Disclosure of Information

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 309

RIN 3064-AC10

Disclosure of Information

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Final rule.

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SUMMARY: The FDIC is amending 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 final rule implements expedited and ``multitrack'' FOIA

processing procedures; implements the processing deadlines and appeal

rights created by E-FOIA; and directs the public to the expanded range

of records available through the FDIC's Internet World Wide Web (www)

page.

EFFECTIVE DATE: May 4, 1998.

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

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

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

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SUPPLEMENTARY INFORMATION:

The Proposed Rule

Part 309 of the FDIC's rules and regulations implements the Freedom

of Information Act (FOIA), 5 U.S.C. 552. On December 9, 1997 (63 FR 29,

January 2, 1998), the FDIC Board of Directors (Board) issued for public

comment a proposed rule amending part 309 in order to incorporate the

provisions of the Electronic Freedom of Information Act Amendments of

1996 (E-FOIA), Public Law 104-231.

The proposed rule provided for the expedited processing of certain

categories of requesters as mandated by E-FOIA; proposed ``multitrack''

processing requirements as permitted by E-FOIA; incorporated new

processing deadlines and appeal rights as mandated by E-FOIA;

implemented provisions requiring agencies to generally provide records

in the form or format requested, as required by E-FOIA; implemented the

E-FOIA provisions requiring agencies to make available for public

access via electronic means agency materials previously available only

through inspection and copying; clarified that FOIA and Part 309 of the

FDIC's rules and regulations apply to records maintained in electronic

format; and incorporated the electronic-search requirements specified

by E-FOIA. The proposed rule advised the public that the FDIC's World

Wide Web page (or the ``FDIC's www page'') is a primary source of FDIC

information and further noted that extensive materials are available

for inspection or copying at the FDIC's reading room or ``Public

Information Center'' or ``PIC.''

The FDIC received three comment letters in response to the proposed

rule, one from a trade association representing news editors and

reporters, and two, which were largely identical in content, from

community groups involved in community housing issues.

The community groups urged the FDIC to publish current lists of

pending applications involving the Community Reinvestment Act (CRA) on

the FDIC's www page. The community groups also indicated that FOIA

requests seeking pending applications subject to the CRA should be

entitled to expedited treatment and that, in this regard, the 10-day

response period specified in E-FOIA for expedited FOIA requests should

be shortened to three business days for such FOIA requests. Finally,

the community groups asked the FDIC to incorporate provisions that

would waive FOIA fees for non-profit or low income community groups.

In response to the community groups' request that the FDIC publish

a list of pending applications on the FDIC's www page, we are pleased

to advise that the FDIC's Division of Supervision (DOS) and Division of

Compliance and Consumer Affairs (DCA) is currently developing just such

a site in conjunction with a separately adopted proposed rule to revise

the FDIC's regulations governing applications, notice and request

procedures, and delegations of authority, published for public comment

at 62 FR 52810 (Oct. 9, 1997). The page under development will promptly

list those applications open for comment. It is anticipated that the

page listing applications subject to CRA comment will be made available

for public review this year.

For the present, however, it should be noted that the FDIC's

regional offices maintain distribution lists of groups who have

expressed an interest in receiving notice of pending applications

involving CRA. Depository institutions seeking the FDIC's approval file

their initial application with the appropriate regional office, and

most routine agency orders are issued at the regional office level

under guidelines adopted by the Board. Consequently, it is expected

that the most current source of information regarding the initial

filing of a pending application involving CRA will generally be at the

regional office level. The DOS regional offices make every effort to

send, via facsimile, a notice of pending applications to groups

included on the distribution list. The FDIC's DCA works closely with

community and banking groups in each region to advise them of the laws

and regulations governing fair lending and community reinvestment, but

community groups who have not already done so may contact the regional

offices and ask that their group be added to the distribution lists.

