SUBPART A—GENERAL PROVISIONS

SECTION 261.1—Authority, Purpose, and Scope

(a) Authority.

(1) This part is issued by the Board of Governors of the Federal Reserve System (the Board) pursuant to the Freedom of Information Act, 5 USC 552; sections 9, 11, and 25A of the Federal Reserve Act, 12 USC 248(i) and (k), 321 et seq. (including 326), 611 et seq.; section 22 of the Federal Home Loan Bank Act, 12 USC 1442; the Federal Deposit Insurance Act, 12 USC 1817(a)(2)(A), 1817(a)(8), 1818(u) and (v), 1821(o); section 5 of the Bank Holding Company Act, 12 USC 1844; the Bank Secrecy Act, 12 USC 1951 et seq., and chapter 53 of title 31; the Home Mortgage Disclosure Act, 12 USC 2801 et seq.; the Community Reinvestment Act, 12 USC 2901 et seq.; the International Banking Act, 12 USC 3101 et seq.; the Right to Financial Privacy Act, 12 USC 3401 et seq.; the Securities and Exchange Act Commission Authorization, 15 USC 77uuu(b), 78q(c)(3); the Employee Retirement Income Security Act, 29 USC 1204; the Money Laundering Suppression Act, 31 USC 5301, the Fair Housing Act, 42 USC 3601; the Paperwork Reduction Act, 44 USC 3510; and any other applicable law that establishes a basis for the exercise of governmental authority by the Board.

(2) This part establishes mechanisms for carrying out the Board's statutory responsibilities under statutes in paragraph (a)(1) of this section to the extent those responsibilities require the disclosure, production, or withholding of information. In this regard, the Board has determined that the Board, or its delegees, may disclose exempt information of the Board, in accordance with the procedures set forth in this part, whenever it is necessary or appropriate to do so in the exercise of any of the Board's supervisory or regulatory authorities, including but not limited to, authority granted to the Board in the Federal Reserve Act, 12 USC 221 et seq.; the Bank Holding Company Act, 12 USC 1841 et seq.; and the International Banking Act, 12 USC 3101 et seq. The Board has determined that all such disclosures, made in accordance with the rules and procedures specified in this part, are authorized by law.

(3) The Board has also determined that it is authorized by law to disclose information to a law enforcement or other federal or state government agency that has the authority to request and receive such information in carrying out its own statutory responsibilities, or in response to a valid order of a court of competent jurisdiction or of a duly constituted administrative tribunal.

(b) Purpose. This part sets forth the categories of information made available to the public, the procedures for obtaining documents and records, the procedures for limited release of exempt and confidential supervisory information, and the procedures for protecting confidential business information.

(c) Scope.

(1) This subpart A contains general provisions and definitions of terms used in this part.

(2) Subpart B of this part implements the Freedom of Information Act (FOIA) (5 USC 552).

(3) Subpart C of this part sets forth—

(i) the kinds of exempt information made available to supervised institutions, supervisory agencies, law enforcement agencies, and others in certain circumstances;

(ii) the procedures for disclosure; and

(iii) the procedures with respect to subpoenas, orders compelling production, and other process

SECTION 261.2—Definitions

For purposes of this part:

(a) Board's official files means the Board's central records.

(b) Commercial use request refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made.

(c)(1) Confidential supervisory information means—

(i) exempt information consisting of reports of examination, inspection and visitation, confidential operating and condition reports, and any information derived from, related to, or contained in such reports;

(ii) information gathered by the Board in the course of any investigation, suspicious-activity report, cease-and-desist orders, civil money penalty enforcement orders, suspension, removal or prohibition orders, or other orders or actions under the Financial Institutions Supervisory Act of 1966, Pub.L. 89-695, 80 Stat. 1028 (codified as amended in scattered sections of 12 USC), the Bank Holding Company Act of 1956, 12 USC 1841 et seq., the Federal Reserve Act, 12 USC 221 et seq., the International Banking Act of 1978, Pub.L. 95-369, 92 Stat. 607 (codified as amended in scattered sections of 12 USC), and the International Lending Supervision Act of 1983, 12 USC 3901 et seq.; except—

(A) such final orders, amendments, or modifications of final orders, or other actions or documents that are specifically required to be published or made available to the public pursuant to 12 USC 1818(u), or other applicable law, including the record of litigated proceedings; and

(B) the public section of Community Reinvestment Act examination reports, pursuant to 12 USC 2906(b); and

(iii) any documents prepared by, on behalf of, or for the use of the Board, a Federal Reserve Bank, a federal or state financial institutions supervisory agency, or a bank or bank holding company or other supervised financial institution.

(2) Confidential supervisory information does not include documents prepared by a supervised financial institution for its own business purposes and that are in its possession.

(d) Direct costs mean those expenditures that the Board actually incurs in searching for, reviewing, and duplicating documents in response to a request made under section 261.12.

(e) Duplication refers to the process of making a copy of a document in response to a request for disclosure of records or for inspection of original records that contain exempt material or that otherwise cannot be inspected directly. Among others, such copies may take the form of paper, microform, audiovisual materials, or machine-readable documentation (e.g., magnetic tape or disk).

(f) Educational institution refers to a preschool, a public, or private elementary or secondary school, or an institution of undergraduate higher education, graduate higher education, professional education, or an institution of vocational education, which operates a program of scholarly research.

(g) Exempt information means information that is exempt from disclosure under section 261.14.

(h) Noncommercial scientific institution refers to an institution that is not operated on a "commercial" basis (as that term is used in this section) and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.

(i)(1) Records of the Board include—

(i) in written form, or in nonwritten or machine-readable form; all information coming into the possession and under the control of the Board, any Board member, any Federal Reserve Bank, or any officer, employee, or agent of the Board or of any Federal Reserve Bank, in the performance of functions for or on behalf of the Board that constitute part of the Board's official files; or

(ii) that are maintained for administrative reasons in the regular course of business in official files in any division or office of the Board or any Federal Reserve Bank in connection with the transaction of any official business.

