12 C.F.R. Part 4 |
Organization and Functions, Availability and Release of Information, Contracting Outreach Program |
Subpart AOrganization and Functions
Sec.
4.1 Purpose.
4.2
Office of the Comptroller of the Currency.
4.3 Comptroller
of the Currency.
4.4 Washington office.
4.5 District and
field offices.
4.6
Frequency of examination of national banks.
4.7 Frequency of examination of Federal agencies and branches.
Subpart BAvailability of Information Under the Freedom of Information Act
4.11 Purpose and
scope.
4.12
Information available under the FOIA.
4.13
Publication in the Federal Register.
4.14 Public
inspection and copying.
4.15 Specific
requests for records.
4.16 Predisclosure notice for confidential commercial information.
4.17 Fees for services.
Subpart CRelease of Non-Public OCC Information
4.31 Purpose and
scope.
4.32 Definitions.
4.33 Requirements for a request of records or testimony.
4.34 Where to
submit a request.
4.35 Consideration
of requests.
4.36
Disclosure of non-public OCC information.
4.37 Persons and entities with access to OCC information; prohibition on
dissemination.
4.38 Restrictions on dissemination of released information.
4.39 Notification of parties and procedures for sharing and using OCC
records in litigation.
4.40 Fees for services.
APPENDIX A TO SUBPART CMODEL STIPULATION FOR PROTECTIVE ORDER AND MODEL PROTECTIVE ORDER
Subpart DMinority-, Women-, and Individuals With Disabilities-Owned Business Contracting Outreach Program; Contracting for Goods and Services
4.61 Purpose.
4.62 Definitions.
4.63 Policy.
4.64 Promotion.
4.65 Certification.
4.66 Oversight and
monitoring.
AUTHORITY:
12 U.S.C. 93a. Subpart A also issued under 5 U.S.C. 552; Subpart B also issued under 5
U.S.C. 552; E.O. 12600 (3 CFR 1987 Comp., p. 235). Subpart C also issued under 5 U.S.C.
301, 552; 12 U.S.C. 161, 481, 482, 484(a), 1442, 1817(a)(3),
1818(u) and (v), 1820(d)(6), 1821(c), 1821(o), 1821(t), 1831m,
1831p-1, 1831o, 1867, 1951 et seq., 2601
et seq., 2801 et seq., 2901 et seq., 3101 et
seq., 3401 et seq.; 15 U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29
U.S.C. 1204, 31 U.S.C. 9701; 42 U.S.C. 3601, 44 U.S.C. 3506, 3510. Subpart D also
issued under 12 U.S.C. 1833e.
SOURCE:
60 FR 57315, 57322, Nov. 15, 1995, unless otherwise noted.
Subpart AOrganization and Functions
This subpart
describes the organization and functions of the Office of the Comptroller of the Currency
(OCC), and provides the OCC's principal addresses.
§ 4.2 Office of the Comptroller of the Currency.
The OCC supervises
and regulates national banks and Federal branches and agencies of foreign banks by
examining these institutions to determine compliance with applicable laws and regulations;
approving or denying applications for new charters or for changes in corporate or banking
structure; approving or denying activities; taking supervisory or enforcement actions;
appointing receivers and conservators; and issuing rules and regulations applicable to
these institutions, their subsidiaries, and affiliates.
§ 4.3 Comptroller of the Currency.
The Comptroller of
the Currency (Comptroller), as head of the OCC, is responsible for all OCC programs and
functions. The Comptroller is appointed by the President, by and with the advice and
consent of the Senate, for a term of five years. The Comptroller serves as a member of the
board of the Federal Deposit Insurance Corporation, a member of the Federal Financial
Institutions Examination Council, and a member of the board of the Neighborhood
Reinvestment Corporation. The Comptroller is advised and assisted by OCC staff, who
perform the duties and functions that the Comptroller directs.
The Washington
office of the OCC is the main office and headquarters of the OCC. The Washington office
directs OCC policy, oversees OCC operations, and is responsible for the direct supervision
of certain national banks, including the largest national banks (through its Multinational
Banking Department) and other national banks requiring special supervision. The Washington
office is located at 250 E Street, SW, Washington, DC 20219.
§ 4.5 District and field offices.
(a) District
offices. Each district office of the OCC is responsible for the direct supervision of
the national banks and Federal branches and agencies of foreign banks in its district,
with the exception of the national banks supervised by the Washington office. The six
district offices cover the United States, Puerto Rico, the Virgin Islands, Guam, and the
Northern Mariana Islands. The office address and the geographical composition of each
district follows:
District |
Office address |
Geographical composition |
Northeastern | Office of the Comptroller of the Currency, 1114 Avenue of the Americas, Suite 3900, New York, NY 10036. | Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virgin Islands |
Southeastern | Office of the Comptroller of the Currency, Marquis One Tower, Suite 600, 245 Peachtree Center Ave., NE, Atlanta, GA 30303. | Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia |
Central | Office of the Comptroller of the Currency, One Financial Place, Suite 2700, 440 South LaSalle Street, Chicago, IL 60605. | Illinois, Indiana, Kentucky, Michigan, Ohio, Wisconsin |
Midwestern | Office of the Comptroller of the Currency, 2345 Grand Ave., Suite 700, Kansas City, MO 64108. | Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South Dakota |
Southwestern | Comptroller of the Currency, 1600 Lincoln Plaza, 500 N. Akard Street, Dallas, TX 75201 | Arkansas, Louisiana, New Mexico, Oklahoma, Texas. |
Western | Office of the Comptroller of the Currency, 50 Fremont Street, Suite 3900, San Francisco, CA 94105. | Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington, Wyoming, Utah. |
(b) Field
offices and duty stations. Field offices and duty stations support the bank
supervisory responsibilities of the district offices.
§ 4.6 Frequency of examination of national banks
(a) General.
The OCC examines national banks pursuant to authority conferred by 12 U.S.C. 481 and the
requirements of 12 U.S.C. 1820(d). The OCC is required to conduct a full-scope, on-site
examination of every national bank at least once during each 12-month period.
(b) 18-month
rule for certain small institutions. The OCC may conduct a full-scope, on-site
examination at least once during each 18-month period, rather than each 12-month period as
provided in paragraph (a) of this section, if the following conditions are satisfied:
(1) The national
bank has total assets of $250 million or less;
(2) The national
bank is well capitalized as defined in 12 CFR part 6;
(3) At its most
recent examination, the OCC found the national bank to be well managed;
(4) At its most
recent examination, the OCC determined that the national bank was in outstanding or good
condition, that is, it received a composite rating of 1 or 2 under the Uniform Financial
Institutions Rating System (Copies are available at the addresses specified in § 4.14 of
this chapter);
(5) The national
bank currently is not subject to a formal enforcement proceeding or order by the FDIC,
OCC, or Federal Reserve Board; and
(6) No person
acquired control of the national bank during the preceding 12-month period in which a
full-scope on-site examination would have been required but for this section.
(c) Authority
to conduct more frequent examinations. This section does not limit the authority of
the OCC to examine any national bank as frequently as the agency deems necessary.
[63 FR 16378, 16380, Apr. 2, 1998]
§ 4.7 Frequency of examination of Federal agencies and branches
(a) General.
The OCC examines Federal agencies and Federal branches (as these entities are defined in
§ 28.11(h) and (i), respectively) pursuant to the authority conferred by 12 U.S.C.
3105(c)(1)(C). Except as noted in paragraph (b) of this section, the OCC will conduct a
full-scope, on-site examination of every Federal branch and agency at least once during
each 12-month period.
