Releasing Information

FARM CREDIT ADMINISTRATION

12 CFR Part 602

RIN 3052-AB84

Releasing Information

AGENCY: Farm Credit Administration (FCA).

ACTION: Final rule.

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SUMMARY: This final rule amends FCA regulations on the release of

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

Reflect new fees and make it easier for the public to get

FCA records;

Revise the procedures for requests for testimony by FCA

employees on official matters and for producing FCA documents in

litigation when FCA is not a named party; and

Add procedures for getting records in public rulemaking

files.

We designed this regulation to be concise and easy to understand.

EFFECTIVE DATE: This regulation will become effective 30 days after

publication in the Federal Register during which either one or both

houses of Congress are in session. We will publish a notice of the

effective date in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

John Hays, Policy Analyst, Office of Policy and Analysis, Farm Credit

Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090, (703)

883-4498, TDD (703) 883-4444, or

Jane Virga, Senior Attorney, Office of General Counsel, Farm Credit

Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090, (703)

883-4020, TDD (703) 883-4444.

SUPPLEMENTARY INFORMATION: We received no comments from the public on

our proposed rule published March 8, 1999 (64 FR 10954). The revisions

to part 602 are now final. We have added two tables to the final

regulation to make it easier for readers to view the types and amounts

of fees we charge requesters.

List of Subjects in 12 CFR Part 602

Administrative practice and procedure, Courts, Freedom of

information, Government employees.

For the reasons stated in the preamble, part 602, of chapter VI,

title 12 of the Code of Federal Regulations is revised to read as

follows:

PART 602--RELEASING INFORMATION:

Subpart A--Information and Records Generally

Sec.

602.1 Purpose and scope.

602.2 Disclosing reports of examination.

Subpart B--Availability of Records of the Farm Credit Administration

602.3 Definitions.

602.4 How to make a request.

602.5 FCA response to requests for records.

602.6 FOIA exemptions.

602.7 Confidential business information.

602.8 Appeals.

602.9 Current FOIA index.

Subpart C--FOIA Fees 602.10 Definitions.

602.11 Fees by type of requester.

602.12 Fees.

602.13 Fee waiver.

602.14 Advance payments--notice.

602.15 Interest on unpaid fees.

602.16 Combining requests.

Subpart D--Testimony and Production of Documents in Legal Proceedings

in Which FCA is Not a Named Party 602.17 Policy.

602.18 Definitions.

602.19 Request for testimony or production of documents.

602.20 Testimony of FCA employees.

602.21 Production of FCA documents.

602.22 Fees.

602.23 Responses to demands served on FCA employees.

602.24 Responses to demands served on non-FCA employees or

entities.

Subpart E--Release of Records in Public Rulemaking Files

602.25 General.

Authority: Secs. 5.9, 5.17; 12 U.S.C. 2243, 2252; 5 U.S.C. 301,

552; 52 FR 10012; E.O. 12600, 52 FR 23781, 3 CFR 1987, p. 235.

Subpart A--Information and Records Generally

Sec. 602.1 Purpose and scope.

This part contains FCA's rules for disclosing our records or

information; processing requests for records under the Freedom of

Information Act (5 U.S.C. 552, as amended)(FOIA); FOIA fees; disclosing

otherwise exempt information in litigation when FCA is not a party; and

getting documents in public rulemaking files. Part 603 of this chapter

tells you how to get records about yourself under the Privacy Act of

1974, 5 U.S.C. 552a.

Sec. 602.2 Disclosing reports of examination.

(a) Disclosure by FCA. Reports of examination are FCA property. We

prepare them for our confidential use and the use of the institution

examined. We do not give reports of examination to the public. Except

as provided in this section, only the Chairman or the

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Chairman's designee may consent to disclosing reports of examination of

Farm Credit System institutions and other institutions subject to our

examination. You may send a written request to our General Counsel that

explains why we should give permission.

(b) Disclosure by Farm Credit System institutions. An institution

that we have examined may disclose its report of examination to its

officers, directors, and agents, such as its attorney or accountant, if

they agree to keep the report confidential. In addition, banks may

disclose their reports of examination to their affiliated associations,

associations may disclose their reports to their supervisory bank, and

service corporations may disclose their reports of examination to the

institutions that own them. An institution may not disclose these

institutions' reports of examination to any other person without our

written permission.

(c) Disclosure to governmental entities. Without waiving any

privilege, we will disclose reports of examination to other Federal

government entities:

(1) In response to a Federal court order;

(2) In response to a request of either House or a Committee or

Subcommittee of Congress; or

(3) When requested for confidential use in an official

investigation by authorized representatives of other Federal agencies.

