[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Rules and Regulations]
[Pages 94240-94246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30725]
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 4
[Docket ID OCC-2016-0033]
RIN 1557-AE12
Availability of Information Under the Freedom of Information Act
AGENCY: Office of the Comptroller of the Currency
ACTION: Interim final rule.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
amending its regulations governing the disclosure of information
pursuant to requests made under the Freedom of Information Act (FOIA)
to reflect changes to the FOIA made by the FOIA Improvement Act of 2016
and the OPEN FOIA Act of 2009 and to make other technical changes that
update the OCC's FOIA regulations.
DATES: The interim final rule is effective on December 23, 2016.
Comments on the rule must be received by February 21, 2017.
ADDRESSES: You may submit comments to the OCC by any of the methods set
forth below. Because paper mail in the Washington, DC area and at the
OCC is subject to delay, commenters are encouraged to submit comments
through the Federal eRulemaking Portal or email, if possible. Please
use the title ``Availability of Information Under the Freedom of
Information Act'' to facilitate the organization and distribution of
the comments. You may submit comments by any of the following methods:
Federal eRulemaking Portal--``Regulations.gov'': Go to
www.regulations.gov. Enter ``Docket ID OCC-2016-0033'' in the Search
Box and click ``Search.'' Click on ``Comment Now'' to submit public
comments.
Click on the ``Help'' tab on the Regulations.gov home page
to get information on using Regulations.gov, including instructions for
submitting public comments.
Email: [email protected].
Mail: Legislative and Regulatory Activities Division,
Office of the Comptroller of the Currency, 400 7th Street SW., Suite
3E-218, mail stop 9W-11, Washington, DC 20219.
Hand Delivery/Courier: 400 7th Street SW., Suite 3E-218,
mail stop 9W-11, Washington, DC 20219.
Fax: (571) 465-4326.
Instructions: You must include ``OCC'' as the agency name and
``Docket ID OCC-2016-0033'' in your comment. In general, the OCC will
enter all comments received into the docket and publish them on the
Regulations.gov Web site without change, including any business or
personal information that you provide such as name and address
information, email addresses, or phone numbers. Comments received,
including attachments and other supporting materials, are part of the
public record and subject to public disclosure. Do not include any
information in your comment or supporting materials that you consider
confidential or inappropriate for public disclosure.
You may review comments and other related materials that pertain to
this rulemaking action by any of the following methods:
[[Page 94241]]
Viewing Comments Electronically: Go to
www.regulations.gov. Enter ``Docket ID OCC-2016-0033'' in the Search
box and click ``Search.'' Click on ``Open Docket Folder'' on the right
side of the screen. Comments and supporting materials can be viewed and
filtered by clicking on ``View all documents and comments in this
docket'' and then using the filtering tools on the left side of the
screen.
Click on the ``Help'' tab on the Regulations.gov home page
to get information on using Regulations.gov. The docket may be viewed
after the close of the comment period in the same manner as during the
comment period.
Viewing Comments Personally: You may personally inspect
and photocopy comments at the OCC, 400 7th Street SW., Washington, DC
20219. For security reasons, the OCC requires that visitors make an
appointment to inspect comments. You may do so by calling (202) 649-
6700 or, for persons who are deaf or hard of hearing, TTY, (202) 649-
5597. Upon arrival, visitors will be required to present valid
government-issued photo identification and submit to security screening
in order to inspect and photocopy comments.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Melissa Lisenbee, Attorney, Legislative and Regulatory Activities
Division, (202) 649-5490, or, for persons who are deaf or hard of
hearing, TTY, (202) 649-5597.
SUPPLEMENTARY INFORMATION:
I. Background
The Freedom of Information Act (FOIA) sets forth the process for
obtaining federal agency records, unless the records (or any portion
thereof) are protected from disclosure by one of the FOIA's nine
exemptions or by one of its three special law enforcement record
exclusions.\1\ On June 30, 2016, the FOIA Improvement Act of 2016 (the
FOIA Improvement Act or the Act) \2\ amended the FOIA to, among other
changes, require Federal agencies to make certain records
electronically available, extend the time available for a requester to
appeal an adverse determination, amend the circumstances under which an
agency can assess search and duplication fees, establish FOIA dispute
resolution procedures, and establish a new standard for the withholding
of information pursuant to a FOIA exemption.
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\1\ 5 U.S.C. 552 et seq.
\2\ Public Law 114-185 (2016).
