and determine which

track it should enter. Requests within each track will generally be

processed according to their date of receipt. This should result in the

greatest number of requests being completed in the least amount of

time. Furthermore, we reviewed other agencies' final regulations

implementing E-FOIA and found that no other agency has elected to

assign a time frame of less than 20 days for response to requests in

any track of a multi-track system. NCUA is aware that some requests may

not easily be categorized, or may appear to qualify for the fast track

initially, but be determined to be more complex once the processing is

underway. For these reasons, it was determined that no specific time

frames, other than those set forth in the statute, should be adopted in

the final rule.

One commenter suggested that NCUA establish an electronic form for

filing FOIA requests from its website, and another asked that NCUA

identify an e-mail address and fax numbers for submitting requests.

Since FOIA requests may be submitted to NCUA's Central Office or any of

its six regional offices, a list of fax numbers in the rule would be

cumbersome, but an e-mail address has been added. NCUA is currently

planning to devote space in its website to E-FOIA, and will take the

remaining comments into consideration in developing that space.

New Provisions

Section 792.02 now reflects the additional category of records NCUA

will make publicly available for inspection and copying: records

released under FOIA after March 31, 1997, which the agency determines

have become or are likely to become the subject of subsequent requests.

Section 792.03 sets forth the indices of records made available for

public inspection and copying and includes the additional index of

popular FOIA responses.

Section 792.04 informs the public that certain records created by

NCUA after November 1, 1996 are also available on the NCUA website.

Section 792.06 clarifies that records maintained in electronic

format are subject to FOIA.

Section 792.07 identifies the places within NCUA where the public

may write to request records. The Office of Inspector General has been

added to reflect that the NCUA Board has delegated authority to the

Inspector General to respond to initial FOIA requests for records

contained in Office of Inspector General files.

Sections 792.08 and 792.09 clarify administrative requirements and

procedures for submitting FOIA requests. To improve communications

between the agency and requesters, requesters are instructed to include

their name, address and telephone number with their request. In

recognition of the new requirement that agencies honor form or format

requests, requesters are also asked to designate their form or format

of choice, if other than paper copy, at the time they make their

request.

Section 792.10 sets forth the procedures for the multi-track

processing system comprised of a fast track, expedited track and

regular track. Fast track processing will apply to records that are

easily identifiable by NCUA staff and have been previously cleared for

release to the public. Fast track requests will be handled as

expeditiously as possible in the order they are received. Requests will

be placed on the expedited track if the requester meets the

requirements for expedited treatment set forth in Sec. 792.18. All

information requests that do not meet the fast track or expedited 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 NCUA to try to

narrow the scope of the request so that it will qualify for fast track

processing.

Section 792.12 was added to inform requesters that, as long as it

is technically feasible and would not harm an interest that a FOIA

exemption is intended to protect, NCUA will indicate where, why and how

much information was withheld from its response.

Section 792.13 was added to advise requesters that they may obtain

information in any readily reproducible form or format they request. It

also clarifies that only one copy of a record will be produced.

Section 792.15 sets forth the new processing time limit of 20

working days in place of the prior 10 working days. It also sets forth

the two exceptions to the 20 working day time limit: the suspension of

time for the payment of fees or if unusual circumstances exist.

Section 792.16 describes the criteria for determining whether

unusual circumstances exist. The criteria have not changed. The

regulation contains a new provision on aggregating multiple requests

which, together, cause unusual circumstances to exist. NCUA will now

aggregate multiple requests from the same requester or group of

requesters acting in concert, if it believes they constitute a single

request, and if, taken together, the requests satisfy the unusual

circumstances criteria. This section also contains a new provision

advising requesters that, if NCUA sends them a notice extending the

processing time due to unusual circumstances, it will also tell them

that they may reduce the scope of their request so that it can be

processed within the statutory time frame or agree to an alternative

time frame.

Section 792.18 has been added to implement the expedited processing

provision of E-FOIA. It sets forth the criteria for a requester seeking

to establish a compelling need to support a request for expedited

processing. E-FOIA permits two categories of requests involving

compelling needs to be granted expedited treatment: Those that entail

an imminent threat to the life or physical safety of an individual or

those that are filed by persons primarily engaged in disseminating

information and involve an urgency to inform the public concerning

actual or alleged government activity. For ease of administration and

consistency, the proposed rule uses the term ``representative of the

news media'' to describe a person primarily engaged in disseminating

information, because the term has been used for many years in other

provisions of the regulation and is familiar to the public and agency

staff. In keeping with Congress' express intent that the specified

criteria for compelling need be narrowly applied, expedited processing

will only be granted in those extraordinary cases meeting the specific

requirements of the regulation. H.R. Rep. 795, 104th Cong., 2d Sess. 26

(1996). As the legislative history states, ``the expedited process

procedure is intended to be limited to circumstances in which a delay

in obtaining information can reasonably be foreseen to cause a

significant adverse consequence to a recognized interest.'' Id. To meet

the criterion of an urgency to inform the public concerning an actual

or alleged federal government activity, the requester must show that a

delay in the release of the information would compromise a significant

recognized interest, and that the requested information pertains to a

matter of current exigency to the American public. This section also

informs the public of the right of appeal for denial of a request for

expedited processing.