(b) 18-month
rule for certain small institutions. (1) Mandatory standards. The OCC may
conduct a full-scope, on-site examination at least once during each 18-month period,
rather than each 12-month period as provided in paragraph (a) of this section, if the
Federal branch or agency:
(i)
Has total assets of $250 million or less;
(ii)
Has received a composite ROCA supervisory rating (which rates risk management, operational
controls, compliance, and asset quality) of 1 or 2 at its most recent examination;
(iii)
Satisfies the requirements of either the following paragraph (A) or (B):
(A) The foreign banks most recently reported capital adequacy
position consists of, or is equivalent to, Tier 1 and total risk-based capital ratios of
at least 6 percent and 10 percent, respectively, on a consolidated basis; or
(B) The branch or agency has maintained on a daily basis, over the past three quarters, eligible assets in an amount not less than 108 percent of the preceding quarter's average third party liabilities (determined consistent with applicable federal and state law), and sufficient liquidity is currently available to meet its obligations to third parties;
(iv)
Is not subject to a formal enforcement action or order by the Federal Reserve Board, the
Federal Deposit Insurance Corporation, or the OCC; and
(v)
Has not experienced a change in control during the preceding 12-month period in which a
full-scope, on-site examination would have been required but for this section.
(2)
Discretionary standards. In determining whether a Federal branch or agency that meets
the standards of paragraph (b)(1) of this section should not be eligible for an 18-month
examination cycle pursuant to this paragraph (b), the OCC may consider additional factors,
including whether:
(1)
Any of the individual components of the ROCA rating of the Federal branch or agency is
rated "3" or worse;
(2)
The results of any off-site supervision indicate a deterioration in the condition of the
Federal branch or agency;
(3)
The size, relative importance, and role of a particular office when reviewed in the
context of the foreign banks entire U.S. operations otherwise necessitate an annual
examination; and
(4)
The condition of the foreign bank gives rise to such a need.
(c) Authority
to conduct more frequent examinations. Nothing in paragraphs (a) or (b) of this
section limits the authority of the OCC to examine any Federal branch or agency as
frequently as the OCC deems necessary.
[63 FR 46118, 46120, Aug. 28, 1998, as amended at 64 FR 56949, 56952, Oct. 22, 1999]
Subpart BAvailability of Information Under the Freedom of Information Act
(a) Purpose.
This subpart sets forth the standards, policies, and procedures that the OCC applies in
administering the Freedom of Information Act (FOIA) (5 U.S.C. 552) to facilitate the OCC's
interaction with the banking industry and the public.
(b) Scope.
(1) This subpart describes the information that the FOIA requires the OCC to disclose to
the public (§ 4.12), and the three methods by which the OCC discloses that information
under the FOIA (§§ 4.13, 4.14, and 4.15).
(2) This subpart
also sets forth predisclosure notice procedures that the OCC follows, in accordance with
Executive Order 12600 (3 CFR, 1987 Comp., p. 235), when the OCC receives a request under §
4.15 for disclosure of records that arguably are exempt from disclosure as confidential
commercial information (§ 4.16). Finally, this subpart describes the fees that the OCC
assesses for the services it renders in providing information under the FOIA (§ 4.17).
(3) This subpart
does not apply to a request for records pursuant to the Privacy Act (5 U.S.C. 552a). A
person requesting records from the OCC pursuant to the Privacy Act should refer to 31 CFR
part 1, subpart C, and appendix J of subpart C.
§ 4.12 Information available under the FOIA.
(a) General.
In accordance with the FOIA, OCC records are available to the public, except the exempt
records described in paragraph (b) of this section.
(b) Exemptions
from availability. The following records, or portions thereof, are exempt from
disclosure under the FOIA:
(1) A record that
is specifically authorized, under criteria established by an Executive order, to be kept
secret in the interest of national defense or foreign policy, and that is properly
classified pursuant to that Executive order;
(2) A record
relating solely to the internal personnel rules and practices of an agency;
(3) A record
specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that
the statute requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, establishes particular criteria for withholding, or
refers to particular types of matters to be withheld;
(4) A record that
is privileged or contains trade secrets, or commercial or financial information, furnished
in confidence, that relates to the business, personal, or financial affairs of any person
(see § 4.16 for notice requirements regarding disclosure of confidential commercial
information);
(5) An intra-agency
or interagency memorandum or letter not routinely available by law to a private party in
litigation, including memoranda, reports, and other documents prepared by OCC employees,
and records of deliberations and discussions at meetings of OCC employees;
(6) A personnel,
medical, or similar record, including a financial record, or any portion thereof, where
disclosure would constitute a clearly unwarranted invasion of personal privacy;
(7) A record or
information compiled for law enforcement purposes, but only to the extent that the OCC
reasonably believes that producing the record or information may:
(i) Interfere with
enforcement proceedings;
(ii) Deprive a
person of the right to a fair trial or an impartial adjudication;
(iii) Constitute an
unwarranted invasion of personal privacy;
(iv) Disclose the
identity of a confidential source, including a State, local, or foreign agency or
authority, or any private institution that furnished information on a confidential basis;
(v) Disclose
information furnished by a confidential source, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security intelligence
investigation;
(vi) Disclose
techniques and procedures for law enforcement investigations or prosecutions, or disclose
guidelines for law enforcement investigations or prosecutions if such disclosure
reasonably could be expected to risk circumvention of the law; or
(vii) Endanger the
life or physical safety of any individual;
(8) A record
contained in or related to an examination, operating, or condition report prepared by, on
behalf of, or for the use of the OCC or any other agency responsible for regulating or
supervising financial institutions; and
(9) A record
containing or relating to geological and geophysical information and data, including maps,
concerning wells.
(c) Discretionary
disclosure of exempt records. Even if a record is exempt under paragraph (b) of this
section, the OCC may elect, on a case-by-case basis, not to apply the exemption to the
requested record. The OCC's election not to apply an exemption to a requested record has
no precedential significance as to the application or nonapplication of the exemption to
any other requested record, regardless of who requests the record or when the OCC receives
the request. The OCC will provide predisclosure notice to submitters of confidential
commercial information in accordance with § 4.16.
(d) Segregability.
The OCC provides copies of reasonably segregable portions of a record to any person
properly requesting the record pursuant to § 4.15, after redacting any portion that is
exempt under paragraph (b) of this section.
§ 4.13 Publication in the Federal Register.
The OCC publishes
certain documents in the Federal Register for the guidance of the public, including the
following:
(a) Proposed and
final rules; and
(b) Certain notices
and policy statements of concern to the general public.
§ 4.14 Public inspection and copying.
(a) Available
information. Subject to the exemptions listed in § 4.12(b), the OCC makes the
following information readily available for public inspection and copying:
(1) Any final
order, agreement, or other enforceable document issued in the adjudication of an OCC
enforcement case, including a final order published pursuant to 12 U.S.C. 1818(u);
(2) Any final
opinion issued in the adjudication of an OCC enforcement case;
(3) Any statement
of general policy or interpretation of general applicability not published in the Federal
Register;
(4) Any
administrative staff manual or instruction to staff that may affect a member of the public
as such;
(5) A current index
identifying the information referred to in paragraphs (a)(1) through (a)(4) of this
section issued, adopted, or promulgated after July 4, 1967;
(6) A list of
available OCC publications;
(7) A list of forms
available from the OCC, and specific forms and instructions;1
(8) Any public
Community Reinvestment Act performance evaluation;
(9) Any public
securities-related filing required under part 11 or 16 of this chapter;
(10) Any public
comment letter regarding a proposed rule; and
(11) The public
file (as defined in 12 CFR 5.9) with respect to a pending application described in part 5
of this chapter.
(b) Redaction
of identifying details. To the extent necessary to prevent an invasion of personal
privacy, the OCC may redact identifying details from any information described in
paragraph (a) of this section before making the information available for public
inspection and copying.
(c) Addresses.
The information described in paragraphs (a)(1) through (a)(10) of this section is
available from the Disclosure Officer, Communications Division, Office of the Comptroller
of the Currency, 250 E Street, SW, Washington, DC 20219. The information described in
paragraph (a)(11) of this section is available from the Licensing Manager at the
appropriate district office at the address listed in § 4.5(a), or in the case of banks
supervised by the Multinational Banking Department, from the Licensing Manager,
Multinational Banking, Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219.
§ 4.15 Specific requests for records.
(a) Available
information. Subject to the exemptions described in § 4.12(b), any OCC record is
available to any person upon specific request in accordance with this section.
