[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Proposed Rules]
[Pages 7436-7444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4341]



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FEDERAL RESERVE SYSTEM

12 CFR Part 261

[Docket No.R-0917]


Rules Regarding Availability of Information

AGENCY: Board of Governors of the Federal Reserve System.

ACTION: Proposed rule.

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SUMMARY: The Board of Governors of the Federal Reserve System (Board) 
is proposing technical amendments to its Rules Regarding Availability 
of Information (Information Rules). The Board's review of the 
Information Rules has been conducted in accordance with section 303 of 
the Riegle Community Development and Regulatory Improvement Act of 
1994. The proposed amendments clarify certain provisions of the Rules 
and simplify the processing of requests for access to information in 
certain circumstances. More specifically, the Board's proposed changes 
would conform the language of 

[[Page 7437]]
the Rules to changes in the law with which the Board is in compliance; 
expand delegations of authority to simplify and expedite the Board's 
responses to requests for access to information submitted by law 
enforcement authorities; expand the delegated authority of the General 
Counsel by including authority to determine requests for permission to 
use any confidential information of the Board in litigation and pre-
litigation investigations; clarify provisions of Subpart B relating to 
requests for information under the Freedom of Information Act (FOIA), 
and clarify or simplify various other provisions of the Rules as set 
forth in Supplementary Information.

DATES: Comments should be received by March 29, 1996.

ADDRESSES: Comments should refer to Docket No. R-0917, and be mailed to 
Mr. William W. Wiles, Secretary, Board of Governors of the Federal 
Reserve System, 20th Street and Constitution Avenue, N.W., Washington, 
DC 20551. Comments may also be delivered to Room B-2222 of the Eccles 
Building between 8:45 a.m. and 5:15 p.m. weekdays, or to the guard 
station in the Eccles Building courtyard between Constitution Avenue 
and C Street at any time. Comments may be inspected in Room MP-500 of 
the Martin Building between 9:00 a.m. and 5:00 p.m weekdays, except as 
provided in the Board's Rules Regarding Availability of Information.

FOR FURTHER INFORMATION CONTACT: Karen A. Appelbaum, Staff Attorney 
(202) 452-3389 or Stephen L. Siciliano, Special Assistant to the 
General Counsel for Administrative Law (202) 452-3920, Legal Division, 
Board of Governors of the Federal Reserve System, Washington, D. C. 
20551. For users of Telecommunication Device for the Deaf (TDD) only, 
please contact Dorothea Thompson (202) 452-3544.

SUPPLEMENTARY INFORMATION: The Board is proposing changes in its 
Information Rules, 12 CFR part 261. In compliance with section 303 of 
the Riegle Community Development and Regulatory Improvement Act of 
1994, these changes are designed to streamline and improve the 
efficiency of the Information Rules. The revisions clarify portions of 
the Information Rules, enhance the delegated authority of the Director 
of the Division of Banking Supervision and Regulation, the Director of 
the Division of Consumer and Community Affairs, and the Federal Reserve 
Banks in order to simplify the disclosure of confidential information 
for law enforcement and related purposes, enhance the authority of the 
General Counsel to act on requests for permission to use any 
confidential information of the Board in litigation, conform the Rules 
to changes in the law with which the Board is already in compliance, 
clarify or simplify provisions regarding the processing of Freedom of 
Information Act requests, and generally facilitate the Board's efforts 
to cooperate with law enforcement investigations. These changes would 
not alter the Secretary's authority under the Freedom of Information 
Act where litigants choose to invoke that authority.
    The Board proposes to amend Sec. 261.1(a) by the addition of 
statutory references and other language to clarify that these Rules 
authorize the disclosure or production of information in all situations 
covered by these Rules in which such disclosure or production is 
necessary or appropriate in carrying out any of the Board's statutory 
responsibilities in accordance with the procedures and standards set 
forth in these Rules. The Board has determined that disclosures of 
information pursuant to these Rules is authorized by law.
    Section 261.13 presently authorizes the General Counsel to approve 
or deny requests for permission to obtain and use confidential 
supervisory information of the Board in litigation. The Board proposes 
to amend Sec. 261.13 by expanding its scope to cover all confidential 
information of the Board, including but not limited to confidential 
supervisory information. When Sec. 261.13 was adopted in its present 
form, the Board had virtually no experience with litigation-related 
demands for confidential information that is not supervisory, but such 
demands have increased in recent years. In addition, the list of 
factors to be considered by the General Counsel is expanded. The 
expanded list incorporates the factors relied upon by the court in In 
Re: Subpoena, 967 F.2d 630 (D.C. Cir. 1992), with regard to requests 
for confidential supervisory information. It continues to be the 
Board's intention that persons seeking confidential information of the 
Board for use in litigation be required to exhaust administrative 
remedies under Sec. 261.13 before seeking judicial process. See United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    The Board also proposes to expand the delegated authority of 
Federal Reserve Banks and of certain Board officers and their designees 
in order to simplify and expedite the transfer of information to law 
enforcement authorities in accordance with law.
    Finally, as noted below, the Board proposes to amend the 
Information Rules to take account of section 112 of the Federal Deposit 
Insurance Corporation Improvement Act of 1991 (FDICIA), sections 913 
and 931 of the Financial Institutions Reform, Recovery, and Enforcement 
Act of 1989 (FIRREA), and section 2547 of Title XXV of the 
Comprehensive Thrift and Bank Fraud Prosecution and Taxpayer Recovery 
Act of 1990 (Bank Fraud Act).1