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Additionally, under section 2222 of the Economic Growth and
Regulatory Paperwork Reduction Act of 1996 (EGRPRA),\3\ the OCC is
required to conduct a review at least once every 10 years to identify
any outdated or otherwise unnecessary regulations. The OCC completed
the last comprehensive review of its regulations under EGRPRA in 2006
and is concluding the current decennial review. As part of its current
EGRPRA review, the OCC issued a notice of proposed rulemaking on March
14, 2016, that included proposed technical amendments to the OCC's part
4 FOIA regulations. The OCC did not receive any specific comments on
the proposed FOIA amendments, and those changes will be reflected in
this rulemaking to the extent they have not been superseded by the FOIA
Improvement Act.\4\
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\3\ Public Law 104-208, 110 Stat. 3009 (1996).
\4\ 81 FR 13608 (March 14, 2016).
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Finally, the OPEN FOIA Act of 2009 (the OPEN FOIA Act),\5\ limited
Exemption 3, which applies to information specifically exempted by
statute. To be exempt under Exemption 3 following the OPEN FOIA Act,
information must be exempt pursuant to a statute that requires: (1)
That the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or establishes particular criteria
for withholding or refers to particular types of matters to be withheld
and, (2) if enacted after the date of enactment of the OPEN FOIA Act,
specifically cites to Exemption 3 of the FOIA. Previously, statutes did
not need to specifically cite to Exemption 3 of the FOIA.
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\5\ Public Law 111-83, 123 Stat. 2142, 2184 (2009).
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II. Description of the Interim Final Rule
Twelve CFR part 4, subpart B, sets forth OCC policies regarding the
availability of information under the FOIA and establishes procedures
for requesters to follow when seeking information. This interim final
rule amends 12 CFR part 4, subpart B, to implement the FOIA Improvement
Act and the OPEN FOIA Act and to make technical changes to the
regulations as a result of the OCC's EGRPRA review.
Section 4.11 Purpose and Scope
As part of the EGRPRA proposed rule, the OCC proposed to remove
Sec. 4.11(b)(4), which stated that the OCC's FOIA rules did not apply
to FOIA requests filed with the former Office of Thrift Supervision
(OTS) before July 21, 2011, because the OTS's rules would apply to
those requests instead. The OCC adopted this provision when it amended
part 4 to reflect the transfer of certain powers, authorities, rights,
and duties of the OTS to the OCC pursuant to Title III of the Dodd-
Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank
Act).\6\ There are no remaining open FOIA requests that had been
submitted to the OTS prior to its integration with the OCC. Therefore,
Sec. 4.11(b)(4) is no longer necessary and is removed by this interim
final rule.
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\6\ Public Law 111-203, 124 Stat. 1376 (2010).
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Section 4.12 Information Available Under the FOIA
Pursuant to the Act, the interim final rule amends 12 CFR 4.12 to
revise the language about the availability of records in subsection
(a), consistent with the FOIA Improvement Act; limit the deliberative
process exemption; expand the information segregation provisions;
update 12 CFR 4.12(b)(3) to be consistent with the OPEN FOIA Act; and
implement proposed clarifications from the EGRPRA review.
Section 4.12(a) currently provides that OCC records are available
to the public except for records that the FOIA exempts from disclosure.
The FOIA Improvement Act adds new language to the statute that relates
to an agency's decision to disclose information that is covered by an
exemption. This language provides for the withholding of information
pursuant to a FOIA exemption only if an agency ``reasonably foresees
that disclosure would harm an interest protected by an exemption'' or
if the disclosure is prohibited by law.\7\
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\7\ 5 U.S.C. 552(a)(8)(A)(i).
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These considerations will inform the OCC's future determinations
about whether to disclose information covered by an exemption.
Accordingly, the interim final rule removes the existing reference to
``exempt records'' in subsection (a) and replaces it with the phrase
``[e]xcept as otherwise provided by the FOIA.'' This language is broad
enough to encompass the ``reasonable foreseeability'' and the
``prohibited by law'' language added by the FOIA Improvement Act, and
it encompasses the former reference to coverage by an exemption as
well. Based on legislative history, in which the sponsors of the Act
expressed their intent to preserve the longstanding protections
afforded by Exemption 8,\8\ the OCC does not
[[Page 94242]]
anticipate that the Act or revised Sec. 4.12(a) will alter the
application of FOIA Exemption 8, which protects matters that are
``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.'' \9\
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\8\ The Senate Judiciary Committee report on the FOIA
Improvement Act states that:
Extreme care should be taken with respect to disclosure under
Exemption 8 which protects matters that are `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.' Currently,
financial regulators rely on Exemption 8, and other relevant
exemptions in Section 552(b), to protect sensitive information
received from regulated entities, or prepared in connection with the
regulation of such entities, in fulfilling their goals of ensuring
safety and soundness of the financial system, compliance with
federal consumer financial law, and promoting fair, orderly, and
efficient financial markets.