(2) Records of the Board does not include personal files of Board members and employees; tangible exhibits, formulas, designs, or other items of valuable intellectual property; extra copies of documents and library and museum materials kept solely for reference or exhibition purposes; unaltered publications otherwise available to the public in Board publications, libraries, or established distribution systems.

(j) Report of examination means the report prepared by the Board, or other federal or state financial institution supervisory agency, concerning the examination of a financial institution, and includes reports of inspection and reports of examination of U.S. branches or agencies of foreign banks and representative offices of foreign organizations, and other institutions examined by the Federal Reserve System.

(k) Report of inspection means the report prepared by the Board concerning its inspection of a bank holding company and its bank and nonbank subsidiaries.

(l) Representative of the news media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.

(1) The term "news" means information that is about current events or that would be of current interest to the public.

(2) Examples of news media entities include, but are not limited to, television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of "news") who make their products available for purchase or subscription by the general public.

(3) "Freelance" journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though they are not actually employed by it.

(m)(1) Review refers to the process of examining documents, located in response to a request for access, to determine whether any portion of a document is exempt information. It includes doing all that is necessary to excise the documents and otherwise to prepare them for release.

(2) Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(n)(1) Search means a reasonable search, by manual or automated means, of the Board's official files and any other files containing Board records as seem reasonably likely in the particular circumstances to contain information of the kind requested. For purposes of computing fees under section 261.17, search time includes all time spent looking for material that is responsive to a request, including line-by-line identification of material within documents. Such activity is distinct from "review" of material to determine whether the material is exempt from disclosure.

(2) Search does not mean or include research, creation of any document, or extensive modification of an existing program or system that would significantly interfere with the operation of the Board's automated information systems.

(o) Supervised financial institution includes a bank, bank holding company (including subsidiaries), U.S. branch or agency of a foreign bank, or any other institution that is supervised by the Board.

SECTON 261.3—Custodian of Records; Certification; Service; Alternative Authority

(a) Custodian of records. The secretary of the Board (secretary) is the official custodian of all Board records, including records that are in the possession or control of the Board, any Federal Reserve Bank, or any Board or Reserve Bank employee.

(b) Certification of record. The secretary may certify the authenticity of any Board record, or any copy of such record, for any purpose, and for or before any duly constituted federal or state court, tribunal, or agency.

(c) Service of subpoenas or other process. Subpoenas or other judicial or administrative process, demanding access to any Board records or making any claim against the Board, shall be addressed to and served upon the secretary of the Board at the Board's office at 20th and C Streets, N.W., Washington, D.C. Neither the Board nor the secretary are agents for service of process on behalf of any employee in respect of purely private legal disputes, except as specifically provided by law.

(d) Alternative authority. Any action or determination required or permitted by this part to be done by the secretary, the general counsel, or the director of any division may be done by any employee who has been duly designated for this purpose by the secretary, general counsel, or the appropriate director.

SUBPART B—PUBLISHED INFORMATION AND RECORDS AVAILABLE TO PUBLIC; PROCEDURES FOR REQUESTS

SECTION 261.10 Published Information

(a) Federal Register. The Board publishes in the Federal Register for the guidance of the public—

(1) descriptions of the Board's central and field organization;

(2) statements of the general course and method by which the Board's functions are channeled and determined, including the nature and requirements of procedures;

(3) rules of procedure, descriptions of forms available and the place where they may be obtained, and instructions on the scope and contents of all papers, reports, and examinations;

(4) substantive rules, interpretations of general applicability, and statements of general policy;

(5) every amendment, revision, or repeal of the foregoing in paragraphs (a)(1)–(a)(4) of this section;

(6) notices of proposed rulemaking;

(7) notices of applications received under the Bank Holding Company Act of 1956 (12 USC 1841 et seq.) and the Change in Bank Control Act (12 USC 1817);

(8) notices of all Board meetings, pursuant to the Government in the Sunshine Act (5 USC 552b);

(9) notices identifying the Board's systems of records, pursuant to the Privacy Act of 1974 (5 USC 552a); and

(10) notices of agency data collection forms being reviewed under the Paperwork Reduction Act (5 USC 3501 et seq.).

(b) Board's reports to Congress. The Board's annual report to Congress pursuant to the Federal Reserve Act (12 USC 247), which is made public upon its submission to Congress, contains a full account of the Board's operations during the year, the policy actions by the Federal Open Market Committee, an economic review of the year, and legislative recommendations to Congress. The Board also makes periodic reports to Congress under certain statutes, including but not limited to the Freedom of Information Act (5 USC 552); the Government in the Sunshine Act (5 USC552b); the Full Employment and Balanced Growth Act of 1978 (12 USC 225a); and the Privacy Act (5 USC 552a).

(c) Federal Reserve Bulletin. This publication is issued monthly and contains economic and statistical information, articles relating to the economy or Board activities, and descriptions of recent actions by the Board.

(d) Other published information. Among other things, the Board publishes the following information:

(1) Weekly publications. The Board issues the following publications weekly:
(i) a statement showing the condition of each Federal Reserve Bank and a consolidated statement of the condition of all Federal Reserve Banks, pursuant to 12 USC 248(a);

(ii) an index of applications received and the actions taken on the applications, as well as other matters issued, adopted, or promulgated by the Board; and

(iii) a statement showing changes in the structure of the banking industry resulting from mergers and the establishment of branches.

(2) Press releases. The Board frequently issues statements to the press and public regarding monetary and credit actions, regulatory actions, actions taken on certain types of applications, and other matters.

(3) Call report and other data. Certain data from Reports of Condition and Income submitted to the Board are available through the National Technical Information Service and may be obtained by the procedure described in section 261.11(c)(2).

(4) Federal Reserve Regulatory Service. This is a multivolume loose-leaf service published by the Board, containing statutes, regulations, interpretations, rulings, staff opinions, and procedural rules under which the Board operates. Portions of the service are also published as separate loose-leaf handbooks relating to consumer and community affairs, monetary policy and reserve requirements, payments systems, and securities credit transactions. The service and each handbook contain subject and citation indexes, are updated monthly, and may be subscribed to on a yearly basis.

