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2000 - Rules and Regulations
{{2-29-00 p.2227}}
PART 311—RULES GOVERNING PUBLIC OBSERVATION OF MEETINGS OF THE
CORPORATION'S BOARD OF DIRECTORS
Sec.
311.1
Purpose.
311.2
Definitions.
311.3
Meetings.
311.4
Procedure for announcing meetings.
311.5
Regular procedure for closing meetings.
311.6
Expedited procedure for announcing and closing certain meetings.
311.7
General Counsel Certification.
311.8
Transcript, minutes of closed meetings.
AUTHORITY: 5 U.S.C. 552b
and 12 U.S.C. 1819.
SOURCE: The provisions of this Part 311 appear at 42 Fed. Reg.
14676, March 16, 1977, effective March 12, 1977, except as otherwise
noted.
§ 311.1 Purpose.
This part implements the policy of the "Government in the
Sunshine Act", section 552b of title 5, United States Code, which is
to provide the public with as much information as possible regarding
the decision-making process of certain Federal agencies, including the
Federal Deposit Insurance Corporation, while preserving the rights of
individuals and the ability of the agency to carry out its
responsibilities.
[Codified to 12 C.F.R. § 311.1]
§ 311.2 Definitions.
For purposes of this part--
(a) Board means Board of Directors of the Federal
Deposit Insurance Corporation and includes any subdivision of the Board
authorized to act on behalf of the Corporation.
(b) "Meeting" means the deliberations (including those
conducted by conference telephone call, or by any other method) of at
least three members where such deliberations determine or result in the
joint conduct or disposition of agency business but does not include:
(1) Deliberations to determine whether meetings will be open or
closed or whether information pertaining to closed meetings will be
withheld;
(2) Informal background discussions among Board members and staff
which clarify issues and expose varying views;
(3) Decision-making by circulating written material to individual
Board members;
(4) Sessions with individuals from outside the Corporation where
Board members listen to a presentation and may elicit additional
information.
(c) "Member" means a member of the Board.
(d) "Open to public observation" and "open to the
public" mean that individuals may witness the meeting but not
participate in the deliberations. The meeting may be recorded,
photographed, or otherwise reproduced if the reproduction does not
disturb the meeting.
(e) "Public announcement" and "publicly announce" mean
making reasonable effort under the particular circumstances of each
case to fully inform the public. This may include posting notice on the
Corporation's public notice bulletin board maintained in the lobby of
its offices located at 550 17th Street, N.W., Washington, D.C. 20429,
issuing a press release and employing other methods of notification
that may be desirable in a particular situation.
[Codified to 12 C.F.R. § 311.2]
[Section 311.2 amended at 42 Fed. Reg. 59494, November 18,
1977, effective December 19, 1977; 54 Fed. Reg. 38965, September 22,
1989; 61 Fed. Reg. 38357, July 24, 1996]
§ 311.3 Meetings.
(a) Open meetings. Except as provided in paragraph (b)
of this section, every portion of every meeting of the Corporation's
Board will be open to public observation. Board
{{2-29-00 p.2228}}members will not jointly conduct
or dispose of Corporation business other than in accordance with this
part.
