[Federal Register Volume 75, Number 67 (Thursday, April 8, 2010)]
[Rules and Regulations]
[Pages 17849-17851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7940]



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 Rules and Regulations
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  Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules 
and Regulations  

[[Page 17849]]



DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 4

[Docket ID OCC-2010-0008]
RIN 1557-AD22


Freedom of Information Act

AGENCY: Office of the Comptroller of the Currency, Treasury.

ACTION: 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 Openness Promotes 
Effectiveness in Our National Government Act of 2007 (OPEN Government 
Act) \1\ and to make other changes that update the OCC's FOIA 
regulations.
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    \1\ Public Law 110-175, 110th Cong., 1st Sess., 121 Stat. 2524 
(2007).

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DATES: Effective Date: This final rule is effective May 10, 2010.

FOR FURTHER INFORMATION CONTACT: Lee Walzer, Counsel, or Michele Meyer, 
Assistant Director, Legislative and Regulatory Activities Division, 
(202) 874-5090; or Frank Vance, Manager, Disclosure Services and 
Administrative Operations, Communications Division, (202) 874-5378.

SUPPLEMENTARY INFORMATION: 

I. Background

    The OPEN Government Act: Revised definitions contained in the FOIA; 
changed standards for recovering attorneys fees in FOIA litigation; 
revised time limits for agencies to act on FOIA requests; provided that 
search fees would not be charged if an agency fails to comply with time 
limits if no unusual or exceptional circumstances apply to the 
processing of the request; required agencies to establish a tracking 
system enabling requesters to check the status of their requests; added 
new reporting requirements to agencies' annual FOIA reports; and 
required agencies to describe the FOIA exemptions relied upon in 
redacting records that they release to requesters. Many provisions of 
the OPEN Government Act took effect upon enactment; others (including 
some related to the amendments to Part 4 in this final rule) were 
effective as of December 31, 2008.
    Twelve CFR part 4, subpart B, sets forth OCC policies regarding the 
availability of information under the FOIA and procedures for 
requesters to follow when seeking such information. On April 24, 2009, 
the OCC published a notice of proposed rulemaking (NPRM) \2\ to amend 
part 4 to comport with changes to the FOIA made by the OPEN Government 
Act, enacted on December 31, 2007. The comment period closed on June 
23, 2009. The OCC received no comments on the NPRM and, accordingly, we 
are adopting the regulatory changes as proposed.
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    \2\ See 74 FR 18,659 (April 24, 2009).
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II. Description of the Final Rule

    The final rule is substantively identical to the proposal, with 
minor wording changes to improve technical descriptions.

Required Description of FOIA Exemptions Used To Justify Non-Disclosure

    The OPEN Government Act amended the FOIA by requiring that an 
agency detail the specific FOIA exemption under which material is 
deleted from information sought by a FOIA requester. If technically 
feasible, the agency should indicate the exemption under which the 
deletion was made at the place in the record where the agency deleted 
the material, and should indicate the amount of material that has been 
deleted.\3\
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    \3\ OPEN Government Act, section 12, amending 5 U.S.C. 552(b).
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    The OCC is adopting its proposed amendment to 12 CFR 4.12(d) to 
provide that the OCC will indicate the amount of information deleted, 
and the exemption pursuant to which the deletion was made, on the 
released portion of the material, unless doing so would harm an 
interest protected by an exemption under Sec.  4.12(b). Where 
technically feasible, the OCC will indicate the amount of information 
deleted and the exemption relied upon for the deletion at the place 
where such deletion was made.

Time Period for Responding to a FOIA Request

    The OCC is adopting its proposed revision of 12 CFR 4.15 to provide 
for the 20-day response period to a FOIA request permitted by the 
statute and to specify that the 20-day period does not include 
Saturdays, Sundays, and holidays. The OCC is also amending 12 CFR 4.15 
to provide that the 20-day time period may be tolled when the OCC: (1) 
makes a one-time request for additional information from the requester; 
or (2) needs to clarify a fee-related issue with the requester. The 
tolling period would end upon receipt of the requested information or 
resolution of the fee issue, as the case may be.\4\
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    \4\ The OPEN Government Act did not amend or repeal the FOIA 
provisions permitting agencies to extend the time for replying to 
FOIA requests in unusual circumstances. Id. at 552(a)(6)(B) and (C). 
Therefore, the OCC's rules continue to extend the time in such cases 
for up to an additional 10 business days. 12 CFR 4.15(f)(3).
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    Finally, the OCC is adopting as proposed its amendment to 12 CFR 
4.17 to clarify that a requester will not be required to pay any 
otherwise applicable search or duplication fees, as relevant, if the 
OCC fails to comply with applicable time limits, if no ``unusual'' or 
``exceptional'' circumstances, as described in the FOIA and set forth 
in OCC regulations, apply to the processing of the FOIA request.\5\
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    \5\ See 5 U.S.C. 552(a)(6)(B)-(C); 12 CFR 4.15(f)(3).
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Definition of ``Representative of the News Media''

