Availability of Information Under the Freedom of Information Act, 13289-13293 [2024-02990]
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13289
Proposed Rules
Federal Register
Vol. 89, No. 36
Thursday, February 22, 2024
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
12 CFR Part 4
[Docket ID OCC–2022–0008]
RIN 1557–AE76
Availability of Information Under the
Freedom of Information Act
Office of the Comptroller of the
Currency, Treasury.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Office of the Comptroller
of the Currency (OCC) is proposing to
amend its Freedom of Information Act
(FOIA) regulations. The proposal would
amend the OCC’s FOIA regulations to
provide for expedited processing of
FOIA requests and establish procedures
for requestors to appeal denials of
expedited processing and fee waiver
requests. The proposal also would
remove the competitive harm standard
for information provided to the
government on an involuntary basis and
make a conforming amendment to the
OCC’s FOIA regulations to be consistent
with FOIA.
DATES: Comments must be received by
April 22, 2024.
ADDRESSES: Commenters are encouraged
to submit comments through the Federal
eRulemaking Portal. Please use the title
‘‘Availability of Information Under the
Freedom of Information Act’’ to
facilitate the organization and
distribution of the comments. You may
submit comments by any of the
following methods:
• Federal eRulemaking Portal—
Regulations.gov:
Go to https://regulations.gov/. Enter
‘‘Docket ID OCC–2022–0008’’ in the
Search Box and click ‘‘Search.’’ Public
comments can be submitted via the
‘‘Comment’’ box below the displayed
document information or by clicking on
the document title and then clicking the
‘‘Comment’’ box on the top-left side of
the screen. For help with submitting
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effective comments, please click on
‘‘Commenter’s Checklist.’’ For
assistance with the Regulations.gov site,
please call 1–866–498–2945 (toll free)
Monday–Friday, 9 a.m.–5 p.m. ET, or
email regulationshelpdesk@gsa.gov.
• Mail: Chief Counsel’s Office,
Attention: Comment Processing, Office
of the Comptroller of the Currency, 400
7th Street SW, Suite 3E–218,
Washington, DC 20219.
• Hand Delivery/Courier: 400 7th
Street SW, Suite 3E–218, Washington,
DC 20219.
Instructions: You must include
‘‘OCC’’ as the agency name and ‘‘Docket
ID OCC–2022–0008’’ in your comment.
In general, the OCC will enter all
comments received into the docket and
publish the comments on the
Regulations.gov website without
change, including any business or
personal information provided such as
name and address information, email
addresses, or phone numbers.
Comments received, including
attachments and other supporting
materials, are part of the public record
and subject to public disclosure. Do not
include any information in your
comment or supporting materials that
you consider confidential or
inappropriate for public disclosure.
You may review comments and other
related materials that pertain to this
action by the following method:
• Viewing Comments Electronically—
Regulations.gov:
Go to https://regulations.gov/. Enter
‘‘Docket ID OCC–2022–0008’’ in the
Search Box and click ‘‘Search.’’ Click on
the ‘‘Dockets’’ tab and then the
document’s title. After clicking the
document’s title, click the ‘‘Browse All
Comments’’ tab. Comments can be
viewed and filtered by clicking on the
‘‘Sort By’’ drop-down on the right side
of the screen or the ‘‘Refine Comments
Results’’ options on the left side of the
screen. Supporting materials can be
viewed by clicking on the ‘‘Browse
Documents’’ tab. Click on the ‘‘Sort By’’
drop-down on the right side of the
screen or the ‘‘Refine Results’’ options
on the left side of the screen checking
the ‘‘Supporting & Related Material’’
checkbox. For assistance with the
Regulations.gov site, please call 1–866–
498–2945 (toll free) Monday–Friday, 9
a.m.–5 p.m. ET, or email
regulationshelpdesk@gsa.gov.
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The docket may be viewed after the
close of the comment period in the same
manner as during the comment period.