(b) Where to
submit request or appeal(1) General. Except as provided in paragraph
(b)(2) of this section, a person requesting a record or filing an administrative appeal
under this section must submit the request or appeal to the Disclosure Officer,
Communications Division, Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219.
(2) Exceptions(i)
Records at the Federal Deposit Insurance Corporation. A person requesting any of
the following records, other than blank forms (see § 4.14(a)(7)), must submit the request
to the Disclosure Group, Federal Deposit Insurance Corporation, 550-17th Street, NW,
Washington, DC 20429, (800) 945-2186:
(A) Consolidated
Report of Condition and Income (FFIEC 031, 032, 033, 034);
(B) Annual Report
of Trust Assets (FFIEC 001);
(C) Uniform Bank
Performance Report; and
(D) Special Report.
(ii) Records of
another agency. When the OCC receives a request for records in its possession that
another Federal agency either generated or provided to the OCC, the OCC promptly informs
the requester and immediately forwards the request to that agency for processing in
accordance with that agency's regulations.
(c) Request for
records(1) Content of request for records. A person requesting records
under this section must state, in writing:
(i) The requester's
full name, address, and telephone number;
(ii) A reasonable
description of the records sought (including sufficient detail to enable OCC employees who
are familiar with the subject matter of the request to locate the records with a
reasonable amount of effort);
(iii) A statement
agreeing to pay all fees that the OCC assesses under § 4.17;
(iv) A description
of how the requester intends to use the records, if a requester seeks placement in a lower
fee category (i.e., a fee category other than "commercial use
requester") under § 4.17; and
(v) Whether the
requester prefers the OCC to deliver a copy of the records or to allow the requester to
inspect the records at the appropriate OCC office.
(2) Initial
determination. The OCC's Director of Communications or that person's delegate
initially determines whether to grant a request for OCC records.
(3) If request
is granted. If the OCC grants a request for records, in whole or in part, the OCC
promptly discloses the records in one of two ways, depending on the requester's stated
preference:
(i) The OCC may
deliver a copy of the records to the requester. If the OCC delivers a copy of the records
to the requester, the OCC duplicates the records at reasonable and proper times that do
not interfere with their use by the OCC or preclude other persons from making inspections;
or
(ii) The OCC may
allow the requester to inspect the records at reasonable and proper times that do not
interfere with their use by the OCC or preclude other persons from making inspections. If
the OCC allows the requester to inspect the records, the OCC may place a reasonable limit
on the number of records that a person may inspect during a day.
(4) If request
is denied. If the OCC denies a request for records, in whole or in part, the OCC
notifies the requester by mail. The notification is dated and contains a brief statement
of the reasons for the denial, sets forth the name and title or position of the official
making the decision, and advises the requester of the right to an administrative appeal in
accordance with paragraph (d) of this section.
(d) Administrative
appeal of a denial(1) Procedure. A requester must submit an
administrative appeal of denial of a request for records in writing within 35 days of the
date of the initial determination. The appeal must include the circumstances and arguments
supporting disclosure of the requested records.
(2) Appellate
determination. The Comptroller or the Comptroller's delegate determines whether to
grant an appeal of a denial of a request for OCC records.
(3) If appeal
is granted. If the OCC grants an appeal, in whole or in part, the OCC treats the
request as if it were originally granted, in whole or in part, by the OCC in accordance
with paragraph (c)(3) of this section.
(4) If appeal
is denied. If the OCC denies an appeal, in whole or in part, the OCC notifies the
requester by mail. The notification contains a brief statement of the reasons for the
denial, sets forth the name and title or position of the official making the decision, and
advises the requester of the right to judicial review of the denial under 5 U.S.C.
552(a)(4)(B).
(e) Judicial
review(1) General. If the OCC denies an appeal pursuant to paragraph
(d) of this section, or if the OCC fails to make a determination within the time limits
specified in paragraph (f) of this section, the requester may commence an action to compel
disclosure of records, pursuant to 5 U.S.C. 552(a)(4)(B), in the United States district
court in:
(i) The district
where the requester resides;
(ii) The district
where the requester's principal place of business is located;
(iii) The district
where the records are located; or
(iv) The District
of Columbia.
(2) Service of
process. In commencing an action described in paragraph (e)(1) of this section, the
requester, in addition to complying with the Federal Rules of Civil Procedure (28 U.S.C.
appendix) for service upon the United States or agencies thereof, must serve process on
the Chief Counsel or the Chief Counsel's delegate at the following location: Office of the
Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219.
(f) Time limits(1)
Request. The OCC makes an initial determination to grant or deny a request for
records within 10 business days after the date of receipt of the request, as described in
paragraph (g) of this section, except as stated in paragraph (f)(3) of this section.
(2) Appeal.
The OCC makes a determination to grant or deny an administrative appeal within 20 business
days after the date of receipt of the appeal, as described in paragraph (g) of this
section, except as stated in paragraph (f)(3) of this section.
(3) Extension
of time. The time limits set forth in paragraphs (f)(1) and (2) of this section may
be extended as follows:
(i) In unusual
circumstances. The OCC may extend the time limits in unusual circumstances for a
maximum of 10 business days. If the OCC extends the time limits, the OCC provides written
notice to the person making the request or appeal, containing the reason for the extension
and the date on which the OCC expects to make a determination. Unusual circumstances exist
when the OCC requires additional time to:
(A) Search for and
collect the requested records from field facilities or other buildings that are separate
from the office processing the request or appeal;
(B) Search for,
collect, and appropriately examine a voluminous amount of requested records;
(C) Consult with
another agency that has a substantial interest in the determination of the request; or
(D) Allow two or
more components of the OCC that have substantial interest in the determination of the
request to consult with each other;
(ii) By
agreement. A requester may agree to extend the time limits for any amount of time; or
(iii) By
judicial action. If a requester commences an action pursuant to paragraph (e) of this
section for failure to comply with the time limits set forth in this paragraph (f), a
court with jurisdiction may, pursuant to 5 U.S.C. 552(a)(6)(C), allow the OCC additional
time to complete the review of the records requested.
(g) Date of
receipt of request or appeal. The date of receipt of a request for records or an
appeal is the date that OCC Communications Division receives a request that satisfies the
requirements of paragraph (c)(1) or (d)(1) of this section, except as provided in §
4.17(d).
§ 4.16 Predisclosure notice for confidential commercial information.
(a) Definitions.
For purposes of this section, the following definitions apply:
(1) Confidential
commercial information means records that arguably contain material exempt from
release under Exemption 4 of the FOIA (5 U.S.C. 552(b)(4); § 4.12(b)(4)), because
disclosure reasonably could cause substantial competitive harm to the submitter.
(2) Submitter
means any person or entity that provides confidential commercial information to the OCC.
This term includes corporations, State governments, foreign governments, and banks and
their employees, officers, directors, and principal shareholders.
(b) Notice to
submitter(1) When provided. In accordance with Executive Order 12600 (3 CFR,
1987 Comp., p. 235), when the OCC receives a request under § 4.15(c) or, where
appropriate, an appeal under § 4.15(d) for disclosure of confidential commercial
information, the OCC provides a submitter with prompt written notice of the receipt of
that request (except as provided in paragraph (b)(2) of this section) in the following
circumstances:
(i) With respect to
confidential commercial information submitted to the OCC prior to January 1, 1988, if:
(A) The records are
less than 10 years old and the submitter designated the information as confidential
commercial information;
(B) The OCC
reasonably believes that disclosure of the information may cause substantial competitive
harm to the submitter; or
(C) The information
is subject to a prior express OCC commitment of confidentiality; and
(ii) With respect
to confidential commercial information submitted to the OCC on or after January 1, 1988,
if:
(A) The submitter
in good faith designated the information as confidential commercial information;
(B) The OCC
designated the class of information to which the requested information belongs as
confidential commercial information; or
(C) The OCC
reasonably believes that disclosure of the information may cause substantial competitive
harm to the submitter.
(2) Exceptions.