    \1\  The Board's Rules have been implemented in a manner 
consistent with these and other changes described below.
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    Section 913 of FIRREA and section 2547 of the Bank Fraud Act 
(codified at 12 U.S.C. 1818(u)) require the Board to ``publish and make 
available to the public'' final cease and desist, removal, prohibition, 
and civil money penalty enforcement orders, including any modifications 
or terminations thereof, supervisory written agreements, and certain 
other enforceable written actions. Such matters come under the 
definition of ``confidential supervisory information'', the disclosure 
of which is restricted under language currently in the Board's 
Information Rules. See 12 CFR 261.2(b) and 12 CFR 261.11.
    Section 931 of FIRREA (codified at 12 U.S.C. 1817(a)) requires that 
any insured depository institution that uses an independent auditor (or 
that used one in the two years prior to the enactment of FIRREA) 
transmit to such auditor a copy of its most recent examination report, 
as well as any supervisory memorandum of understanding with the 
depository institution, any written agreement between the institution 
and a Federal or State banking agency, and any report of an enforcement 
action against the institution or any institution-affiliated party. 
This provision applies only to insured depository institutions, that 
is, to banks and savings associations the deposits of which are insured 
by the Federal Deposit Insurance Corporation pursuant to the Federal 
Deposit Insurance Act. 12 U.S.C. 1813(c)(2) and 1817(a)(8).
    With respect to fiscal years beginning after December 31, 1992, 
Section 112 of FDICIA (codified at 12 U.S.C. 1831m) requires that the 
financial statements of each insured depository institution be audited 
annually by an independent public accountant. Pursuant to this section, 
the insured depository institution must transmit to the independent 
public accountant retained to perform the institution's audit the most 
recent examination report of the institution and any supervisory 
memorandum of understanding or written agreement between the 

[[Page 7438]]
institution and its Federal or state regulators, if such memorandum of 
understanding or agreement is in effect during the period covered by 
the audit. The institution must also provide its outside auditor with a 
report of supervisory actions initiated and civil money penalties 
assessed by the Board during the period covered by the audit.
    To conform to these provisions, the Board proposes to amend the 
definition of ``confidential supervisory information'' in 12 CFR 
261.2(b) to exclude those matters that must be made available to the 
public under 12 U.S.C. 1818(u), as amended. The proposal would also 
amend Sec. 261.11 specifically to require insured depository 
institutions to disclose confidential supervisory information to their 
independent auditors in accordance with 12 U.S.C. 1817(a)(8) and 12 
U.S.C. 1831m (i.e., by providing copies),2 but to continue to 
prohibit the auditor from disclosing such information to any third 
party, or otherwise disclosing in whole or in part any portions of 
reports of examination and inspection, without prior written approval 
of the Board or its General Counsel acting pursuant to delegated 
authority. Bank holding companies, which are not insured depository 
institutions under 12 U.S.C. 1813(c)(2), would be authorized but not 
required to provide copies of reports of examination and inspection to 
their independent auditors in similar circumstances, and subject to the 
same limitations, as banks. The Board intends that all reports of 
examination and inspection be subject to this provision, not merely 
those that address only the financial soundness of the institution. The 
Board intends further that institutions regulated by the Board but not 
subject to 12 U.S.C. 1817(a)(8) be able to share examination and 
inspection reports of all kinds with their auditors as appropriate. 
This would include, for example, trust company, consumer compliance, 
and automated data processing reports.

    \2\  The text of the present Information Rules permits 
disclosure of such information to auditors only on bank premises.
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    Additional specific amendments are:
    1. An amendment to Sec. 261.1(a) to clarify the authority under 
which the Information Rules are issued. The Federal Register document 
that announced the present Information Rules erroneously omitted a 
reference to 12 U.S.C. 1844, although this reference was included under 
``Authority'' at the end of the index that was published with the 
Rules. 53 FR 20815, June 7, 1988. This omission is corrected, and 
additional statutory references are added to clarify that the 
Information Rules address the management and disclosure of information 
pursuant to the Board's supervisory, regulatory, and other statutory 
responsibilities, in addition to its responsibilities under the Freedom 
of Information Act;
    2. An addition to Sec. 261.2 to define the term exempt information. 
This new definition is pertinent to a proposed amendment to section 
261.13, described below, that expands the scope of the General 
Counsel's delegated authority regarding litigation requests and 
subpoenas. Under this amendment, the General Counsel's delegated 
authority to act on all litigation-related requests and subpoenas would 
extend to all confidential information of the Board (i.e., exempt 
information) rather than only to confidential information that is 
supervisory in nature;
    3. Additions to Sec. 261.3(c) clarifying that the Secretary of the 
Board is the Board's agent for service of all process, and that the 
Board will not accept process on behalf of employees in connection with 
purely private matters except as provided by applicable law;
    4. An amendment to Sec. 261.3(d) to clarify that authority 
delegated to the General Counsel and other officers of the Board may be 
subdelegated;
    5. An amendment to Sec. 261.6(a)(1) to include the public section 
of Community Reinvestment Act examination reports among the types of 
records made available to the public upon request;
    6. A revision to Sec. 261.9(a)(1) clarifying that a request made 
under the Freedom of Information Act may not be combined with any other 
request to the Board except a request under section 261a.3(a) and 
261.13;
    7. An amendment to Sec. 261.9(a)(1)(ii) clarifying that if a 
request is made in connection with on-going litigation, the requester 
may include a statement indicating whether or not he or she will seek 
discretionary release of exempt information if the request is denied. 
If so, the requester shall also address the factors set forth in 
Sec. 261.13(b), and the Freedom of Information Office will promptly 
forward any denial or partially denial to the General Counsel for 
processing under Sec. 261.13.
    8. A revision to Sec. 261.9(b)(1) clarifying that the time period 
for a Freedom of Information response begins when the request is 
received in the Board's Freedom of Information Office;
    9. A revision to Sec. 261.10(a) removing the language that permits 
the Secretary of the Board to adjust Freedom of Information Act (FOIA) 
fee schedules; 3