FOR FURTHER INFORMATION CONTACT:
Kristin Merritt, Assistant Director,
MaryAnn Nash, Counsel, or Christopher
D’Alessio, Counsel, Chief Counsel’s
Office, (202) 649–5490; 400 7th Street
SW, Washington, DC 20219. If you are
deaf, hard of hearing, or have a speech
disability, please dial 7–1–1 to access
telecommunications relay services.
SUPPLEMENTARY INFORMATION:
I. Background
The Freedom of Information Act
(FOIA) 1 enacted in 1966, revised the
public disclosure section of the
Administrative Procedure Act to allow
for easier public access to government
records. FOIA makes government
records accessible to members of the
public, unless the records (or any
portion thereof) are protected from
disclosure by one of FOIA’s nine
exemptions or by one of its three special
law enforcement record exclusions.2
FOIA outlines a process for members of
the public to obtain records.3 This
process also affords requesters
administrative appeals and remedy in
United States district courts.4
FOIA requires Federal agencies to
promulgate regulations to implement
the statute.5 The OCC’s FOIA
regulations create a process by which
requesters can request and obtain
agency records, including how to
request records, the format requests
must take, and the time limits for OCC
response, appeals, and fees.6
15
U.S.C. 552.
U.S.C. 552(b)(1)–(9) (exemptions); 5 U.S.C.
552(c)(1)–(3) (exclusions).
3 5 U.S.C. 552(a)(3) (agency obligation to search
for and provide records pursuant to request); 5
U.S.C. 552(a)(4)(A) (fees); 5 U.S.C. 552(a)(6)
(processing requests, including appeals).
4 5 U.S.C. 552(a)(6)(A)(III)(aa) (administrative
appeal); 5 U.S.C. 552(a)(4)(B)–(C) (district court).
5 E.g., 5 U.S.C. 552(a)(4)(A)(i) (In order to carry
out the provisions of this section, each agency shall
promulgate regulations, pursuant to notice and
receipt of public comment, specifying the schedule
of fees applicable to the processing of requests
under this section and establishing procedures and
guidelines for determining when such fees should
be waived or reduced.); 5 U.S.C. 552(a)(6)(E)(i)
(Each agency shall promulgate regulations,
pursuant to notice and receipt of public comment,
providing for expedited processing of requests for
records[.]).
6 12 CFR 4.15 (request process, including request
format, time limits for response, and appeals); 12
CFR 4.17 (fees).
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II. Proposed Changes
Expedited Processing. FOIA mandates
that each Federal agency promulgate
regulations, pursuant to notice and
receipt of public comment, providing
for expedited processing of requests for
records.7 However, the OCC’s current
FOIA regulations do not address
expedited processing requests.
Presently, when the OCC grants a
request for expedited processing, the
agency processes the request as soon as
practicable. Accordingly, the proposal
would amend the OCC’s FOIA
regulations to include procedures for
expedited processing.
FOIA also provides specific
requirements for agencies’ expedited
processing regulations. The statute
requires that the regulations allow for
expedited processing when the
requester ‘‘demonstrates a compelling
need’’ and ‘‘in other cases determined
by the agency.’’ 8 The statute defines
‘‘compelling need’’ as either: (1) ‘‘that a
failure to obtain requested records on an
expedited basis . . . could reasonably
be expected to pose an imminent threat
to the life or physical safety of an
individual’’ or (2) ‘‘urgency to inform
the public concerning actual or alleged
Federal Government activity’’ when ‘‘a
request [is] made by a person primarily
engaged in disseminating
information[.]’’ 9 FOIA requires that the
requester’s ‘‘demonstration of
compelling need’’ be made by a
statement certifying it is true and correct
to the best of the requester’s knowledge
and belief.10 The statute also requires an
agency to provide the requester with
notice of the decision on a request for
expedited processing ‘‘within 10 days
after the date of the request.’’ 11 Finally,
the statute requires that the regulations
ensure ‘‘expeditious consideration of
administrative appeals’’ of decisions on
requests for expedited processing.12
The OCC’s proposal would address
each of the statute’s requirements for
expedited processing regulations in new
proposed paragraph 12 CFR 4.15(c)(5).