The OCC generally does not provide notice under paragraph (b)(1) of this section if the
OCC determines that:
(i) It will not
disclose the information;
(ii) The
information already has been disclosed officially to the public;
(iii) The OCC is
required by law (other than 5 U.S.C. 552) to disclose the information;
(iv) The OCC
acquired the information in the course of a lawful investigation of a possible violation
of criminal law;
(v) The submitter
had an opportunity to designate the requested information as confidential commercial
information at the time of submission of the information or a reasonable time thereafter
and did not do so, unless the OCC has substantial reason to believe that disclosure of the
information would result in competitive harm; or
(vi) The OCC
determines that the submitter's designation under paragraph (b)(1)(ii)(A) of this section
is frivolous; in such case, however, the OCC will provide the submitter with written
notice of any final administrative determination to disclose the information at least 10
business days prior to the date that the OCC intends to disclose the information.
(3) Content of
notice. The OCC either describes in the notice the exact nature of the confidential
commercial information requested or includes with the notice copies of the records or
portions of records containing that information.
(4) Expiration
of notice period. The OCC provides notice under this paragraph (b) with respect to
information that the submitter designated under paragraph (b)(1)(ii)(A) of this section
only for a period of 10 years after the date of the submitter's designation, unless the
submitter requests and justifies to the OCC's satisfaction a specific notice period of
greater duration.
(5) Certification
of confidentiality. If possible, the submitter should support the claim of
confidentiality with a statement or certification that the requested information is
confidential commercial information that the submitter has not disclosed to the public.
This statement should be prepared by an officer or authorized representative if the
submitter is a corporation or other entity.
(c) Notice to
requester. If the OCC provides notice to a submitter under paragraph (b) of this
section, the OCC notifies the person requesting confidential commercial information
(requester) that it has provided notice to the submitter. The OCC also advises the
requester that if there is a delay in its decision whether to grant or deny access to the
information sought, the delay may be considered a denial of access to the information, and
that the requester may proceed with an administrative appeal or seek judicial review.
However, the requester may agree to a voluntary extension of time to allow the OCC to
review the submitter's objection to disclosure (see § 4.15(f)(3)(ii)).
(d) Opportunity
to object to disclosure. Within 10 days after receiving notice under paragraph (b) of
this section, the submitter may provide the OCC with a detailed statement of objection to
disclosure of the information. That statement must specify the grounds for withholding any
of the information under any exemption of the FOIA. Any statement that the submitter
provides under this paragraph (d) may be subject to disclosure under the FOIA.
(e) Notice of
intent to disclose. The OCC considers carefully a submitter's objection and specific
grounds for nondisclosure prior to determining whether to disclose the requested
information. If the OCC decides to disclose information over the objection of the
submitter, the OCC provides to the submitter, with a copy to the requester, a written
notice that includes:
(1) A statement of
the OCC's reasons for not sustaining the submitter's objections to disclosure;
(2) A description
of the information to be disclosed;
(3) The anticipated
disclosure date, which is not less than 10 business days after the OCC mails the written
notice required under this paragraph (e); and
(4) A statement
that the submitter must notify the OCC immediately if the submitter intends to seek
injunctive relief.
(f) Notice of
requester's lawsuit. Whenever the OCC receives service of process indicating that a
requester has brought suit seeking to compel the OCC to disclose information covered by
paragraph (b)(1) of this section, the OCC promptly notifies the submitter.
(a) Definitions.
For purposes of this section, the following definitions apply:
(1) Actual
costs means those expenditures that the OCC incurs in providing services (including
searching for, reviewing, and duplicating records) in response to a request for records
under § 4.15.
(2) Search
means the process of locating a record in response to a request, including page-by-page or
line-by-line identification of material within a record. The OCC may perform a search
manually or by electronic means.
(3) Review
means the process of examining a record located in response to a request to determine
which portions of that record should be released. It also includes processing a record for
disclosure.
(4) Duplication
means the process of copying a record in response to a request. A copy may take the form
of a paper copy, microform, audiovisual materials, or machine readable material (e.g.,
magnetic tape or disk), among others.
(5) Commercial
use requester means a person who seeks records for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person on whose behalf the
request is made.
(6) Educational
institution requester means a person who seeks records on behalf of a public or
private educational institution, including a preschool, an elementary or secondary school,
an institution of undergraduate or graduate higher education, an institution of
professional education, or an institution of vocational education that operates a program
of scholarly research.
(7) Noncommercial
scientific institution requester means a person who is not a "commercial use
requester," as that term is defined in paragraph (a)(5) of this section, and who
seeks records on behalf of an institution operated solely for the purpose of conducting
scientific research, the results of which are not intended to promote any particular
product or industry.
(8) Requester
who is a representative of the news media means a person who seeks records for the
purpose of gathering news (i.e., information about current events or of current
interest to the public) on behalf of, or a free-lance journalist who reasonably expects to
have his or her work product published or broadcast by, an entity organized and operated
to publish or broadcast news to the public.
(b) Fees(1)
General. The hourly and per page rate that the OCC generally charges requesters
is set forth in the "Notice of Comptroller of the Currency Fees" (Notice)
described in 12 CFR 8.8. Any interested person may request a copy of the Notice from the
OCC by mail or may obtain a copy at the location described in § 4.14(c). The OCC may
contract with a commercial service to search for, duplicate, or disseminate records,
provided that the OCC determines that the fee assessed upon a requester is no greater than
if the OCC performed the tasks itself. The OCC does not contract out responsibilities that
the FOIA provides that the OCC alone may discharge, such as determining the applicability
of an exemption or whether to waive or reduce a fee.
(2) Fee
categories. The OCC assesses a fee based on the fee category in which the OCC places
the requester. If the request states how the requester intends to use the requested
records (see § 4.15(c)(1)(iv)), the OCC may place the requester in a lower fee
category; otherwise, the OCC categorizes the requester as a "commercial use
requester." If the OCC reasonably doubts the requester's stated intended use, or if
that use is not clear from the request, the OCC may place the requester in the
"commercial use" category or may seek additional clarification. The fee
categories are as follows:
(i) Commercial
use requesters. The OCC assesses a fee for a requester in this category for the
actual cost of search, review, and duplication. A requester in this category does not
receive any free search, review, or duplication services.
(ii) Educational
institution requesters, noncommercial scientific institution requesters, and requesters
who are representatives of the news media. The OCC assesses a fee for a requester in
this category for the actual cost of duplication. A requester in this category receives
100 free pages.
(iii) All other
requesters. The OCC assesses a fee for a requester who does not fit into either of
the above categories for the actual cost of search and duplication. A requester in this
category receives 100 free pages and two hours of free search time.
(3) Special
services. The OCC may, in its discretion, accommodate a request for special services.
The OCC may recover the actual cost of providing any special services.
(4) Waiving or
reducing a fee. The OCC may waive or reduce a fee under this section whenever, in its
opinion, disclosure of records is in the public interest because the disclosure:
(i) Is likely to
contribute significantly to public understanding of the operations or activities of the
government; and
(ii) Is not
primarily in the commercial interest of the requester.
(5) Fee for
unsuccessful search. The OCC may assess a fee for time spent searching for records,
even if the OCC does not locate the records requested.
(c) Payment of
fees(1) General. The OCC generally assesses a fee when it delivers the
records in response to the request, if any. A requester must send payment within 30
calendar days of the billing date to the Communications Division, Office of the
Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
(2) Fee likely
to exceed $25. If the OCC estimates that a fee is likely to exceed $25, the OCC
notifies the requester of the estimated fee, unless the requester has indicated in advance
a willingness to pay a fee as high as the estimated fee. If so notified by the OCC, the
requester may confer with OCC employees to revise the request to reflect a lower fee.
(3) Fee likely
to exceed $250. If the OCC estimates that a fee is likely to exceed $250, the OCC
notifies the requester of the estimated fee. In this circumstance, the OCC may require, as
a condition to processing the request, that the requester:
(i) Provide
satisfactory assurance of full payment, if the requester has a history of prompt payment;
or
(ii) Pay the
estimated fee in full, if the requester does not have a history of prompt payment.