Exemption 8 was intended by Congress, and has been interpreted
by the courts, to be very broadly construed to ensure the security
of financial institutions and to safeguard the relationship between
the banks and their supervising agencies. The D.C. Circuit has gone
so far as to state that in Exemption 8 Congress has provided
``absolute protection regardless of the circumstances underlying the
regulatory agency's receipt or preparation of examination, operating
or condition reports.'' Nothing in this legislation shall be
interpreted to compromise the stability of any financial institution
or the financial system, disrupt the operation of financial markets
or undermine consumer protection efforts due to the release of
confidential information about individuals or information that a
financial institution may have, or encourage the release of
confidential information about individuals. This legislation is not
intended to lessen the protection under Exemption 8 created by
Congress and traditionally afforded by the courts.
S. Rep. No 114-4 (February 23, 2015).
\9\ 5 U.S.C. 552(b)(8).
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The interim final rule also amends the deliberative process
exemption in Sec. 4.12(b)(5) to reflect the Act's limitations on
records created 25 years or more before the date of an information
request. Previously, the deliberative process exemption protected all
intra-agency and interagency memoranda and letters not routinely
available by law to a private party in litigation, including memoranda,
reports, and other documents prepared by OCC employees and records of
deliberations and discussions at meetings of OCC employees. After the
change, the deliberative process provision as amended by the interim
final rule will exempt only those memoranda and letters created within
25 years of the date on which they were requested.
Additionally, although the OCC's rules already provide for the
separation and provision of nonexempt information, the interim final
rule clarifies that, in cases in which full disclosure is not possible,
the OCC considers whether partial disclosure of information is possible
and takes reasonable steps necessary to segregate and release nonexempt
information. This provision is consistent with current OCC practice.
The interim final rule also amends Sec. 4.12(b)(3) to reflect the
OPEN FOIA Act provision that requires that statutes enacted after the
date of the enactment of the OPEN FOIA Act must specifically cite to
Exemption 3 of the FOIA in order to qualify under Exemption 3. The OPEN
FOIA Act was enacted on October 28, 2009, so the requirement applies to
statutes enacted after that date.
Finally, the interim final rule adopts the changes to Sec. 4.12(a)
and (b) that the OCC proposed as part of its EGRPRA review. Previously,
Sec. 4.12(b)(10) exempted from disclosure any OTS information similar
to that listed in the exemptions in Sec. 4.12(b)(1) to (b)(9) to the
extent the information is in the possession of the OCC. For purposes of
clarification, we are amending the Sec. 4.12(a) disclosure standard so
that it applies to OTS records, in addition to OCC records, and
removing the resulting unnecessary exemption in paragraph (b)(10).
Section 4.14 Public Inspection in an Electronic Format
Section 4.14(a) lists the types of information the OCC makes
available for public inspection. Consistent with the Act's amendments
to 5 U.S.C. 552(a)(2), the interim final rule adds two categories of
information to Sec. 4.14(a). New Sec. 4.14(a)(11) specifies that the
OCC will make available for public inspection in an electronic format
any records, regardless of form or format, that have been released to
any person under 5 U.S.C. 552(a)(3) provided that: (1) The OCC
determines that, because of the nature of their subject matter, the
records are or are likely to become the subject of subsequent requests
for substantially the same record; or (2) the records have been
requested three or more times.
New Sec. 4.14(a)(12) states that the OCC will provide reference
materials or a guide for requesting records or information from the
OCC, including an index of all major OCC information systems, a
description of major information and record locator systems maintained
by the OCC, and a handbook for obtaining various types and categories
of public information from the OCC pursuant to FOIA and chapter 35 of
title 44.
Finally, the interim final rule makes clarifying and conforming
changes to Sec. 4.14, including amending Sec. 4.14(a) and (b) to
specify that information will be made available for public inspection
in an electronic format to implement section 2 of the Act.
Section 4.15 How To Request Records
Pursuant to the Act, the interim final rule amends Sec. 4.15,
which describes the process for requesting OCC records. Specifically,
to implement section 2 of the Act, the interim final rule amends Sec.