(b) When meetings may be closed and announcements and
disclosures withheld. Except where the Board finds that the
public interest requires otherwise, a meeting or portion thereof may be
closed, and announcements and disclosure pertaining thereto may be
withheld when the Board determines that such meeting or portion of the
meeting or the disclosure of such information is likely to--
(1) Disclose matters that are (i) specifically authorized under
criteria established by an Executive order to be kept secret in the
interests of national defense or foreign policy and (ii) in fact
properly classified pursuant to such Executive order;
(2) Relate solely to the internal personnel rules and practices
of the Corporation;
(3) Disclose matters specifically exempted from disclosure by
statute (other than the Freedom of Information Act,
5 U.S.C. 552): Provided,
That such statute (i) requires that the matters be withheld from
the public in such a manner as to leave no discretion on the issue, or
(ii) establishes particular types of matters to be withheld;
(4) Disclose trade secrets and commercial or financial
information obtained from a person and privileged or confidential;
(5) Involve accusing any person of a crime, or formally censuring
any person;
(6) Disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal privacy;
(7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would (i) interfere with enforcement proceedings, (ii)
deprive a person of a 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, (v)
disclose investigative techniques and procedures, or (vi) endanger the
life or physical safety of law enforcement personnel;
(8) Disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the Corporation or any other agency responsible for the
supervision of financial institutions;
(9) Disclose information the premature disclosure of which would
be likely to:
(i)(A) Lead to significant financial speculation in currencies,
securities, or commodities, or (B) significantly endanger the stability
of any financial institution; or
(ii) Significantly frustrate implementation of a proposed
Corporation action, except that this subdivision (ii) shall not apply
in any instance where the Corporation has already disclosed to the
public the content or nature of its proposed action, or where the
Corporation is required by law to make such disclosure on its own
initiative prior to taking final action on such proposal; or
(10) Specifically concern the Corporation's issuance of a
subpoena, or the Corporation's participation in a civil action or
proceeding, an action in a foreign court or international tribunal, or
an arbitration, or the initiation, conduct, or disposition by the
Corporation of a particular case of formal agency adjudication pursuant
to the procedures in 5 U.S.C.
554 or otherwise involving a determination on the record after
opportunity for a hearing.
[Codified to 12 C.F.R. § 311.3]
{{12-31-02 p.2229}}
§ 311.4 Procedure for announcing meetings.
(a) Scope. Except to the extent that such announcements
are exempt from disclosure under § 311.3(b), announcements relating
to open meetings, and meetings closed under the regular closing
procedures of § 311.5, will be made in the manner set forth in this
section.
(b) Time and content of announcement. The Corporation
will make public announcement at least seven days before the meeting of
the time, place, and subject matter of the meeting, whether it is to be
open or closed to the public, and the name and telephone number of the
official designated by the Corporation to respond to requests for
information about the meeting. This announcement will be made unless a
majority of the Board determines by a recorded vote that Corporation
business requires that a meeting be called on lesser notice. In such
cases, the Corporation will make public announcement of the time,
place, and subject matter of the meeting, and whether it is open or
closed to the public, at the earliest practicable time, which may be
later than the commencement of the meeting.
(c) Changing time or place of meeting. The time or
place of a meeting may be changed following the public announcement
required by paragraph (b) of this section only if the Corporation
publicly announces the change at the earliest practicable time, which
may be later than the commencement of the meeting.
(d) Changing subject matter or nature of meeting. The
subject matter of a meeting, or the determination to open or close a
meeting or a portion of a meeting, may be changed following the public
announcement only if:
(1) A majority of the entire Board determines by recorded vote
that agency business so requires and that no earlier announcement of
the change was possible; and,
(2) The Corporation publicly announces the change and the vote of
each member upon such change at the earliest practicable time, which
may be later than the commencement of the meeting.
(e) Publication of announcements in Federal
Register. Immediately following each public announcement under
this section, such announcement will be submitted for publication in
the Federal Register by the Executive Secretary.
[Codified to 12 C.F.R. § 311.4]
[Section 311.4 amended at 67 Fed. Reg. 71071, November 29,
2002]
§ 311.5 Regular procedure for closing meetings.
(a) Scope. Unless § 311.6 is applicable, the
procedures for closing meetings will be those set forth in this
section.
(b) Procedure. (1) A decision to close a meeting or
portion of a meeting will be taken only when a majority of the entire
Board votes to take such action. In deciding whether to close a meeting
or portion of a meeting, the Board will consider whether the public
interest requires an open meeting. A separate vote of the Board will be
taken with respect to each meeting which is proposed to be closed in
whole or in part to the public. A single vote may be taken with respect
to a series of meetings which are proposed to be closed in whole or in
part to the public, or with respect to any information concerning such
series of meetings, so long as each meeting in the series involves the
same particular matters and is scheduled to be held no more than thirty
days after the initial meeting in the series. The vote of each Board
member will be recorded and no proxies will be allowed.