(4) Failure to
pay a fee. If the requester fails to pay a fee within 30 days of the date of the
billing, the OCC may require, as a condition to processing any further request, that the
requester pay any unpaid fee, plus interest (as provided in paragraph (c)(5) of this
section), and any estimated fee in full for that further request.
(5) Interest on
unpaid fee. The OCC may assess interest charges on an unpaid fee beginning on the
31st day following the billing date. The OCC charges interest at the rate prescribed in 31
U.S.C. 3717 [Amended by Pub. L. 104-134].
(d) Tolling of
time limits. Under the circumstances described in paragraphs (c) (2), (3), and (4) of
this section, the time limits set forth in § 4.15(f) (i.e., 10 business days
from the receipt of a request for records and 20 business days from the receipt of an
administrative appeal, plus any permissible extension) begin only after the OCC receives a
revised request under paragraph (c)(2) of this section, an assurance of payment under
paragraph (c)(3)(i) of this section, or the required payments under paragraph (c)(3)(i) or
(c)(4) of this section.
(e) Aggregating
requests. When the OCC reasonably believes that a requester or group of requesters is
attempting to break a request into a series of requests for the purpose of evading the
assessment of a fee, the OCC may aggregate the requests and assess a fee accordingly.
Subpart CRelease of Non-Public OCC Information
(a) Purpose.
The purposes of this subpart are to:
(1) Afford an
orderly mechanism for the OCC to process expeditiously requests for non-public OCC
information, and, when appropriate, for the OCC to assert evidentiary privileges in
litigation;
(2) Recognize the
public's interest in obtaining access to relevant and necessary information and the
countervailing public interest of maintaining the effectiveness of the OCC supervisory
process and appropriate confidentiality of OCC supervisory information;
(3) Ensure that the
OCC's information is used in a manner that supports the public interest and the interests
of the OCC;
(4) Ensure that OCC
resources are used in the most efficient manner consistent with the OCC's statutory
mission;
(5) Minimize burden
on national banks, the public, and the OCC;
(6) Limit the
expenditure of government resources for private purposes; and
(7) Maintain the
OCC's impartiality among private litigants.
(b) Scope.
(1) This subpart applies to requests for, and dissemination of, non-public OCC
information, including requests for records or testimony arising out of civil lawsuits and
administrative proceedings to which the OCC is not a party. Lawsuits and administrative
proceedings to which the OCC is not a party include proceedings in which a Federal agency
is a party in opposition to the private requester.
(2) This subpart
does not apply to:
(i) A request for a
record or testimony in a proceeding in which the OCC is a party; or
(ii) A request for
a record that is required to be disclosed under the Freedom of Information Act (FOIA) (5
U.S.C. 552), as described in § 4.12.
(3) A request for a
record or testimony made by the Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation, a government agency of the United States or a
foreign government, a state agency with authority to investigate violations of criminal
law, or a state bank regulatory agency is governed solely by § 4.37(c).
[60 FR 57315, 57322, Nov. 15, 1995, as amended at 63 FR 62927, 62929, Nov. 10, 1998; 64 FR 29214, 29216, June 1, 1999]
(a) Complete
request means a request containing sufficient information to allow the OCC to make an
informed decision.
(b) Non-public
OCC information. Non-public OCC information:
(1) Means
information that the OCC is not required to release under the FOIA (5 U.S.C. 552) or that
the OCC has not yet published or made available pursuant to 12 U.S.C. 1818(u) and
includes:
(i) A record
created or obtained by the OCC in connection with the OCC's performance of its
responsibilities, such as a record concerning supervision, licensing, regulation, and
examination of a national bank, a bank holding company, or an affiliate;
(ii) A record
compiled by the OCC in connection with the OCC's enforcement responsibilities;
(iii) A report of
examination, supervisory correspondence, an investigatory file compiled by the OCC in
connection with an investigation, and any internal agency memorandum, whether the
information is in the possession of the OCC or some other individual or entity;
(iv) Confidential
OCC information obtained by a third party or otherwise incorporated in the records of a
third party, including another government agency;
(v) Testimony from,
or an interview with, a current or former OCC employee, officer, or agent concerning
information acquired by that person in the course of his or her performance of official
duties with the OCC or due to that person's official status at the OCC;
(vi) Confidential
information relating to operating and no longer operating national banks as well as their
subsidiaries and their affiliates; and
(vii) A
Suspicious Activity Report filed by the OCC, a national bank, or a Federal branch or
agency of a foreign bank licensed or chartered by the OCC under under 12 CFR 21.11; and
(2) Is the property
of the Comptroller. A report of examination is loaned to the bank or holding company for
its confidential use only.
(c) Relevant
means could contribute substantially to the resolution of one or more specifically
identified issues in the case.
(d) Show a
compelling need means, in support of a request for testimony, demonstrate with as
much detail as is necessary under the circumstances, that the requested information is
relevant and that the relevant material contained in the testimony is not available from
any other source. Sources, without limitation, include the books and records of other
persons or entities and non-public OCC records that have been, or might be, released.
(e) Supervised
entity includes a national bank, a subsidiary of a national bank, a Federal branch or
agency of a foreign bank licensed by the OCC as defined under 12 CFR 28.11(h) and (i), or
any other entity supervised by the OCC.
(f) Testimony
means an interview or sworn testimony on the record.
[60 FR 57315, 57322, Nov. 15, 1995, as amended at 63 FR 62927, 62929, Nov. 10, 1998; 64 FR 29214, 29216, June 1, 1999]
§ 4.33 Requirements for a request of records or testimony.
(a) Generally(1)
Form of request. A person seeking non-public OCC information must submit a
request in writing to the OCC. The requester must explain, in as detailed a description as
is necessary under the circumstances, the bases for the request and how the requested
non-public OCC information relates to the issues in the lawsuit or matter.
(2) Expedited
request. A requester seeking a response in less than 60 days must explain why the
request was not submitted earlier and why the OCC should expedite the request.
(3) Request
arising from adversarial matters. Where the requested information is to be used in
connection with an adversarial matter:
(i) The OCC
generally will require that the lawsuit or administrative action has been filed before it
will consider the request;
(ii) The request
must include:
(A) A copy of the
complaint or other pleading setting forth the assertions in the case;
(B) The caption and
docket number of the case;
(C) The name,
address, and phone number of counsel to each party in the case; and
(D) A description
of any prior judicial decisions or pending motions in the case that may bear on the
asserted relevance of the requested information;
(iii) The request
must also:
(A) Show that the
information is relevant to the purpose for which it is sought;
(B) Show that other
evidence reasonably suited to the requester's needs is not available from any other
source;
(C) Show that the
need for the information outweighs the public interest considerations in maintaining the
confidentiality of the OCC information and outweighs the burden on the OCC to produce the
information;
(D) Explain how the
issues in the case and the status of the case warrant that the OCC allow disclosure; and
(E) Identify any
other issue that may bear on the question of waiver of privilege by the OCC.
(b) Request for
records. If the request is for a record, the requester must adequately describe the
record or records sought by type and date.
(c) Request for
testimony(1) Generally. A requester seeking testimony:
(i) Must show a
compelling need for the requested information; and
(ii) Should request
OCC testimony with sufficient time to obtain the testimony in deposition form.
(2) Trial or
hearing testimony. A requester seeking testimony at a trial or hearing must show that
a deposition would not suffice.
§ 4.34 Where to submit a request.
(a) A request
for non-public OCC information. A person requesting information under this subpart,
requesting authentication of a record under § 4.39(d), or submitting a notification of
the issuance of a subpoena or compulsory process under § 4.37, shall send the request or
notification to: Office of the Comptroller of the Currency, 250 E Street, SW, Washington,
DC 20219, Attention: Director, Litigation Division.
(b) Combined
requests for non-public and other OCC information. A person requesting public OCC
information and non-public OCC information under this subpart may submit a combined
request for both to the address in paragraph (a) of this section. If a requester decides
to submit a combined request under this section, the OCC will process the combined request
under this subpart and not under subpart B of this part (FOIA).