[[Page 14338]]

Section 792.19 has been amended to reflect that the current fee

schedule is available on the NCUA website. It has also been amended to

reflect a new duplication rate. The current regulation sets out that

searches for records responsive to a FOIA request will be conducted by

computer using existing programming. The final rule strikes the

reference to existing programming and adds language to say that no

modification of existing programming or system will be made if it would

significantly interfere with the operation of an NCUA automated

information system.

Section 792.28 clarifies that appeals are permitted when NCUA

denies a request for a fee waiver or reduction.

Regulatory Procedures

Regulatory Flexibility Act

The Regulatory Flexibility Act requires the NCUA to prepare an

analysis to describe any significant economic impact any proposed

regulation may have on a substantial number of small credit unions,

meaning those under $1 million in assets. The NCUA Board has determined

and certifies that the rule will not have a significant economic impact

on a substantial number of small credit unions. The rule simplifies

some of the procedures regarding the release of information and

requires disclosure of information in certain instances in accordance

with law. The disclosure requirements are imposed on the NCUA,

therefore, they should not have a significant economic impact on a

substantial number of small credit unions.

Paperwork Reduction Act Analysis

These regulations will impose no additional information collection,

reporting or record keeping requirements subject to the approval of the

Office of Management and Budget pursuant to the Paperwork Reduction Act

of 1995, 44 U.S.C. 3501, et seq.

Executive Order 12,612

The NCUA Board certifies that the rule will not have a substantial

direct effect on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among various levels of government.

Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA) (Pub. L. 104-121) provides generally for congressional review

of agency rules. The reporting requirement is triggered when a final

rule is issued. The rule has been submitted to OMB for determination of

whether this final rule constitutes a major rule as defined under the

statute. A major rule is one that OMB finds has resulted in or is

likely to result in: (1) An annual effect on the economy of $100

million or more; (2) a major increase in costs or prices for consumers,

individuals, industries, federal state or local government agencies or

geographic regions; or (3) significant adverse effects on competition,

employment, investment, productivity, innovation, or the ability of

United States based enterprises to compete with foreign based

enterprises in domestic and export markets. OMB has determined that

this rule is not a major rule.

List of Subjects in 12 CFR Part 792

Administrative practice and procedure, Credit unions, Confidential

business information, Freedom of Information Act, Privacy Act.

By the National Credit Union Administration Board on March 19,

1998.

Becky Baker,

Secretary of the Board.

For the reasons set forth in the preamble, NCUA amends 12 CFR part

792 as follows:

PART 792--[AMENDED]

1. The authority citation for part 792 is revised to read as

follows:

Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d),

1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p.

235; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p.333.

Secs. 792.20--792.37 (Subpart B) [Redesignated as Subpart E

(Secs. 792.52--792.69)]

2. Redesignate subpart B (792.20-792.37) as subpart E (792.52-

792.69) and reserve subpart B.

3. Revise subpart A of part 792 to read as follows:

Subpart A--The Freedom of Information Act

General Purpose

Sec.

792.01 What What is the purpose of this subpart?

Records Publicly Available

792.02 What records does NCUA make available to the public for

inspection and copying?

792.03 How will I know which records to request?

792.04 How can I obtain these records?

792.05 What is the significance of records made available and

indexed?

Records Available Upon Request

792.06 Can I obtain other records?

792.07 Where do I send my request?

792.08 What must I include in my request?

792.09 What if my request does not meet the requirements of this

subpart?

792.10 What will NCUA do with my request?

792.11 What kind of records are exempt from public disclosure?

792.12 How will I know what records NCUA has determined to be

exempt?

792.13 Can I get the records in different forms or formats?

792.14 Who is responsible for responding to my request?

792.15 How long will it take to process my request?

792.16 What unusual circumstances can delay NCUA's response?

792.17 What can I do if the time limit passes and I still have not

received response?

Expedited Processing

792.18 What if my request is urgent and I cannot wait for the

records?