Under proposed paragraph (c)(5)(i),
individuals would be able to request
expedited processing with their initial
request for records or at any time
thereafter. If the individual requests
expedited processing on paper, both the
envelope and the request itself would
have to be labeled, ‘‘Expedited
Processing Requested.’’
75
U.S.C. 552(a)(6)(E)(i).
U.S.C. 552(a)(6)(E)(i)(I)–(II).
9 5 U.S.C. 552(a)(6)(E)(v)(I)–(II).
10 5 U.S.C. 552(a)(6)(E)(vi).
11 5 U.S.C. 552(a)(6)(E)(ii)(I).
12 5 U.S.C. 552(a)(6)(E)(ii)(II).
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Under proposed paragraph (c)(5)(ii),
the OCC would grant requests for
expedited processing when they
involve: (A) circumstances in which the
lack of expedited processing could
reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual; (B) an urgency
to inform the public about an actual or
alleged Federal government activity, if
made by a person who is primarily
engaged in disseminating
information; 13 or (C) the loss of
substantial due process rights. Under
proposed paragraph (c)(5)(ii)(B), the
‘‘urgency to inform’’ standard would
require that records requested pertain to
a matter of current exigency to the
public and that delaying a response to
a request for records would compromise
a significant recognized interest to and
throughout the general public. This
proposed provision would implement
FOIA’s requirement that each agency
promulgate regulations providing for
expedited processing when the
requester demonstrates ‘‘compelling
need,’’ or ‘‘in other cases determined by
the agency.’’ 14 The proposed standard
for compelling need fulfills the
requirements in FOIA 15 and includes
language similar to the U.S. Department
of the Treasury’s FOIA regulations.16
Under proposed paragraph (c)(5)(iii),
a requester who seeks expedited
processing would be required to submit
a statement, certified to be true and
correct, demonstrating the compelling
need for expedited processing, which is
consistent with FOIA.17 The certified
statement demonstrating compelling
need must address at least one of the
criterion in paragraph (c)(5)(ii). Further,
the proposed rule would allow the OCC
to waive this certification requirement
as a matter of administrative discretion.
This proposed language is similar to the
U.S. Department of the Treasury’s FOIA
regulations.18
Under proposed paragraph (c)(5)(iv),
the OCC would have 10 calendar days
after receipt of the request for expedited
processing to notify the requester of the
OCC’s decision to grant or deny the
request. The 10-day timetable conforms
to the requirement in FOIA.19 Further,
the decision to grant or deny an
expedited processing request would be
13 Under the proposed § 4.15(c)(5)(iii)(B), a
requester ‘‘primarily engaged in disseminating
information’’ does not include individuals who are
engaged only incidentally in the dissemination of
information.