(c) Request by
government agencies. A request made pursuant to § 4.37(c) must be submitted:
(1) In a civil
action, to the Director of the OCC's Litigation Division at the Washington office; or
(2) In a criminal
action, to the appropriate district counsel or the Director of the OCC's Enforcement and
Compliance Division at the Washington office.
[60 FR 57315, 57322, Nov. 15, 1995, as amended at 64 FR 29214, 29216, June 1, 1999]
§ 4.35 Consideration of requests.
(a) In general(1)
OCC discretion. The OCC decides whether to release non-public OCC information
based on its weighing of all appropriate factors including the requestor's fulfilling of
the requirements enumerated in § 4.33. Each decision is at the sole discretion of the
Comptroller or the Comptroller's delegate and is a final agency decision. OCC action on a
request for non-public OCC information exhausts administrative remedies for discovery of
the information.
(2) Bases for
denial. The OCC may deny a request for non-public OCC information for reasons that
include the following:
(i) The requester
was unsuccessful in showing that the information is relevant to the pending matter;
(ii) The requester
seeks testimony and the requestor did not show a compelling need for the information;
(iii) The request
arises from an adversarial matter and other evidence reasonably suited to the requester's
need is available from another source;
(iv) A lawsuit or
administrative action has not yet been filed and the request was made in connection with
potential litigation; or
(v) The production
of the information would be contrary to the public interest or unduly burdensome to the
OCC.
(3) Additional
information. A requester must submit a complete request. The OCC may require the
requester to provide additional information to complete a request. Consistent with the
purposes stated in § 4.31, the OCC may inquire into the circumstances of any case
underlying the request and rely on sources of information other than the requester,
including other parties.
(4) Time
required by the OCC to respond. The OCC generally will process requests in the order
in which they are received. The OCC will notify the requester in writing of the final
decision. Absent exigent or unusual circumstances, the OCC will respond to a request
within 60 days from the date that the OCC receives a request that it deems a complete
request. Consistent with § 4.33(a)(2), the OCC weighs a request to respond to provide
information in less than 60 days against the unfairness to other requesters whose pending
requests may be delayed and the burden imposed on the OCC by the expedited processing.
(5) Notice to
subject national banks. Following receipt of a request for non-public OCC information, the
OCC generally notifies the national bank that is the subject of the requested information,
unless the OCC, in its discretion, determines that to do so would advantage or prejudice
any of the parties in the matter at issue.
(b) Testimony.
(1) The OCC generally will not authorize a current OCC employee to provide expert or
opinion evidence for a private party.
(2) The OCC may
restrict the scope of any authorized testimony and may act to ensure that the scope of
testimony given by the OCC employee adheres to the scope authorized by the OCC.
(3) Once a request
for testimony has been submitted, and before the requested testimony occurs, a party to
the relevant case, who did not join in the request and who wishes to question the witness
beyond the scope of testimony sought by the request, shall timely submit the party's own
request for OCC information pursuant to this subpart.
(4) The OCC may
offer the requester the employee's written declaration in lieu of testimony.
(c) Release of
non-public OCC information by others. In appropriate cases, the OCC may respond to a
request for information by authorizing a party to the case who is in possession of
non-public OCC information to release the information to the requester. An OCC
authorization to release records does not preclude the party in possession from asserting
its own privilege, arguing that the records are not relevant, or asserting any other
argument for which it has standing to protect the records from release.
§ 4.36 Disclosure of non-public OCC information.
(a) Discretionary disclosure of non-public OCC information. The OCC may make non-public OCC information available to a supervised entity and to other persons, that in the sole discretion of the Comptroller may be necessary or appropriate, without a request for records or testimony.
(b) OCC policy. It is the OCC's policy regarding non-public OCC information that such information is confidential and privileged. Accordingly, the OCC will not normally disclose this information to third parties.
(c) Conditions and limitations. The OCC may impose any conditions or limitations on disclosures under this section, including the restrictions on dissemination contained in § 4.38, that it determines are necessary to effect the purposes of this section.
(d) Unauthorized disclosures prohibited. All non-public OCC information remains the property of the OCC. No supervised entity, government agency, person, or other party to whom the information is made available, or any officer, director, employee, or agent thereof, may disclose non-public OCC information without the prior written permission of the OCC, except in published statistical material that does not disclose, either directly or when used in conjunction with other publicly available information, the affairs of any individual, corporation, or other entity. Except as authorized by the OCC, no person obtaining access to non-public OCC information under this section may make a copy of the information and no person may remove non-public OCC information from the premises of the institution, agency, or other party in authorized possession of the information.
[63 FR 62927, 62929, Nov. 10, 1998, as amended at 64 FR 29214, 29216, June 1, 1999]
§ 4.37 Persons and entities with access to OCC information; prohibition on dissemination.
(a) Current and former OCC employees or agents(1) Generally. Except as authorized by this subpart or otherwise by the OCC, no current or former OCC employee or agent may, in any manner, disclose or permit the disclosure of any non-public OCC information to anyone other than an employee or agent of the Comptroller for use in the performance of OCC duties.
(2) Duty of person served. Any current or former OCC employee or agent subpoenaed or otherwise requested to provide information covered by this subpart must immediately notify the OCC as provided in this paragraph. The OCC may intervene, attempt to have the compulsory process withdrawn, and register appropriate objections when a current or former OCC employee or agent receives a subpoena and the subpoena requires the current or former employee or agent to appear or produce OCC information. If necessary, the current or former employee or agent must appear as required and respectfully decline to produce the information sought, citing this subpart as authority and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The current or former OCC employee or agent must immediately notify the OCC if subpoenaed or otherwise asked for non-public OCC information:
(i) In a civil action, by notifying the Director of the OCC's Litigation Division at the Washington office; or
(ii) In a criminal action, by notifying the appropriate district counsel for current and former district employees or agents; or the Director of the OCC's Enforcement and Compliance Division at the Washington office, for current and former Washington employees or agents.
(b) Non-OCC employees or entities(1) Generally. (i) Without OCC approval, no person, national bank, or other entity, including one in lawful possession of non-public OCC information under paragraph (b)(2) of this section, may disclose information covered by this subpart in any manner, except:
(A) After the
requester has sought the information from the OCC pursuant to the procedures set forth in
this subpart; and
(B) As ordered by a
Federal court in a judicial proceeding in which the OCC has had the opportunity to appear
and oppose discovery.
(ii) Any person who
discloses or uses non-public OCC information except as expressly permitted by the
Comptroller of the Currency or as ordered by a Federal court, under paragraph (b)(1)(i) of
this section, may be subject to the penalties provided in 18 U.S.C. 641.
(2) Exception
for national banks. When necessary or appropriate for bank business purposes, a
national bank or holding company, or any director, officer, or employee thereof, may
disclose non-public OCC information, including information contained in, or related to,
OCC reports of examination, to a person or organization officially connected with the bank
as officer, director, employee, attorney, auditor, or independent auditor. A national bank
or holding company or a director, officer, or employee thereof may also release non-public
OCC information to a consultant under this paragraph if the consultant is under a written
contract to provide services to the bank and the consultant has a written agreement with
the bank in which the consultant:
(i) States its
awareness of, and agreement to abide by, the prohibition on the dissemination of
non-public OCC information contained in paragraph (b)(1) of this section; and
(ii) Agrees not to
use the non-public OCC information for any purpose other than as provided under its
contract to provide services to the bank.
(3) Duty of
person or entity served. Any person, national bank, or other entity served with a
request, subpoena, order, motion to compel, or other judicial or administrative process to
provide non-public OCC information shall:
(i) Immediately
notify the Director of the OCC's Litigation Division at the Washington, DC office and
inform the Director of all relevant facts, including the documents and information
requested, so that the OCC may intervene in the judicial or administrative action if
appropriate;
(ii) Inform the
requester of the substance of these rules and, in particular, of the obligation to follow
the request procedures in §§ 4.33 and 4.34; and
(iii) At the
appropriate time, inform the court or tribunal that issued the process of the substance of
these rules.
