Reimbursement for Providing Financial Records; Recordkeeping Requirements for Certain Financial Records, 47854-47857 [E8-18898]
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Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules
be insufficient in order to comply with
the regulations. Each individual
licensee is free to determine whether or
not it wants to employ such a
concurrence process.
Summary of Issue
The decision to depart from the
license or a technical specification in an
emergency shall be approved, as a
minimum, by a licensed senior operator.
If more senior licensee personnel are
available, the decision to depart from
the license in an emergency would pass
to them as higher authorities in the
chain of command. The rule does not
specify that the senior licensee
personnel be licensed senior operators
or that they obtain the concurrence of a
licensed senior operator to make such a
decision.
Backfit Discussion
This RIS does not represent a new or
different staff position regarding the
implementation of 10 CFR 50.54(x) and
is consistent with the SOC for 10 CFR
50.54(x) and (y), and the staff guidance
in the November, 1986 Zwolinski letter.
It requires no action or written response.
Any action by addressees to implement
changes to their security or emergency
plans, or procedures in accordance with
the guidance in this RIS is strictly
voluntary and, therefore, is not a backfit
under 10 CFR 50.109, ‘‘Backfitting.’’
Consequently, the NRC staff did not
perform a backfit analysis.
Federal Register Notification
To be done after the public comments
period.
Congressional Review Act
This RIS is not a rule as designated by
the Congressional Review Act (5 U.S.C.
801–886) and, therefore, is not subject to
the Act.
Paperwork Reduction Act Statement
This RIS does not contain any
information collections and, therefore,
is not subject to the requirements of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
rwilkins on PROD1PC63 with PROPOSALS
Public Protection Notification
The NRC may not conduct or sponsor,
and a person is not required to respond
to, a request for information or an
information collection requirement
unless the requesting document
displays a currently valid OMB control
number.
Contact
Please direct any questions about this
matter to Jeff Laughlin at 301–415–1113
or by e-mail at Jeff.Laughlin@nrc.gov.
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End of Draft Regulatory Issue Summary
Documents may be examined, and/or
copied for a fee, at the NRC’s Public
Document Room at One White Flint
North, 11555 Rockville Pike (first floor),
Rockville, Maryland. Publicly available
records will be accessible electronically
from the Agencywide Documents
Access and Management System
(ADAMS) Public Electronic Reading
Room on the Internet at the NRC Web
site, https://www.nrc.gov/NRC/ADAMS/
index.html. If you do not have access to
ADAMS or if you have problems in
accessing the documents in ADAMS,
contact the NRC Public Document Room
(PDR) reference staff at 1–800–397–4209
or 301–415–4737 or by e-mail to
pdr@nrc.gov.
Dated at Rockville, Maryland, this 7th day
of August 2008.
For the Nuclear Regulatory Commission.
Martin C. Murphy,
Chief, Generic Communications Branch,
Division of Policy and Rulemaking, Office
of Nuclear Reactor Regulation.
[FR Doc. E8–18918 Filed 8–14–08; 8:45 am]
BILLING CODE 7590–01–P
FEDERAL RESERVE SYSTEM
12 CFR Part 219
[Regulation S; Docket No. R–1325]
Reimbursement for Providing Financial
Records; Recordkeeping
Requirements for Certain Financial
Records
Board of Governors of the
Federal Reserve System.
ACTION: Proposed rule; request for
comments.
AGENCY:
SUMMARY: The Board of Governors of the
Federal Reserve System (Board) is
proposing amendments to Subpart A of
Regulation S, which implements the
requirement under the Right to
Financial Privacy Act (RFPA) that the
Board establish the rates and conditions
under which payment shall be made by
a government authority to a financial
institution for assembling or providing
financial records pursuant to RFPA.
These proposed amendments update the
fees to be charged and take account of
recent advances in electronic document
productions.
DATES: Comments must be submitted on
or before September 29, 2008.
ADDRESSES: You may submit comments,
identified by Docket No. R–1325, by any
of the following methods:
• Agency Web Site: https://
www.federalreserve.gov. Follow the
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instructions for submitting comments at:
https://www.federalreserve.gov/
generalinfo/foia/ProposedRegs.cfm.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail:
regs.comments@federalreserve.gov.
Include the docket number in the
subject line of the message.
• Fax: (202) 452–3101.
• Mail: Jennifer J. Johnson, Secretary,
Board of Governors of the Federal
Reserve System, 20th Street and
Constitution Avenue, NW., Washington,
DC 20551.
All public comments are available
from the Board’s Web site at https://
www.federalreserve.gov/generalinfo/
foia/ProposedRegs.cfm as submitted,
unless modified for technical reasons.
Accordingly, your comments will not be
edited to remove any identifying or
contact information. Public comments
may also be viewed electronically or in
paper in Room MP–500 of the Board’s
Martin Building (20th and C Streets,
NW.) between 9 a.m. and 5 p.m. on
weekdays.
