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8000 - Miscellaneous Statutes and Regulations
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PART 1101DESCRIPTION OF OFFICE, PROCEDURES, PUBLIC INFORMATION
Sec. 1101.1
Scope and purpose.
1101.2
Authority and functions.
1101.3
Organization and methods of operation.
1101.4
Disclosure of information, policies, and records.
1101.5
Testimony and production of documents in response to subpoena, order,
etc.
AUTHORITY: 5 U.S.C. 552;
12 U.S.C. 3307.
SOURCE: 45 FR 46794, July 11, 1980, unless otherwise
noted.
§ 1101.1 Scope and purpose.
This part implements the Freedom of Information Act (FOIA), 5 U.S.C.
552, with respect to the Federal Financial Institutions Examination
Council (Council) and establishes related information disclosure
procedures.
[Codified to 12 C.F.R.
§ 1101.1]
§ 1101.2 Authority and functions.
(a) The Council was established by the Federal Financial
Institutions Examination Council Act of 1978 (Act),
12 U.S.C. 3301--3308. It is
composed of the Comptroller of the Currency; the Chairman of the
Federal Deposit Insurance Corporation; a Governor of the Board of
Governors of the Federal Reserve System; the Chairman of the Federal
Home Loan Bank Board; and the Chairman of the National Credit Union
Administration Board.
(b) The statutory functions of the Council are set out at
12 U.S.C. 3305. In summary,
the mission of the Council is to promote consistency and progress in
federal examination and supervision of financial institutions and their
affiliates. The Council is empowered to prescribe uniform principles,
standards, and reporting forms and systems; make recommendations in the
interest of uniformity; and conduct examiner schools open to personnel
of the agencies represented on the Council and employees of state
financial institutions supervisory agencies.
[Codified to 12 C.F.R.
§ 1101.2]
§ 1101.3 Organization and methods of operation.
(a) Statutory requirements relating to the Council's organization
are stated in 12 U.S.C. 3303.
(b) Council staff. Administrative support and
substantive coordination for Council activities are provided by a small
staff detailed on a full-time basis from the five member agencies. The
Executive Secretary and Deputy Executive Secretary of the Council
supervise this staff.
(c) Agency Liaison Group, Task Forces and Legal Advisory
Group. Most staff support in the substantive areas of the
Council's duties is provided by interagency task forces and the
Council's Legal Advisory Group (LAG). These task forces and the LAG are
responsible for securing the services, as needed, of staff experts from
the five agencies; supervising research and other investigative work
for the Council; and preparing reports and recommendations for the
Council. The Agency Liaison Group (ALG) is responsible for the overall
coordination of the respective agencies' staff contributions to Council
business. The ALG, the task forces, and the LAG are each composed of
Council member agency staff serving the Council on a part-time basis.
(d) State Liaison Committee. Under 12 U.S.C. 3306, the
Council has established a State Liaison Committee, composed of five
representatives of state financial institutions supervisory agencies.
(e) Council address. Council offices are located at 1776
G Street, N.W., Suite 701, Washington, D.C. 20006.
{{2-28-93 p.8590.12}}
[Codified to 12 C.F.R. § 1101.3]
[Source: Section 1101.3 amended at 53 Fed. Reg. 7341, March 8,
1988]
§ 1101.4 Disclosure of information, policies, and records.
(a) Statements of policy published in the Federal Register or
available for public inspection and copying; indices. Under
5 U.S.C. 552(a)(1), the Council
publishes general rules, policies and interpretations in the
FEDERAL REGISTER. Under 5 U.S.C. 552(a)(2), policies and
interpretations adopted by the Council, including instructions to
Council staff affecting members of the public, and an index to the
same, are available for public inspection and copying at the address
set out in § 1101.3(e) of this part during regular business hours.
The preceding materials may be withheld from disclosure under the
principles stated in paragraph (b)(1) of this section.
(b) Other records of the Council available for public
inspection; procedures--(1) General rule and exemptions. Under 5
U.S.C. 552(a)(3), all other records of the Council are available for
public inspection and copying, except those exempted from disclosure as
provided in this paragraph. Except as specifically authorized by the
Council, the following records, and portions thereof, are not available
to the public:
(i) A record, or portion thereof, which is specifically
authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and which
is, in fact, properly classified pursuant to such Executive order.