    \3\ The FOIA now provides that the schedules may be changed only 
by rule; and the Federal Reserve Act forbids the Board to delegate 
any of its rulemaking authority. 12 U.S.C. 248(k).
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    10. Amendments to Sec. 261.10(g) raising to $100 the cost threshold 
at which the Secretary must notify a Freedom of Information Act 
requester of the estimated fee for filling his or her request; and to 
Sec. 261.10(h)(2), to clarify that this section applies to requests for 
reduction of fees as well as to requests for waiver of fees;
    11. Amendments to Sec. 261.11(b) to permit the Federal Reserve 
Banks to make exempt information available to outside counsel retained 
or employed by a Federal Reserve Bank in appropriate circumstances and 
to clarify that a Federal Reserve Bank may make available to a bank 
holding company any confidential supervisory information of the Board 
relating to a subsidiary of the bank holding company.
    12. Amendments to Sec. 261.11(c) to clarify that authority may be 
exercised either upon request or at the initiative of the delegee; to 
substitute the Office of Thrift Supervision for the Federal Home Loan 
Bank Board as an agency that may receive confidential supervisory 
information of the Board from the Director of the Division of Banking 
Supervision and Regulation or a Federal Reserve Bank; and to add the 
National Credit Union Administration to the list of agencies that may 
receive information. Further amendments to this section would delegate 
authority to the Director to provide such information to the Securities 
and Exchange Commission pursuant to section 17(c)(3) of the Securities 
Exchange Act of 1934, 15 U.S.C. 78q(c)(3) (reports regarding transfer 
agents, clearing agencies, and municipal securities dealers), 4 
and section 321 of the Trust Indenture Act of 1939, 15 U.S.C. 77uuu(b) 
(trustees and prospective trustees); to the Department of the Treasury, 
the Securities and Exchange Commission and other appropriate 
authorities pursuant to section 15C(d)(2) of the Securities Exchange 
Act of 1934, 15 U.S.C. 780-5(d)(2) (government securities broker and 
dealer activities of State member banks); to the Department of the 
Treasury pursuant to section 128 of the Bank Secrecy Act, 12 U.S.C. 
1951 et seq. and 31 U.S.C., Chapter 53; to the Department of Labor, 
pursuant to section 3004(b) of the Employee Retirement Income 
Securities Act, 29 

[[Page 7439]]
U.S.C. 1204; 5 to any Federal Home Loan Bank pursuant to section 
22 of the Federal Home Loan Act, 12 U.S.C. 1442, as amended by FIRREA 
(member financial information); 6 and to any other Federal agency 
or instrumentality in circumstances in which the General Counsel has 
determined that disclosure is required by statute. Many of the above 
authorities concern disclosures that the Board is either required or 
strongly encouraged to make by statute but that, with few exceptions, 
have not heretofore been explicitly addressed in the Board's 
Information Rules. As a practical matter, such omissions have 
effectively vested disclosure authority in the General Counsel;

    \4\  This conforms to a provision in the Delegation Rules, 12 
CFR 265.7(f)(8).
    \5\  The Director has already been delegated authority to notify 
the Department of violations of ERISA in the Delegation Rules, 12 
CFR 265.7(e)(3), but repetition of that delegation in the 
Information Rules is appropriate in the interest of clarity.
    \6\  Disclosure of information to Federal Home Loan Banks under 
this provision is presently the subject of a written agreement among 
those Banks, the Federal Housing Finance Board, and the member 
agencies of the Federal Financial Institutions Examination Council.
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    13. Amending Sec. 261.11(c) to specify the authority of the 
Director of the Division of Consumer and Community Affairs to provide 
exempt information to appropriate federal and state financial 
institution supervisory agencies;
    14. Additions to Sec. 261.12: (1) Authorizing any Federal Reserve 
Bank, the Director of the Division of Banking Supervision and 
Regulation and the Director of the Division of Consumer and Community 
Affairs to refer possible violations of criminal laws and suspicious 
activities to the Department of Justice and other appropriate Federal 
law enforcement authorities, and incident to any such referral, to 
provide the appropriate authority with confidential information of the 
Board related to any such matter; 7 (2) authorizing Board and 
Federal Reserve Bank staff to provide supervisory information to 
General Accounting Office staff consistent with applicable law; (3) 
delegating to the Director of the Division of Consumer and Community 
Affairs, authority to refer to consumer law violations to appropriate 
law enforcement authorities; (4) authorizing Board and Federal Reserve 
Bank staff to make confidential supervisory information available to 
the Internal Revenue Service consistent with written policies of the 
Board regarding confirmation of charge-offs declared for tax purposes.

    \7\ The power of Reserve Banks to refer violations of criminal 
law is a well established policy of the Board that has not 
heretofore been memorialized in the Information Rules. Accordingly, 
it has been necessary in some cases for Reserve Banks to seek 
approval by the Board's General Counsel, pursuant to delegated 
authority, to provide information to a United States Attorney in 
addition to what is provided on the referral form. The Board 
believes that simplification of this process under the proposed 
amendment would be beneficial. The Director of the Board's Division 
of Banking Supervision and Regulation also is delegated authority to 
make referrals concerning violations of criminal laws. Federal 
Reserve Banks will be required under a Board policy to consult with 
Board staff with regard to such referrals.
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    15. An amendment to Sec. 261.12(a) to clarify that the General 
Counsel may act either upon request or upon his or her own initiative;
    16. An amendment to Sec. 261.12(c)(4) requiring that a person who 
requests information must identify the source of his or her legal 
authority to make the request and to receive the requested information.
    17. Amendments to Sec. 261.13, which governs the disclosure of 
information to persons not covered by Secs. 261.11 and 261.12, to 
specify that the section applies to the disclosure of all confidential 
information of the Board (i.e., to ``exempt information''), not merely 
to confidential supervisory information. The amendments also expand the 
factors considered by the Board in deciding a request made under this 
section, including consideration of the factors set forth in In Re: 
Subpoena, 967 F.2d 630 (D.C. Cir. 1992), where applicable. The 
amendments state in greater detail the standards applicable to 
determinations by the General Counsel by adding standards regarding the 
cost of producing documents and/or testimony;
    18. An additional amendment to Sec. 261.13 to state that requests 
will generally be handled in the order in which they are received. 
Requesters who desire an expedited response to a request for 
information must explain why the request should be expedited and 
address the possible unfairness to other requesters whose pending 
requests may be delayed;
    19. An amendment to Sec. 261.13 stating that following receipt of a 
request for exempt information, the Board will generally notify the 
supervised financial institution that is the subject of the requested 
information.
    20. A clarification that the requirement of notice to submitters of 
confidential information provided for in Sec. 261.17(a), applies only 
in the case of requests made pursuant to the FOIA; 8