FOR FURTHER INFORMATION CONTACT:
Jason Gonzalez, Senior Attorney (202/
452–3275), Legal Division, Board of
Governors of the Federal Reserve
System, Washington, DC 20551. For
users of the Telecommunication Device
for the Deaf (TDD), please call (202)
263–4869.
SUPPLEMENTARY INFORMATION:
Background
Section 1115 of the RFPA (12 U.S.C.
3415) requires the Board to establish, by
regulation, the rates and conditions
under which payment is made by a
Government authority to a financial
institution for searching for,
reproducing, or transporting data
required or requested under the RFPA.
Shortly after the RFPA was adopted, the
Board issued Regulation S (12 CFR Part
219) to implement this provision (44 FR
55812, September 28, 1979). These
provisions were subsequently
designated Subpart A of Regulation S. In
June 1996, the Board revised Regulation
S by updating the fees financial
institutions could charge and
streamlining the Subpart generally. 61
FR 29638 (June 12, 1996).
In the twelve years since the last
revision, the Board has observed two
significant changes that now require
further amendments to Subpart A of
Regulation S. First, increases in salary
and benefits have caused the fees
chargeable for reproducing financial
records to become outdated.
Furthermore, in recent years, the
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production of electronically stored
information during investigations and in
litigation has become increasingly
common. Charles Alan Wright, Arthur
R. Miller & Richard L. Marcus, Federal
Practice & Procedure, § 2218 at 449 (2d
ed. 2006). Many government agencies
now prefer to receive information in
digital formats, thereby easing handling
and analysis. Consequently, the
amendments proposed below are
intended to update the existing rates to
be paid and provide a reimbursement
scheme that more accurately reflects the
costs of producing electronically stored
information in digital formats.
rwilkins on PROD1PC63 with PROPOSALS
Proposed Amendments
The Board proposes to amend
Regulation S in the following manner:
I. Cost Reimbursement
(a) Fees Payable. This section is being
clarified to state specifically that
financial institutions are eligible for
reimbursement when producing
financial records that have been
requested pursuant to an administrative
agency request, as well as by court order
or subpoena. The Board of Governors
has received information that some
financial institutions and government
agencies may be incorrectly limiting
reimbursement under the Regulation to
compelled court or grand jury
subpoenas for customer account
information.
(b) Search & Processing Costs. When
subpart A was last amended in 1996,
document productions were typically
made on paper. Consequently, the
reimbursement scheme in place since
that time does not fully address the
question of what costs should be
reimbursable when financial
institutions retrieve electronically
stored records and then produce them
in a digital format, rather than on paper.
The current regulation permits
computer time to be reimbursed, but
only if separately itemized. Most
financial institutions do not engage in
that task, so computer time is typically
not charged separately. The
amendments proposed below do not
change this aspect of the regulation, but
instead recognize a new personnel
category for computer specialists when
more specialized assistance is
necessary. The revised fee schedule also
updates the fees that a financial
institution may charge to account for
changes in personnel costs for existing
job categories. Finally, the revised fee
schedule includes a ‘‘per electronic
production’’ flat charge, rather than the
‘‘per diskette’’ charge included in the
existing regulation. The amendments
also include a provision that would
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permit reimbursement on a per page
basis for production of information only
if the government agency requested
production on paper, so that
unnecessary costs are not incurred by
the financial institution or the
government.
Updating the Existing Labor Rates.
Under the existing regulation, the
personnel fees chargeable in Appendix
A, which are intended to cover the cost
of searching for, processing and
producing financial records stored
electronically, on paper or on
microfiche, are separated into two labor
categories—clerical/technical and
manager/supervisory. The fees for these
categories were originally derived from
the 1994 Bank Cash Compensation
Survey (BCCS), which is produced by
the Banking Administration Institute.
Although the BCCS is still in existence,
the Board proposes to update the fees
using comparable data maintained by
the Bureau of Labor Statistics (BLS) as
generated by the Occupational
Employment Statistics Program. BLS
provides an aggregate of data taken from
2004 to 2007. Unlike the BCCS, the BLS
sample size is comprehensive and,
therefore, reduces the risk of having an
unrepresentative sample.
The Board proposes to update the
current managerial/supervisory rate
found in Appendix A ($17.00) using the
rate for first-line supervisors/managers
of office found in the BLS industry
category known as Credit
Intermediation and Related Activities
($22.02) adjusted for benefits using the
standard benefit formula set out in the
BLS survey (32.2%). This result in a $30
per hour charge (rounded to the next
highest dollar). The Board also proposes
to update the rate for the clerical/
technical job category found in
Appendix A ($11.00) to the average of
the rates established for Information
Records Clerk and Computer Operator
found within the same BLS industry
category ($16.09), adjusted for benefits
(32.2%). This results in a $22 per hour
charge (rounded to the next highest
dollar). The Board is interested in
receiving comments on the updated
rates and the method of calculation.