4.15(c)(4) to specify that if a request for information is denied, the
OCC will notify the requester of the right to seek dispute resolution
services from the OCC's FOIA Public Liaison or the Office of Government
Information Services through the processes described in new Sec.
4.15(h).
Pursuant to the Act's amendments to 5 U.S.C. 552(a)(6)(A)(i), the
interim final rule also extends the time available for administrative
appeal of a denial to release records from 35 days to 90 days. Under
new Sec. 4.15(d), requesters will have 90 days after the date of an
initial denial determination to submit a written administrative appeal
of denial of a request for records.
Additionally, the interim final rule expands Sec. 4.15(f), which
addresses the time limits for FOIA request responses and provides for
extensions in certain situations, including a 10-day extension for
unusual circumstances.\10\ Pursuant to the Act's amendments to 5 U.S.C.
552(a)(6)(A)(i), the interim final rule adds a new Sec. 4.15(f)(4)
that provides additional information and alternatives for requesters
when the OCC determines that a request will require more than a 10-day
extension to process. Under this provision, if unusual circumstances
apply to a request for records, and the OCC determines that it cannot
respond to the request within the 10-day extension, the OCC will: (1)
Notify the requester that the request cannot be processed within the
10-day extension; (2) provide the requester with an opportunity to
limit the scope of the request so that it may be processed within the
10-day period or to arrange with the OCC an alternative time frame for
processing the request or a modified request; (3) make available the
FOIA Public Liaison, who shall assist in the resolution of any disputes
between the requester and the OCC; and (4) notify the requester of the
right of the requester to seek dispute resolution services from the
Office of Government Information Services.
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\10\ 12 CFR 4.15(f)(3)(i).
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Finally, the interim final rule makes other clarifying and
conforming changes to Sec. 4.15, including amending Sec. 4.15(d)(4)
to specify that the OCC will provide notification of a denial of an
appeal ``in writing,'' rather than ``by mail.'' The OCC expects this
change will provide greater flexibility and efficiency
[[Page 94243]]
by permitting other forms of communication, such as electronic mail.
The interim final rule also amends Sec. 4.15 to provide updated
contact information for the Office of Management and Budget's (OMB)
request portal, the OCC's Chief FOIA Officer, and the Federal Deposit
Insurance Corporation.
Section 4.17 FOIA Request Fees
Section 4.17 provides information for the assessment and payment of
FOIA request fees. As stated in Sec. 4.17(b)(1), the OCC generally
charges fees to fulfill FOIA requests. However, Sec. 4.17(b)(6)
provided that the OCC will not assess search or duplication fees, as
applicable, if the OCC did not respond within the time limits set forth
in Sec. 4.15(f) and no unusual or exceptional circumstances applied.
The FOIA Improvement Act provided additional information about the
circumstances in which an agency may charge search or duplication fees
if the agency does not meet the time limits provided by the FOIA. Thus,
pursuant to the Act, the interim final rule amends Sec. 4.17(b)(6) to
update the circumstances in which the OCC is permitted to assess search
or duplication fees, even if the OCC does not respond within the Sec.
4.15(f) time limits.
For example, amended Sec. 4.17(b)(6) permits the OCC to assess
search or duplication fees if the OCC has determined ``unusual
circumstances'' (as defined in Sec. 4.15(f)(3)(i)) apply, has provided
timely written notice to the requester, and complies with the extended
time limit.\11\ The interim final rule also permits the OCC to assess
search or duplication fees if the OCC has determined that unusual
circumstances apply and more than 5,000 pages are necessary to respond
to the request. In such a situation, the OCC must provide a timely
written notice to the requester in accordance with 5 U.S.C.
552(a)(6)(B) and discuss with the requester via written mail,
electronic mail, or telephone (or make not less than three good-faith
attempts to do so) how the requester could effectively limit the scope
of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). Finally,
if a court has determined that exceptional circumstances (as defined in
5 U.S.C. 552(a)(6)(C)) apply to the processing of a request, the OCC
may assess search or duplication fees for the length of time provided
by the court order.
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\11\ Section 4.15(f)(3)(i) states that the OCC may extend the
time limits in unusual circumstances for a maximum of 10 business
days. If the OCC extends the time limits, the OCC provides written
notice to the person making the request or appeal, containing the
reason for the extension and the date on which the OCC expects to
make a determination. Unusual circumstances exist when the OCC
requires additional time to: Search for and collect the requested
records from field facilities or other buildings that are separate
from the office processing the request or appeal; search for,
collect, and appropriately examine a voluminous amount of requested
records; consult with another agency that has a substantial interest
in the determination of the request; or allow two or more components
of the OCC that have substantial interest in the determination of
the request to consult with each other. . . .''