    \8\ This clarification makes it clear that Sec. 261.17 is 
intended only to address matters of the kind covered by Executive 
Order 12600, June 23, 1987. This clarification does not preclude the 
Board or its staff from giving notice to submitters in other 
situations such as, for example, where documents obtained pursuant 
to a confidentiality commitment are subpoenaed. The Board exercises 
its discretion in such cases consistent with applicable law. The 
Board does not disclose its receipt of federal grand jury subpoenas, 
however, except in accordance with law following consultation with 
appropriate law enforcement authorities.
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    21. A revision of Sec. 261.17(b)(3) to clarify that a submitter may 
submit written objections to the disclosure of information by the Board 
within ten days of oral notice from the Secretary or his or her 
designee, or if no oral notice is given, within ten days of written 
notice from the Secretary or his or her designee;

Regulatory Flexibility Act Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the Board certifies that the proposed amendments 
will not have a significant economic impact on a substantial number of 
small entities. These amendments simplify some of the procedures 
regarding release of information and require disclosure of information 
in certain instances in accordance with law. The requirements to 
disclose should not have a significant economic impact on a substantial 
number of small entities.

Paperwork Reduction Act Analysis

    In accordance with section 3506 of the Paperwork Reduction Act of 
1995 (44 U.S.C. Ch. 35; 5 CFR 1320 Appendix A.1), the Board reviewed 
the proposed rule under the authority delegated to the Board by the 
Office of Management and Budget. Comments on the collections of 
information in this proposed regulation should be sent to the Office of 
Management and Budget, Paperwork Reduction Act Project (7100-0281), 
Washington, DC 20503, with copies of such comments to be sent to Mary 
McLaughlin, Federal Reserve Board Clearance Officer, Division of 
Research and Statistics, Mail Stop 97, Board of Governors of the 
Federal Reserve System, Washington, DC 20551.
    The collection of information requirements in this proposed 
regulation are found in 261.9, 261.10 and 261.13. The respondents may 
include small for-profit institutions. The Federal Reserve may not 
conduct or sponsor, and an organization is not required to respond to 
this information collection request unless it displays a currently 
valid OMB control number. The OMB control number is 7100-0281.
    It is estimated that there will be 5,000 annual respondents for 
requests made under 12 CFR 261.9, including approximately 100 that 
include requests made under 12 CFR 261.10 to waive fees. The burden per 
response for these requests ranges from 15 to 60 minutes, with an 
average of 30 minutes. The estimated total annual burden is 2,500 

[[Page 7440]]
hours. Based on an hourly cost of $20, the annual cost to the public is 
estimated to be $50,000. Generally, requests made under 12 CFR 261.9 
and 12 CFR 261.10 are not exempt from disclosure under the Freedom of 
Information Act.
    It is estimated that there will be 30 annual respondents for 
requests made under 12 CFR 261.13 and a total of 60 hours of annual 
burden. The estimated average annual burden per respondent for requests 
made under 12 CFR 261.13 is 2 hours. Based on an hourly cost of $75, 
the annual cost to the public is estimated to be $4500. The requests 
made under 12 CFR 261.13 may be exempt from disclosure under the 
Freedom of Information Act pursuant to exemption (b)(4), 5 U.S.C. 
552(b)(4).
    Comments are invited on (a) whether the proposed collection of 
information is necessary for the proper performance of the Federal 
Reserve's functions; including whether the information has practical 
utility; (b) the accuracy of the Federal Reserve's estimate of the 
burden of the proposed information collection, including the cost of 
compliance; (c) ways to enhance the quality, utility, and clarity of 
the information to be collected; and (d) ways to minimize the burden of 
information collection on respondents, including through the use of 
automated collection techniques or other forms of information 
technology.

List of Subjects in 12 CFR Part 261

    Confidential business information, Federal Reserve System, Freedom 
of information.

PART 261--RULES REGARDING AVAILABILITY OF INFORMATION

    1. The authority citation for Part 261 is revised to read as 
follows:

    Authority: 5 U.S.C. 552; 12 U.S.C. 248(i) and (k), 321 et seq., 
611 et seq., 1442, 1817(a)(2)(A), 1817(a)(8), 1818(u) and (v), 
1821(o), 1821(t), 1830, 1844, 1951 et seq., 2601, 2801 et seq., 2901 
et seq., 3101 et seq, 3401 et seq.; 15 U.S.C. 77uuu(b), 78q(c)(3); 
29 U.S.C. 1204; 31 U.S.C. 5301 et seq.; 42 U.S.C. 3601; 44 U.S.C. 
3510.