New Labor Rate for Specialized
Computer Support. It is expected that,
from time to time, the government will
request financial institutions to
reproduce electronically stored records
in a format that requires more
specialized computer expertise than
would ordinarily be part of the job
responsibilities of a clerical/technical
employee, or of a manager/supervisor.
Therefore, the Board proposes to add a
new job category to the fee schedule that
would allow financial institutions to
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charge for any additional technical
assistance that is needed to locate,
retrieve, prepare or reproduce
electronically stored financial records.
Under this new job category financial
institutions may charge a rate of $28.00
per hour. This figure is based on the
labor cost associated with employing a
person under the computer support
specialist job category found in the BLS
industry category known as Credit
Intermediation and Related Activities
($22.03), as adjusted for benefits
(32.2%). This results in a charge of $30
per hour (rounded to the next highest
dollar).
The Board is interested in receiving
comments on the newly proposed rate
for specialized computer support for
electronic document productions. It is
difficult to establish rates to be applied
across all geographic regions and to all
depository institutions, regardless of
size. While recognizing this difficulty,
the Board nevertheless proposes a
uniform rate in the belief that
administration of a complex fee
schedule would be difficult.
Automatic Labor Rate Adjustment.
The proposed regulation also includes a
mechanism to periodically adjust the
Search and Processing reimbursement
rates for personnel costs set out in the
fee schedule, based on changes in the
BLS compensation survey data. The
proposed mechanism would adjust the
hourly rates contained in the fee
schedule at fixed five-year periods,
using the most recent data available for
each job category. The Board is
interested in receiving comments on the
mechanism chosen. If the automatic
adjustment is adopted, the Board
intends to issue a press release setting
out the new rates before they become
effective and making technical changes
to the fee schedule for the convenience
of the industry.
(c) Reproduction Costs. The Board
believes the reproduction rates for
diskettes ($5.00) should be eliminated.
Instead, the Board proposes to allow
financial institutions to charge a flat fee
of $5.00 per request to cover cost of all
compact disks, other electronic media,
or e-mail transmissions necessary to
respond to a request. The Board also
requests comments on whether the
inclusion of fees for microfiche
duplication should be eliminated as
outdated.
While financial institutions may
continue to seek reimbursement for
photocopies at the existing rate ($.25 per
page), § 219.3(c), this fee would only be
chargeable when: (1) The institution is
merely reproducing information that is
already stored only in paper form, or (2)
where the party making the request has
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Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules
specifically asked for printed copies of
information that is stored electronically.
The Board welcomes comments on
the appropriateness of the proposed fees
and any suggested alternative methods
of determining the fees.
II. Conditions for Payment
This section is being changed to
identify the direct costs that may be
charged when a financial institution
produces financial records in paper,
electronic form or both. As explained
above, photocopying and microfiche
charges are only applicable if the
institution has reproduced financial
records that are not maintained
electronically (i.e., on paper or in
microfiche), or where the government
authority making the request has
specifically asked for printed copies of
electronically stored information.
Solicitation of Comments Regarding the
Use of ‘‘Plain Language’’
Section 722 of the Gramm-LeachBliley Act of 1999 requires the Board to
use ‘‘plain language’’ in all proposed
and final rules published after January
1, 2000. The Board invites comments on
whether the proposed rules are clearly
stated and effectively organized, and
how the Board might make the proposed
text easier to understand.
Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605, the Board
certifies that this proposed rule, if
adopted, will not have a significant
economic impact on a substantial
number of small entities. The proposed
rule confers a benefit on financial
institutions, including small financial
institutions, by providing for
reimbursement of certain costs incurred
in complying with a requirement to
assemble and reproduce financial
records.
rwilkins on PROD1PC63 with PROPOSALS
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. Ch.
3506; 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.
No collections of information pursuant
to the Paperwork Reduction Act are
contained in the proposed rule.
List of Subjects in 12 CFR Part 219
Banks, Banking, Currency, Federal
Reserve System, Foreign banking,
Reporting and recordkeeping
requirements.
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Authority and Issuance
For the reasons set out in the
preamble, 12 CFR part 219 is proposed
to be amended as set forth below.
PART 219—REIMBURSEMENT FOR
PROVIDING FINANCIAL RECORDS;
RECORDKEEPING REQUIREMENTS
FOR CERTAIN FINANCIAL RECORDS
(REGULATION S)
1. The authority citation for part 219
continues to read as follows:
Authority: 12 U.S.C. 3415.
2. Section 219.3 is amended as
follows:
a. Revise paragraphs (a) and (b)(2).
b. Add new paragraph (b)(3).
c. Revise paragraphs (c) and (d), and
Appendix A to § 219.3.
§ 219.3
Cost reimbursement.
(a) Fees payable. Except as provided
in § 219.4, a government authority
seeking access to financial records
pertaining to a customer, by written
request, through: A court order, a
subpoena issued pursuant to the Federal
Rules of Criminal Procedure or the
Federal Rules of Civil Procedure, or
other agency administrative procedures,
including administrative subpoenas,
voluntary requests, or other process
shall reimburse the financial institution
for reasonably necessary costs directly
incurred in searching for, reproducing
or transporting books, papers, records,
or other data as set forth in this section.