(e) Index to Board actions. The Board's Freedom of Information Office maintains an index to Board actions, which is updated weekly and provides identifying information about any matters issued, adopted, and promulgated by the Board since July 4, 1967. Copies of the index may be obtained upon request to the Freedom of Information Office subject to the current schedule of fees in section 261.17.

(f) Obtaining Board publications. The Publications Services Section maintains a list of Board publications that are available to the public. In addition, a partial list of publications is published in the Federal Reserve Bulletin. All publications issued by the Board, including available back issues, may be obtained from Publications Services, Board of Governors of the Federal Reserve System, 20th & Constitution, NW, Washington, DC 20551 (pedestrian entrance is on C Street, N.W.). Subscription or other charges may apply to some publications.

SECTION 261.11—Records Available for Public Inspection and Copying

(a) Types of records made available. Unless they were published promptly and made available for sale or without charge, the following records shall be made available for inspection and copying at the Freedom of Information Office:

(1) final opinions, including concurring and dissenting opinions, as well as final orders and written agreements, made in the adjudication of cases;

(2) statements of policy and interpretations adopted by the Board that are not published in the Federal Register;

(3) administrative staff manuals and instructions to staff that affect the public;

(4) copies of all records released to any person under section 261.12 that, because of the nature of their subject matter, the Board has determined are likely to be requested again;

(5) a general index of the records referred to in paragraph (a)(4) of this section; and

(6) the public section of Community Reinvestment Act examination reports.

(b) Reading-room procedures.

(1) Information available under this section is available for inspection and copying, from 9:00 a.m. to 5:00 p.m. weekdays, at the Freedom of Information Office of the Board of Governors of the Federal Reserve System, 20th and C Streets, N.W., Washington, D.C.

(2) The Board may determine that certain classes of publicly available filings shall be made available for inspection and copying only at the Federal Reserve Bank where those records are filed.

(c) Electronic records.

(1) Except as set forth in paragraph (c)(2) of this section, information available under this section that was created by the Board on or after November 1, 1996, shall also be available on the Board's internet site (which can be found at http://www.bog.frb.fed.us).

(2) NTIS. The publicly available portions of Reports of Condition and Income of individual banks and certain other data files produced by the Board are distributed by the National Technical Information Service. Requests for these public reports should be addressed to: Sales Office, National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, Virginia 22161, (703) 487-4650.

(3) Privacy protection. The Board may delete identifying details from any record to prevent a clearly unwarranted invasion of personal privacy.

SECTION 261.12—Records Available to Public upon Request

(a) Types of records made available. All records of the Board that are not available under sections 261.10 and 261.11 shall be made available upon request, pursuant to the procedures and exceptions in this subpart B.

(b) Procedures for requesting records.

(1) A request for identifiable records shall reasonably describe the records in a way that enables the Board's staff to identify and produce the records with reasonable effort and without unduly burdening or significantly interfering with any of the Board's operations.

(2) The request shall be submitted in writing to the Freedom of Information Office, Board of Governors of the Federal Reserve System, 20th & Constitution, NW, Washington, DC 20551; or sent by facsimile to the Freedom of Information Office, (202) 872-7562 or 7565. The request shall be clearly marked FREEDOM OF INFORMATION ACT REQUEST.

(3) A request may not be combined with any other request to the Board except for a request under 12 CFR 261a.3(a) (Rules Regarding Access to and Review of Personal Information under the Privacy Act of 1974) and a request made under section 261.23(b)(1)(ii).

(c) Contents of request. The request shall contain the following information:

(1) the name and address of the requester, and the telephone number at which the requester can be reached during normal business hours;

(2) whether the requested information is intended for commercial use, and whether the requester is an educational or noncommercial scientific institution, or news media representative;

(3) a statement agreeing to pay the applicable fees, or a statement identifying any desired fee limitation, or a request for a waiver or reduction of fees that satisfies section 261.17(h); and

(4) if the request is being made in connection with on-going litigation, a statement indicating whether the requester will seek discretionary release of exempt information from the general counsel upon denial of the request by the secretary. A requester who intends to make such a request to the general counsel may also address the factors set forth in section 261.23(b).

(d) Defective requests. The Board need not accept or process a request that does not reasonably describe the records requested or that does not otherwise comply with the requirements of this section. The Board may return a defective request, specifying the deficiency. The requester may submit a corrected request, which will be treated as a new request.

(e) Oral requests. The Freedom of Information Office may honor an oral request for records, but if the requester is dissatisfied with the Board's response and wishes to seek review, the requester must submit a written request, which shall be treated as an initial request.

SECTION 261.13—Processing Requests

(a) Receipt of requests. Upon receipt of any request that satisfies section 261.12(b), the Freedom of Information Office shall assign the request to the appropriate processing schedule, pursuant to paragraph (b) of this section. The date of receipt for any request, including one that is addressed incorrectly or that is referred to the Board by another agency or by a Federal Reserve Bank, is the date the Freedom of Information Office actually receives the request.

(b) Multitrack processing.

(1) The Board provides different levels of processing for categories of requests under this section. Requests for records that are readily identifiable by the Freedom of Information Office and that have already been cleared for public release may qualify for fast-track processing. All other requests shall be handled under normal processing procedures, unless expedited processing has been granted pursuant to paragraph (c)(2) of this section.

(2) The Freedom of Information Office will make the determination whether a request qualifies for fast-track processing. A requester may contact the Freedom of Information Office to learn whether a particular request has been assigned to fast-track processing. If the request has not qualified for fast-track processing, the requester will be given an opportunity to limit the request in order to qualify for fast-track processing. Limitations of requests must be in writing.

(c) Expedited processing. When a person requesting expedited access to records has demonstrated a compelling need for the records, or when the Board has determined to expedite the response, the Board shall process the request as soon as practicable.