    2. In Sec. 261.1, paragraph (a) is revised to read as follows:


Sec. 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 U.S.C. 552; Sections 9, 11, and 25A of the Federal 
Reserve Act, 12 U.S.C. 248(i) and (k), 321 et seq., (including section 
326), 611 et seq.; Section 22 of the Federal Home Loan Bank Act, 1442; 
the Federal Deposit Insurance Act, 1817(a)(2)(A), 1817(a)(8), 1818(u) 
and (v), 1821(o); section 5 of the Bank Holding Company Act, 1844; the 
Bank Secrecy Act, 1951 et seq. and Chapter 53 of Title 31; the Home 
Mortgage Disclosure Act, 2801 et seq.; the Community Reinvestment Act, 
2901 et seq.; the International Banking Act, 3101 et seq.; the Right to 
Financial Privacy Act, 3401 et seq.; the Securities and Exchange Act, 
15 U.S.C. 77uuu(b), 78q(c)(3); the Employee Retirement Income Security 
Act, 29 U.S.C. 1204; the Money Laundering Suppression Act, 31 U.S.C. 
5301, the Fair Housing Act, 42 U.S.C. 3601; the Paperwork Reduction 
Act, 44 U.S.C. 3510; and any other applicable law that establishes a 
basis for the exercise of governmental authority by the Board.
    (2) Accordingly, this part authorizes the Board or its delegees to 
disclose confidential 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 statutory 
authority. The Board has determined that such disclosures are 
authorized by law. In addition, the Board has 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 the information or in response to a valid order of a court 
of competent jurisdiction or of a duly constituted administrative 
tribunal.
* * * * *
    3. Section 261.2 is amended as follows:
    a. Paragraphs (b) through (g) are redesignated as paragraphs (c) 
through (h), respectively;
    b. A new paragraph (b) is added;
    c. Newly designated paragraph (c) is revised.
    The addition and revision read as follows:


Sec. 261.2  Definitions.

* * * * *
    (b) Exempt information means information that is exempt from 
disclosure under Sec. 261.8.
    (c)(1) Confidential supervisory information means 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 them, information 
gathered by the Board in the course of any investigation, 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, as amended, the Bank 
Holding Company Act of 1956, as amended, the Federal Reserve Act of 
1913, as amended, the International Banking Act of 1978, as amended, 
and the International Lending Supervision Act of 1983, as amended, 
except:
    (i) 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 section 913 of 
the Financial Institutions Reform, Recovery, and Enforcement Act, and 
section 2547 of the Comprehensive Thrift and Bank Fraud Prosecution and 
Taxpayer Recovery Act, codified at 12 U.S.C. 1818(u), or other 
applicable law, including the record of litigated proceedings; and
    (ii) The public section of Community Reinvestment Act examination 
reports, 12 U.S.C. 2906(b).
    (2) Confidential supervisory information may consist of 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 regulated financial 
institution.
* * * * *
    4. Section 261.3 is amended by revising paragraphs (b), (c), and 
(d) to read as follows:


Sec. 261.3  Custodian of records; certification; service; alternative 
authority.

* * * * *
    (b) Certification of record; Secretary of the Board. The Secretary, 
or his or her designee, may certify the authenticity of any record of 
the Board, or of 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 records of 
the Board or making any claim against the Board, shall be addressed to 
and served upon the Secretary of the Board at the Board's offices in 
Washington, D.C. 20551. 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 General Counsel or by the 
Director of any Division may be done by any employee who has been duly 
designated for this purpose by the General Counsel or by the 
appropriate Director.
    5. Section 261.6 is amended by redesignating paragraphs (a)(4) and 
(a)(5) as paragraphs (a)(5) and (a)(6), 

[[Page 7441]]
respectively; and by adding a new paragraph (a)(4) to read as follows:


Sec. 261.6  Records available to public upon request.

    (a) * * *
    (4) The public section of Community Reinvestment Act examination 
reports;
* * * * *
    6. Section 261.9 is amended by revising paragraphs (a)(1) 
introductory text, (a)(1)(ii), and (b)(1) to read as follows:


Sec. 261.9  Procedures for making requests for identifiable records; 
processing of requests; review of denial of request; time extensions.

    (a) * * * (1) Contents of request. A request for identifiable 
records shall reasonably describe the records to which access is sought 
in a way that enables the Board's staff to identify and produce the 
records with reasonable effort and without unduly burdening or 
disrupting any of the Board's operations. The request shall be 
submitted in writing to the Secretary of the Board, and the envelope 
clearly marked ``Freedom of Information Act Request.'' A request may 
not be combined with any other request to the Board except for a 
request under Sec. 261a.3(a) of this chapter (Rules Regarding Access to 
And Review of Personal Information in Systems of Records) and a request 
made under Sec. 261.13(b) as described in paragraph (a)(1)(ii) of this 
section. The request shall contain the following information:
* * * * *
    (ii) If the request is being made in connection with on-going 
litigation, a statement indicating whether or not the requester will 
seek discretionary release of exempt information from the General 
Counsel in the event the request to the Secretary under this section is 
denied. A requester who intends to make such a request to the General 
Counsel may also address the factors set forth in Sec. 261.13(b); and 
in the event of a denial by the Secretary, the Freedom of Information 
Office will promptly forward the request and denial directly to the 
Board's General Counsel for consideration under Sec. 261.13;
* * * * *
    (b) Procedures for responding to requests--(1) Time limits. In 
response to any request that satisfies paragraph (a) of this section, 
the Board shall, if necessary, cause an appropriate search to be 
conducted of records of the Board in existence on the date of receipt 
of the request, and shall determine within ten working days of receipt 
of the request whether to comply with the request, unless the running 
of such time is suspended for payment of fees pursuant to 
Sec. 261.10(g)(3), or such period is extended, pursuant to paragraph 
(e) of this section or Sec. 261.7. 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 
Board's Freedom of Information Office actually receives the request.
* * * * *
    7. Section 261.10 is amended by revising paragraphs (a), (g)(2), 
and (h)(2) introductory text, and by adding a new paragraph (h)(5) to 
read as follows:


Sec. 261.10  Fee schedules; waiver of fees.