Fees

792.19 How does NCUA calculate the fees for processing my request?

792.20 What are the charges for each fee category?

792.21 Will NCUA provide a fee estimate?

792.22 What will NCUA charge for other services?

792.23 Can I avoid charges by sending multiple, small requests?

792.24 Can NCUA charge me interest if I fail to pay my bill?

792.25 Will NCUA charge me if the records are not found or are

determined to be exempt?

792.26 Will I be asked to pay fees in advance?

Fee Waiver or Reduction

792.27 Can fees be reduced or waived?

Appeals

792.28 What if I am not satisfied with the response I receive?

Submitter Notice

792.29 If I send NCUA confidential commercial information, can it

be disclosed under FOIA?

Release of Exempt Records

792.30 Is there a prohibition against disclosure of exempt records?

792.31 Can exempt records be disclosed to credit unions, financial

institutions and state or federal agencies?

792.32 Can exempt records be disclosed to investigatory agencies?

Subpart A--The Freedom of Information Act

General Purpose

Sec. 792.01 What is the purpose of this subpart?

This subpart describes the procedures you must follow to obtain

records from NCUA under the Freedom of Information Act (FOIA), (5

U.S.C. 552).

[[Page 14339]]

Records Publicly Available

Sec. 792.02 What records does NCUA make available to the public for

inspection and copying?

Except for records that are exempt from public disclosure under

FOIA as amended (5 U.S.C. 552) or are promptly published and copies are

available for purchase, NCUA routinely makes the following five types

of records available for you to inspect and copy:

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

and orders made in the adjudication of cases;

(b) Statements of policy and interpretations which have been

adopted by the agency but not published in the Federal Register;

(c) Administrative staff manuals and instructions to staff that

affect a member of the public;

(d) Copies of all records, regardless of form or format, which have

been released after March 31, 1997, in response to a FOIA request and

which, because of the nature of their subject matter, NCUA determines

have been or are likely to become the subject of subsequent requests;

and

(e) Indices of the documents referred to in this paragraph.

Sec. 792.03 How will I know which records to request?

NCUA maintains current indices providing identifying information

for the public for any matter referred to in Sec. 792.02, issued,

adopted, or promulgated after July 4, 1967. The listing of material in

an index is for the convenience of possible users and does not

constitute a determination that all of the items listed will be

disclosed. NCUA has determined that publication of the indices is

unnecessary and impractical. You may obtain copies of indices by making

a request to the Office of Administration, at NCUA, 1775 Duke Street,

Alexandria, VA 22314-2387 or, as indicated, on the NCUA web site. The

indices are available for public inspection and copying and are

provided at their duplication cost. The indices are:

(a) NCUA Publications List: Manuals relating to general and

technical information, booklets published by NCUA, and the Credit Union

Directory. The NCUA Publications list is available on the NCUA web

site.

(b) Directives Control Index: A list of statements of policy, NCUA

Instructions, Bulletins, Letters to Credit Unions, and certain internal

manuals.

(c) Popular FOIA Index: Records released in response to a FOIA

request, that NCUA determines are likely to be the subject of

subsequent requests because of the nature of their subject matter. The

Popular FOIA Index will be available on the NCUA web site on or before

December 31, 1999.

Sec. 792.04 How can I obtain these records?

You may obtain these types of records or information in the

following ways:

(a) You may obtain copies of the records referenced in Sec. 792.02

by obtaining the index referred to in Sec. 792.03 and following the

ordering instructions it contains, or by making a request to the FOIA

Officer, NCUA, Office of General Counsel at 1775 Duke Street,

Alexandria, Virginia 22314-3428.

(b) If they were created by NCUA on or after November 1, 1996,

records referenced in Sec. 792.02 are available on the NCUA web site,

found at http://www.ncua.gov.

Sec. 792.05 What is the significance of records made available and

indexed?

The records referred to in Sec. 792.02 may be relied on, used, or

cited as precedent by NCUA against a party, provided:

(a) The materials have been indexed and either made available or

published; or

(b) The party has actual and timely notice of the materials'

contents.

Records Available Upon Request

Sec. 792.06 Can I obtain other records?

Except with respect to records routinely made available under

Sec. 792.02 or published in the Federal Register, or to the extent that

records are exempt under the FOIA, if you make a request for records in

accordance with this subpart, NCUA will make such records available to

you, including records maintained in electronic format, as long as you

agree to pay the actual, direct costs.

Sec. 792.07 Where do I send my request?

(a) You must send your request to one of NCUA's Information

Centers. The Central Office, Regional Offices, Office of Inspector

General and the Asset Management and Assistance Center are designated

as Information Centers for the NCUA. The Freedom of Information Officer

of the Office of General Counsel is responsible for the operations of

the Information Center maintained at the Central Office. The Regional

Directors are responsible for the operation of the Information Centers

in their Regional Offices. The Inspector General is responsible for the

operation of the Office of Inspector General Information Center.