(ii) A record, or portion thereof, relating solely to the
internal personnel rules and practices of an agency.
(iii) A record, or portion thereof, specifically exempted from
disclosure by statute (other than 5 U.S.C. 552(b), provided that such
statute (A) requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding or refers to particular
types of matters to be withheld.
(iv) A record, or portion thereof, containing trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.
(v) An intraagency of interagency memorandum or letter that would
not be routinely available by law to a private party in litigation,
including, but not limited to, memoranda, reports, and other documents
prepared by the personnel of the Council or its constituent agencies.
(vi) A personnel, medical, or similar record, including a
financial record, or any portion thereof, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.
(vii) Records or information compiled for law enforcement
purposes, including records relating to a proceeding by a financial
institution's regulatory agency for the issuance of a cease-and-desist
order, or order of suspension or removal, or assessment of a civil
money penalty and the granting, withholding, or revocation of any
approval, permission, or authority, but only to the extent that the
production of such law enforcement records or information (A) could
reasonably be expected to interfere with enforcement proceedings; (B)
would deprive a person of a right to a fair trial or an impartial
adjudication; (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy; (D) could reasonably be
expected to disclose the identity of a confidential source, including a
state, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case
of a record or information compiled by a criminal law enforcement
authority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation,
information furnished by a confidential source; (E) would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law; or (F) could reasonably be
expected to endanger the life or physical safety of any
individual.
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(viii) A record, or portion thereof, containing, relating to, or
derived from an examination, operating, or condition report prepared
by, or on behalf of, or for the use of any agency directly or
indirectly responsible for the regulation or supervision of financial
institutions, relating to the affairs of any financial institution or
affiliate thereof, financial institution holding company or subsidiary,
broker, finance company, or any other person engaged, or proposing to
engage, in the business of operating, managing or controlling financial
institutions.
(ix) A record, or portion thereof, which contains or is related
to geological and geophysical information and data, including maps,
concerning wells.
(2) Waiver of exemptions. Notwithstanding the
applicability of an exemption, the Council or the Council's designee
may elect, under the circumstances of a particular request, to disclose
all or a portion of any requested record where permitted by law. Such
disclosure has no precedential significance whatsoever.
(3) Procedure for records request--(i) Initial
request. Requests for records shall be submitted in writing to the
Executive Secretary of the Council, at the address set out in
§ 1101.3(e) of this part. Mailed requests should be marked
"Freedom of Information Request," "FOIA Request," or the
like on the envelope. Requests must reasonably describe the records
sought. The Executive Secretary will aid members of the public in
formulating their requests. All requests should give the complete
telephone number of the individual seeking the records, if possible.
(ii) Council response to initial requests. The
Executive Secretary will respond by mail to all properly submitted
initial requests within 10 working days of receipt. The time for
response may be extended up to 10 additional working days, as provided
in 5 U.S.C. 552(a)(6)(B), or for other periods by agreement between the
requesting party and the Executive Secretary.
(iii) Appeals of responses to initial requests. If a
request is denied in whole or in part, the individual making the
request may appeal in writing, within 35 days of the date of the
denial, to the Chairman of the Council, at the address set out in
§ 1101.3(e) of this part. Mailed requests should be marked
"Freedom of Information Appeal," "FOIA Appeal," or the like
on the envelope. Appeals should refer to the date of the original
request and the date of the Council's initial ruling. Appeals should
include an explanation of the basis for the appeal.
(iv) Council response to appeals. The Chairman of the
Council, or another member designated by the Chairman, will respond by
mail to all properly submitted appeals within 20 working days of
receipt. The time for response may be extended up to 10 additional
working days, as provided in 5 U.S.C. 552(a)(6)(B), or for other
periods by agreement between the requesting party and the Chairman or
the Chairman's designee.
(4) Procedure for access to records if request is granted.
When a request for access to records is granted, in whole or in
part, a copy of the records to be disclosed will be promptly delivered
to the requesting party or made available for inspection, whichever was
requested. Inspection of records, or duplication and delivery of copies
of records will be arranged so as not to interfere with their use by
the Council and other users of the records.
(5) Fees for document search, review and duplication;
waiver and reduction of fees--(i) Definitions--(A)
Direct costs means those expenditures which the Council
actually incurs in searching for, duplicating, and reviewing documents
to respond to a FOIA request.