With regard to the community groups' request that the FOIA

regulations be revised to waive processing fees for certain groups and

to implement a three-day response period for FOIA requests involving

pending applications, it should be noted that the FDIC very seldom

receives FOIA requests for pending applications. This is likely because

such information is readily available without the necessity of filing a

FOIA request. More specifically, 12 CFR 303.6(g) currently provides

that any person may inspect the nonconfidential portions of an

application file and that, for a period extending until 180 days after

final disposition of an application, the nonconfidential portions of

the file will be available for inspection in the regional office of the

FDIC in which the application has been filed. No charge is imposed for

the search for or review of the application file. Since the

nonconfidential portions of an application are already available

without charge (except for duplication costs), and in light of the fact

that the FDIC seldom receives a FOIA request for such files, the FDIC

believes that the regulations as proposed are appropriate.

Other issues raised by the community groups have been considered by

FDIC staff but do not involve implementation of the FOIA or E-FOIA and

are thus outside the scope of the current rulemaking.

The comment received from the association of news editors and

reporters noted their general approval of the FDIC's proposal; noted

their appreciation for the FDIC's embrace of electronic access in

preparing its www page; endorsed the FDIC's initiative to accept FOIA

requests electronically; and endorsed the FDIC's willingness to

exercise its discretion in granting expedited review to requesters on

its own initiative in addition to granting expedited review when a

requester meets the standard of ``compelling need.''

The trade association did ask, however, that the FDIC incorporate a

provision similar to that adopted by the Department of Justice in its

FOIA regulations with regard to the formality of certifications needed

to obtain expedited treatment. More specifically, and consistent with

E-FOIA, the FDIC's proposed rule provided that a requester is entitled

to expedited treatment only 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. A requester

seeking expedited processing must submit a certified statement

describing the basis for requesting expedited treatment.

[[Page 16403]]

The Department of Justice regulations, however, provide that the

formality of the certification may be waived as a matter of

administrative discretion. The trade association asks the FDIC to

incorporate a similar waiver provision. They express concern that not

all eligible requesters will know that they must submit a certification

at the time the initial request is filed. They fear that eligible

requesters will therefore experience delays even though they are

operating under the extraordinary circumstances found to merit

expedited treatment under the law.

The certification required by the FDIC is straightforward and,

consequently, we do not expect that it will be burdensome for eligible

requesters to submit a certification with their initial request. In

order to fully respond to the concerns raised by the trade association,

however, the FDIC is adopting in this final rule a provision similar to

that found in the Department of Justice's regulations. Consequently,

under the FDIC's final rule, the formality of the certification

required to obtain expedited treatment may be waived by the FDIC as a

matter of administrative discretion.

In the case of a defective FOIA request, the trade association asks

that the FDIC contact the requester by telephone in order to facilitate

clarification and correction of the request instead of engaging in an

extended exchange of letters. The FDIC generally does contact

requesters to clarify deficient or vague requests and will continue to

do so, consistent with sound administrative practice. Consequently, we

do not find it necessary or helpful to mandate such a requirement

through the regulation.

The Final Rule

The provisions of the final rule are summarized below. The final

rule tracks the proposed rule in all material respects. As described in

the proposed rule, Sec. 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, directing the public to FDIC's www page, found at: http://

www.fdic.gov, as a primary source of FDIC information. The FDIC is

continually working to increase the resources available over the

Internet on the FDIC's www page, and the public is encouraged to

explore the wealth of information available from the FDIC through the

Internet. For example, the FDIC has elected to publish various consumer

aids, such as pamphlets explaining deposit insurance coverage;

information of interest to the banking industry, such as statistical

and call report data and institution forms; information concerning the

FDIC's responsibilities and structure, such as the pamphlet entitled

``Symbol of Confidence,'' which lists sources to contact for additional

information about the FDIC; and asset information for those interested

in purchasing owned real estate (ORE) held by the FDIC.

Section 309.4 also describes the categories of information

available through the FDIC's public reading room, or ``Public

Information Center'' or ``PIC.'' The PIC maintains facilities for

receiving and storing public documents and information which the FDIC

generates in performing its mission. The PIC provides reference

services and referrals, and certain documents are available for

inspection or sale, such as the final orders issued in enforcement

actions.