(b) If you think that the records are located at one of NCUA's

Regional Offices, then you should send your request to the appropriate

Regional Director, whose address can be found in Sec. 790.2(c) of this

chapter.

(c) If you think that the records are located at the Asset

Management and Assistance Center, then you should send your request to

the President, Asset Management and Assistance Center, 4807 Spicewood

Springs Road, Suite 5100, Austin, Texas 78759-8490.

(d) If you think that the records you want are in the files of the

Office of Inspector General, then you should send your request to the

Inspector General, NCUA, 1775 Duke Street, Alexandria, Virginia 22314-

3428.

(e) When you are not sure of the location of records, or if you

think that the records you want are located in the Central Office, you

should send your request to the Freedom of Information Officer at NCUA,

Office of the General Counsel, 1775 Duke Street, Alexandria, Virginia

22314-3428. You may also send your request by electronic mail to

[email protected]

Sec. 792.08 What must I include in my request?

Your request must include the following:

(a) Your name, address and a telephone number where you can be

reached during normal business hours.

(b) A reasonable description of the records you seek. A reasonable

description is one that enables an NCUA employee, who is familiar with

the subject area of the request, to locate the record with a reasonable

amount of effort.

(c) A statement agreeing to pay all applicable fees or to pay fees

up to a certain maximum amount, or requesting a fee reduction or waiver

in accordance with Sec. 792.27. If the actual fees are expected to

exceed the maximum amount you indicate in your request, NCUA will

contact you to see if you are willing to pay the estimated fees. If you

do not want to pay the estimated fees, your request will be closed and

no bill will be sent.

(d) If other than paper copy, you must identify the form and format

of responsive information you are requesting.

Sec. 792.09 What if my request does not meet the requirements of this

subpart?

NCUA need not accept or process your request if it does not comply

with the requirements of this subpart. NCUA may return such a request

to you with an explanation of the deficiency. You may then submit a

corrected request, which will be treated as a new request.

[[Page 14340]]

Sec. 792.10 What will NCUA do with my request?

(a) On receipt of any request, the Information Center assigns it to

the appropriate processing schedule, pursuant to paragraph (b) of this

section. The date of receipt for any request, including one that is

addressed incorrectly or that is referred to NCUA by another agency, is

the date the appropriate Information Center actually receives the

request.

(b) NCUA has a multi-track processing system. Requests for records

that are readily identifiable by the Information Center and have

already been cleared for public release may qualify for fast track

processing. Requests which meets the requirements of Sec. 792.18 will

be processed on the expedited track. All other requests will be handled

under normal processing procedures.

(c) The Information Center will make the determination whether a

request qualifies for fast track processing or expedited track

processing. You may contact the Information Center to learn to which

track your request has been assigned. If your request has not qualified

for fast track processing, you will have an opportunity to limit the

scope of material requested to qualify for fast track processing.

Limitations of requests must be in writing. If your request for

expedited processing is not granted, you will be advised of your right

to appeal.

(d) The Information Center will normally process requests in the

order they are received in the separate processing tracks. However, in

NCUA's discretion, a particular request may be processed out of turn.

(e) Upon a determination by the appropriate Information Center to

comply with your initial request for records, the records will be made

promptly available to you. If we notify you of a denial of your

request, we will include the names and titles or positions of each

person responsible for the denial.

Sec. 792.11 What kind of records are exempt from public disclosure?

(a) All records of NCUA or any officer, employee, or agent thereof,

are confidential, privileged and exempt from disclosure, except as

otherwise provided in this subpart, if they are:

(1) Records 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 an Executive Order.

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

practices. This exemption applies to internal rules or instructions

which must be kept confidential in order to assure effective

performance of the functions and activities for which NCUA is

responsible and which do not materially affect members of the public.

This exemption also applies to manuals and instructions to the extent

that release of the information would permit circumvention of laws or

regulations.

(3) Specifically exempted from disclosure by statute, where the

statute either makes nondisclosure mandatory or establishes particular

criteria for withholding information.

(4) Records which contain trade secrets and commercial or financial

information which relate to the business, personal or financial affairs

of any person or organization, are furnished to NCUA, and are

confidential or privileged. This exemption includes, but is not limited

to, various types of confidential sales and cost statistics, trade

secrets, and names of key customers and personnel. Assurances of

confidentiality given by staff are not binding on NCUA.

(5) Inter-agency or intra-agency memoranda or letters which would

not be available by law to a private party in litigation with NCUA.