    The OCC is adopting as proposed its amendment to the definition of 
``representative of the news media'' in 12 CFR 4.17(a)(8) to comport 
with the new definition in FOIA, as amended by the OPEN Government Act. 
The final rule clarifies the circumstances in which a freelance writer 
will be deemed to be working as a representative of the news media. 
Consistent with the OPEN Government Act, freelance writers will be 
regarded as representatives of the news media if they can demonstrate a

[[Page 17850]]

``solid basis'' for expecting publication. The definition further 
permits the OCC to consider a requester's publication history in 
assessing whether the requester should be deemed a representative of 
the news media.

Tracking and Contact Information

    To comply with the OPEN Government Act's requirements, the OCC 
launched an Internet Web site at https://appsec.occ.gov/publicaccesslink/ in December, 2008, to provide the public the ability 
to check the status of a FOIA request online using an assigned tracking 
number. The final rule includes a new Sec.  4.18, which provides the 
Internet address and explains that a tracking number will be assigned 
to every FOIA request. The new Sec.  4.18 also addresses how 
individuals without Internet access can continue to receive status 
updates about their FOIA requests. To facilitate the operation of the 
new tracking service, the OCC is also amending 12 CFR 4.15(c) to 
include a request for an electronic mail address in the requester's 
contact information, where such information is available and the 
requester chooses to provide it.

III. Regulatory Analysis

Regulatory Flexibility Act

    Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise 
required under Section 604 of the RFA is not required if the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities and publishes its certification 
and a short, explanatory statement in the Federal Register along with 
its rule. The final rule will not have such an impact on small entities 
because the changes being proposed affect mainly the OCC and its 
processing of FOIA requests, and impose no costs on filers of these 
requests. Pursuant to Section 605(b) of the RFA, the OCC hereby 
certifies that this proposal will not have a significant economic 
impact on a substantial number of small entities. Accordingly, a 
regulatory flexibility analysis is not needed.

Executive Order 12866

    The OCC has determined that the final rule is not a significant 
regulatory action under Executive Order 12866.

Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3506), we have reviewed the final rule to assess any 
information collections. There are no collections of information as 
defined by the Paperwork Reduction Act.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency 
prepare a budgetary impact statement before promulgating any rule 
likely to result in a Federal mandate that may result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. If a 
budgetary impact statement is required, Section 205 of the Unfunded 
Mandates Act also requires an agency to identify and consider a 
reasonable number of regulatory alternatives before promulgating a 
rule. The OCC has determined that this final rule will not result in 
expenditures by State, local, and tribal governments, or by the private 
sector, of $100 million or more in any one year. Accordingly, this 
proposal is not subject to Section 202 of the Unfunded Mandates Act.

List of Subjects in 12 CFR Part 4

    National banks, Reporting and recordkeeping requirements, 
Administrative practice and procedure, Freedom of Information Act, 
Records.

0
For the reasons set forth in the preamble, chapter I of title 12 of the 
Code of Federal Regulations is amended as follows:

PART 4--ORGANIZATION AND AVAILABILITY OF INFORMATION UNDER THE 
FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 4 continues to read as follows:

    Authority:  12 U.S.C. 93a. Subpart A also issued under 5 U.S.C. 
552; Subpart B also issued under 5 U.S.C. 552; E.O. 12600 (3 CFR 
1987 Comp., p. 235). Subpart C also issued under 5 U.S.C. 301, 552; 
12 U.S.C. 161, 481, 482, 484(a), 1442, 1817(a)(3), 1818(u) and (v), 
1820(d)(6), 1820(k), 1821(c), 1821(o), 1821(t), 1831m, 1831p-1, 
1831o, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq., 
3101 et seq., 3401 et seq.; 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. 9701; 42 U.S.C. 3601; 44 
U.S.C. 3506, 3510. Subpart D also issued under 12 U.S.C. 1833e.