Finally, Sec. 309.4 describes those categories of information that

are required to be made available for inspection or copying, either in

the FDIC's reading room or via computer telecommunications, as required

by E-FOIA. The FDIC has also established an Electronic FOIA Office to

provide information concerning the FDIC's FOIA program and to

facilitate the filing of FOIA requests via the Internet. The regulatory

text of the final rule has been clarified to explain that information

on the FDIC's World Wide Web page is available to the public without

charge. If, however, information available on the FDIC's World Wide Web

page is provided pursuant to a FOIA request processed under Sec. 309.5,

then the fees prescribed by FOIA apply and will be assessed pursuant to

Sec. 309.5(f).

The final rule revises Sec. 309.5, which describes the FDIC's

procedures for processing FOIA requests, to incorporate the changes

required by E-FOIA. The final rule provides for multitrack processing

of FOIA requests, and explains that 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. Further, fast-track requests will be handled as

expeditiously as possible, in the order in which they are received.

The final rule provides that 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 FOIA 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. As discussed above, the formality of

the certification may be waived as a matter of administrative

discretion.

Section 309.5(h) 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 not begin in

cases (1) where advance payment is required until payment is received,

or (2) where

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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 final 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 Office of Management and Budget (OMB) has determined that no

information collection is contained in this final rule.

Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA) (Title II, Pub. L. 104-121) provides generally for agencies to

report rules to Congress for review. The reporting requirement is

triggered when a federal agency issues a final rule. Accordingly, the

FDIC will file the appropriate reports with Congress as required by

SBREFA.

The OMB has determined that this final rule amending 12 CFR Part

309 is not a ``major rule'' as defined by SBREFA.

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 amending 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.

(a) Records available on the FDIC's World Wide Web page.--(1)

Discretionary release of documents. The FDIC encourages the public to

explore the wealth of resources available on the FDIC's World Wide Web

page, located at: http://www.fdic.gov. The FDIC has elected to publish

a broad range of materials on its World Wide Web page, including

consumer guides; financial and statistical information of interest to

the banking industry; and information concerning the FDIC's

responsibilities and structure.

(2) Documents required to be made available via computer

telecommunications. (i) The following types of documents created on or

after November 1, 1996, and required to be made available through

computer telecommunications, may be found on the FDIC's World Wide Web

page located at: http://www.fdic.gov:

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

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

adjudication of cases;

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

of Directors that are not published in the Federal Register;

(C) Administrative staff manuals and instructions to staff that

affect the public;

(D) 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 the subject of subsequent requests;

(E) A general index of the records referred to in paragraph

(a)(2)(i)(D) of this section.

(ii) 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.

(b) Public Information Center. 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. 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.

(c) Applicable fees. (i) 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.

(ii) Information on the FDIC's World Wide Web page is available to

the public without charge. If, however, information available on the

FDIC's World Wide Web page is provided pursuant to a Freedom of

Information Act request processed under Sec. 309.5, then fees apply and

will be assessed pursuant to Sec. 309.5(f).

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

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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's

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 track 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) Multitrack 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. (i) 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 request as soon as practicable. To show a compelling

need for expedited processing, the requester shall provide a statement

demonstrating that:

(A) 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

(B) 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

(C) 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.

(ii) The formality of the certification required to obtain

expedited treatment may be waived by the FDIC as a matter of

administrative discretion.

(4) 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 request for expedited

processing is denied, 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

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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

twenty (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 the 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)

and further described in paragraph (d)(6)(iii) of this section.

(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 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

[[Page 16407]]

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's 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 FDIC's World Wide 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 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;

[[Page 16408]]

(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.

(5) Complete payment of any outstanding fee invoice will be

required before an appeal is processed.

(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.

Sec. 309.6 [Amended]

6. Section 309.6 is amended by redesignating footnotes 5 through 9

as footnotes 2 through 6.

By Order of the Board of Directors.

Dated at Washington, D.C., this 24th day of March 1998.

Federal Deposit Insurance Corporation.

Robert E. Feldman,

Executive Secretary.

[FR Doc. 98-8642 Filed 4-2-98; 8:45 am]

BILLING CODE 6714-01-P