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The interim final rule also updates the payment of fees contact
information listed in Sec. 4.17(c).
Section 4.18 How To Track a FOIA Request
The interim final rule makes a technical amendment to Sec. 4.18(b)
to provide updated contact information for the OCC's Communications
Division that requesters may use to track the progress of their
requests.
III. Effective Date/Request for Comment
The OCC is issuing the interim final rule without prior notice and
the opportunity for public comment and the 30-day delayed effective
date ordinarily prescribed by the Administrative Procedure Act
(APA).\12\ Pursuant to section 553(b)(B) of the APA, general notice and
the opportunity for public comment are not required with respect to a
rulemaking when an ``agency for good cause finds (and incorporates the
finding and a brief statement of the reasons therefor in the rule
issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' \13\ The interim
final rule's changes to 12 CFR part 4 are limited to technical changes
and those that are necessary to implement the provisions of the FOIA
Improvement Act and OPEN FOIA Act. Because the OCC is not exercising
discretion with respect to the interim final rule's substantive
revisions that implement the Act, the OCC believes the public interest
is best served by implementing the interim final rule as soon as
possible.
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\12\ 5 U.S.C. 553.
\13\ 5 U.S.C. 553(b)(B).
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In addition, the OCC believes that providing a notice and comment
period prior to issuance of the interim final rule is unnecessary
because the OCC does not expect public objection to the regulations
being promulgated, as this rule implements the substantive changes
specified in the Act and technical, non-substantive updates and
clarifications to part 4. Moreover, the OCC expects that the majority
of the changes will provide additional services and critical updates
that will assist FOIA requesters.
The APA also requires a 30-day delayed effective date, except for
(1) substantive rules that grant or recognize an exemption or relieve a
restriction; (2) interpretative rules and statements of policy; or (3)
as otherwise provided by the agency for good cause.\14\ The OCC
concludes that, because the rules recognize an exemption, the interim
final rule is exempt from the APA's delayed effective date
requirement.\15\ Additionally, the OCC finds good cause to publish the
interim final rule with an immediate effective date for the same
reasons set forth above under the discussion of section 553(b)(B) of
the APA.
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\14\ 5 U.S.C. 553(d).
\15\ 5 U.S.C. 553(d)(1).
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Pursuant to section 302(a) of the Riegle Community Development and
Regulatory Improvement Act (RCDRIA),\16\ in determining the effective
date and administrative compliance requirements for a new regulation
that imposes additional reporting, disclosure, or other requirements on
insured depository institutions (IDIs), the OCC must consider any
administrative burdens that such regulation would place on depository
institutions and the benefits of such regulation. In addition, section
302(b) of the RCDRIA requires any such new regulation to take effect on
the first day of a calendar quarter that begins on or after the date on
which the regulation is published in final form, with certain
exceptions, including for good cause. The OCC has considered the
administrative burdens that such regulations would place on
institutions and the benefits of such regulations in determining the
effective date and compliance requirements. Due to the nature of the
rule's changes to the OCC's existing FOIA regulations, the interim
final rule does not impose additional reporting, disclosure, or other
requirements on IDIs, and section 302 of the RCDRIA therefore does not
apply. Therefore, for the same reasons set forth above under the
discussion of section 553(b)(B) of the APA, the OCC finds good cause
exists under section 302 of RCDRIA to publish the interim final rule
with an immediate effective date.
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\16\ 12 U.S.C. 4802(a).
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While the OCC believes there is good cause to issue the rule
without notice and comment and with an immediate effective date, the
OCC is interested in the views of the public and requests comment on
all aspects of the interim final rule.
[[Page 94244]]
IV. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) \17\ applies only to rules for
which an agency publishes a general notice of proposed rulemaking
pursuant to 5 U.S.C. 553(b). As discussed above, consistent with
section 553(b)(B) of the APA, the agencies have determined for good
cause that general notice and opportunity for public comment is not
necessary. Accordingly, the RFA's requirements relating to initial and
final regulatory flexibility analysis do not apply.
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\17\ Public Law 96-354, Sept. 19, 1980, codified to 5 U.S.C. 601
et seq.