This exemption preserves the existing freedom of NCUA officials and

employees to engage in full and frank written or taped communications

with each other and with officials and employees of other agencies. It

includes, but is not limited to, inter-agency and intra-agency reports,

memoranda, letters, correspondence, work papers, and minutes of

meetings, as well as staff papers prepared for use within NCUA or in

concert with other governmental agencies.

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

files), the disclosure of which without written permission would

constitute a clearly unwarranted invasion of personal privacy. Files

exempt from disclosure include, but are not limited to:

(i) The personnel records of the NCUA;

(ii) The personnel records voluntarily submitted by private parties

in response to NCUA's requests for proposals; and

(iii) Files containing reports, records or other material

pertaining to individual cases in which disciplinary or other

administrative action has been or may be taken.

(7) Records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement

records or information:

(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 information on a

confidential basis, and, in the case of a record or information

compiled by a criminal law enforcement authority in the course of a

criminal investigation on or by an agency conducting a lawful national

security intelligence investigation, information furnished by the

confidential source;

(v) Would disclose techniques and procedures for law enforcement

investigation 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. This includes, but is not limited to,

information relating to enforcement proceedings upon which NCUA has

acted or will act in the future.

(8) Contained in or related to examination, operating or condition

reports prepared by, or on behalf of, or for the use of NCUA or any

agency responsible for the regulation or supervision of financial

institutions. This includes all information, whether in formal or

informal report form, the disclosure of which would harm the financial

security of credit unions or would interfere with the relationship

between NCUA and credit unions.

(b) We will provide any reasonably segregable portion of a

requested record after deleting those portions that are exempt from

disclosure under this section.

Sec. 792.12 How will I know what records NCUA has determined to be

exempt?

As long as it is technically feasible and does not threaten an

interest protected by the FOIA, we will:

(a) Mark the place where we redacted information from documents

released to you and note the exemption that protects the information

from public disclosure; or

(b) Make reasonable efforts to include with our response to you an

estimate of the volume of information withheld.

Sec. 792.13 Can I get the records in different forms or formats?

NCUA will provide a copy of the record in any form or format

requested,

[[Page 14341]]

such as computer disk, if the record is readily reproducible by us in

that form or format, but we will not provide more than one copy of any

record.

Sec. 792.14 Who is responsible for responding to my request?

The appropriate Regional Director, the Inspector General, the

President of the Asset Management and Assistance Center, or the Freedom

of Information Officer, or, in their absence, their designee, is

responsible for making the initial determination on whether to grant or

deny a request for information. This official may refer a request to an

NCUA employee who is familiar with the subject area of the request.

Other NCUA staff members may aid the official by providing information,

advice, recommending a decision, or implementing a decision, but no

NCUA employee other than an authorized official may make the initial

determination. Referral of a request by the official to an employee

will not affect the time limitation imposed in Sec. 792.15 unless the

request involves an unusual circumstance as provided in Sec. 792.16.

Sec. 792.15 How long will it take to process my request?

NCUA will respond to requests within 20 working days, except:

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

pursuant to Sec. 792.26;

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

and Sec. 792.16, the time limit may be extended for:

(1) An additional 10 working days as provided by written notice to

you, stating the reasons for the extension and the date on which a

determination will be sent; or

(2) Such alternative time period as mutually agreed by you and the

Information Office, when NCUA notifies you that the request cannot be

processed in the specified time limit.

Sec. 792.16 What unusual circumstances can delay NCUA's response?

(a) In unusual circumstances, the time limits for responding to

your request (or your appeal) may be extended by NCUA. If NCUA extends

the time it will provide you with written notice, setting forth the

reasons for such extension and the date on which a determination is

expected to be dispatched. Our notice will not specify a date that

would result in an extension for more than 10 working days, except as

set forth in paragraph (c) of this section. The unusual circumstances

that can delay NCUA's response to your request are:

(1) The need to search for, and collect the requested records

from field facilities or other establishments that are separate from

the office processing the request;

(2) The need to search for, collect, and appropriately examine a

voluminous amount of separate and distinct records which are

demanded in a single request; or

(3) The need for consultation, which will be conducted with all

practicable speed, with another agency having substantial interest

in the determination of the request or among two or more components

of NCUA having a substantial interest in the subject matter.

(b) If you, or you and a group of others acting in concert, submit

multiple requests that NCUA believes actually constitute a single

request, which would otherwise satisfy the unusual circumstances

criteria specified in this section, and the requests involve related

matters, then NCUA may aggregate those requests and the provisions of

Sec. 792.15(b) will apply.

(c) If NCUA sends you an extension notice, it will also advise you

that you can either limit the scope of your request so that it can be

processed within the statutory time limit or agree to an alternative

time frame for processing your request.