(1) To demonstrate a compelling need for expedited processing, the requester shall provide a certified statement, a sample of which may be obtained from the Freedom of Information Office. The statement, which must be certified to be true and correct to the best of the requester's knowledge and belief, shall demonstrate that—
(i) the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(ii) the requester is a representative of the news media, as defined in section 261.2, and there is urgency to inform the public concerning actual or alleged Board activity.

(2) In response to a request for expedited processing, the secretary shall notify a requester of the determination within 10 calendar days of receipt of the request. If the secretary denies a request for expedited processing, the requester may file an appeal pursuant to the procedures set forth in paragraph (i) of this section, and the Board shall respond to the appeal within 10 working days after the appeal was received by the Board.

(d) Priority of responses. The secretary will assign responsible staff to process particular requests. The Freedom of Information Office will normally process requests in the order they are received in the separate processing tracks, except when expedited processing is granted. However, in the secretary's discretion, or upon a court order in a matter to which the Board is a party, a particular request may be processed out of turn.

(e) Time limits. The time for response to requests shall be 20 working days, except—

(1) in the case of expedited treatment under paragraph (c) of this section;

(2) where the running of such time is suspended for payment of fees pursuant to section 261.17(b)(2);

(3) in unusual circumstances, as defined in 5 USC 552(a)(6)(B). In such circumstances, the time limit may be extended for a period of time not to exceed—

(i) 10 working days as provided by written notice to the requester, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched; or

(ii) such alternative time period as mutually agreed to by the Freedom of Information Office and the requester when the Freedom of Information Office notifies the requester that the request cannot be processed in the specified time limit.

(f) Response to request. In response to a request that satisfies section 261.12(b), an appropriate search shall be conducted of records of the Board in existence on the date of receipt of the request, and a review made of any response information located. The secretary shall notify the requester of—

(1) the Board's determination of the request;

(2) the reasons for the determination;

(3) the amount of information withheld;

(4) the right of the requester to appeal to the Board any denial or partial denial, as specified in paragraph (i) of this section; and

(5) in the case of a denial of a request, the name and title or position of the person responsible for the denial.

(g) Referral to another agency. To the extent a request covers documents that were created by, obtained from, or classified by another agency, the Board may refer the request to that agency for a response and inform the requester promptly of the referral.

(h) Providing responsive records.

(1) Copies of requested records shall be sent to the requester by regular U.S. mail to the address indicated in the request, unless the requester elects to take delivery of the documents at the Freedom of Information Office or makes other acceptable arrangements, or the Board deems it appropriate to send the documents by another means.

(2) The Board shall provide a copy of the record in any form or format requested if the record is readily reproducible by the Board in that form or format, but the Board need not provide more than one copy of any record to a requester.

(i) Appeal of denial of request. Any person denied access to Board records requested under section 261.12 may file a written appeal with the Board, as follows:

(1) The appeal shall prominently display the phrase FREEDOM OF INFORMATION ACT APPEAL on the first page, and shall be addressed to the Freedom of Information Office, Board of Governors of the Federal Reserve System, 20th & Constitution, NW, Washington, DC 20551; or sent by facsimile to the Freedom of Information Office, (202) 872-7562 or 7565.

(2) An initial request for records may not be combined in the same letter with an appeal.

(3) The appeal shall be filed within 10 working days of the date on which the denial was issued, or the date on which documents in partial response to the request were transmitted to the requester, whichever is later. The Board may consider an untimely appeal if—

(i) it is accompanied by a written request for leave to file an untimely appeal; and

(ii) the Board determines, in its discretion and for good and substantial cause shown, that the appeal should be considered.

(4) The Board shall make a determination regarding any appeal within 20 working days of actual receipt of the appeal by the Freedom of Information Office, and the determination letter shall notify the appealing party of the right to seek judicial review.

(5) The secretary may reconsider a denial being appealed if intervening circumstances or additional facts not known at the time of the denial come to the attention of the secretary while an appeal is pending.

SECTION 261.14—Exemptions from Disclosure

(a) Types of records exempt from disclosure. Pursuant to 5 USC 552(b), the following records of the Board are exempt from disclosure under this part:

(1) National defense. Any information 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 is in fact properly classified pursuant to the executive order.

(2) Internal personnel rules and practices. Any information related solely to the internal personnel rules and practices of the Board.

(3) Statutory exemption. Any information specifically exempted from disclosure by statute (other than 5 USC 552b), if the statute—

(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

(4) Trade secrets; commercial or financial information. Any matter that is a trade secret or that constitutes commercial or financial information obtained from a person and that is privileged or confidential.

(5) Inter- or intra-agency memorandums. Information contained in inter- or intra-agency memorandums or letters that would not be available by law to a party (other than an agency) in litigation with an agency, including, but not limited to—

(i) memorandums;

(ii) reports;

(iii) other documents prepared by the staffs of the Board or Federal Reserve Banks; and

(iv) records of deliberations of the Board and of discussions at meetings of the Board, any Board committee, or Board staff, that are not subject to 5 USC 552b (the Government in the Sunshine Act).

(6) Personnel and medical files. Any information contained in personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(7) Information compiled for law enforcement purposes. Any records or information compiled for law enforcement purposes, to the extent permitted under 5 USC 552(b)(7); including information relating to administrative enforcement proceedings of the Board.

(8) Examination, inspection, operating, or condition reports, and confidential supervisory information. Any matter that is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions, including a state financial institution supervisory agency.

(b) Segregation of nonexempt information. The Board shall provide any reasonably segregable portion of a record that is requested after deleting those portions that are exempt under this section.

(c) Discretionary release.

(1) Except where disclosure is expressly prohibited by statute, regulation, or order, the Board may release records that are exempt from mandatory disclosure whenever the Board or designated Board members, the secretary of the Board, the general counsel of the Board, the director of the Division of Banking Supervision and Regulation, or the appropriate Federal Reserve Bank, acting pursuant to this part or 12 CFR part 265, determines that such disclosure would be in the public interest.

(2) The Board may make any exempt information furnished in connection with an application for Board approval of a transaction available to the public in accordance with section 261.12, and without prior notice and to the extent it deems necessary, may comment on such information in any opinion or statement issued to the public in connection with a Board action to which such information pertains.