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V. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 \18\ states that no agency may
conduct or sponsor, nor is the respondent required to respond to, an
information collection unless it displays a currently valid OMB control
number. Because the interim final rule does not create a new, or revise
an existing, collection of information, no information collection
request submission needs to be made to the OMB.
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\18\ 44 U.S.C. 3501-3521.
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VI. OCC Unfunded Mandates Reform Act of 1995 Determination
Consistent with section 202 of the Unfunded Mandates Reform Act of
1995,\19\ before promulgating any final rule for which a general notice
of proposed rulemaking was published, the OCC prepares an economic
analysis of the final rule. As discussed above, the OCC has determined
that the publication of a general notice of proposed rulemaking was
unnecessary. Accordingly, the OCC has not prepared an economic analysis
of the joint interim final rules.
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\19\ 2 U.S.C. 1532.
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List of Subjects in 12 CFR Part 4
Administrative practice and procedure, Freedom of information,
Individuals with disabilities, Minority businesses, Organization and
functions (Government agencies), Reporting and recordkeeping
requirements, Women.
Authority and Issuance
For the reasons set forth in the preamble, the OCC hereby amends 12
CFR part 4 as set forth below.
PART 4--ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF
INFORMATION, CONTRACTING OUTREACH PROGRAM, POST-EMPLOYMENT
RESTRICTIONS FOR SENIOR EXAMINERS
0
1. The authority citation for part 4 continues to read as follows:
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1, 93a, 161, 481, 482,
484(a), 1442, 1462a, 1463, 1464, 1817(a), 1818, 1820, 1821, 1831m,
1831p-1, 1831o, 1833e, 1867, 1951 et seq., 2601 et seq., 2801 et
seq., 2901 et seq., 3101 et seq., 3401 et seq., 5321, 5412, 5414; 15
U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 U.S.C.
1204; 31 U.S.C. 5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. 3506,
3510; E.O. 12600 (3 CFR, 1987 Comp., p. 235).
Sec. 4.11 [Amended]
0
2. Section 4.11 is amended by removing paragraph (b)(4).
0
3. Section 4.12 is amended by:
0
a. Revising paragraphs (a), (b)(3), and (b)(5);
0
b. In paragraph (b)(8), adding ``and'' at the end;
0
c. In paragraph (b)(9), removing ``; and'' at the end and adding in its
place a period;
0
d. Removing paragraph (b)(10); and
0
e. Revising the first sentence of paragraph (d).
The revisions read as set forth below.
Sec. 4.12 Information available under the FOIA.
(a) General. Except as otherwise provided by the FOIA, OCC and
Office of Thrift Supervision (OTS) records are available to the public.
(b) * * *
(3) A record specifically exempted from disclosure by statute
(other than 5 U.S.C. 552b), provided that the statute requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue; establishes particular criteria for
withholding, or refers to particular types of matters to be withheld;
and, if enacted after the date of enactment of the OPEN FOIA Act of
2009, specifically cites to 5 U.S.C. 552(b)(3);
* * * * *
(5) An intra-agency or interagency memorandum or letter not
routinely available by law to a private party in litigation, including
memoranda, reports, and other documents prepared by OCC employees, and
records of deliberations and discussions at meetings of OCC employees,
provided that the deliberative process privilege shall not apply to
records created 25 years or more before the date on which the records
were requested;
* * * * *
(d) * * * If the OCC determines that full disclosure of a requested
record is not possible, the OCC considers whether partial disclosure of
information is possible and takes reasonable steps necessary to
segregate and release nonexempt information. * * *
0
4. Section 4.14 is amended by:
0
a. Revising the section heading and paragraphs (a) and (c); and
0
b. Amending paragraph (b) by removing the phrase ``and copying'', and
adding in its place ``in an electronic format''.
The revisions read as set forth below.
Sec. 4.14 Public inspection in an electronic format.
(a) Available information. Subject to the exemptions listed in
Sec. 4.12(b), the OCC makes the following information available for
public inspection in an electronic format:
(1) Any final order, agreement, or other enforceable document
issued in the adjudication of an OCC enforcement case, including a
final order published pursuant to 12 U.S.C. 1818(u);
(2) Any final opinion issued in the adjudication of an OCC
enforcement case;
(3) Any statement of general policy or interpretation of general
applicability not published in the Federal Register;
(4) Any administrative staff manual or instruction to staff that
may affect a member of the public as such;
(5) A current index identifying the information referred to in
paragraphs (a)(1) through (a)(4) of this section issued, adopted, or
promulgated after July 4, 1967;
(6) A list of available OCC publications;
(7) A list of forms available from the OCC, and specific forms and
instructions; \1\
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\1\ Some forms and instructions that national banks and Federal
savings associations use are not available from the OCC. The OCC
will provide information on where persons may obtain these forms and
instructions upon request.