The reimbursement schedule for a
financial institution is set forth in
Appendix A to this section. If a
financial institution has financial
records that are stored at an
independent storage facility that charges
a fee to search for, reproduce, or
transport particular records requested,
these costs are considered to be directly
incurred by the financial institution and
may be included in the reimbursement.
(b) * * *
(2) If itemized separately, search and
processing costs may include the actual
cost of extracting electronically stored
records, based on computer time and
necessary supplies; however, personnel
time for computer searches may be paid
for at the rates set for computer support
specialist, specified in Appendix A to
this section, but only when compliance
with the request for information
requires that the financial institution
use programming or other higher level
technical services of a computer support
specialist in order to reproduce
electronically stored information in the
format requested by the government
authority.
(3) Rates for Search and Processing in
Appendix A shall be recalculated as
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follows on April 1, 2012 and on April
1 of each subsequent five-year period
utilizing Bureau of Labor Statistics
(‘‘BLS’’) data by replacing the existing
hourly rates with the sum of:
(i) Base Labor rate recalculation—
Using the most recently available wage
data from the Occupational
Employment Statistics program (https://
www.bls.gov/oes/home.htm) for the BLS
industry category ‘‘Credit
Intermediation and Related Activities’’
(NAICS Code Number 522000) (or
successor category):
(A) [Clerical/Technical category] the
average of the median hourly rates for
the ‘‘Information and Records Clerk’’
and ‘‘Computer Operator’’ job categories
(SOC Code Number 43–4199 and 43–
9011) (or any successor job categories);
(B) [Manager/Supervisor category] the
median hourly rate for the ‘‘first-line
supervisors/managers of office’’ job
category (SOC Code Number 43–1011)
(or successor category), and
(C) [Computer Support Specialist
category] the median hourly rate for the
‘‘computer support specialist’’ job
category (SOC Code Number 15–1041)
(or successor category); plus
(ii) Benefits Adjustment—an amount
for each hourly rate category that is
equal to the product of:
(A) The hourly rates set forth in
paragraph (b)(3)(i) of this section, and
(B) The most recently available
‘‘percent of total compensation’’
represented by ‘‘total benefits’’ for the
‘‘Credit Intermediation and Related
Activities’’ industry category (private
sector) set out in the Employment Cost
Trends section of the National
Compensation Survey (https://
data.bls.gov/PDQ/
outside.jsp?survey=cm); and
(iii) If the recalculated rates for Search
and Processing (including the Base labor
rate and the benefits adjustment) are not
a multiple of $1, the recalculated rates
shall be rounded up to the next multiple
of $1.
(c) Reproduction costs. The
reimbursement rates for reproduction
costs for requested information are set
forth in Appendix A to this section,
subject to the Conditions for Payment
set forth in § 219.5. Copies of
photographs, films and other materials
not listed in Appendix A to this section
are reimbursed at actual cost.
(d) Transportation costs.
Reimbursement for transportation costs
shall be for the reasonably necessary
costs directly incurred to transport
personnel to locate and retrieve the
requested information, and to convey
such material to the place of
examination.
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Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules
November 2006 and changes in
available technology have caused us to
reexamine our position on data filtering.
Reproduction:
Photocopy, per page .................
$0.25 We are now proposing that certain
Paper Copies of Microfiche,
critical data parameters may be filtered
per frame ...............................
0.25 if a certificate holder can show that the
Duplicate
Microfiche,
per
data can be accurately reconstructed.
microfiche .............................
0.50 This proposed rule would improve the
Electronic Productions, per reintegrity and quality of the data
quest ......................................
5.00
recorded on digital flight data recorders
Search and Processing:
Clerical/Technical, hourly rate
22.00 while giving aircraft designers and
operators more flexibility in system
Computer Support Specialist,
hourly rate .............................
30.00 design and operation where allowable,
Manager/Supervisory, hourly
including an option to filter data.
rate .........................................
30.00 DATES: Send your comments on or
before November 13, 2008.
3. Section 219.5 is amended by
ADDRESSES: You may send comments
revising paragraph (a) to read as follows:
identified by Docket Number FAA–
§ 219.5 Conditions for payment.
2006–26135 using any of the following
methods:
(a) Direct costs. Payment shall be
• Federal eRulemaking Portal: Go to
made only for costs that are both
https://www.regulations.gov and follow
directly incurred and reasonably
necessary to provide requested material. the online instructions for sending your
comments electronically.