Sec. 792.17 What can I do if the time limit passes and I still have

not received a response?

You can file suit against NCUA because you will be deemed to have

exhausted your administrative remedies if NCUA fails to comply with the

time limit provisions of this subpart. If NCUA can show that

exceptional circumstances exist and that it is exercising due diligence

in responding to your request, the court may retain jurisdiction and

allow NCUA to complete its review of the records. In determining

whether exceptional circumstances exist, the court may consider your

refusal to modify the scope of your request or arrange an alternative

time frame for processing after being given the opportunity to do so by

NCUA, when it notifies you of the existence of unusual circumstances as

set forth in Sec. 792.16.

Expedited Processing

Sec. 792.18 What if my request is urgent and I cannot wait for the

records?

You may request expedited processing of your request if you can

show a compelling need for the records. In cases where your request for

expedited processing is granted or if NCUA has determined to expedite

the response, it will be processed as soon as practicable.

(a) To demonstrate a compelling need for expedited processing, you

must provide a certified statement. The statement, certified by you to

be true and correct to the best of your knowledge and belief, must

demonstrate that:

(1) 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

(2) The requester is a representative of the news media, as defined

in Sec. 792.20, and there is urgency to inform the public concerning

actual or alleged NCUA activity.

(b) In response to a request for expedited processing, the

Information Center will notify you of the determination within ten days

of receipt of the request. If the Information Center denies your

request for expedited processing, you may file an appeal pursuant to

the procedures set forth in Sec. 792.28, and NCUA will expeditiously

respond to the appeal.

(c) The Information Center will normally process requests in the

order they are received in the separate processing tracks. However, in

NCUA's discretion, a particular request may be processed out of turn.

Fees

Sec. 792.19 How does NCUA calculate the fees for processing my

request?

We will charge you our allowable direct costs, unless they are less

than the cost of billing you. Direct costs means those expenditures

that NCUA actually incurs in searching for, duplicating and reviewing

documents to respond to a FOIA request. Search means all time spent

looking for material that is responsive to a request, including page-

by-page or line-by-line identification of material within documents.

Searches may be done manually or by computer. Search does not include

modification of an existing program or system that would significantly

interfere with the operation of an automated information system. Review

means examining documents to determine whether any portion should be

withheld and preparing documents for disclosure. Fees are subject to

change as costs increase. The current rate schedule is available on our

web site at http://www.ncua.gov. We may contract with the private

sector to locate, reproduce or disseminate records. NCUA will not

contract out responsibilities that FOIA requires it to discharge, such

as determining the applicability of an exemption, or determining

whether to waive or reduce fees. The following labor and duplication

rate calculations apply:

[[Page 14342]]

(a) NCUA will charge fees at the following rates for manual

searches for and review of records:

(1) If search/review is done by clerical staff, the hourly rate for

CU-5, plus 16% of that rate to cover benefits;

(2) If search/review is done by professional staff, the hourly rate

for CU-13, plus 16% of that rate to cover benefits.

(b) NCUA will charge fees at the hourly rate for CU-13, plus 16% of

that rate to cover benefits, plus the hourly cost of operating the

computer for computer searches for records.

(c) NCUA will charge the following duplication fees:

(1) The per-page fee for paper copy reproduction of a document is

$.05;

(2) The fee for documents generated by computer is the hourly fee

for the computer operator, plus the cost of materials (computer paper,

tapes, labels, etc.);

(3) If any other method of duplication is used, NCUA will charge

the actual direct cost of duplication.

Sec. 792.20 What are the charges for each fee category?

The fee category definitions are:

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

who seeks information 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.

(b) Educational institution means a preschool, an elementary or

secondary school, an institution of undergraduate higher education, an

institution of graduate higher education, an institution of

professional education, and an institution of vocational education

operating a program or programs of scholarly research.

(c) Noncommercial scientific institution means an institution that

is not operated for a ``commercial'' purpose as that term is used in

paragraph (a) of this section and is operated solely for the purpose of

conducting scientific research, the results of which are not intended

to promote any particular product or industry.

(d) Representative of the news media means any person actively

gathering news for an entity that is organized and operated to publish

or broadcast news to the public. Included within the meaning of public

is the credit union community. The term news means information that is

about current events or that would be of current interest to the

public. You may consult the following chart to find the fees applicable

to your request:

----------------------------------------------------------------------------------------------------------------

If your fee category is You'll receive And you'll be charged

----------------------------------------------------------------------------------------------------------------

Commercial use..................... 0 hours free search....... search time

0 hours free review....... review time

0 free pages.............. duplication

Educational institution, Unlimited free search duplication

noncommercial scientific hours.

institution, newsmedia. Unlimited free review

hours.