Subpart B--Availability of Records of the Farm Credit

Administration

Sec. 602.3 Definitions.

Appeal means a request under the FOIA asking for the reversal of a

decision.

Business information means trade secrets or other commercial or

financial information that is privileged or confidential.

Business submitter means any person or entity that gives business

information to the Government.

FOIA request means a written request for FCA records, made by any

person or entity that either directly or indirectly invokes the FOIA or

this part.

Record means all documentary materials, such as books, papers,

maps, photographs, and machine-readable materials, regardless of

physical form or characteristics (for example, electronic format) in

our possession and control when we receive your FOIA request.

Sec. 602.4 How to make a request.

(a) How to make and address a request. Your request for records

must be in writing and addressed to the FOIA Officer, Farm Credit

Administration. You may send it:

(1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;

(2) By facsimile to (703) 790-0052; or

(3) By E-mail to ``[email protected].''

(b) Description of requested records. You must describe the

requested records in enough detail to let us find them with a

reasonable effort. If the description is inadequate, we will ask you to

provide more information and the 20-day response period under

Sec. 602.5(a) will not begin until we receive your reply.

(c) Faster response. You may ask for a faster response to your FOIA

request by giving us a statement, certified to be true, that you have a

``compelling need.'' The FOIA Officer will tell you within 10 calendar

days after receiving the request whether we will respond to it faster.

If so, we will respond to your request as soon as we can. A compelling

need means:

(1) Someone's life or physical safety may be in danger if we do not

respond to the request faster; or

(2) You urgently need to tell the public about Federal government

activity as a representative of the news media.

(d) Request for personal information. If you or your representative

requests your personal information, we may require you to give us a

notarized request, identify yourself under penalty of perjury, or

provide other proof of your identity.

(e) Fees. When making a request, you must tell us the most you are

willing to pay. Our charges are in the fee tables in Secs. 602.11 and

602.12. You may also want to tell us the purpose of your request so we

can classify your request for fee purposes.

(f) Other requests. To ensure the public has timely information

about our activities, the Office of Congressional and Public Affairs

will make available copies of public documents, such as the FCA annual

report and media advisories.

Sec. 602.5 FCA response to requests for records.

(a) Response time. Within 20 business days of receiving your

request, the FOIA Officer will tell you whether we have granted or

denied it. If you send your request to the wrong address, the 20-day

response time will not begin until the FOIA Officer receives your

request.

(b) Extension of response time. In ``unusual circumstances,'' the

FOIA Officer may extend the 20-day response time for up to 10 more

business days by telling you in writing why we need more time and the

date we will mail you our response. As used in this subpart, ``unusual

circumstances'' means our need to:

(1) Search for and get the requested records from field offices or

other locations;

(2) Search for, get, and review many records identified in a single

request;

(3) Consult with another Federal agency having a substantial

interest in the request; or

(4) Consult with two or more FCA offices having a substantial

interest in the request.

(c) Referrals. If you ask for records we have that another Federal

agency originated, we will refer the request to the originating agency

and tell you about the referral. If you should have sent your request

to another Federal agency, we will refer the request to that agency and

so advise you.

Sec. 602.6 FOIA exemptions.

The FOIA allows agencies to withhold documents in certain

categories. For instance, we do not have to give you documents that

relate to our examination of institutions or that would violate the

personal privacy of an individual. If we do not give you a document

because the FOIA does not require us to, we will tell you which FOIA

exemption applies to our decision.

Sec. 602.7 Confidential business information.

(a) FCA disclosure. FCA may disclose business information from a

business submitter only under this section. This section will not apply

if:

(1) We decide the business submitter has no valid basis to object

to disclosure;

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

to the public; or

(3) Law (other than the FOIA) requires disclosure of the

information.

(b) Notice by FCA. When we receive a request for confidential

business information, the FOIA Officer will promptly tell the requester

and the business submitter in writing that the responsive records may

be free from disclosure under the FOIA. We will give the business

submitter a reasonable time to object to the proposed disclosure of the

responsive records and tell the requester whenever:

(1) The business submitter has in good faith labeled the

information a trade secret or commercial or financial information that

is privileged or confidential. We will provide such notice for 10 years

after receiving the information unless the business submitter justifies

the need for a longer period; or

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(2) We believe that disclosing the information may result in

commercial or financial injury to the business submitter.

(c) Objection to release. A business submitter who objects to our

releasing the requested information should tell us in writing why the

information is a trade secret or commercial or financial information

that is privileged or confidential.

(d) FCA response. (1) We will consider carefully a business

submitter's objections. If we decide to disclose business information

over the submitter's objection, the FOIA Officer will explain to the

submitter in writing why we disagreed with the submitter's objection

and describe the business information to be disclosed.