14 See 5 U.S.C. 552(a)(6)(E)(i)(I)–(II).
15 See 5 U.S.C. 552(a)(6)(E)(v)(I)–(II).
16 See 31 CFR 1.4(e)(1)(i)–(ii).
17 See 5 U.S.C. 552(a)(6)(E)(vi).
18 See 31 CFR 1.4(e)(3).
19 See 5 U.S.C. 552(a)(6)(E)(ii)(I).
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based solely on the information
contained in the initial letter requesting
expedited processing. Under the
proposal, the OCC would process the
records ‘‘as soon as practicable’’ in
conformance with FOIA.20 The
proposed rule also includes a provision
for appeals of a denial of an expedited
processing request. This provision is
included in the proposal because FOIA
requires that agencies’ FOIA regulations
ensure ‘‘expeditious consideration of
administrative appeals’’ of decisions on
requests for expedited processing.21
Under proposed paragraph (c)(5)(v), a
requester could appeal the denial of a
request for expedited processing by
following the appeal procedures in 12
CFR 4.15(d). The procedures in § 4.15(d)
require the requester to appeal within
90 calendar days because FOIA provides
for a timetable of ‘‘not less than 90
days’’ for a requester to appeal an
adverse determination.22 Under
proposed paragraph (c)(5)(v), if the
requester submits an appeal on paper,
the envelope and appeal would need to
be clearly marked ‘‘Appeal for
Expedited Processing.’’ In addition, the
proposed rule would amend § 4.15(d),
which outlines the OCC’s administrative
appeal procedures, to state that
requesters may appeal an ‘‘adverse
determination,’’ a term which appears,
but is not defined, in FOIA.23 The
proposal would amend § 4.15(d) to
clarify that the denial of an expedited
processing request constitutes an
adverse determination and, therefore,
requesters can appeal the denial of an
expedited processing request. The
proposal further clarifies that the
Comptroller or the Comptroller’s
delegate would decide appeals from
denials of expedited processing
requests.
Finally, under proposed 12 CFR
4.15(c)(5)(vi), consistent with FOIA, the
OCC would be required to expeditiously
(1) consider the appeal and (2) notify
the requestor of the determination. This
proposed standard tracks the language
of FOIA, which requires expeditious
consideration of administrative
appeals.24
Question 1. FOIA requires that the
OCC’s FOIA regulations provide for
expedited processing ‘‘in other cases
determined by the agency.’’ 25 In what
situations should the OCC grant a
request for expedited processing?
20 See
5 U.S.C. 552(a)(6)(E)(iii).
5 U.S.C. 552(a)(6)(E)(ii)(II).
22 See 5 U.S.C. 552(a)(6)(A)(i)(III)(aa).
23 See 5 U.S.C. 552(a)(6)(A)(i)(III).
24 See 5 U.S.C. 552(a)(6)(E)(ii)(II).
25 5 U.S.C. 552(a)(6)(E)(i)(II).
21 See
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Question 2. Should the OCC provide
a more specific timeline for deciding
and responding to an appeal regarding
expedited processing, i.e., a specific
number of days, rather than
‘‘expeditiously’’?
Appeal of Fee Waiver Denials. FOIA
requires that each agency promulgate
regulations establishing fees for
processing FOIA requests.26 But, under
certain circumstances, the requester
must be granted a fee waiver.27 FOIA
does not expressly state whether a
requester can appeal fee waiver denials,
although FOIA allows requesters to
appeal ‘‘adverse determinations.’’ 28
However, the statute does not explicitly
define an adverse determination.
Further, FOIA requires that each agency
shall promulgate regulations
establishing procedures and guidelines
for determining when the agency should
waive or reduce fees.29 In addition,
FOIA specifies that a court shall
determine the matter de novo in any
action by a requester regarding the
waiver of fees for FOIA purposes.30
The statutory language discussed
above does not expressly grant
requesters the right to appeal the denial
of a fee waiver. However, FOIA’s
statement that courts consider actions
regarding fee waivers de novo suggests
that fee waiver denials are appealable.
Additionally, the Federal Deposit
Insurance Corporation, U.S. Department
of the Treasury (Treasury), and U.S.
Department of Justice (DOJ) have
promulgated regulations that grant an
express right to appeal a fee waiver
denial.31 In addition, the DOJ Office of
Information Policy’s model FOIA
regulations suggest that agencies should
include the right to appeal a denial of
a fee waiver.32 Currently, the OCC’s
FOIA regulations do not address appeals
from denial of a fee waiver request.
Accordingly, consistent with the
statute’s requirement that courts
consider actions regarding fee waivers
de novo, other agencies’ regulations,
and the DOJ’s model FOIA regulations,
the OCC proposes to amend its
regulations to explicitly grant requesters
26 5
U.S.C. 552(a)(4)(A)(i).
U.S.C. 552(a)(4)(A)(iii) (Documents shall be
furnished without any charge).
28 See 5 U.S.C. 552(a)(6)(A)(i)(III)(aa).
29 5 U.S.C. 552(a)(4)(A)(i).