    (a) Fee schedules. Records of the Board available for public 
inspection and copying are subject to a written schedule of fees for 
search, review and duplication. (See Appendix A to this section for 
schedule of fees.) The fees set forth in the schedule of fees reflect 
the full allowable direct costs of search, duplication, and review.
* * * * *
    (g) * * *
    (2) Advance notification of fees. If the Secretary estimates that 
charges are likely to exceed $100, the Secretary shall notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance his or her willingness to pay fees as high as 
those anticipated. Upon receipt of such notice, the requester may 
confer with the Secretary as to the possibility of reformulating the 
request in order to lower the costs.
* * * * *
    (h) * * *
    (2) * * * The Secretary shall normally deny a request for a waiver 
or reduction of fees that does not include:
* * * * *
    (5) Effect of requests for waivers. The Secretary shall make a 
determination on the request for a waiver or reduction of fees and 
shall notify the requestor accordingly. A denial may be appealed to the 
Board in accordance with Sec. 261.9(d)(1). If a waiver is requested and 
the requester has not indicated in writing that he or she will pay the 
applicable fees if the waiver request is denied, the request for 
information shall be deemed not to have been received until a 
determination has been made on the request for a waiver or reduction.
* * * * *
    8. Section 261.11 is amended by revising the section heading, 
paragraphs (a), (b), (c), (e), and (g) to read as follows:


Sec. 261.11  Exempt information made available to supervised financial 
institutions and financial institution supervisory agencies.

    (a) Disclosure of exempt information to supervised financial 
institutions. Exempt information, including confidential supervisory 
information, concerning a supervised bank or bank holding company 
(including subsidiaries), a U.S. branch or agency of a foreign bank, or 
any 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 and by Federal Reserve Banks--(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. The appropriate Federal Reserve 
Bank may also make such information available to a parent bank holding 
company when such information relates to any subsidiary of the parent 
bank holding company.
    (2) Legal counsel. (i) Any supervised financial institution 
lawfully in possession of confidential supervisory information of the 
Board pursuant to this section, which information relates to the 
affairs of the supervised financial institution, may disclose such 
information, or portions thereof, to any legal counsel employed or 
retained by the supervised financial institution to represent it, 
subject to the condition that the 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) A Federal Reserve Bank may make exempt information available 
to outside counsel retained by the Federal Reserve Bank when needed by 
the outside counsel in connection with its representation of the 
Federal Reserve Bank.
    (3) Independent auditors. (i) Each insured depository institution 
that engages the services of an independent auditor to audit such 
institution shall transmit to the auditor to the extent permitted or 
required by applicable statutes: 

[[Page 7442]]

    (A) A copy of the most recent report of examination received by the 
insured depository institution (including but not limited to all formal 
bank examination reports such as trust company, consumer compliance, 
and automated data processing reports) and a copy of the most recent 
report of condition made by the institution pursuant to any provision 
of law; and
    (B) A copy of any supervisory memorandum of understanding with the 
insured depository institution and any written agreement between a 
Federal or State banking agency and the insured depository institution 
which are in effect during the period covered by the audit; and
    (C) A report of any action initiated or taken by the Board or the 
Federal Deposit Insurance Corporation during such period under 
subsection (a),(b), (c), (e), (g), (i), (s) or (t) of section 8 of the 
Federal Deposit Insurance Act; any action taken by any appropriate 
State bank supervisor under State law which is similar to any such 
action; and any other civil money penalty assessed under any other 
provision of law with respect to the insured depository institution or 
any institution-affiliated party.
    (ii) For purposes of this section, insured depository institution 
means any bank or savings association the deposits of which are insured 
by the Federal Deposit Insurance Corporation pursuant to Chapter 16 of 
Title 12, United States Code. Any financial institution supervised by 
the Board that is not an insured depository institution, including a 
bank holding company, may make copies of documents identified in this 
paragraph (b) available to its independent auditor in the same 
circumstances, and subject to the same conditions and limitations, as 
an insured depository institution.
    (iii) Any insured depository institution or other financial 
institution supervised by the Board also may make such information 
available to independent auditors, whose engagements do not include 
audits within the scope of 12 U.S.C. 1817(a)(8), in the manner 
specified in paragraph (b)(2) of this section, where access to such 
information is needed for the performance of functions within the scope 
of the engagement.
    (4) Limitation. Any legal counsel or independent auditor given 
access to confidential supervisory information pursuant to paragraphs 
(b)(2) and (b)(3) of this section 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 the supervised 
financial institution or parent bank holding company.
    (c) Disclosure to certain agencies, including Federal financial 
institution supervisory agencies--(1) Disclosure to certain agencies by 
the Director of the Division of Banking Supervision and Regulation. 
Upon request or on his or her initiative, the Director of the Division 
of Banking Supervision and Regulation or an officer of the appropriate 
Federal Reserve Bank may make available exempt information (including 
confidential supervisory information), and other appropriate 
information relating to a bank, bank holding company (including 
subsidiaries), U.S. branch or agency of a foreign bank, or other 
supervised financial institution, to the following agencies and their 
regional offices and representatives:
    (i) The Comptroller of the Currency;
    (ii) The Federal Deposit Insurance Corporation;
    (iii) The Office of Thrift Supervision;
    (iv) The National Credit Union Administration;
    (v) The Securities and Exchange Commission pursuant to 15 U.S.C. 
77uuu(b) and 15 U.S.C. 78q(c)(3);
    (vi) The Department of the Treasury pursuant to the Bank Secrecy 
Act, 12 U.S.C. 1951 et seq. and subchapter II of Chapter 53 of Title 
31, U.S. Code;
    (vii) The Department of the Treasury, the Securities and Exchange 
Commission and other appropriate authorities pursuant to 15 U.S.C. 78o-
5(d)(2); and
    (viii) The Department of Labor pursuant to section 3004(b) of the 
Employee Retirement Income Security Act (29 U.S.C. 1204); or
    (ix) Any other Federal agency or instrumentality in circumstances 
in which the Board's General Counsel has determined that disclosure is 
required by statute.
    (2) Disclosure to a Federal Home Loan Bank. In accordance with 12 
U.S.C. 1442, the Director of the Division of Banking Supervision and 
Regulation may make confidential supervisory information available to 
any Federal Home Loan Bank.
    (3) Disclosure of information acquired under Board regulations G, 
T, U, and X. The Director of the Division of Banking Supervision and 
Regulation may disclose to appropriate financial institution 
supervisory agencies information acquired under Board Regulations G, T, 
U, and X (12 CFR parts 207, 220, 221, 224).
    (4) Disclosure to certain agencies by the Director of Consumer and 
Community Affairs. Upon request or upon his or her own initiative, the 
Director of the Board's Division of Consumer and Community Affairs may 
provide exempt information (including confidential supervisory 
information) and other appropriate information to federal and state 
financial institution supervisory agencies in connection with: A 
possible violation, or a consumer complaint alleging a violation of the 
Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), Fair Lending Act 
(42 U.S.C. 3601 et seq.), Home Mortgage Disclosure Act (12 U.S.C. 2801 
et seq.), Truth in Lending Act (15 U.S.C. 1601 et seq.), Truth in 
Savings Act (12 U.S.C. 4301 et seq.), Electronic Fund Transfers Act (15 
U.S.C. 1693 et seq.), Fair Credit Reporting Act (15 U.S.C. 1681 et 
seq.), Fair Debt Collections Practices Act (15 U.S.C. 1692 et seq.), 
Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.), or any 
regulations promulgated under any of those statutes.
* * * * *
    (e) Discretionary disclosures. The Board may determine, from time 
to time, to authorize other disclosures of legally obtained 
confidential information as necessary.
* * * * *
    (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 confidential supervisory information is made 
available under any provision of Subchapter C, or any 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 part or by the Board.
* * * * *
    9. Section 261.12 is amended as follows: 
    