Search and processing, reproduction,
• Mail: Send comments to Docket
and transportation costs shall be
Operations, M–30; U.S. Department of
considered separately when
Transportation, 1200 New Jersey
determining whether the costs are
Avenue, SE., Room W12–140, West
reasonably necessary. Photocopying or
Building Ground Floor, Washington, DC
microfiche charges are reasonably
20590–0001.
necessary only if the institution has
• Hand Delivery or Courier: Bring
reproduced financial records that were
not stored electronically (i.e., where the comments to Docket Operations in
Room W12–140 of the West Building
information requested was stored only
on paper or in microfiche), or where the Ground Floor at 1200 New Jersey
Avenue, SE., Washington, DC, between
government authority making the
9 a.m. and 5 p.m., Monday through
request has specifically asked for
Friday, except Federal holidays.
printed copies of electronically stored
• Fax: Fax comments to Docket
records.
Operations at 202–493–2251. For more
*
*
*
*
*
information on the rulemaking process,
By order of the Board of Governors of the
see the SUPPLEMENTARY INFORMATION
Federal Reserve System, August 12, 2008.
section of this document.
Robert deV. Frierson,
Privacy: We will post all comments
Deputy Secretary of the Board.
we receive, without change, to https://
[FR Doc. E8–18898 Filed 8–14–08; 8:45 am]
www.regulations.gov, including any
personal information you provide.
BILLING CODE 6210–01–P
Using the search function of our docket
Web site, anyone can find and read the
DEPARTMENT OF TRANSPORTATION electronic form of all comments
received into any of our dockets. This
Federal Aviation Administration
includes the name of the individual
sending the comment (or signing the
14 CFR Parts 121, 125, and 135
comment for an association, business,
labor union, etc.). You may review
[Docket No. FAA–2006–26135; Notice No.
DOT’s complete Privacy Act Statement
08–08]
in the Federal Register published on
RIN 2120–AI79
April 11, 2000 (65 FR 19477–78).
Docket: To read background
Filtered Flight Data
documents or comments received, go to
https://www.regulations.gov and follow
AGENCY: Federal Aviation
the online instructions for accessing the
Administration (FAA), DOT.
docket. Or, go to the Docket
ACTION: Supplemental notice of
Management Facility in Room W12–140
proposed rulemaking (SNPRM).
of the West Building Ground Floor at
1200 New Jersey Avenue, SE.,
SUMMARY: The FAA is amending its
proposal to prohibit the filtering of some Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
original flight recorder sensor signals.
Federal holidays.
Comments to the NPRM published in
rwilkins on PROD1PC63 with PROPOSALS
Appendix A to § 219.3—Reimbursement
Schedule
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47857
For
technical questions concerning this
proposed rule contact Brian A. Verna,
Avionics Systems Branch, Aircraft
Certification Service, AIR–130, Federal
Aviation Administration, 800
Independence Avenue, SW.,
Washington, DC 20591; telephone (202)
385–4643; fax (202) 385–4651; e-mail
brian.verna@faa.gov. For legal questions
concerning this proposed rule contact
Karen L. Petronis, Senior Attorney for
Regulations, Regulations Division,
Office of the Chief Counsel, AGC–200,
Federal Aviation Administration, 800
Independence Avenue, SW.,
Washington, DC 20591; telephone (202)
267–3073; fax 202–267–7971; e-mail
karen.petronis@faa.gov.
SUPPLEMENTARY INFORMATION: Later in
this preamble under the Additional
Information section, we discuss how
you can comment on this proposal and
how we will handle your comments.
This discussion includes related
information about the docket, privacy,
and the handling of proprietary or
confidential business information. We
also discuss how you can get a copy of
this proposal and related rulemaking
documents.
FOR FURTHER INFORMATION CONTACT:
Authority for This Rulemaking
The FAA’s authority to issue aviation
safety rules is found in Title 49 of the
United States Code. Subtitle I, Section
106 describes the authority of the FAA
Administrator. Subtitle VII, Aviation
Programs, describes in more detail the
scope of the agency’s authority.
This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, Subpart III, Section
44701. Under that section, the FAA is
charged with prescribing regulations
providing minimum standards for other
practices, methods and procedures
necessary for safety in air commerce.
This regulation is within the scope of
that authority since flight data recorders
are the only means available to account
for aircraft movement and flight crew
actions critical to finding the probable
cause of incidents or accidents,
including data that could prevent future
incidents or accidents.
I. Background
A. Statement of the Problem
During several aircraft accident
investigations, the National
Transportation Safety Board (NTSB or
Board) found that some flight data
recorder systems were filtering flight
recorder parameter signals before they
were recorded. As a result, the recorded
data did not accurately reflect the
aircraft’s performance or the movements
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]]>Agencies
[Federal Register Volume 73, Number 159 (Friday, August 15, 2008)]
[Proposed Rules]
[Pages 47854-47857]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18898]
=======================================================================
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FEDERAL RESERVE SYSTEM
12 CFR Part 219
[Regulation S; Docket No. R-1325]
Reimbursement for Providing Financial Records; Recordkeeping
Requirements for Certain Financial Records
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Board of Governors of the Federal Reserve System (Board)
is proposing amendments to Subpart A of Regulation S, which implements
the requirement under the Right to Financial Privacy Act (RFPA) that
the Board establish the rates and conditions under which payment shall
be made by a government authority to a financial institution for
assembling or providing financial records pursuant to RFPA. These
proposed amendments update the fees to be charged and take account of
recent advances in electronic document productions.