30 5 U.S.C. 552(a)(4)(A)(vii).
31 See 12 CFR 309.5(f)(x) (FDIC); 31 CFR 1.4(h)–
(i), 1.6(a) (Treasury); 28 CFR 16.6(d)–(e), 16.8(a)
(DOJ).
32 See Department of Justice, Office of Information
Policy, Template for Agency FOIA Regulations,
§ VI. Responses to Requests, https://
www.justice.gov/oip/template-agency-foiaregulations#Responses%20to%20Requests (last
updated Dec. 2, 2022).
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the ability to appeal a denial of a fee
waiver.
This proposed rule would amend 12
CFR 4.17(b), which governs the OCC’s
standards for fee waivers by adding a
provision in § 4.17(b)(4) to explicitly
grant requesters the ability to appeal the
denial of a fee waiver request.
Furthermore, the proposed rule would
amend 12 CFR 4.15(d), which outlines
the OCC’s administrative appeal
procedures, to clarify that the denial of
a fee waiver constitutes an adverse
determination and, therefore, requesters
can appeal the denial of a fee waiver
request. The proposal further clarifies
that the Comptroller or the
Comptroller’s delegate would decide
appeals from denials of fee waiver
requests.
Fee Waivers. FOIA requires that each
agency promulgate regulations,
pursuant to notice and comment, stating
the agency’s fee schedule for processing
FOIA requests.33 FOIA also requires that
documents shall be furnished without
any charge or at a charge below the
agency’s fee schedule when the
applicable standard is met.34 However,
current 12 CFR 4.17(b)(4) states that the
OCC may waive or reduce a fee when
it determines the standard is met.35 For
consistency, the OCC is proposing an
amendment to align its regulations with
the statutory standard. Under the
proposed rule, consistent with FOIA,
the OCC ‘‘must’’ grant the requester’s
request for a fee waiver if the requester
meets the standard for fee waiver.
Exemption 4. FOIA Exemption 4, 5
U.S.C. 552(b)(4), protects ‘‘trade secrets
and commercial or financial information
obtained from a person and privileged
or confidential[.]’’ Historically, the OCC
has operated in a manner consistent
with caselaw in determining whether
commercial or financial information is
‘‘confidential’’ under Exemption 4. In
Food Marketing Institute v. Argus
Leader Media, 139 S. Ct. 2356 (2019)
(FMI), the Supreme Court overruled the
longstanding substantial competitive
harm standard for information provided
to the government on an involuntary
basis that was first announced in
National Parks & Conservation Ass’n v.
Morton, 498 F.2d 765 (D.C. Cir. 1974).
In FMI, the Supreme Court held that
commercial or financial information
submitted to the government will be
33 5
U.S.C. 552(a)(4)(A)(i).
5 U.S.C. 552(a)(4)(A)(iii), a fee waiver
must be granted when disclosure of the information
is in the public interest because it is likely to
contribute significantly to public understanding of
the operations or activities of the government and
is not primarily in the commercial interest of the
requester.
35 12 CFR 4.17(b)(4)(i)–(ii).
34 Under
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considered ‘‘confidential’’ for purposes
of FOIA Exemption 4 at least where the
information is ‘‘both customarily and
actually treated as private by its owner
and provided to the government under
an assurance of privacy.’’ 36
Accordingly, the OCC proposes to
remove all references to the competitive
harm standard in 12 CFR 4.16. Because
the definition of confidential
commercial information in the current
OCC regulation was based on the
competitive harm standard, the proposal
would update the definition to more
closely follow FOIA and would remove
references to the competitive harm
standard throughout § 4.16.
Additionally, the proposal would
remove 12 CFR 4.16(b)(1)(i)(A), which is
the requirement for the OCC to provide
a submitter of information with a
prompt notice of receipt of the request
when the request is for confidential
information submitted to the OCC,
Office of Thrift Supervision, or Federal
Home Loan Bank Board prior to 1988
and where the records are less than 10
years old. It is impossible for those
records to be less than 10-years old
today, thus, § 4.16(b)(1)(i)(A) is
irrelevant. Finally, the proposal would
make corresponding typographical
changes for grammatical purposes.