(d) Delayed release. Publication in the Federal Register or availability to the public of certain information may be delayed if immediate disclosure would likely—

(1) interfere with accomplishing the objectives of the Board in the discharge of its statutory functions;

(2) interfere with the orderly conduct of the foreign affairs of the United States;

(3) permit speculators or others to gain unfair profits or other unfair advantages by speculative trading in securities or otherwise;

(4) result in unnecessary or unwarranted disturbances in the securities markets;

(5) interfere with the orderly execution of the objectives or policies of other government agencies; or

(6) impair the ability to negotiate any contract or otherwise harm the commercial or financial interest of the United States, the Board, any Federal Reserve Bank, or any department or agency of the United States.

(e) Prohibition against disclosure. Except as provided in this part, no officer, employee, or agent of the Board or any Federal Reserve Bank shall disclose or permit the disclosure of any unpublished information of the Board to any person (other than Board or Reserve Bank officers, employees, or agents properly entitled to such information for the performance of official duties).

SECTION 261.15—Request for Confidential Treatment

(a) Submission of request. Any submitter of information to the Board who desires confidential treatment pursuant to 5 USC 552(b)(4) and section 261.14(a)(4) shall file a request for confidential treatment with the Board (or in the case of documents filed with a Federal Reserve Bank, with that Federal Reserve Bank) at the time the information is submitted or a reasonable time after submission.

(b) Form of request. Each request for confidential treatment shall state in reasonable detail the facts supporting the request and its legal justification. Conclusory statements that release of the information would cause competitive harm generally will not be considered sufficient to justify confidential treatment.

(c) Designation and separation of confidential material. All information considered confidential by a submitter shall be clearly designated CONFIDENTIAL in the submission and separated from information for which confidential treatment is not requested. Failure to segregate confidential information from other material may result in release of the nonsegregated material to the public without notice to the submitter.

(d) Exceptions. This section does not apply to—

(1) data collected on forms that are approved pursuant to the Paperwork Reduction Act (44 USC 3501 et seq.) and are deemed confidential by the Board. Any such form deemed confidential by the Board shall so indicate on the face of the form or in its instructions. The data may, however, be disclosed in aggregate form in such a manner that individual company data is not disclosed or derivable.

(2) any comments submitted by a member of the public on applications and regulatory proposals being considered by the Board, unless the Board or the secretary determines that confidential treatment is warranted.

(3) a determination by the Board to comment upon information submitted to the Board in any opinion or statement issued to the public as described in section 261.14(c).

(e) Special procedures. The Board may establish special procedures for particular documents, filings, or types of information by express provisions in this part or by instructions on particular forms that are approved by the Board. These special procedures shall take precedence over this section.

SECTION 261.16—Request for Access to Confidential Commercial or Financial Information

(a) Request for confidential information. A request by a submitter for confidential treatment of any information shall be considered in connection with a request for access to that information. At their discretion, appropriate Board or staff members (including Federal Reserve Bank staff) may act on the request for confidentiality prior to any request for access to the documents.

(b) Notice to the submitter. When a request for access is received pursuant to the Freedom of Information Act (5 USC 552)—

(1) the secretary shall notify a submitter of the request, if—
i) the submitter requested confidential treatment of the information pursuant to 5 USC 552(b)(4); and

(ii) the request by the submitter for confidential treatment was made within 10 years preceding the date of the request for access.

(2) Absent a request for confidential treatment, the secretary may notify a submitter of a request for access to information provided by the submitter if the secretary reasonably believes that disclosure of the information may cause substantial competitive harm to the submitter.

(3) The notice given to the submitter shall—

(i) be given as soon as practicable after receipt of the request for access;

(ii) describe the request; and

(iii) give the submitter a reasonable opportunity, not to exceed 10 working days from the date of notice, to submit written objections to disclosure of the information.

(c) Exceptions to notice to submitter. Notice to the submitter need not be given if—

(1) the secretary determines that the request for access should be denied;

(2) the requested information lawfully has been made available to the public;

(3) disclosure of the information is required by law (other than 5 USC 552); or

(4) the submitter's claim of confidentiality under 5 USC 552(b)(4) appears obviously frivolous or has already been denied by the secretary, except that in this last instance the secretary shall give the submitter written notice of the determination to disclose the information at least five working days prior to disclosure.

(d) Notice to requester. At the same time the secretary notifies the submitter, the secretary also shall notify the requester that the request is subject to the provisions of this section.

(e) Written objections by submitter. Upon receipt of notice of a request for access to its information, the submitter may provide written objections to release of the information. Such objections shall state whether the information was provided voluntarily or involuntarily to the Board.

(1) If the information was voluntarily provided to the Board, the submitter shall provide detailed facts showing that the information is customarily withheld from the public.

(2) If the information was not provided voluntarily to the Board, the submitter shall provide detailed facts and arguments showing—

(i) the likelihood of substantial harm that would be caused to the submitter's competitive position; or

(ii) that release of the information would impair the Board's ability to obtain necessary information in the future.

(f) Determination by secretary. The secretary's determination whether or not to disclose any information for which confidential treatment has been requested pursuant to this section shall be communicated to the submitter and the requester immediately. If the secretary determines to disclose the information and the submitter has objected to such disclosure pursuant to paragraph (e) of this section, the secretary shall provide the submitter with the reasons for disclosure, and shall delay disclosure for 10 working days from the date of the determination.

(g) Notice of lawsuit.

(1) The secretary shall promptly notify any submitter of information covered by this section of the filing of any suit against the Board to compel disclosure of such information.

(2) The secretary shall promptly notify the requester of any suit filed against the Board to enjoin the disclosure of any documents requested by the requester.

SECTION 261.17—Fee Schedules; Waiver of Fees

(a) Fee schedules. The fees applicable to a request for records pursuant to sections 261.11 and 261.12 are set forth in appendix A to this section. These fees cover only the full allowable direct costs of search, duplication, and review. No fees will be charged where the average cost of collecting the fee (calculated at $5.00) exceeds the amount of the fee.