DATES: Comments must be submitted on or before September 29, 2008.
ADDRESSES: You may submit comments, identified by Docket No. R-1325, by
any of the following methods:
Agency Web Site: https://www.federalreserve.gov. Follow the
instructions for submitting comments at: https://www.federalreserve.gov/
generalinfo/foia/ProposedRegs.cfm.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: regs.comments@federalreserve.gov. Include the
docket number in the subject line of the message.
Fax: (202) 452-3101.
Mail: Jennifer J. Johnson, Secretary, Board of Governors
of the Federal Reserve System, 20th Street and Constitution Avenue,
NW., Washington, DC 20551.
All public comments are available from the Board's Web site at
https://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as
submitted, unless modified for technical reasons. Accordingly, your
comments will not be edited to remove any identifying or contact
information. Public comments may also be viewed electronically or in
paper in Room MP-500 of the Board's Martin Building (20th and C
Streets, NW.) between 9 a.m. and 5 p.m. on weekdays.
FOR FURTHER INFORMATION CONTACT: Jason Gonzalez, Senior Attorney (202/
452-3275), Legal Division, Board of Governors of the Federal Reserve
System, Washington, DC 20551. For users of the Telecommunication Device
for the Deaf (TDD), please call (202) 263-4869.
SUPPLEMENTARY INFORMATION:
Background
Section 1115 of the RFPA (12 U.S.C. 3415) requires the Board to
establish, by regulation, the rates and conditions under which payment
is made by a Government authority to a financial institution for
searching for, reproducing, or transporting data required or requested
under the RFPA. Shortly after the RFPA was adopted, the Board issued
Regulation S (12 CFR Part 219) to implement this provision (44 FR
55812, September 28, 1979). These provisions were subsequently
designated Subpart A of Regulation S. In June 1996, the Board revised
Regulation S by updating the fees financial institutions could charge
and streamlining the Subpart generally. 61 FR 29638 (June 12, 1996).
In the twelve years since the last revision, the Board has observed
two significant changes that now require further amendments to Subpart
A of Regulation S. First, increases in salary and benefits have caused
the fees chargeable for reproducing financial records to become
outdated. Furthermore, in recent years, the
[[Page 47855]]
production of electronically stored information during investigations
and in litigation has become increasingly common. Charles Alan Wright,
Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure,
Sec. 2218 at 449 (2d ed. 2006). Many government agencies now prefer to
receive information in digital formats, thereby easing handling and
analysis. Consequently, the amendments proposed below are intended to
update the existing rates to be paid and provide a reimbursement scheme
that more accurately reflects the costs of producing electronically
stored information in digital formats.
Proposed Amendments
The Board proposes to amend Regulation S in the following manner:
I. Cost Reimbursement
(a) Fees Payable. This section is being clarified to state
specifically that financial institutions are eligible for reimbursement
when producing financial records that have been requested pursuant to
an administrative agency request, as well as by court order or
subpoena. The Board of Governors has received information that some
financial institutions and government agencies may be incorrectly
limiting reimbursement under the Regulation to compelled court or grand
jury subpoenas for customer account information.
(b) Search & Processing Costs. When subpart A was last amended in
1996, document productions were typically made on paper. Consequently,
the reimbursement scheme in place since that time does not fully
address the question of what costs should be reimbursable when
financial institutions retrieve electronically stored records and then
produce them in a digital format, rather than on paper. The current
regulation permits computer time to be reimbursed, but only if
separately itemized. Most financial institutions do not engage in that
task, so computer time is typically not charged separately. The
amendments proposed below do not change this aspect of the regulation,
but instead recognize a new personnel category for computer specialists
when more specialized assistance is necessary. The revised fee schedule
also updates the fees that a financial institution may charge to
account for changes in personnel costs for existing job categories.
Finally, the revised fee schedule includes a ``per electronic
production'' flat charge, rather than the ``per diskette'' charge
included in the existing regulation. The amendments also include a
provision that would permit reimbursement on a per page basis for
production of information only if the government agency requested
production on paper, so that unnecessary costs are not incurred by the
financial institution or the government.
Updating the Existing Labor Rates. Under the existing regulation,
the personnel fees chargeable in Appendix A, which are intended to
cover the cost of searching for, processing and producing financial
records stored electronically, on paper or on microfiche, are separated
into two labor categories--clerical/technical and manager/supervisory.
The fees for these categories were originally derived from the 1994
Bank Cash Compensation Survey (BCCS), which is produced by the Banking
Administration Institute. Although the BCCS is still in existence, the
Board proposes to update the fees using comparable data maintained by
the Bureau of Labor Statistics (BLS) as generated by the Occupational
Employment Statistics Program. BLS provides an aggregate of data taken
from 2004 to 2007. Unlike the BCCS, the BLS sample size is
comprehensive and, therefore, reduces the risk of having an
unrepresentative sample.