Question 3. Should the OCC define
the term ‘‘confidential commercial
information’’ in the regulation?
Effective Date
The proposed rule would have an
effective date of at least 60 calendar
days after publication of the final rule
in the Federal Register or the first day
of a calendar quarter that begins on or
after the date on which the regulations
are published in final form in the
Federal Register, whichever period is
longer. The OCC requests comment on
the proposed effective date.
Comment Invitation
The OCC invites comment on all
aspects of this proposal.
Regulatory Analysis
Paperwork Reduction Act of 1995
This notice of proposed rulemaking
has been reviewed for compliance with
the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.). In
accordance with PRA, the OCC may not
conduct or sponsor, and an organization
is not required to respond to, an
information collection unless the
information collection displays a
currently valid Office of Management
and Budget (OMB) control number. The
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proposed rule contains no information
collection requirements under the PRA.
Regulatory Flexibility Act
In general, the Regulatory Flexibility
Act (RFA) 37 requires an agency, in
connection with a proposed rule, to
prepare an Initial Regulatory Flexibility
Analysis describing the impact of the
rule on small entities (defined by the
U.S. Small Business Administration for
purposes of the RFA to include
commercial banks and savings
institutions with total assets of $850
million or less and trust companies with
total assets of $47 million or less).
However, under section 605(b) of the
RFA, this analysis is not required if an
agency certifies that the rule would 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 OCC currently supervises
approximately 1,059 institutions
(commercial banks, trust companies,
Federal Savings Associations (FSAs),
and branches or agencies of foreign
banks, collectively banks) 38 of which
661 are small entities.39 The OCC
expects the costs associated with the
proposed rule to be de minimis because
the OCC is the main entity that would
be impacted by reviewing and
processing FOIA requests on an
expedited timeframe. Furthermore,
because the OCC expects the majority of
those de minimis costs to be incurred by
the OCC as it updates its policies and
procedures and its FOIA tracking
system and not by small entities, the
OCC certifies that the proposed rule
would not have a significant economic
impact on a substantial number of small
entities.
Unfunded Mandates Reform Act of 1995
The OCC analyzed the proposed rule
under the factors set forth in the
Unfunded Mandates Reform Act of 1995
(UMRA) (2 U.S.C. 1532). Under this
analysis, the OCC considered whether
the proposed rule includes a Federal
mandate that may result in the
expenditure by State, local, and Tribal
37 5
U.S.C. 601 et seq.
on data accessed using FINDRS on
August 30, 2023.
39 Consistent with the General Principles of
Affiliation, 13 CFR 121.103(a), the OCC counts the
assets of affiliated financial institutions when
determining if it should classify an institution as a
small entity. The OCC used December 31, 2022, to
determine size because a ‘‘financial institution’s
assets are determined by averaging the assets
reported on its four quarterly financial statements
for the preceding year.’’ See footnote 8 of the U.S.
Small Business Administration’s Table of
Standards.
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governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year (adjusted for inflation).
Because the OCC’s overall estimate of
the total potential costs associated with
this proposed rule is de minimis, the
OCC concludes that the rule would not
result in private sector costs that exceed
the UMRA threshold for a significant
rule. Accordingly, the OCC has not
prepared the written statement
described in section 202 of the UMRA.
Riegle Community Development and
Regulatory Improvement Act of 1994
Pursuant to section 302(a) of the
Riegle Community Development and
Regulatory Improvement Act of 1994 (12
U.S.C. 4802(a)), in determining the
effective date and administrative
compliance requirements for new
regulations that impose additional
reporting, disclosure, or other
requirements on insured depository
institutions, the OCC will consider,
consistent with the principles of safety
and soundness and the public interest:
(1) any administrative burdens that the
proposed rule would place on
depository institutions, including small
depository institutions and customers of
depository institutions and (2) the
benefits of the proposed rule. The OCC
requests comment on any administrative
burdens that the proposed rule would
place on depository institutions,
including small depository institutions
and their customers, and the benefits of
the proposed rule that the OCC should
consider in determining the effective
date and administrative compliance
requirements for a final rule.