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(8) Any public Community Reinvestment Act performance evaluation;
(9) Any public securities-related filing required under parts 11,
16, 194 or 197 of this chapter;
(10) Any public comment letter regarding a proposed rule;
(11) Any records, regardless of form or format, that have been
released to any person under 5 U.S.C. 552(a)(3) provided that:
(i) The OCC determines that, because of the nature of their subject
matter, the
[[Page 94245]]
records are or are likely to become the subject of subsequent requests
for substantially the same records; or
(ii) The records have been requested three or more times;
(12) Reference materials or a guide for requesting records or
information from the OCC, including an index of all major OCC
information systems, a description of major information and record
locator systems maintained by the OCC, and a handbook for obtaining
various types and categories of public information from the OCC
pursuant to FOIA and chapter 35 of title 44;
(13) The public file (as defined in 12 CFR 5.9) with respect to a
pending application described in part 5 of this chapter; and
(14) Any OTS information similar to that listed in paragraphs
(a)(1) through (a)(13) of this section, to the extent this information
is in the possession of the OCC.
* * * * *
(c) Addresses. The information described in paragraphs (a)(1)
through (14) of this section is available from the Chief FOIA Officer,
Communications Division, Office of the Comptroller of the Currency, 400
7th Street SW., Washington, DC 20219. The information described in
paragraph (a)(13) of this section in the case of both national banks
and Federal savings associations is available from the Licensing
Manager at the appropriate district office at the address listed in
Sec. 4.5(a), or in the case of national banks and Federal savings
associations supervised by the Large Bank Supervision Department, from
the Large Bank Licensing Expert, Licensing Division, Office of the
Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
0
5. Section 4.15 is amended by:
0
a. Revising paragraph (b)(1), and revising paragraph (b)(2)(i)
introductory text;
0
b. Revising paragraphs (c)(2), (c)(4), and (d)(1) and (4);
0
c. Removing ``Saturday'' in paragraph (f)(1) and adding it its place
``Saturdays'';
0
d. Adding paragraph (f)(4);
0
e. Republishing paragraph (g); and
0
f. Adding paragraph (h).
The additions and revisions read as set forth below.
Sec. 4.15 How to request records.
* * * * *
(b) * * * (1) General. Except as provided in paragraph (b)(2) of
this section, a person requesting a record or filing an administrative
appeal must submit the request or appeal:
(i) Through the OCC's FOIA Web portal at https://foia-pal.occ.gov/palMain.aspx;
(ii) Through the consolidated online request portal maintained by
the Office of Management and Budget pursuant to 5 U.S.C. 552(m)(1); or
(iii) Under this section to the Chief FOIA Officer, Communications
Division, Office of the Comptroller of the Currency, 400 7th Street
SW., Washington, DC 20219.
(2) Exceptions--(i) Records at the Federal Deposit Insurance
Corporation. A person requesting any of the following records, other
than blank forms (see Sec. 4.14(a)(7)), must submit the request to the
FDIC, Legal Division, FOIA/PA Group, 550-17th Street NW., Washington,
DC 20429, or fax to (703) 562-2797:
* * * * *
(c) * * *
(2) Initial determination. The Comptroller or the Comptroller's
delegate initially determines whether to grant a request for OCC
records and notifies the requester, in accordance with the time limits
set forth in paragraph (f) of this section, of the determination and
the reasons therefore and of the right to seek assistance from the
OCC's FOIA Public Liaison.
* * * * *
(4) If request is denied. If the OCC denies a request for records,
in whole or in part, the OCC will notify the requester in writing. The
notification is dated and contains a brief statement of the reasons for
the denial, sets forth the name and title or position of the official
making the decision, advises the requester of the right to seek dispute
resolution services from the OCC's FOIA Public Liaison or the Office of
Government Information Services, and advises the requester of the right
to appeal to the Comptroller of the Currency in accordance with
paragraph (d) of this section.
(d) Administrative appeal of a denial--(1) Procedure. A requester
must submit an administrative appeal of denial of a request for records
in writing within 90 days after the date of the initial determination.
The appeal must include the circumstances and arguments supporting
disclosure of the requested records.