The Board proposes to update the current managerial/supervisory
rate found in Appendix A ($17.00) using the rate for first-line
supervisors/managers of office found in the BLS industry category known
as Credit Intermediation and Related Activities ($22.02) adjusted for
benefits using the standard benefit formula set out in the BLS survey
(32.2%). This result in a $30 per hour charge (rounded to the next
highest dollar). The Board also proposes to update the rate for the
clerical/technical job category found in Appendix A ($11.00) to the
average of the rates established for Information Records Clerk and
Computer Operator found within the same BLS industry category ($16.09),
adjusted for benefits (32.2%). This results in a $22 per hour charge
(rounded to the next highest dollar). The Board is interested in
receiving comments on the updated rates and the method of calculation.
New Labor Rate for Specialized Computer Support. It is expected
that, from time to time, the government will request financial
institutions to reproduce electronically stored records in a format
that requires more specialized computer expertise than would ordinarily
be part of the job responsibilities of a clerical/technical employee,
or of a manager/supervisor. Therefore, the Board proposes to add a new
job category to the fee schedule that would allow financial
institutions to charge for any additional technical assistance that is
needed to locate, retrieve, prepare or reproduce electronically stored
financial records. Under this new job category financial institutions
may charge a rate of $28.00 per hour. This figure is based on the labor
cost associated with employing a person under the computer support
specialist job category found in the BLS industry category known as
Credit Intermediation and Related Activities ($22.03), as adjusted for
benefits (32.2%). This results in a charge of $30 per hour (rounded to
the next highest dollar).
The Board is interested in receiving comments on the newly proposed
rate for specialized computer support for electronic document
productions. It is difficult to establish rates to be applied across
all geographic regions and to all depository institutions, regardless
of size. While recognizing this difficulty, the Board nevertheless
proposes a uniform rate in the belief that administration of a complex
fee schedule would be difficult.
Automatic Labor Rate Adjustment. The proposed regulation also
includes a mechanism to periodically adjust the Search and Processing
reimbursement rates for personnel costs set out in the fee schedule,
based on changes in the BLS compensation survey data. The proposed
mechanism would adjust the hourly rates contained in the fee schedule
at fixed five-year periods, using the most recent data available for
each job category. The Board is interested in receiving comments on the
mechanism chosen. If the automatic adjustment is adopted, the Board
intends to issue a press release setting out the new rates before they
become effective and making technical changes to the fee schedule for
the convenience of the industry.
(c) Reproduction Costs. The Board believes the reproduction rates
for diskettes ($5.00) should be eliminated. Instead, the Board proposes
to allow financial institutions to charge a flat fee of $5.00 per
request to cover cost of all compact disks, other electronic media, or
e-mail transmissions necessary to respond to a request. The Board also
requests comments on whether the inclusion of fees for microfiche
duplication should be eliminated as outdated.
While financial institutions may continue to seek reimbursement for
photocopies at the existing rate ($.25 per page), Sec. 219.3(c), this
fee would only be chargeable when: (1) The institution is merely
reproducing information that is already stored only in paper form, or
(2) where the party making the request has
[[Page 47856]]
specifically asked for printed copies of information that is stored
electronically.
The Board welcomes comments on the appropriateness of the proposed
fees and any suggested alternative methods of determining the fees.
II. Conditions for Payment
This section is being changed to identify the direct costs that may
be charged when a financial institution produces financial records in
paper, electronic form or both. As explained above, photocopying and
microfiche charges are only applicable if the institution has
reproduced financial records that are not maintained electronically
(i.e., on paper or in microfiche), or where the government authority
making the request has specifically asked for printed copies of
electronically stored information.
Solicitation of Comments Regarding the Use of ``Plain Language''
Section 722 of the Gramm-Leach-Bliley Act of 1999 requires the
Board to use ``plain language'' in all proposed and final rules
published after January 1, 2000. The Board invites comments on whether
the proposed rules are clearly stated and effectively organized, and
how the Board might make the proposed text easier to understand.
Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605, the Board certifies that this proposed
rule, if adopted, will not have a significant economic impact on a
substantial number of small entities. The proposed rule confers a
benefit on financial institutions, including small financial
institutions, by providing for reimbursement of certain costs incurred
in complying with a requirement to assemble and reproduce financial
records.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Ch. 3506; 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. No collections of information pursuant to the
Paperwork Reduction Act are contained in the proposed rule.
List of Subjects in 12 CFR Part 219
Banks, Banking, Currency, Federal Reserve System, Foreign banking,
Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set out in the preamble, 12 CFR part 219 is
proposed to be amended as set forth below.
PART 219--REIMBURSEMENT FOR PROVIDING FINANCIAL RECORDS;
RECORDKEEPING REQUIREMENTS FOR CERTAIN FINANCIAL RECORDS
(REGULATION S)
1. The authority citation for part 219 continues to read as
follows:
Authority: 12 U.S.C. 3415.