(b) Payment procedures. The secretary may assume that a person requesting records pursuant to section 261.12 will pay the applicable fees, unless the request includes a limitation on fees to be paid or seeks a waiver or reduction of fees pursuant to paragraph (f) of this section.

(1) Advance notification of fees. If the estimated charges are likely to exceed $100, the Freedom of Information Office shall notify the requester of the estimated amount, unless the requester has indicated a willingness to pay fees as high as those anticipated. Upon receipt of such notice, the requester may confer with the Freedom of Information Office to reformulate the request to lower the costs. The time period for responding to requests under section 261.13(e), and the processing of the request will be suspended until the requester agrees to pay the applicable fees.

(2) Advance payment. The secretary may require advance payment of any fee estimated to exceed $250. The secretary may also require full payment in advance where a requester has previously failed to pay a fee in a timely fashion. The time period for responding to requests under section 261.13(e), and the processing of the request will be suspended until the Freedom of Information Office receives the required payment.

(3) Late charges. The secretary may assess interest charges when fee payment is not made within 30 days of the date on which the billing was sent. Interest is at the rate prescribed in 31 USC 3717 and accrues from the date of the billing.

(c) Categories of uses. The fees assessed depend upon the intended use for the records requested. In determining which category is appropriate, the secretary shall look to the intended use set forth in the request for records. Where a requester's description of the use is insufficient to make a determination, the secretary may seek additional clarification before categorizing the request.

(1) Commercial use. The fees for search, duplication, and review apply when records are requested for commercial use.

(2) Educational, research, or media use. The fees for duplication apply when records are not sought for commercial use, and the requester is a representative of the news media or an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research. The first 100 pages of duplication, however, will be provided free.

(3) All other uses. For all other requests, the fees for document search and duplication apply. The first two hours of search time and the first 100 pages of duplication, however, will be provided free.

(d) Nonproductive search. Fees for search and review may be charged even if no responsive documents are located or if the request is denied.

(e) Aggregated requests. A requester may not file multiple requests at the same time, solely in order to avoid payment of fees. If the secretary reasonably believes that a requester is separating a request into a series of requests for the purpose of evading the assessment of fees, the secretary may aggregate any such requests and charge accordingly. It is considered reasonable for the secretary to presume that multiple requests of this type made within a 30-day period have been made to avoid fees.

(f) Waiver or reduction of fees. A request for a waiver or reduction of the fees, and the justification for the waiver, shall be included with the request for records to which it pertains. If a waiver is requested and the requester has not indicated in writing an agreement to pay the applicable fees if the waiver request is denied, the time for response to the request for documents, as set forth in section 261.13(e), shall not begin until a waiver has been granted; or if the waiver is denied, until the requester has agreed to pay the applicable fees.

(1) Standards for determining waiver or reduction. The secretary shall grant a waiver or reduction of fees where it is determined both that disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operation or activities of the government, and that the disclosure of information is not primarily in the commercial interest of the requester. In making this determination, the following factors shall be considered:
(i) whether the subject of the records concerns the operations or activities of the government;

(ii) whether disclosure of the information is likely to contribute significantly to public understanding of government operations or activities;

(iii) whether the requester has the intention and ability to disseminate the information to the public;

(iv) whether the information is already in the public domain;

(v) whether the requester has a commercial interest that would be furthered by the disclosure; and, if so,

(vi) whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.

(2) Contents of request for waiver. A request for a waiver or reduction of fees shall include—

(i) a clear statement of the requester's interest in the documents;

(ii) the use proposed for the documents and whether the requester will derive income or other benefit for such use;

(iii) a statement of how the public will benefit from such use and from the Board's release of the documents;

(iv) a description of the method by which the information will be disseminated to the public; and

(v) if specialized use of the information is contemplated, a statement of the requester's qualifications that are relevant to that use.

(3) Burden of proof. The burden shall be on the requester to present evidence or information in support of a request for a waiver or reduction of fees.

(4) Determination by secretary. The secretary shall make a determination on the request for a waiver or reduction of fees and shall notify the requester accordingly. A denial may be appealed to the Board in accordance with section 261.13(j).

(g) Employee requests. In connection with any request by an employee, former employee, or applicant for employment, for records for use in prosecuting a grievance or complaint of discrimination against the Board, fees shall be waived where the total charges (including charges for information provided under the Privacy Act of 1974 (5 USC 552a) are $50 or less; but the secretary may waive fees in excess of that amount.

(h) Special services. The secretary may agree to provide, and set fees to recover the costs of, special services not covered by the Freedom of Information Act, such as certifying records or information and sending records by special methods such as express mail or overnight delivery.

Appendix A to Section 261.17— Freedom of Information Fee Schedule

Duplication

Photocopy, per standard page $0.10
Paper copies of microfiche, per frame $0.10
Duplicate microfiche, per microfiche $0.35

Search and Review

Clerical/Technical, hourly rate $20.00
Professional/Supervisory, hourly rate $38.00
Manager/Senior Professional, hourly rate $65.00

Computer Search and Production

Computer operator search, hourly rate $32.00
Tapes (cassette), per tape $6.00
Tapes (cartridge), per tape $9.00
Tapes (reel), per tape $18.00
Diskettes (3 1/2¢¢), per diskette $4.00
Diskettes (5 1/4¢¢), per diskette $5.00
Computer output (PC), per minute $0.10
Computer output (mainframe), actual cost

SUBPART C—CONFIDENTIAL INFORMATION MADE AVAILABLE TO SUPERVISED INSTITUTIONS, FINANCIAL INSTITUTION SUPERVISORY AGENCIES, LAW ENFORCEMENT AGENCIES, AND OTHERS IN CERTAIN CIRCUMSTANCES

SECTION 261.20—Confidential Supervisory Information Made Available to Supervised Financial Institutions and Financial Institution Supervisory Agencies

(a) Disclosure of confidential supervisory information to supervised financial institutions. Confidential supervisory information concerning a supervised bank, bank holding company (including subsidiaries), U.S. branch or agency of a foreign bank, or other institution examined by the Federal Reserve System ("supervised financial institution") may be made available by the Board or the appropriate Federal Reserve Bank to the supervised financial institution.