* * * * *
(4) If appeal is denied. If the OCC denies an appeal, in whole or
in part, the OCC notifies the requester in writing. The notification
contains a brief statement of the reasons for the denial, sets forth
the name and title or position of the official making the decision, and
advises the requester of the right to judicial review of the denial
under 5 U.S.C. 552(a)(4)(B).
* * * * *
(f) * * *
(4) Requests that require more than a 10-day extension to process.
If the OCC determines unusual circumstances apply to a request for
records, and the OCC determines it cannot respond to the request within
the 10-day extension set forth in paragraph (f)(3)(i) of this section,
the OCC will:
(i) Notify the requester that the request cannot be processed
within the time limit set forth in paragraph (f)(3)(i) of this section;
(ii) Provide the requester with an opportunity to limit the scope
of the request so that it may be processed within that 10-day period or
to arrange with the OCC an alternative time frame for processing the
request or a modified request;
(iii) Make available the FOIA Public Liaison, who shall assist in
the resolution of any disputes between the requester and the OCC; and
(iv) Notify the requester of the right of the requester to seek
dispute resolution services from the Office of Government Information
Services.
(g) Date of receipt of request or appeal. The date of receipt of a
request for records or an appeal is the date that Disclosure Services,
Communications Division receives a request that satisfies the
requirements of paragraph (c)(1) or (d)(1) of this section, except as
provided in Sec. 4.17(d).
(h) Dispute resolution services. Requesters with concerns about the
handling of their FOIA requests may contact the FOIA Public Liaison or
the Office of Government Information Services for dispute resolution
services.
(1) To apply for dispute resolution assistance from the FOIA Public
Liaison, requesters should submit a written request to the FOIA Public
Liaison, Communications Division, Office of the Comptroller of the
Currency, 400 7th Street SW., Washington, DC 20219.
(2) For dispute resolution services through the Office of
Government Services, requesters should contact the Office of Government
Services as set forth at 36 CFR 1250.32.
0
6. Section 4.17 is amended by:
0
a. Revising paragraph (b)(6); and
0
b. Amending paragraph (c)(1) by removing the phrase ``Communications
Division'', and adding in its place the phrase ``Financial Management,
Accounts Receivable''.
The revisions read as set forth below.
Sec. 4.17 FOIA request fees.
* * * * *
[[Page 94246]]
(b) * * *
(6) No fee if the time limit passes and the OCC has not responded
to the request. The OCC will not assess search or duplication fees, as
applicable, if it fails to respond to a requester's FOIA request within
the time limits specified under 5 U.S.C. 552(a)(6) and 12 CFR 4.15(f),
except as follows:
(i) Unusual circumstances--(A) General. If the OCC has determined
that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and
Sec. 4.15(f)(3)(i)) apply and the OCC provides timely written notice
to the requester in accordance with 5 U.S.C. 552(a)(6)(B), the OCC may
assess search or duplication fees, as applicable, for an additional 10
days. If the OCC fails to comply with the extended time limit, the OCC
will not assess any search or duplication fees, as applicable.
(B) Voluminous Requests. Notwithstanding paragraph (b)(6)(i)(A) of
this section, if the OCC has determined that unusual circumstances (as
defined in 5 U.S.C. 552(a)(6)(B) and Sec. 4.15(f)(3)(i)) apply and
more than 5,000 pages are necessary to respond to the request, the OCC
may assess search or duplication fees, as appropriate, if the OCC
provides a timely written notice to the requester in accordance with 5
U.S.C. 552(a)(6)(B) and discusses with the requester via written mail,
electronic mail, or telephone (or makes not less than three good-faith
attempts to do so) how the requester could effectively limit the scope
of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).
(ii) In exceptional circumstances. If a court has determined that
exceptional circumstances (as defined in 5 U.S.C. 552(a)(6)(C)) apply
to the processing of a request, the OCC may assess search or
duplication fees, as applicable, for the length of time provided by the
court order.
* * * * *
Sec. 4.18 [Amended]
0
7. Section 4.18 is amended by:
0
a. In paragraph (a), removing the word ``Department'' and adding in its
place the word ``Division'', wherever it appears; and
0
b. In paragraph (b), removing the phrase ``Disclosure Officer'', and
adding in its place the phrase ``Chief FOIA Officer''.
Dated: December 14, 2016.
Thomas J. Curry,
Comptroller of the Currency.
[FR Doc. 2016-30725 Filed 12-22-16; 8:45 am]
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