(2) We will tell the requester and the submitter the proposed

disclosure date at the same time.

(3) If a submitter sues to prevent release, we will promptly tell

the requester and will not disclose the business information until

after the court's decision.

(4) If a requester sues to compel disclosure, we will promptly tell

the business submitter.

Sec. 602.8 Appeals.

(a) How to appeal. You may appeal a total or partial denial of your

FOIA request within 30 calendar days of the date of the denial letter.

Your appeal must be in writing and addressed to the Director, Office of

Resources Management (ORM), Farm Credit Administration. You may send

it:

(1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;

(2) By facsimile to (703) 893-2608; or

(3) By E-mail to [email protected].

(b) FCA action on appeal. Within 20 business days of receiving your

appeal, the ORM Director will tell you, in writing, whether we have

granted or denied it. If you send your appeal to the wrong address, the

20-day response time will not begin until the ORM Director receives

your appeal.

(c) Unusual circumstances. In unusual circumstances, the ORM

Director may extend the 20-day response time by telling you in writing

why we need more time and the date we will mail you our response. All

extensions, including any extension of the response time for the first

request, may not total more than 10 business days.

Sec. 602.9 Current FOIA index.

FCA will make a current index available for public inspection and

copying, as required by the FOIA. We will give you an index for the

cost of copying it. Because we rarely receive requests for an index, we

have not published one in the Federal Register.

Subpart C--FOIA Fees

Sec. 602.10 Definitions.

Commercial use request means an information request by an

individual or entity seeking information for a use or purpose that

furthers the commercial, trade, or profit interests of that individual

or entity.

Direct costs means the costs FCA incurs in searching for and

reproducing documents to respond to a FOIA request. For a commercial

use request, it also means the costs we incur in reviewing documents to

respond to the request. Direct costs include the pro rated cost of the

salary of the employee performing the work (based on the basic rate of

pay plus 16 percent to cover benefits) and the cost of operating

reproduction equipment. They do not include overhead expenses.

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, or

an institution of vocational education that runs a program of scholarly

research.

Noncommercial scientific institution means a nonprofit institution

that conducts scientific research that is not intended to promote any

particular product or industry.

Pages mean 8-1/2 x 11 inch or 11 x 14 inch paper copies.

Representative of the news media means any person actively

gathering news for an entity that publishes or broadcasts news to the

public. News means information about current events or of current

interest to the public.

Reproduce (or reproduction) means copying a record.

Review means looking at documents found in response to a FOIA

request to decide whether any portion should be withheld. It does not

include the time spent resolving legal or policy issues.

Search means all time spent looking for material responsive to a

FOIA request, including page-by-page or line-by-line identification of

material within documents.

Sec. 602.11 Fees by type of requester.

Depending on your identity and the purpose of your request, the FCA

may charge you the direct costs of searching for responsive records,

reviewing the records, and reproducing them. If necessary, we will seek

clarification before classifying the request.

(a) Educational institutions and noncommercial scientific

institutions. We charge fees for reproduction costs only. The first 100

pages are free. You must show that the request is sanctioned by an

educational or noncommercial scientific institution and that you seek

the records for scholarly or scientific research, not for a commercial

use.

(b) Representatives of the news media. We charge fees for

reproduction costs only. The first 100 pages are free. You must be a

representative of the news media, and the request must not be made for

a commercial use. A request for records supporting news distribution is

not a request for a commercial use.

(c) Commercial use. We charge the direct cost for search, review,

and reproduction. Commercial use requesters are not entitled to free

search time or free reproduction. We will charge you even if we do not

disclose any records.

(d) All others. The first 2 hours of search time and the first 100

pages of reproduction are free. After that, we will charge you for

search and reproduction costs. We will charge you for a search even if

we do not disclose any records.

(e) Fee table. The fee information in paragraphs (a) through (d) of

this section is presented in the table to this paragraph. You may apply

for a waiver if your request is not mostly in your commercial interest

and the disclosure is in the public interest. See Sec. 602.13.

Fee Table

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Charges for

Type of requester --------------------------------------------------- Reproduction

Search time Review time

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Educational.............. No Charge................. No charge............ First 100 pages free, $

Noncommercial scientific users 0.15 a page after that.

News media

Commercial Users \1\.............. All direct costs.......... All direct costs..... $0.15 a page.

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All others* ...................... First 2 hours free, all No charge............ First 100 pages free,

direct costs after that. $0.15 a page after that.

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* You are responsible for fees even if we do not disclose any records.

Sec. 602.12 Fees.