0
2. Amend Sec.  4.12 by adding two sentences at the end of paragraph (d) 
to read as follows:


Sec.  4.12  Information available under the FOIA.

* * * * *
    (d) Segregability. * * * The OCC will note the location and extent 
of any deletion, and identify the FOIA exemption under which material 
has been deleted, on the released portion of the material, unless doing 
so would harm an interest protected by the exemption under paragraph 
(b) of this section pursuant to which the deletion was made. Where 
technically feasible, the amount of information redacted and the 
exemption pursuant to which the redaction was made will be indicated at 
the site(s) of the deletion.


0
3. Amend Sec.  4.15 by:
0
a. Revising the section heading, the heading for paragraph (c)(1), 
paragraph (c)(1)(i), the heading for paragraph (f), and paragraph 
(f)(1); and
0
b. Removing the word ``or'' at the end of paragraph (f)(3)(ii), 
removing the period at the end of paragraph (f)(3)(iii) and by adding 
in lieu thereof ``; or'', and adding paragraph (f)(3)(iv).
    The revisions and addition read as follows.


Sec.  4.15  How to request records.

* * * * *
    (c) * * * (1) Contact information and what the request for records 
must include. * * *
    (i) The requester's full name, address, telephone number and, at 
the requester's option, electronic mail address.
* * * * *
    (f) Time limits for responding to FOIA requests.--(1) The OCC makes 
an initial determination to grant or deny a request for records within 
20 days (excluding Saturday, Sundays, and holidays) after the date of 
receipt of the request, as described in paragraph (g) of this section, 
except as stated in paragraph (f)(3) of this section.
* * * * *
    (3) * * *
    (iv) Tolling of time limits. (A) The OCC may toll the 20-day time 
period to:
    (1) Make one request for additional information from the requester; 
or
    (2) Clarify the applicability or amount of any fees, if necessary, 
with the requester.
    (B) The tolling period ends upon the OCC's receipt of requested 
information from the requester or resolution of the fee issue.
* * * * *

0
4. Amend Sec.  4.17 by:
0
a. Revising the section heading, and paragraph (a)(8);
0
b. Adding paragraph (b)(6); and
0
c. Removing, in the parenthetical in paragraph (d), the phrase ``10 
business days'', and by adding in lieu thereof the phrase ``20 business 
days''.
    The revisions and addition are set forth below.

[[Page 17851]]

Sec.  4.17  FOIA request fees.

    (a) * * *
    (8) Requester who is a representative of the news media means any 
person who, or entity that, gathers information of potential interest 
to a segment of the public, uses editorial skills to turn the raw 
materials into a distinct work, and distributes that work to an 
audience. A freelance journalist shall be regarded as working for a 
news media entity if the person can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by that entity. A publication contract 
is one example of a basis for expecting publication that ordinarily 
would satisfy this standard. The OCC also may consider the past 
publication record of the requester in determining whether she or he 
qualifies as a ``representative of the news media.''
* * * * *
    (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 12 CFR 4.15, and no ``unusual'' 
circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and Sec.  
4.15(f)(3)(i)) or ``exceptional'' circumstances (as defined in 5 U.S.C. 
552(a)(6)(C)) apply to the processing of the request.
* * * * *

0
5. Add Sec.  4.18 to subpart B to read as follows:


Sec.  4.18  How to track a FOIA request.

    (a) Tracking number. The OCC will issue a tracking number to all 
FOIA requesters within 5 days of the receipt of the request (as 
described in Sec.  4.15(g)) in the OCC's Communications Department. The 
tracking number will be sent via electronic mail if the requester has 
provided an electronic mail address. Otherwise, the OCC will mail the 
tracking number to the requester's physical address, as provided in the 
FOIA request.
    (b) Web site. FOIA requesters may check the status of their FOIA 
request(s) at https://appsec.occ.gov/publicaccesslink/.
    (c) If a requester does not have Internet access. Requesters 
without Internet access may continue to contact the Disclosure Officer, 
Communications Division, Office of the Comptroller of the Currency, at 
(202) 874-4700 to check the status of their FOIA request(s).

    Dated: April 2, 2010.
John C. Dugan,
Comptroller of the Currency.
[FR Doc. 2010-7940 Filed 4-7-10; 8:45 am]
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