100 free pages............

All others......................... 2 hours free search....... search time

Unlimited free review

hours.

100 free pages............ duplication

----------------------------------------------------------------------------------------------------------------

Sec. 792.21 Will NCUA provide a fee estimate?

NCUA will notify you of the estimated amount if fees are likely to

exceed $25, unless you have indicated in advance a willingness to pay

fees as high as those anticipated. You will then have the opportunity

to confer with NCUA personnel to reformulate the request to meet your

needs at a lower cost.

Sec. 792.22 What will NCUA charge for other services?

Complying with requests for special services is entirely at the

discretion of NCUA. NCUA will recover the full costs of providing such

services to the extent it elects to provide them.

Sec. 792.23 Can I avoid charges by sending multiple, small requests?

You may not file multiple requests, each seeking portions of a

document or similar documents, solely to avoid payment of fees. If this

is done, NCUA may aggregate any such requests and charge you

accordingly.

Sec. 792.24 Can NCUA charge me interest if I fail to pay my bill?

NCUA can assess interest charges on an unpaid bill starting on the

31st day following the date of the bill. If you fail to pay your bill

within 30 days, interest will be at the rate prescribed in 31 U.S.C.

3717, and will accrue from the date of the billing.

Sec. 792.25 Will NCUA charge me if the records are not found or are

determined to be exempt?

NCUA may assess fees for time spent searching and reviewing, even

if it fails to locate the records or if records located are determined

to be exempt from disclosure.

Sec. 792.26 Will I be asked to pay fees in advance?

NCUA will require you to give an assurance of payment or an advance

payment only when:

(a) NCUA estimates or determines that allowable charges that you

may be required to pay are likely to exceed $250. NCUA will notify you

of the likely cost and obtain satisfactory assurance of full payment

where you have a history of prompt payment of FOIA fees, or require an

advance payment of an amount up to the full estimated charges in the

case where you have no history of payment; or

(b) You have previously failed to pay a fee charged in a timely

fashion. NCUA may require you to pay the full amount owed, plus any

applicable interest, or demonstrate that you have, in fact, paid the

fee, and to make an advance payment of the full amount of the estimated

fee before we begin to process a new request or a pending request from

you.

(c) If you are required to make an advance payment of fees, then

the administrative time limits prescribed in Sec. 792.16 will begin

only after NCUA has received the fee payments described.

Fee Waiver or Reduction

Sec. 792.27 Can fees be reduced or waived?

You may request that NCUA waive or reduce fees if disclosure of the

information you request 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 your

commercial interest.

(a) NCUA will make a determination of whether the public interest

requirement above is met based on the following factors:

(1) Whether the subject of the requested records concerns the

operations or activities of the government;

[[Page 14343]]

(2) Whether the disclosure is likely to contribute to an

understanding of government operations or activities;

(3) Whether disclosure of the requested information will contribute

to public understanding; and

(4) Whether the disclosure is likely to contribute significantly to

public understanding of government operations or activities,

(b) If the public interest requirement is met, NCUA will make a

determination on the commercial interest requirement based upon the

following factors:

(1) Whether you have a commercial interest that would be furthered

by the requested disclosure; and if so

(2) Whether the magnitude of your commercial interest is

sufficiently large in comparison with the public interest in

disclosure, that disclosure is primarily in your commercial interest.

(c) If the required public interest exists and your commercial

interest is not primary in comparison, NCUA will waive or reduce fees.

(d) If you are not satisfied with our determination on your fee

waiver or reduction request, you may submit an appeal to the General

Counsel in accordance with Sec. 792.28.

Appeals

Sec. 792.28 What if I am not satisfied with the response I receive?

If you are not satisfied with NCUA's response to your request, you

can file an administrative appeal. Your appeal must be in writing and

must be filed within 30 days from receipt of the initial determination

(in cases of denials of an entire request, or denial of a request for

fee waiver or reduction), or from receipt of any records being made

available pursuant to the initial determination (in cases of partial

denials.) In its response to your initial request, the Freedom of

Information Act Officer, Inspector General, President of the Asset

Management and Assistance Center, or responsible Regional Director, (or

designee,) will notify you that you may appeal any adverse

determination to the Office of General Counsel. The General Counsel, or

designee, as set forth in this paragraph, will:

(a) Make a determination with respect to any appeal within 20 days

(excepting Saturdays, Sundays, and legal public holidays) after the

receipt of such appeal. If, on appeal, the denial of the request for

records is, in whole or in part, upheld, the Office of General Counsel

will notify you of the provisions for judicial review of that

determination under FOIA. Where you do not address your request or

appeal to the proper official, the time limitations stated above will

be computed from the receipt of the request or appeal by the proper

official.