2. Section 219.3 is amended as follows:
a. Revise paragraphs (a) and (b)(2).
b. Add new paragraph (b)(3).
c. Revise paragraphs (c) and (d), and Appendix A to Sec. 219.3.
Sec. 219.3 Cost reimbursement.
(a) Fees payable. Except as provided in Sec. 219.4, a government
authority seeking access to financial records pertaining to a customer,
by written request, through: A court order, a subpoena issued pursuant
to the Federal Rules of Criminal Procedure or the Federal Rules of
Civil Procedure, or other agency administrative procedures, including
administrative subpoenas, voluntary requests, or other process shall
reimburse the financial institution for reasonably necessary costs
directly incurred in searching for, reproducing or transporting books,
papers, records, or other data as set forth in this section. The
reimbursement schedule for a financial institution is set forth in
Appendix A to this section. If a financial institution has financial
records that are stored at an independent storage facility that charges
a fee to search for, reproduce, or transport particular records
requested, these costs are considered to be directly incurred by the
financial institution and may be included in the reimbursement.
(b) * * *
(2) If itemized separately, search and processing costs may include
the actual cost of extracting electronically stored records, based on
computer time and necessary supplies; however, personnel time for
computer searches may be paid for at the rates set for computer support
specialist, specified in Appendix A to this section, but only when
compliance with the request for information requires that the financial
institution use programming or other higher level technical services of
a computer support specialist in order to reproduce electronically
stored information in the format requested by the government authority.
(3) Rates for Search and Processing in Appendix A shall be
recalculated as follows on April 1, 2012 and on April 1 of each
subsequent five-year period utilizing Bureau of Labor Statistics
(``BLS'') data by replacing the existing hourly rates with the sum of:
(i) Base Labor rate recalculation--Using the most recently
available wage data from the Occupational Employment Statistics program
(https://www.bls.gov/oes/home.htm) for the BLS industry category
``Credit Intermediation and Related Activities'' (NAICS Code Number
522000) (or successor category):
(A) [Clerical/Technical category] the average of the median hourly
rates for the ``Information and Records Clerk'' and ``Computer
Operator'' job categories (SOC Code Number 43-4199 and 43-9011) (or any
successor job categories);
(B) [Manager/Supervisor category] the median hourly rate for the
``first-line supervisors/managers of office'' job category (SOC Code
Number 43-1011) (or successor category), and
(C) [Computer Support Specialist category] the median hourly rate
for the ``computer support specialist'' job category (SOC Code Number
15-1041) (or successor category); plus
(ii) Benefits Adjustment--an amount for each hourly rate category
that is equal to the product of:
(A) The hourly rates set forth in paragraph (b)(3)(i) of this
section, and
(B) The most recently available ``percent of total compensation''
represented by ``total benefits'' for the ``Credit Intermediation and
Related Activities'' industry category (private sector) set out in the
Employment Cost Trends section of the National Compensation Survey
(https://data.bls.gov/PDQ/outside.jsp?survey=cm); and
(iii) If the recalculated rates for Search and Processing
(including the Base labor rate and the benefits adjustment) are not a
multiple of $1, the recalculated rates shall be rounded up to the next
multiple of $1.
(c) Reproduction costs. The reimbursement rates for reproduction
costs for requested information are set forth in Appendix A to this
section, subject to the Conditions for Payment set forth in Sec.
219.5. Copies of photographs, films and other materials not listed in
Appendix A to this section are reimbursed at actual cost.
(d) Transportation costs. Reimbursement for transportation costs
shall be for the reasonably necessary costs directly incurred to
transport personnel to locate and retrieve the requested information,
and to convey such material to the place of examination.
[[Page 47857]]
Appendix A to Sec. 219.3--Reimbursement Schedule
Reproduction:
Photocopy, per page........................................ $0.25
Paper Copies of Microfiche, per frame...................... 0.25
Duplicate Microfiche, per microfiche....................... 0.50
Electronic Productions, per request........................ 5.00
Search and Processing:
Clerical/Technical, hourly rate............................ 22.00
Computer Support Specialist, hourly rate................... 30.00
Manager/Supervisory, hourly rate........................... 30.00
3. Section 219.5 is amended by revising paragraph (a) to read as
follows:
Sec. 219.5 Conditions for payment.
(a) Direct costs. Payment shall be made only for costs that are
both directly incurred and reasonably necessary to provide requested
material. Search and processing, reproduction, and transportation costs
shall be considered separately when determining whether the costs are
reasonably necessary. Photocopying or microfiche charges are reasonably
necessary only if the institution has reproduced financial records that
were not stored electronically (i.e., where the information requested
was stored only on paper or in microfiche), or where the government
authority making the request has specifically asked for printed copies
of electronically stored records.
* * * * *
By order of the Board of Governors of the Federal Reserve
System, August 12, 2008.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. E8-18898 Filed 8-14-08; 8:45 am]
BILLING CODE 6210-01-P