(B) Search means all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming.
(C) Duplication means the process of making a copy of
a document necessary to responsd to a FOIA request.
(D) Review means the process of examining documents
located in response to a request that is for a commercial use
(see
§ 1101.4(b)(5)(i)(E))
to determine whether any portion of any document located is permitted
to be withheld and processing such documents for disclosure.
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(E) Commercial use request means a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade, or profit interests of the requester or the
person on whose behalf the request is made.
(F) Educational institution means a preschool, an
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, and an institution of vocational education,
which operates a program or programs of scholarly research.
(G) Noncommercial scientific institutions means an
institution that is not operated on a "commercial" basis as that
term is referenced in § 1101.4(b)(i)(E), and which is operated solely
for the purposes of conducting scientific research, the results of
which are not intended to promote any particular product or industry.
(H) Representative of the news media means any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term "news" means
information that is about current events or that would be of current
interest to the public.
(ii) Fees to be charged. The Council will charge fees
that recoup the full allowable direct costs it incurs. The Council may
contract with the private sector to locate, reproduce, and/or
disseminate records. Provided, however, that the Council has ensured
that the ultimate cost to the requester is no greater than it would be
if the Council performed these tasks. Fees are subject to change as
costs change. In no case will the Council contract out responsibilities
which the FOIA provides that it alone may discharge, such as
determining the applicability of an exemption, or determining whether
to waive or reduce fees.
(A) Manual searches and review. The Council will
charge fees at the following rates for manual searches for and review
of records;
(1) If search/review is done by clerical staff, the
hourly rate for GS-7, step 5, plus 16 percent of the rate to cover
benefits;
(2) If search/review is done by professional staff,
the hourly rate for GS-13, step 5, plus 16 percent of the rate to cover
benefits.
(B) Computer searches. The Council will charge fees at
the hourly rate for GS-13, step 5, plus 16 percent of the rate to cover
benefits, plus the hourly cost of operating the computer for computer
searches for records.
(C) Duplication of records. (1) The
per-page fee for paper copy reproduction of a document is $.25;
(2) The fee for documents generated by computer is the
hourly rate for the computer operator (at GS 7, step 5, plus 16 percent
for benefits if clerical staff, and GS 13, step 5, plus 16 percent for
benefits if professional staff) plus the cost of materials (computer
paper, tapes, labels, etc.).
(3) If any other method of duplication is used, the
Council will charge the actual direct cost of duplicating the
documents.
(D) If search, duplication and/or review is provided by personnel
of member agencies of the Council, fees will reflect their actual
hourly rates, plus 16 percent for benefits.
(E) Fees to exceed $25. If the Council estimates that
duplication and/or search fees are likely to exceed $25, it will notify
the requester of the estimated amount of fees, unless the requester has
indicated in advance his/her willingness to pay fees as high as those
anticipated. In the case of such notification by the Council, the
requester will then have the opportunity to confer with Council
personnel with the object of reformulating the request to meet his/her
needs at a lower cost.
(F) Other services. Complying with requests for
special services is entirely at the discretion of the Council. The
Council will recover the full costs of providing such services to the
extent it elects to provide them.
(G) Restriction on assessing fees. The Council will
not charge fees to any requester, including commercial use requesters,
if the cost of collecting a fee would be equal to or greater than the
fee itself.
{{2-28-93 p.8590.15}}
(H) Waiving or reducing fees. The Council shall waive
or reduce fees under this section whenever disclosure of information is
in the public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of the
requester.
(1) The Council will make a determination of whether
the public interest requirement above is met based on the following
factors:
(i) The subject of the request: Whether the subject of
the requested records concerns the operations or activities of the
government;
(ii) The informative value of the information to be
disclosed: Whether the disclosure is likely to contribute to an
understanding of government operations or activities;
(iii) The contribution to an understanding of the
subject by the general public likely to result from disclosure: Whether
disclosure of the requested information will contribute to public
understanding;
(iv) The significance of the contribution to the
public understanding: Whether the disclosure is likely to contribute
significantly to public understanding of government operations or
activities.