(b) The General Counsel is the official responsible for determining

all appeals from initial determinations. In case of this person's

absence, the appropriate officer acting in the General Counsel's stead

will make the appellate determination, unless such officer was

responsible for the initial determination, in which case the Vice-

Chairman of the NCUA Board will make the appellate determination.

(c) All appeals should be addressed to the General Counsel in the

Central Office and should be clearly identified as such on the envelope

and in the letter of appeal by using the indicator ``FOIA-APPEAL.''

Failure to address an appeal properly may delay commencement of the

time limitation stated in paragraph (a)(1) of this section, to take

account of the time reasonably required to forward the appeal to the

Office of General Counsel.

Sec. 792.29 If I send NCUA confidential commercial information, can it

be disclosed under FOIA?

(a) If you submit confidential commercial information to NCUA, it

may be disclosed in response to a FOIA request in accordance with this

section.

(b) For purposes of this section:

(1) Confidential commercial information means commercial or

financial information provided to NCUA by a submitter that arguably is

protected from disclosure under Sec. 792.11(a)(4) because disclosure

could reasonably be expected to cause substantial competitive harm.

(2) Submitter means any person or entity who provides business

information, directly or indirectly, to NCUA.

(c) Submitters of business information must use good faith efforts

to designate, by appropriate markings, either at the time of submission

or at a reasonable time thereafter, those portions of their submissions

deemed to be protected from disclosure under Sec. 792.11(a)(4). Such a

designation shall expire ten years after the date of submission.

(d) We will provide a submitter with written notice of a FOIA

request or administrative appeal encompassing designated business

information when:

(1) The information has been designated in good faith by the

submitter as confidential commercial information deemed protected from

disclosure under Sec. 792.11(a)(4); or

(2) NCUA has reason to believe that the information may be

protected from disclosure under Sec. 792.11(a)(4).

(e) A copy of the notice to the submitter will also be provided to

the FOIA requester.

(f) Through the notice described in paragraph (d) of this section,

NCUA will afford the submitter a reasonable period of time within which

to provide a detailed written statement of any objection to disclosure.

The statement must describe why the information is confidential

commercial information and why it should not be disclosed.

(g) Whenever we decide that we must disclose confidential

commercial information over the objection of the submitter, we will

send both the submitter and the FOIA requester, within a reasonable

number of days prior to the specified disclosure date, a written notice

which will include:

(1) A statement of the reasons for which the submitter's disclosure

objection was not sustained; and

(2) A description of the information to be disclosed; and

(3) A specified disclosure date.

(h) If a requester brings suit to compel disclosure of confidential

commercial information, we will promptly notify the submitter.

(i) The notice requirements of paragraph (d) of this section do not

apply if:

(1) We determine that the information should not be disclosed;

(2) The information has been lawfully published or has been

officially made available to the public;

(3) Disclosure of the information is required by law; or

(4) The designation made by the submitter in accordance with

paragraph (c) of this section appears obviously frivolous; except that

in such case, NCUA will provide the submitter with written notice of

any final administrative decision to disclose the information within a

reasonable number of days prior to the specified disclosure date.

Release of Exempt Information

Sec. 792.30 Is there a prohibition against disclosure of exempt

records?

Except those authorized officials listed in Sec. 792.14, or as

provided in Secs. 792.31-792.32, and subpart C of this part, no

officer, employee, or agent of NCUA or of any federally-insured credit

union shall disclose or permit the disclosure of any exempt records of

NCUA to any person other than those NCUA or credit union officers,

employees, or agents properly entitled to such information for the

performance of their official duties.

[[Page 14344]]

Sec. 792.31 Can exempt records be disclosed to credit unions,

financial institutions and state or federal agencies?

The NCUA Board, in its sole discretion, or any person designated by

it in writing, may make available to certain governmental agencies and

insured financial institutions copies of reports of examination and

other documents, papers or information for their use, when necessary,

in the performance of their official duties or functions. All reports,

documents and papers made available pursuant to this paragraph shall

remain the property of NCUA. No person, agency or employee shall

disclose the reports or exempt records without NCUA's express written

authorization.

Sec. 792.32 Can exempt records be disclosed to investigatory agencies?

The NCUA Board, or any person designated by it in writing, in its

discretion and in appropriate circumstances, may disclose to proper

federal or state authorities copies of exempt records pertaining to

irregularities discovered in credit unions which may constitute either

unsafe or unsound practices or violations of federal or state, civil or

criminal law.

[FR Doc. 98-7726 Filed 3-24-98; 8:45 am]

BILLING CODE 7535-01-U