(2) Any individual whose interests may be directly affected may
request that the Corporation close any portion of a meeting for any of
the reasons referred to in subparagraphs (5), (6), or (7) of
§ 311.3(b). Requests should be directed to the Executive Secretary,
Federal Deposit Insurance Corporation, 550 17th Street, N.W.,
Washington, D.C. 20429. After receiving notice that an individual
desires a portion of a meeting to be closed, the Board, upon request of
any one of its members, will vote by recorded vote whether to close the
relevant portion of the meeting. This procedure will apply even if the
individual's request is made subsequent to the announcement of a
decision to hold an open meeting.
{{12-31-02 p.2230}}
(3) The Corporation's General Counsel will make the public
certification required by section 311.7.
(4) Within one day after any vote taken pursuant to paragraphs
(b)(1) or (2) of this section, the Corporation will make publicly
available a written copy of the vote, reflecting the vote of each Board
member. Except to the extent that such information is exempt from
disclosure, if a meeting or portion of a meeting is to be closed to the
public, the Corporation will make publicly available within one day
after the required vote a full written explanation of its action,
together with a list of all persons expected to attend the meeting and
their affiliation.
(5) The Corporation will publicly announce the time, place, and
subject matter of the meeting, with determinations as to open and
closed portions, in the manner and within the time limits prescribed in
section 311.4.
[Codified to 12 C.F.R. § 311.5]
[Section 311.5 amended at 42 Fed. Reg. 16616, March 29,
1977; 42 Fed. Reg. 59494, November 18, 1977, effective December 19,
1977; 67 Fed. Reg. 71071, November 29, 2002]
§ 311.6 Expedited procedure for announcing and closing certain
meetings.
(a) Scope. Since a majority of its meetings may
properly be closed pursuant to paragraphs (4), (8), (9)(i), or (10) of
§ 311.3(b), subsection (d)(4) of the Government in the Sunshine Act
(5 U.S.C. 552b) allows the
Corporation to use expedited procedures in closing meetings under these
four subparagraphs. Absent a compelling public interest to the
contrary, meetings or portions of meetings that can be expected to be
closed using these procedures include, but are not limited to:
Administrative enforcement proceedings under section 8 of the Federal
Deposit Insurance Act (12 U.S.C.
1818); appointment of the Corporation as conservator of a
depository institution, or as receiver, liquidator or liquidating agent
of a closed depository institution or a depository institution in
danger of closing; and certain management and liquidation activities
pursuant to such appointments; possible financial assistance by the
Corporation under section 13 of the Federal Deposit Insurance Act
(12 U.S.C. 1823); certain
depository institution applications including applications to establish
or move branches, applications to merge, and applications for
insurance; and investigatory activity under section 10(c) of the
Federal Deposit Insurance Act (12
U.S.C. 1820(c)). In announcing and closing meetings or portions
of meetings under this section, the following procedures will be
observed.
(b) Announcement. Except to the extent that such
information is exempt from disclosure under the provisions of
§ 311.3(b) the Corporation will make public announcement of the time,
place and subject matter of the meeting and of each portion thereof at
the earliest practicable time. This announcement will be published in
the Federal Register if publication can be effected at least one day
prior to the scheduled date of the meeting.
(c) Procedure for closing. (1) The Corporation's
General Counsel will make the public certification required by
§ 311.7.
(2) At the beginning of a meeting or portion of a meeting to be
closed under this section, a recorded vote of the Board will be taken.
The Board will determine by its vote whether to proceed with the
closing. If a majority of the entire Board votes to close, the meeting
will be closed to public observation. Even though a meeting or portion
thereof could properly be closed under this section, a majority of the
entire Board may find that the public interest requires an open session
and vote to open the meeting. A copy of the vote, reflecting the vote
of each Board member, will be made available to the public.