(4) Actions of
the OCC following notice of service. Following receipt of notice pursuant to
paragraph (b)(3) of this section, the OCC may direct the requester to comply with §§
4.33 and 4.34, intervene in the judicial or administrative action, attempt to have the
compulsory process withdrawn, or register other appropriate objections.
(5) Return of
records. The OCC may require any person in possession of OCC records to return the
records to the OCC.
(c) Disclosure
to government agencies. When not prohibited by law, the Comptroller may make
available to the Board of Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation, and, in the Comptroller's sole discretion, to certain other
government agencies of the United States and foreign governments, state agencies with
authority to investigate violations of criminal law, and state bank regulatory agencies, a
copy of a report of examination, testimony, or other non-public OCC information for their
use, when necessary, in the performance of their official duties. All non-public OCC
information made available pursuant to this paragraph is OCC property, and the OCC may
condition its use on appropriate confidentiality protections, including the mechanisms
identified in § 4.37.
(d) Intention
of OCC not to waive rights. The possession by any of the entities or individuals
described in paragraphs (a), (b), and (c) of this section of non-public OCC information
does not constitute a waiver by the OCC of its right to control, or impose limitations on,
the subsequent use and dissemination of the information.
[60 FR 57315, 57322, Nov. 15, 1995. Redesignated and amended at 63 FR 62927, 62929, Nov. 10, 1998; 64 FR 29214, 29217, June 1, 1999]
§ 4.38 Restrictions on dissemination of released information.
(a) Records.
The OCC may condition a decision to release non-public OCC information on entry of a
protective order by the court or administrative tribunal presiding in the particular case
or, in non-adversarial matters, on a written agreement of confidentiality. In a case in
which a protective order has already been entered, the OCC may condition approval for
release of non-public OCC information upon the inclusion of additional or amended
provisions in the protective order. The OCC may authorize a party who obtained records for
use in one case to provide them to another party in another case.
(b) Testimony.
The OCC may condition its authorization of deposition testimony on an agreement of the
parties to appropriate limitations, such as an agreement to keep the transcript of the
testimony under seal or to make the transcript available only to the parties, the court,
and the jury. Upon request or on its own initiative, the OCC may allow use of a transcript
in other litigation. The OCC may require the requester, at the requester's expense, to
furnish the OCC with a copy of the transcript. The OCC employee whose deposition was
transcribed does not waive his or her right to review the transcript and to note errors.
[60 FR 57315, 57322, Nov. 15, 1995. Redesignated at 63 FR 62927, 62929, Nov. 10, 1998]
§ 4.39 Notification of parties and procedures for sharing and using OCC records in litigation.
(a) Responsibility
of litigants to notify parties of a request for testimony. Upon submitting a request
to the OCC for the testimony of an OCC employee or former employee, the requester shall
notify all other parties to the case that a request has been submitted.
(b) Responsibility
of litigants to share released records. The requester shall promptly notify other
parties to a case of the release of non-public OCC information obtained pursuant to this
subpart, and, upon entry of a protective order, shall provide copies of OCC information,
including OCC information obtained pursuant to § 4.15, to the other parties.
(c) Retrieval
and destruction of released records. At the conclusion of an action:
(1) The requester
shall retrieve any non-public OCC information from the court's file as soon as the court
no longer requires the information;
(2) Each party
shall destroy the non-public OCC information covered by the protective order; and
(3) Each party
shall certify to the OCC that the non-public OCC information covered by the protective
order has been destroyed.
(d) Authentication
for use as evidence. Upon request, the OCC authenticates released records to
facilitate their use as evidence. Requesters who require authenticated records or
certificates of nonexistence of records should, as early as possible, request certificates
from the OCC's Litigation Division pursuant to § 4.34(a).
[60 FR 57315, 57322, Nov. 15, 1995. Redesignated at 63 FR 62927, 62929, Nov. 10, 1998]
(a) Fees for
records search, copying, and certification. The requester shall pay a fee to the OCC,
or to a commercial copier under contract to the OCC, for any records search, copying, or
certification in accordance with the standards specified in § 4.17. The OCC may require a
requester to remit payment prior to providing the requested information.
(b) Witness
fees and mileage. A person whose request for testimony of a current OCC employee is
approved shall, upon completion of the testimonial appearance, tender promptly to the OCC
payment for the witness fees and mileage. The litigant shall compute these amounts in
accordance with 28 U.S.C. 1821. A litigant whose request for testimony of a former OCC
employee is approved shall tender promptly to the witness any witness fees or mileage due
in accordance with 28 U.S.C. 1821.
[60 FR 57315, 57322, Nov. 15, 1995. Redesignated at 63 FR 62927, 62929, Nov. 10, 1998]
Appendix A to Subpart CModel Stipulation for Protective Order and Model Protective Order
I. Model Stipulation
CASE CAPTION
MODEL STIPULATION FOR PROTECTIVE ORDER
Whereas,
counsel for __________ have applied to the Comptroller of the Currency (hereinafter
"Comptroller") pursuant to 12 CFR Part 4, Subpart C, for permission to have made
available, in connection with the captioned action, certain records; and
Whereas,
such records are deemed by the Comptroller to be confidential and privileged, pursuant to
12 U.S.C. 481; 5 U.S.C. 552(b)(8); 18 U.S.C. 641, 1906; and 12 CFR 4.12, and Part 4,
Subpart C; and
Whereas,
following consideration by the Comptroller of the application of the above described
party, the Comptroller has determined that the particular circumstances of the captioned
action warrant making certain possibly relevant records as denoted in Appendix
"A" to this Stipulation [records to be specified by type and date] available to
the parties in this action, provided that appropriate protection of their confidentiality
can be secured;
Therefore,
it is hereby stipulated by and between the parties hereto, through their respective
attorneys that they will be bound by the following protective order which may be entered
by the Court without further notice.
Dated
this __ day of ____, 19__.
___________________________________
Attorney for Plaintiff
___________________________________
Attorney for Defendant
II. Model Protective Order
CASE CAPTION
MODEL PROTECTIVE ORDER
Whereas,
counsel for __________ have applied to the Comptroller of the Currency (hereinafter
["]Comptroller") pursuant to 12 CFR Part 4, Subpart C, for permission to have
made available, in connection with the captioned action, certain records; and
Whereas,
such records are deemed by the Comptroller to be confidential and privileged, pursuant to
12 U.S.C. 481; 5 U.S.C. 552(b)(8); 18 U.S.C. 641, 1906; and 12 CFR 4.12, and Part 4,
Subpart C;
Whereas,
following consideration by the Comptroller of the application of the above described
party, the Comptroller has determined that the particular circumstances of the captioned
action warrant making certain possibly relevant records available to the parties in this
action, provided that appropriate protection of their confidentiality can be secured;
Now,
Therefore, it is Ordered That:
1. The
records, as denoted in Appendix "A" to the Stipulation for this Protective
Order, upon being furnished [or released for use] by the Comptroller, shall be disclosed
only to the parties to this action, their counsel, and the court [and the jury].
2. The
parties to this action and their counsel shall keep such records and any information
contained in such records confidential and shall in no way divulge the same to any person
or entity, except to such experts, consultants and non-party witnesses to whom the records
and their contents shall be disclosed, solely for the purpose of properly preparing for
and trying the action.
3. No
person to whom information and records covered by this Order are disclosed shall make any
copies or otherwise use such information or records or their contents for any purpose
whatsoever, except in connection with this action.
4. Any
party or other person who wishes to use the information or records or their contents in
any other action shall make a separate application to the Comptroller pursuant to 12 CFR
Part 4, Subpart C.
5.