[[Page 7443]]

    a. The section heading, paragraphs (a), (c)(4), and (g) are 
revised; and
    b. New paragraphs (h) and (i) are added.
    The revisions and additions read as follows:


Sec. 261.12  Exempt information made available to law enforcement 
agencies and other nonfinancial institution supervisory agencies.

    (a) Disclosure. Upon written request to the General Counsel 
pursuant to paragraph (c) of this section, or on the initiative of the 
Board or the General Counsel, the Board may make available to 
appropriate law enforcement and to other government agencies for use 
where necessary in the performance of official duties, reports of 
examination and inspection, confidential supervisory information, other 
exempt information of the Board concerning banks, bank holding 
companies and their subsidiaries, U.S. branches and agencies of foreign 
banks, other examined institutions, and other information in accordance 
with applicable law.
* * * * *
    (c) * * *
    (4) The head of the law enforcement agency shall address a letter 
request to the Board's General Counsel, specifying whether the 
requested disclosure is permitted or restricted in any way by 
applicable law or regulation. The requester must identify the source of 
his or her legal authority to make the request and to receive the 
requested information;
* * * * *
    (g)(1) Referrals of violations of criminal law. Notwithstanding any 
other provision of this section, Federal Reserve Banks, the Director of 
the Board's Division of Banking Supervision and Regulation, and the 
Director of the Board's Division of Consumer and Community Affairs may 
refer possible violations of criminal law and suspicious activities to 
the Department of Justice and other appropriate Federal law enforcement 
authorities and incident to any such referral, may provide to the 
appropriate law enforcement authority exempt information, including 
confidential supervisory information related to such matter in addition 
to the information initially provided on the applicable referral form.
    (2) Referrals of consumer law violations. Upon request or upon his 
or her own initiative, the Director of the Board's Division of Consumer 
and Community Affairs may provide exempt information, including 
confidential supervisory information, or other appropriate information 
to appropriate law enforcement authorities in connection with: A 
possible violation, or a consumer complaint alleging a violation of the 
Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), Fair Housing Act 
(42 U.S.C. 3601 et seq.), Home Mortgage Disclosure Act (12 U.S.C. 2801 
et seq.), Truth in Lending Act (15 U.S.C. 1601 et seq.), Truth in 
Savings Act, (12 U.S.C. 4301 et seq.), Electronic Fund Transfers Act 
(15 U.S.C. 1693 et seq.), Fair Credit Reporting Act (15 U.S.C. 1681 et 
seq.), Fair Debt Collections Practices Act (15 U.S.C. 1692 et seq.), 
Real Estate Settlement Procedures Act (12 U.S.C. 2601), or any 
regulations promulgated under any of those statutes.
    (h) Disclosure to General Accounting Office and Internal Revenue 
Service. Notwithstanding any other provision of this section, the 
Director, Division of Banking Supervision and Regulation and any 
Federal Reserve Bank may disclose information to the U.S. General 
Accounting Office of the kind and subject to the conditions specified 
in 31 U.S.C. 714, and the Director, a Federal Reserve Bank, or any 
Federal Reserve examiner may disclose confidential supervisory 
information to the Internal Revenue Service in accordance with the 
Board's Supervisory Letter, SR 92-39 (October 30, 1992) and any 
subsequent authorized revisions of SR 92-39 (For availability of 
copies, see Sec. 261.5(f).)
    (i) Other disclosure prohibited. All reports and information made 
available under any provision of subpart C of this part shall remain 
the property of the Board. Any person in possession of such information 
shall not use or disclose such information for any purpose except as 
authorized under this part.
    10. Section 261.13 is revised to read as follows:


Sec. 261.13  Other disclosure of exempt information.