[Codified to 12 C.F.R. § 311.6]
[Section 311.6 amended at 42 Fed. Reg. 16616, March 29,
1977; 54 Fed. Reg. 38965, September 22, 1989]
{{4-28-06 p.2231}}
§ 311.7 General Counsel Certification.
For every meeting or portion thereof closed under § 311.5 or
§ 311.6, the Corporation's General Counsel will publicly certify
that, in the opinion of such General Counsel, the meeting may be closed
to the public and will state each relevant exemptive provision. In the
absence of the General Counsel, the next ranking official in the Legal
Division may perform the certification. If the General Counsel and such
next ranking official in the Legal Division are both absent, the
official in the Legal Division who is then next in rank may provide the
required certification. A copy of this certification, together with a
statement from the presiding officer of the meeting setting forth the
time and place of the meeting, and the persons present, will be
retained in the Board's permanent files.
[Codified to 12 C.F.R. § 311.7]
[Section 311.7 amended at 61 Fed. Reg. 38357, July 24,
1996]
§ 311.8 Transcripts and minutes of meetings.
(a) When required. The Corporation will maintain a
complete transcript, identifying each speaker, to record fully the
proceedings of each meeting or portion of a meeting closed to the
public, except that in the case of a meeting or portions of a meeting
closed to the public pursuant to paragraphs (8), (9)(i), or (10) of
§ 311.3(b), the Corporation may, in lieu of a transcript, maintain a
set of minutes.
(b) Content of minutes. If minutes are maintained, they
will fully and clearly describe all matters discussed and will provide
a full and accurate summary of any actions taken, and the reasons for
taking such action. Minutes will also include a description of each of
the views expressed by each person in attendance on any item and the
record of any roll call vote, reflecting the vote of each member. All
documents considered in connection with any action will be identified
in the minutes.
(c) Available material. The Corporation will maintain a
complete verbatim copy of the transcript or minutes of each meeting or
portion of a meeting closed to the public for a period of at least two
years after the meeting, or until one year after the conclusion of any
proceeding with respect to which the meeting or portion was held,
whichever occurs later. The Corporation will make promptly available to
the public the transcript, identifying each speaker, or minutes of
items on the agenda or testimony of any witness received at the closed
meeting except that in cases where the Privacy Act of 1974
(5 U.S.C. 552a) does not apply,
the Corporation may withhold information exempt from disclosure under
§ 311.3(b). For the convenience of members of the public who may be
unable to attend open meetings of the Board, the Corporation will
maintain for at least two years a set of minutes of each meeting of the
Board or portion thereof open to public observation.
(d) Procedures for inspecting or copying available
material. (1) An individual may inspect materials made available
under paragraph (c) of this section at the offices of the Executive
Secretary, Federal Deposit Insurance Corporation, 550 17th Street,
N.W., Washington, D.C. 20429, during normal business hours. If the
individual desires a copy of such material, the Corporation will
furnish copies at a cost of 10 cents per page. Whenever the Corporation
determines that in the public interest a reduction or waiver is
warranted, it may reduce or waive any fees imposed under this section.
(2) An individual may also submit a written request for
transcripts or minutes, reasonably identifying the records sought, to
the Executive Secretary, Federal Deposit Insurance Corporation, 550
17th Street, N.W., Washington, D.C. 20429.
(e) Procedures for obtaining documents identified in minutes.
Copies of documents identified in minutes or considered by the
Board in connection with any action identified in the minutes may be
made available to the public upon request, to the extent permitted by
the Freedom of Information Act, under the provisions of
12 CFR part 309, Disclosure
of Information.
[Codified to 12 C.F.R. § 311.8]
[Section 311.8 amended at 61 Fed. Reg. 38357, July 24, 1996; 67 Fed
Reg. 71071, November 29, 2002]
[The page following this is 2237.]
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