(a) FCA may charge:

(1) For manual searches for records and for review, the pro rated

cost of the salary of the employee doing the work.

(2) For computer searches for records, the direct costs of computer

search time and supply or material costs.

(3) For each page made by photocopy or similar method, fifteen

cents a page, and for other forms of copying, the direct costs.

(4) The direct costs of elective services, such as certifying

records as true copies or sending records by special methods.

(b) We will not charge fees when total assessed fees are less than

$15.00.

(c) You must pay by personal check, bank draft drawn on a United

States bank, or postal money order made payable to the Treasury of the

United States.

(d) We treat a request about yourself under Privacy Act fee rules.

(e) The information in paragraphs (a) and (b) of this section is

presented in the table to this paragraph. Direct costs means the costs

FCA incurs in searching for, reviewing, and reproducing documents to

respond to a request. Direct costs include pro rated salary and

reproduction costs. We will not charge fees when they total less than $

15.00.

Fee Amounts Table

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Type of fee Amount of fee

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Manual Search and Review................................... Pro rated Salary Costs.

Computer Search............................................ Direct Costs.

Photocopy.................................................. $0.15 a page.

Other Reproduction Costs................................... Direct Costs.

Elective Services.......................................... Direct Costs.

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Sec. 602.13 Fee waiver.

We may waive or reduce fees if disclosure is not mostly in your

commercial interest but, instead, is in the public interest because it

will advance public understanding of the Federal government's

operations or activities.

Sec. 602.14 Advance payments--notice.

(a) If fees will be more than $25.00 and you have not told us in

advance that you will pay estimated fees, we will tell you the

estimated amount and ask that you agree to pay it. Except as noted in

this section, we will begin processing the FOIA request when we receive

your agreement to pay.

(b) If estimated fees exceed $250.00 and you have a history of

promptly paying fees charged for information requests, we may respond

to your request based on your agreement to pay.

(c) If estimated fees exceed $250.00 and you have no history of

paying fees, we may require you to pay in advance.

(d) If you have previously failed to pay fees for information

requests or paid them late, you must pay any fees still owed, plus

interest calculated under Sec. 602.15, and the estimated fees before we

will respond to a new or a pending request.

(e) If we require advance payment or an advance agreement to pay,

we will not consider your request to be received and will not respond

to it until you meet the requirement.

Sec. 602.15 Interest on unpaid fees.

If you fail to pay fees on time, FCA may charge you interest

starting on the 31st calendar day following the date we bill you. We

will charge you interest at the rate allowed by law (31 U.S.C. 3717) on

the billing date.

Sec. 602.16 Combining requests.

You may not avoid paying fees by filing multiple requests at the

same time. When FCA reasonably believes that you, alone or with others,

are breaking down a request into a series of requests to avoid fees, we

will combine the requests and charge accordingly. We will assume that

multiple requests within a 30-day period have been made to avoid fees.

Subpart D--Testimony and Production of Documents in Legal

Proceedings in Which FCA is Not a Named Party

Sec. 602.17 Policy.

(a) The rules in this subpart preserve the confidentiality of FCA's

documents and information, conserve employees' time for official

duties, uphold fairness in litigation, and help the Chairman decide

when to allow testimony and to produce documents. This subpart does not

affect access to documents under the FOIA or the Privacy Act. See

subpart B of this part and part 603 of this chapter.

(b) Generally, we will not produce documents voluntarily and

employees will not appear as witnesses voluntarily in any legal

proceeding. However, in limited circumstances, the Chairman may allow

the production of documents or testimony when the Chairman decides it

would be in the best interest of FCA or the public. All privileged

documents produced under this subpart remain our property. Any employee

having information or privileged documents may disclose them only as

allowed by the Chairman.

Sec. 602.18 Definitions.

Court means any entity conducting a legal proceeding.

Demand means any order, subpoena, or other legal process for

testimony or documents.

Direct costs means FCA's costs to search for, review, and reproduce

documents to respond to a request. Direct costs include the pro rated

cost of the salary of the employee performing the work (based on the

basic rate of pay plus 16 percent to cover benefits) and the cost of

operating reproduction equipment.

Document means any record or other documentary materials, such as

books,

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papers, maps, photographs, and machine-readable materials, regardless

of physical form or characteristics (for example, electronic format) in

our possession and control when we receive the request.

Employee means any present or former FCA employee, any present or

former FCA Board member, any former Federal Farm Credit Board member,

any present or former FCA-appointed receiver or conservator, and any

present or former agent or contractor.

FCA Counsel means the General Counsel, a Department of Justice

attorney, or counsel authorized by FCA to act for the FCA or an

employee.