(b) Disclosure of confidential supervisory information by supervised financial institutions.

(1) Parent bank holding company, directors, officers, and employees. Any supervised financial institution lawfully in possession of confidential supervisory information of the Board pursuant to this section may disclose such information, or portions thereof, to its directors, officers, and employees, and to its parent bank holding company and its directors, officers, and employees.

(2) Certified public accountants and legal counsel. Any supervised financial institution lawfully in possession of confidential supervisory information of the Board pursuant to this section may disclose such information, or portions thereof, to any certified public accountant or legal counsel employed by the supervised financial institution, subject to the following conditions:

(i) certified public accountants or legal counsel shall review the confidential supervisory information only on the premises of the supervised financial institution, and shall not make or retain any copies of such information;

(ii) the certified public accountants or legal counsel shall not disclose the confidential supervisory information for any purpose without the prior written approval of the Board's general counsel except as necessary to provide advice to the supervised financial institution, its parent bank holding company, or the officers, directors, and employees of such supervised financial institution and parent bank holding company.

(c) Disclosure upon request to federal financial institution supervisory agencies. Upon request, the director of the Division of Banking Supervision and Regulation or the appropriate Federal Reserve Bank may make available to the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Federal Home Loan Bank Board and their regional offices and representatives, confidential supervisory information and other appropriate information (such as confidential operating and condition reports) relating to a bank, bank holding company (including subsidiaries), U.S. branch or agency of a foreign bank, or other supervised financial institution.

(d) Disclosure upon request to state financial institution supervisory agencies. Upon request, the director of the Division of Banking Supervision and Regulation or the appropriate Federal Reserve Bank may make available confidential supervisory information and other appropriate information (such as confidential operating and condition reports) relating to a bank, bank holding company (including subsidiaries), U.S. branch or agency of a foreign bank, or other supervised financial institution to—

(1) a state financial institution supervisory agency having direct supervisory authority over such supervised financial institution; or

(2) a state financial institution supervisory agency not having direct supervisory authority over such supervised financial institution if the requesting agency has entered into an information-sharing agreement with the appropriate Federal Reserve Bank and the information to be provided concerns a supervised financial institution that has acquired or has applied to acquire a financial institution subject to that agency's direct supervisory authority.

(e) Discretionary disclosures. The Board may determine, from time to time, to authorize other disclosures of confidential information as necessary.

(f) Conditions and limitations. The Board may impose any conditions or limitations on disclosure under this section that it determines are necessary to effect the purposes of this regulation.

(g) Other disclosure prohibited. All confidential supervisory information or other information made available under this section shall remain the property of the Board. No supervised financial institution, financial institution supervisory agency, person, or any other party to whom the information is made available, or any other officer, director, employee or agent thereof, may disclose such information without the prior written permission of the Board's general counsel except in published statistical material that does not disclose, either directly or when used in conjunction with publicly available information, the affairs of any individual, corporation, or other entity. No person obtaining access to confidential supervisory information pursuant to this section may make a personal copy of any such information; and no person may remove confidential supervisory information from the premises of the institution or agency in possession of such information except as permitted by specific language in this regulation or by the Board.

(h) Disclosure of foreign-bank Confidential Report of Operations.

(1) Availability of foreign-bank Confidential Report of Operations to bank supervisory agencies. Notwithstanding any other provision of this regulation, any Confidential Report of Operations (Form FR 2068) of a foreign banking organization may, upon written request to and approval by the director of the Division of Banking Supervision and Regulation (or his delegee), and with the concurrence of the general counsel (or his delegee), be made available for inspection to another bank supervisory authority having general supervision of any United States branch, agency, subsidiary bank or commercial lending company of the foreign banking organization, only for use where necessary in the performance of official duties. These reports shall be made available for inspection by authorized persons only on Federal Reserve premises under the same procedures as apply to personnel of the Federal Reserve System. All reports made available under this paragraph shall remain the property of the Board; and no person, agency, or authority who obtains access to any such report, or any officer, director, or employee thereof, shall publish, publicize, or otherwise disclose any information contained in the report to any person.

(2) Restrictions on disclosure by Federal Reserve System employees. It is the Board's policy that the confidentiality of a foreign banking organization's Confidential Report of Operations (Form FR 2068) should be maintained at all times. Except as provided by paragraph (h)(1) of this section, information submitted to the Board as part of any Confidential Report of Operations is not available for public inspection by any person other than an officer, employee, or agent of the Board or of a Federal Reserve Bank properly entitled to such information in the performance of such person's official duties. Any employee that violates this section by releasing such a report to any unauthorized person may be subject to disciplinary action under 12 CFR 264.735-5 (Rules of Employee Responsibilities and Conduct).

SECTION 261.21—Confidential Information Made Available to Law Enforcement Agencies and Other Non–Financial Institution Supervisory Agencies

(a) Disclosure upon request. Upon written request, the Board may make available to appropriate law enforcement agencies and to other non–financial institution supervisory agencies for use where necessary in the performance of official duties, reports of examination and inspection, confidential supervisory information, and other confidential documents and information of the Board concerning banks, bank holding companies and their subsidiaries, U.S. branches and agencies of foreign banks, and other examined institutions.

(b) Eligibility. Federal, state, and local law enforcement agencies and other non– financial institution supervisory agencies may file written requests with the Board for access to confidential documents and information under this section of the regulation. Properly accredited foreign law enforcement agencies and other foreign-government agencies may also file written requests with the Board.