Should any records covered by this Order be filed with the Court or utilized as exhibits
at depositions in the captioned action, or should information or records or their contents
covered by this Order be disclosed in the transcripts of depositions or the trial in the
captioned action, such records, exhibits and transcripts shall be filed in sealed
envelopes or other sealed containers marked with the title of this action, identifying
each document and article therein and bearing a statement substantially in the following
form:
CONFIDENTIAL
Pursuant
to the Order of the Court dated ____________ this envelope containing the above-identified
papers filed by (the name of the party) is not to be opened nor the contents thereof
displayed or revealed except to the parties to this action or their counsel or by further
Order of the Court.
6. FOR
JURY TRIAL: Any party offering any of the records into evidence shall offer only those
pages, or portions thereof, that are relevant and material to the issues to be decided in
the action and shall block out any portion of any page that contains information not
relevant or material. Furthermore, the name of any person or entity contained on any page
of the records who is not a party to this action, or whose name is not otherwise relevant
or material to the action, shall be blocked out prior to the admission of such page into
evidence. Any disagreement regarding what portion of any page that should be blocked out
in this manner shall be resolved by the Court in camera, and the Court shall decide its
admissibility into evidence.
7. At
the conclusion of this action, all parties shall certify to the Comptroller that the
records covered by this Order have been destroyed. Furthermore, counsel for __________,
pursuant to 12 CFR 4.39(c), shall retrieve any records covered by this Order that may have
been filed with the Court.
So Ordered:
___________________________________
Judge
Date
[60 FR 57315, 57322, Nov. 15, 1995, as amended at 64 FR 29214, 29217, June 1, 1999]
Subpart DMinority- , Women- , and Individuals With Disabilities-Owned Business Contracting Outreach Program; Contracting for Goods and Services
Pursuant to the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, § 1216(c), Pub. L.
101-73, 103 Stat. 183, 529 (12 U.S.C. 1833e(c)) and consistent with the Rehabilitation Act
of 1973, as amended (29 U.S.C. 701 et seq.), this subpart establishes the OCC
Minority- , Women- , and Individuals with Disabilities-Owned Business Contracting Outreach
Program (Outreach Program). The Outreach Program is intended to ensure that firms owned
and operated by minorities, women, and individuals with disabilities have the opportunity
to participate, to the maximum extent possible, in all contracting activities of the OCC.
(a) Minority-
and/or women-owned (small and large) businesses and entities owned by minorities and women
(MWOB) means firms at least 51 percent unconditionally-owned by one or more members
of a minority group or by one or more women who are citizens of the United States. In the
case of publicly-owned companies, at least 51 percent of each class of voting stock must
be unconditionally-owned by one or more members of a minority group or by one or more
women who are citizens of the United States. In the case of a partnership, at least 51
percent of the partnership interest must be unconditionally-owned by one or more members
of a minority group or by one or more women who are citizens of the United States.
Additionally, for the foregoing cases, the management and daily business operations must
be controlled by one or more such individuals.
(b) Minority
means any African American, Native American (i.e., American Indian, Eskimo, Aleut
and Native Hawaiian), Hispanic American, Asian-Pacific American, or Subcontinent-Asian
American.
(c) Individual
with disabilities-owned (small and large) businesses and entities owned by individuals
with disabilities (IDOB) means firms at least 51 percent unconditionally-owned by one
or more members who are individuals with disabilities and citizens of the United States.
In the case of publicly-owned companies, at least 51 percent of each class of voting stock
must be unconditionally-owned by one or more members who are individuals with disabilities
and who are citizens of the United States. In the case of a partnership, at least 51
percent of the partnership interest must be unconditionally-owned by one or more members
who are individuals with disabilities and citizens of the United States. Additionally, for
the foregoing cases, the management and daily business operations must be controlled by
one or more such individuals.
(d) Individual
with disabilities means any person who has a physical or mental impairment that
substantially limits one or more of such person's major life activities, has a record of
such an impairment, or is regarded as having such an impairment. For purposes of this
part, it does not include an individual who is currently engaging in the illegal use of
drugs nor an individual who has a currently contagious disease or infection and who, by
reason of such disease or infection, would constitute a direct threat to the health or
safety of other individuals or who, by reason of the currently contagious disease or
infection, is unable to perform the duties of the job as defined by the IDOB.
(e) Unconditional
ownership means ownership that is not subject to conditions or similar arrangements
which cause the benefits of the Outreach Program to accrue to persons other than the
participating MWOB or IDOB.
The OCC's policy is
to ensure that MWOBs and IDOBs have the opportunity to participate, to the maximum extent
possible, in contracts awarded by the OCC. The OCC awards contracts consistent with the
principles of full and open competition and best value acquisition, and with the concept
of contracting for agency needs at the lowest practicable cost. The OCC ensures that MWOBs
and IDOBs have the opportunity to participate fully in all contracting activities that the
OCC enters into for goods and services, whether generated by the headquarters office in
Washington, DC, or any other office of the OCC. Contracting opportunities may include
small purchase awards, contracts above the small purchase threshold, and delivery orders
issued against other governmental agency contracts.
(a) Scope.
The OCC, under the direction of the Deputy Comptroller for Resource Management, engages in
promotion and outreach activities designed to identify MWOBs and IDOBs capable of
providing goods and services needed by the OCC, to facilitate interaction between the OCC
and the MWOBs and IDOBs community, and to indicate the OCC's commitment to doing business
with that community. The Outreach Program is designed to facilitate OCC's participation in
business promotion events sponsored by other government agencies and attended by
minorities, women and individuals with disabilities. Once the OCC has identified a
prospective participant, it will assist the minority- or women-owned business or
individual with disabilities-owned business in understanding the OCC's needs and
contracting process.
(b) Outreach
activities. OCC's Outreach Program includes the following:
(1) Obtaining
various lists and directories of MWOBs and IDOBs maintained by government agencies;
(2) Contacting
appropriate firms for participation in the OCC's Outreach Program;
(3) Participating
in business promotion events comprised of or attended by MWOBs and IDOBs to explain OCC
contracting opportunities and to obtain names of potential MWOBs and IDOBs;
(4) Ensuring that
the OCC contracting staff understands and actively promotes this Outreach Program; and
(5) Registering
MWOBs and IDOBs in the Department of the Treasury's database to facilitate their
participation in the competitive procurement process for OCC contracts. This database is
used by OCC procurement staff to identify firms to be solicited for OCC procurements.
(a) Objective.
To preserve the integrity and foster the Outreach Program's objectives, each prospective
MWOB or IDOB must demonstrate that it meets the ownership and control requirements for
participation in the Outreach Program.
(b) MWOB.
A prospective MWOB may demonstrate its eligibility for participation in the Outreach
Program by:
(1) Submitting a
valid MWOB certification received from another government agency whose definition of MWOB
is substantially similar to that specified in § 4.62(a);
(2) Self-certifying
MWOB ownership status by filing with the OCC a completed and signed certification form as
prescribed by the Federal Acquisition Regulation, 48 CFR 53.301-129; or
(3) Submitting a
valid MWOB certification received from the Small Business Administration.
(c) IDOB.
A prospective IDOB may demonstrate its eligibility for participation in the Outreach
Program by:
(1) Submitting a
valid IDOB certification received from another government agency whose definition of IDOB
is substantially similar to that specified in § 4.62(c); or
(2) Self-certifying
IDOB ownership status by filing with the OCC a completed and signed certification as
prescribed in the Federal Acquisition Regulation, 48 CFR 53.301-129, and adding an
additional certifying statement to read as follows:
I certify that I am an individual with disabilities as defined in 12 CFR 4.62(d),
and that my firm, (Name of Firm), qualifies as an individual with disabilities-owned
business as defined in 12 CFR 4.62(c).
§ 4.66 Oversight and monitoring.
The Deputy
Comptroller for Resource Management shall appoint an Outreach Program Manager, who shall
appoint an Outreach Program Specialist. The Outreach Program Manager is primarily
responsible for program advocacy, oversight and monitoring.
Footnotes |
1 Some
forms and instructions that national banks use, such as the Consolidated Report of
Condition and Income (FFIEC 031-034), are not available from the OCC. The OCC will provide
information on where persons may obtain these forms and instructions upon request.
Last Revised: Monday, January 07, 2002 20:11:34 |