General Counsel means the FCA's General Counsel or designee.

Legal proceeding means any administrative, civil, or criminal

proceeding, including a discovery proceeding, before a court when FCA

is not a named party and has not instituted the legal proceeding.

Sec. 602.19 Request for testimony or production of documents.

(a) How to make and address a request. Your request for an

employee's testimony about official matters or the production of

documents must be in writing and addressed to the General Counsel, 1501

Farm Credit Drive, McLean, Virginia 22102-5090.

(b) Your request must contain the following:

(1) Title of the case;

(2) Forum;

(3) Your interest in the case;

(4) Summary of the litigation issues;

(5) Reasons for the request;

(6) Why the confidential information is important; and

(7) An explanation of why the testimony or document you want is not

reasonably available from another source. If you want testimony, you

must also state how you intend to use the testimony, provide a subject

matter summary of the requested testimony, and explain why a document

could not be used instead.

(c) The General Counsel may ask you to limit your request to make

it less burdensome or to give us information to help us decide if

providing documents or testimony is in the public interest.

Sec. 602.20 Testimony of FCA employees.

(a) An employee may testify only as the Chairman approves in

writing. Generally, an employee may testify only by deposition or

written interrogatory. An employee may give only factual testimony and

may not give opinion testimony.

(b) If, in response to your request, the Chairman decides that an

employee may testify, you must serve the employee with a subpoena under

applicable Federal or State rules of procedure and at the same time

send a copy of the subpoena by registered mail to the General Counsel.

(c) Normally, depositions will be taken at the employee's office,

at a time convenient to the employee and the FCA. FCA counsel may

represent FCA's interests at the deposition.

(d) If you request the deposition, you must give the General

Counsel a copy of the deposition transcript at no charge.

Sec. 602.21 Production of FCA documents.

(a) An FCA employee may produce documents only as the Chairman

allows.

(b) Before we will release any documents, the requesting party must

get an acceptable protective order from the court before which the

action is pending that will preserve the confidentiality of the

documents to be released.

(c) On request, we may provide certified or authenticated copies of

documents.

Sec. 602.22 Fees.

(a) For documents released under this subpart, FCA will charge:

(1) The direct costs of searching for responsive records, including

the use of a computer, reviewing the records, and reproducing them. We

also will charge for the direct costs of any other services and

materials that we provide at your request.

(2) Fifteen cents a copy for each page made by photocopy or similar

process.

(3) The direct costs for each certification or authentication of

documents.

(b) You must pay by personal check, bank draft drawn on a United

States bank, or postal money order made payable to FCA. We will waive

fees of $15.00 or less. We will send the documents after we receive

your payment.

Sec. 602.23 Responses to demands served on FCA employees.

(a) An employee served with a demand or a subpoena in a legal

proceeding must immediately tell the General Counsel of such service,

the testimony or documents described in the demand, and all relevant

facts.

(b) When the Chairman does not allow testimony or production of

documents, FCA Counsel will provide the regulations in this subpart to

the party or court issuing the demand and explain that the employee may

not testify or produce documents without the Chairman's prior approval.

(c) If the court rules the employee must comply with the demand

regardless of the Chairman's instructions not to do so, the employee

must respectfully refuse to comply.

(d) FCA's decision under this subpart to comply or not to comply

with any demand is not a waiver, an assertion of privilege, or an

objection based on relevance, technical deficiency, or any other

ground. We may oppose any demand on any legal ground.

Sec. 602.24 Responses to demands served on non-FCA employees or

entities.

If you are not an employee and are served with a demand or a

subpoena in a legal proceeding directing you to produce or testify

about an FCA report of examination, other document created or adopted

by FCA, or any related document, you must object and immediately tell

the General Counsel of such service, the testimony or documents

described in the demand, and all relevant facts. You also must object

to the production of any documents on the basis that they are FCA's

property and cannot be released without FCA's consent. You should tell

the requester the production of documents or testimony must follow the

procedures in this part.

Subpart E--Release of Records in Public Rulemaking Files

Sec. 602.25 General.

FCA has a public rulemaking file for each regulation. You may get

copies of documents in the public rulemaking file by sending a written

request to the Director, Regulation and Policy Division, Office of

Policy and Analysis, Farm Credit Administration, 1501 Farm Credit

Drive, McLean, Virginia 22102-5090. We will charge fifteen cents a copy

for each page. We will waive fees of $15.00 or less.

Dated: July 21, 1999.

Vivian L. Portis,

Secretary,

Farm Credit Administration Board.

[FR Doc. 99-19584 Filed 7-30-99; 8:45 am]

BILLING CODE 6705-01-P