(c) Contents of request. To obtain access to confidential documents or information under this section of the regulation, the head of the law enforcement agency or nonfinancial institution supervisory agency (or their designees) shall address a letter request to the Board's general counsel, specifying—

(1) the particular information, kinds of information, and where possible, the particular documents to which access is sought;

(2) the reasons why such information cannot be obtained from the examined institution in question rather than from the Board;

(3) a statement of the law enforcement purpose or other purpose for which the information shall be used;

(4) whether the requested disclosure is permitted or restricted in any way by applicable law or regulation;

(5) a commitment that the information requested shall not be disclosed to any person outside the agency without the written permission of the Board or its general counsel; and

(6) if the document or information requested includes customer-account information subject to the Right to Financial Privacy Act, as amended (12 USC 3401 et seq.), a statement that such customer-account information need not be provided, or a statement as to why the act does not apply to the request, or a certification that the requesting agency has complied with the requirements of the act.

(d) Action on request.

(1) The general counsel shall review each request and may approve the request upon determining that—
(i) the request complies with this section;

(ii) the information is needed in connection with a formal investigation or other official duties of the requesting agency;

(iii) satisfactory assurances of confidentiality have been given; and

(iv) no law prohibits the requested disclosure.

(2) The general counsel may impose any conditions or limitations on disclosure that the general counsel determines to be neces sary to effect the purposes of this regulation or to ensure compliance with applicable laws or regulations.

(e) Federal and state grand jury, criminal trial, and government administrative subpoenas. The Board's general counsel shall review and may approve the disclosure of confidential information pursuant to federal and state grand jury, criminal trial, and government administrative subpoenas. The general counsel may impose such conditions or limitations on disclosure under this section that the general counsel determines are necessary to effect the purposes of this regulation, to ensure compliance with applicable laws or regulations, or to protect the confidentiality of the Board's information.

(f) Requests for testimony or interviews. Government agencies seeking to obtain testimony or interviews from current and former Federal Reserve System staff concerning any confidential information of the Board shall use the procedures set out in paragraph (c) of this section.

(g) Other disclosure prohibited. All reports and information made available under this section remain the property of the Board, and except as otherwise provided in this regulation, no person, agency, or authority to whom the information is made available, or any officer, director, or employee thereof, may disclose any such information except in published statistical material that does not disclose, either directly or when used in conjunction with publicly available information, the affairs of any individual or corporation.

SECTION 261.22—Other Disclosure of Confidential Supervisory Information

(a) Board policy. It is the Board's policy regarding confidential supervisory information that such information is confidential and privileged. Accordingly, the Board will not normally disclose this information to the public. The Board, when considering a request for disclosure of confidential supervisory information under this section, will not authorize disclosure unless the person requesting disclosure is able to show a substantial need for such information that outweighs the need to maintain confidentiality.

(b) Requests for disclosure.

(1) Requests from litigants for information or testimony. Any person (except agencies identified in sections 261.11 and 261.12 of this regulation) seeking access to confidential supervisory information or seeking to obtain the testimony of present or former Board or Reserve Bank employees on matters involving confidential supervisory information of the Board, whether by deposition or otherwise, for use in litigation before a court, board, commission, or agency, shall file a written request with the general counsel of the Board. The request shall describe—
(i) the particular information, kinds of information, and where possible, the particular documents to which access is sought;

(ii) the judicial or administrative action for which the confidential supervisory information is sought;

(iii) the relationship of the confidential supervisory information to the issues or matters raised by the judicial or administrative action;

(iv) the requesting person's need for the information;

(v) the reason why the requesting person cannot obtain the information sought from any other source; and

(vi) a commitment to obtain a protective order acceptable to the Board from the judicial or administrative tribunal hearing the action preserving the confidentiality of any information that is provided.

(2) All other requests. Any other person (except agencies identified in sections 261.11 and 261.12 of this regulation) seeking access to confidential supervisory information for any other purpose shall file a written request with the general counsel of the Board. A request under this paragraph (b)(2) shall describe the purpose for which such disclosure is sought.

(c) Action on request.

(1) Determination of approval. The general counsel of the Board may approve a request made under this section provided that he or she determines that—
(i) the person making the request has shown a substantial need for confidential supervisory information that outweighs the need to maintain confidentiality; and

(ii) disclosure is consistent with the supervisory and regulatory responsibilities and policies of the Board.

(2) Conditions or limitations. The general counsel of the Board may, in approving a request, impose such conditions or limitations on use of any information disclosed as is deemed necessary to protect the confidentiality of the Board's information.

(d) Exhaustion of administrative remedies for discovery purposes in civil, criminal, or administrative action. Action on a request under this section by the general counsel of the Board shall exhaust administrative remedies for discovery purposes in any civil, criminal, or administrative proceeding. A request made pursuant to section 261.9 of this regulation does not exhaust administrative remedies for discovery purposes. Therefore, it is not necessary to file a request pursuant to section 261.9 to exhaust administrative remedies under this section.

(e) Other disclosure prohibited. All confidential supervisory information made available under this section shall remain the property of the Board. Any person in possession of such information shall not use or disclose such information for any purpose other than that authorized by the general counsel of the Board without his or her prior written approval.

SECTION 261.23—Subpoenas, Orders Compelling Production, and Other Process

(a) Advice by person served. Any person (including any officers, employee, or agent of the Board or any Federal Reserve Bank) who has documents or information of the Board that may not be disclosed and who is served with a subpoena, order, or other judicial or administrative process requiring his or her personal attendance as a witness or requiring the production of documents or information in any proceeding, shall—

(1) promptly inform the Board's general counsel of the service and all relevant facts, including the documents and information requested, and any facts of assistance to the Board in determining whether the material requested should be made available; and

(2) at the appropriate time inform the court or tribunal that issued the process and the attorney for the party at whose instance the process was issued of the substance of these rules.

(b) Appearance by person served. Unless the Board has authorized disclosure of the information requested, any person who has Board information that may not be disclosed, and who is required to respond to a subpoena or other legal process, shall attend at the time and place required and decline to disclose or to give any testimony with respect to the information, basing such refusal upon the provisions of this regulation. If the court or other body orders the disclosure of the information or the giving of testimony, the person having the information shall continue to decline to disclose the information and shall promptly report the facts to the Board for such action as the Board may deem appropriate.

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