(2) If the public interest requirement is met, the
Council will make a determination on the commercial interest
requirement based upon the following factors:
(i) The existence and magnitude of a commercial
interest: Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and if so
(ii) The primary interest in disclosure: 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;
(3) If the required public interest exists and the
requester's commercial interest is not primary in comparison to it, the
Council will waive or reduce fees.
(iii) Categories of requesters. (A) Commercial use
requesters. The Council will assess fees for commercial use requesters
which recover the full direct costs of searching for, reviewing for
release, the duplicating the records sought. Commercial use requesters
are not entitled to two hours of free search time nor 100 free pages of
reproduction of documents.
(B) Requesters who are representatives of the news media,
educational and noncommercial scientific institution requesters. The
Council shall provide documents to requesters in these categories for
the cost of reproduction alone, excluding fees for the first 100 pages.
(C) All other requesters. The Council shall charge requesters who
do not fit into any of the categories above fees which recover the full
reasonable direct cost of searching for and reproducing records that
are responsive to the request, except that the first 100 pages of
reproduction and the first two hours of search time shall be furnished
without a fee.
(D) All requesters must specifically describe records sought.
(iv) Interest on unpaid fees. The Council may begin
assessing interest charges on an unpaid bill starting on the 31st day
following the day on which the bill was sent. Interest will be at the
rate prescribed in section 3717 of title 31 U.S.C. and will accrue from
the date of the billing.
(v) Fees for unsuccessful search and review. The
Council may assess fees for time spent searching and reviewing, even if
it fails to locate the records or if records located are determined to
be exempt from disclosure.
(vi) Aggregating requests. A requester(s) may not file
multiple requests each seeking portions of a document or documents,
solely in order to avoid payment of fees. If this is done, the Council
may aggregate any such requests and charge accordingly. In no case will
the Council aggregate multiple requests on unrelated subjects from the
same requester.
{{2-28-93 p.8590.16}}
(vii) Advance payment of fees. The Council will not
require a requester to make an assurance of payment or an advance
payment unless:
(A) The Council estimates or determines that allowable charges
that a requester may be required to pay are likely to exceed $250. The
Council will notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a
history of prompt payment of FOIA fees, or require an advance payment
of an amount up to the full estimated charges in the case of requesters
with no history of payment; or
(B) A requester has previously failed to pay a fee charged in a
timely fashion. The Council may require the requester to pay the full
amount owed plus any applicable interest as provided in
§ 1101.4(b)(5)(iv) or demonstrate that he/she has, in fact, paid the
fee, and to make an advance payment of the full amount of the estimated
fee before the Council begins to process a new request or a pending
request from that requester.
(C) When the Council acts under § 1101.4(b)(5)(vii)(A) or (B),
the administrative time limits prescribed in subsection (a)(6) of the
FOIA (i.e., 10 working days from receipt of initial requests and 20
working days from receipt of appeals from initial denial, plus
permissible extensions of these time limits) will begin only after the
Council has received the fee payments described.
(6) Records of another agency. If a requested record
is the property of another federal agency or department, and that
agency or department, either in writing or by regulation, expressly
retains ownership of such record, upon receipt of a request for the
record the Council will promptly inform the requester of this ownership
and immediately shall forward the request to the proprietary agency or
department either for processing in accordance with the latter's
regulations or for guidance with respect to disposition.
[Codified to 12 C.F.R. § 1101.4]
[Source: Section 1101.4 amended at 53 Fed. Reg. 7341, March 8,
1988]
§ 1101.5 Testimony and production of documents in response to
subpoena, order, etc.
No person shall testify, in court or otherwise, as a result of
activities on behalf of the Council without prior written authorization
from the Council. This section shall not restrict the authority of a
Council member to testify before Congress on matters within his or her
official responsibilities as a Council member. No person shall furnish
documents reflecting information of the Council in compliance with a
subpoena, order, or otherwise, without prior written authorization from
the Council. The Council may authorize testimony or production of
documents after the litigant (or the litigant's attorney) submits an
affidavit to the Council setting forth the interest of the litigant and
the testimony or documents desired. Authorization to testify or produce
documents is limited to authority expressly granted by the Council.
When the Council has not authorized testimony or production of
documents, the individual to whom the subpoena or order has been
directed will appear in court and respectfully state that he or she is
unable to comply further with the subpoena or order by reason of this
section.
[Codified to 12 C.F.R. § 1101.5]
[The page following this is 8590.21.]
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