    (a) Board policy. (1) It is the Board's policy regarding 
confidential supervisory information that such information is 
confidential and will not normally be disclosed to the public. Requests 
for disclosure of confidential supervisory information under this 
section will not be approved unless the person requesting disclosure 
meets the criteria set forth in this section. In addition, it is the 
policy of the Board to reserve to itself or its General Counsel the 
authority to authorize production of exempt information, including 
confidential supervisory information, for use in any civil or 
administrative litigation. Requests for discretionary release of exempt 
information for use in litigation made pursuant to Sec. 261.9(a)(1)(ii) 
will be forwarded to the General Counsel for consideration.
    (2) The Board generally will process requests in the order in which 
they are received. A requester seeking an expedited response must 
explain why the request should be expedited and, in so doing, must 
address the possible unfairness to other requesters whose pending 
requests may be delayed.
    (b) Requests for disclosure--(1) Requests from litigants for 
information or testimony. Any person (except agencies referred to in 
Secs. 261.11 and 261.12) seeking access to exempt information 
(including confidential supervisory information) or seeking to obtain 
the testimony of present or former Board or Reserve Bank employees on 
matters involving exempt information of the Board, whether by 
deposition or otherwise, for use in litigation before a court, board, 
commission, agency, or other tribunal, may 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 exempt 
information is sought, including the caption and docket number of the 
case and the name, address, and telephone number of counsel to each 
party in the case;
    (iii) A description of any prior judicial decisions or pending 
motions that may bear upon the asserted relevance of the requested 
information;
    (iv) The relationship of the exempt information to the issues or 
matters raised by the judicial or administrative action;
    (v) The requesting person's need for the information;
    (vi) Whether the requested disclosure is permitted or restricted in 
any way by applicable law or regulation and the requester's source of 
authority to make the request and receive the requested information;
    (vii) The reason why the requesting person cannot obtain suitable 
and needed information from any other source (and in the case of a 
request for trial testimony, the reason why a deposition will not 
suffice);
    (viii) A commitment to obtain an enforceable protective order 
including, if applicable, a judicial sealing order, acceptable to the 
Board from the appropriate tribunal preserving the confidentiality of 
any information that is provided;
    (ix) A statement of all reasonably foreseeable requests or demands 
for 

[[Page 7444]]
Board information the party will make during the course of the 
litigation;
    (x) A statement identifying all previous requests or demands for 
such information or similar information made by the requester to the 
Board or any other Federal or state agency, and the disposition of each 
such request; and
    (xi) A statement addressing any issue that may bear upon the 
question of waiver of privilege by the Board.
    (2) All other requests. Any other person (including any financial 
institutions supervised and regulated by the Board, but excluding 
agencies referred to in Secs. 261.11 and 261.12, seeking access to 
exempt information for any other purpose may file a written request 
with the General Counsel of the Board. The request shall describe the 
purpose for which such disclosure is sought.
    (3) Notice to supervised financial institution. Following receipt 
of a request for exempt information, the Board generally will notify 
the supervised financial institution that is the subject of the 
requested information, unless the Board, in its discretion, determines 
that to do so would unjustly advantage or would prejudice any of the 
parties in the matter at issue.
    (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 
exempt information that outweighs the need to maintain confidentiality;
    (ii) Disclosure is consistent with the supervisory and regulatory 
responsibilities and policies of the Board;
    (iii) Approval would not be otherwise inappropriate or contrary to 
the public interest;
    (iv) The requester has made a commitment to pay the costs of 
production by the Board and/or any Federal Reserve Bank(s) which is 
deemed satisfactory in the circumstances.
    (2) Factors taken into consideration by the General Counsel. In 
determining whether to approve a request for confidential supervisory 
information under paragraph (c)(1) of this section, the General Counsel 
shall consider without limitation:
    (i) The relevance of the evidence sought to be protected;
    (ii) The availability of other evidence;
    (iii) The ``seriousness'' of the litigation and the issues 
involved;
    (iv) The role of the Board in the litigation; and
    (v) The possibility that Board employees may be reluctant to be 
candid for fear that their supervisory opinions and communications may 
be made available to persons outside of the Board or to persons not 
involved in the bank supervision and regulation process.
    (3) 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 the General Counsel deems necessary 
to protect the confidentiality of the Board's information.
    (4) Request for opinion or expert testimony. The General Counsel 
will not normally authorize opinion or expert testimony by persons 
based on information of the Board acquired in the scope and performance 
of their official duties with the Board or any Federal Reserve Bank, 
except on behalf of the United States or a party represented by the 
Department of Justice.
    (d) Exhaustion of administrative remedies for discovery purposes in 
civil, criminal, or administrative action. Action by the General 
Counsel of the Board on a request under this section shall be required 
to exhaust administrative remedies for discovery purposes in any 
administrative, civil or criminal proceeding. A request made pursuant 
to Sec. 261.9 does not exhaust administrative remedies for discovery 
purposes. Therefore, it is not necessary to file a request pursuant to 
Sec. 261.9 to exhaust administrative remedies under this section.
    (e) Other disclosure prohibited. All exempt information made 
available under this section shall remain the property of the Board. 
Any person in possession of such information under this section or any 
provision of subpart C of this part, including any banking organization 
supervised and regulated by the Board, shall not use or disclose such 
information for any purpose other than that authorized in writing by 
the General Counsel of the Board.
    11. Section 261.17 is amended by revising paragraphs (a)(1) 
introductory text, (b) introductory text, and (b)(3) to read as 
follows:


Sec. 261.17   Confidential commercial or financial information.

    (a) * * * (1) The Secretary shall notify a submitter of any request 
made pursuant to the Freedom of Information Act under Sec. 261.9 and 5 
U.S.C. 552, for access to all or a portion of information provided to 
the Board by the submitter, if:
* * * * *
    (b) * * * The notice given to the submitter upon a request for 
confidential information pursuant to paragraph (a) of this section 
shall:
* * * * *
    (3) Give the submitter a reasonable opportunity, not to exceed ten 
working days from the date of oral notice or, if no oral notice is 
given, ten working days from the date of written notice, to submit 
written objections to disclosure of the information; and
* * * * *
    By order of the Board of Governors of the Federal Reserve 
System, February 21, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-4341 Filed 2-27-96; 8:45 am]
BILLING CODE 6210-01-P