List of Subjects in 12 CFR Part 4
Administrative practice and
procedure, Freedom of information,
Individuals with disabilities, Minority
businesses, Organization and functions
(Government agencies), Reporting and
recordkeeping requirements, Women.
Authority and Issuance
For the reasons set forth in the
preamble, and under the authority of 12
U.S.C. 93a, the OCC proposes to amend
12 CFR chapter I as follows:
PART 4—ORGANIZATION AND
FUNCTIONS, AVAILABILITY AND
RELEASE OF INFORMATION,
CONTRACTING OUTREACH
PROGRAM, POST-EMPLOYMENT
RESTRICTIONS FOR SENIOR
EXAMINERS
1. The authority citation for part 4
continues to read as follows:
■
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1,
93a, 161, 481, 482, 484(a), 1442, 1462a, 1463,
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1464 1817(a), 1818, 1820, 1821, 1831m,
1831p–1, 1831o, 1833e, 1867, 1951 et seq.,
2601 et seq., 2801 et seq., 2901 et seq., 3101
et seq., 3401 et seq., 5321, 5412, 5414; 15
U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641,
1905, 1906; 29 U.S.C. 1204; 31 U.S.C.
5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C.
3506, 3510; E.O. 12600 (3 CFR, 1987 Comp.,
p. 235).
2. Amend § 4.15 by:
a. Adding paragraph (c)(5); and
b. Revising paragraphs (d)(1) and (2).
The addition and revisions read as
follows:
■
■
■
§ 4.15
How to request records.
*
*
*
*
*
(c) * * *
(5) Requests for expedited processing.
(i) An individual may submit a request
for expedited processing either with the
request for records or at any time
thereafter. The request must be
submitted in writing. In cases where a
request is submitted on paper, both the
envelope and the request itself must be
clearly marked, ‘‘Expedited Processing
Requested.’’
(ii) The OCC will grant requests for
expedited processing when it is
determined that they involve:
(A) Circumstances in which the lack
of expedited processing could
reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual;
(B) An urgency to inform the public
about an actual or alleged Federal
government activity, if made by a
person who is primarily engaged in
disseminating information. The
standard of ‘‘urgency to inform’’
requires that the records requested
pertain to a matter of current exigency
to the public and that delaying a
response to a request for records would
compromise a significant recognized
interest to and throughout the general
public; or
(C) The loss of substantial due process
rights.
(iii) A requester who seeks expedited
processing must submit a statement,
certified to be true and correct,
demonstrating the compelling need for
expedited processing that meets at least
one of the criterion in paragraph
(c)(5)(ii) of this section. As a matter of
administrative discretion, the OCC may
waive this certification requirement.
(iv) Upon receipt by the OCC, the
OCC will consider a request for
expedited processing and determine
whether to grant or deny the request for
expedited processing. The OCC will
notify the requester of the determination
within 10 calendar days after the date of
receipt of the request for expedited
processing. The OCC will grant or deny
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Federal Register / Vol. 89, No. 36 / Thursday, February 22, 2024 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1
a request for expedited processing solely
on the information contained in the
initial letter requesting expedited
treatment. When the OCC grants a
request for expedited processing, the
OCC will process the records as soon as
practicable.
(v) If the OCC denies a request for
expedited processing, the requester may
appeal the denial in accordance with
paragraph (d) of this section. If the
requester submits an appeal on paper,
both the envelope and the appeal itself
must be clearly marked, ‘‘Appeal for
Expedited Processing.’’
(vi) The OCC will expeditiously
consider the appeal and notify the
requestor of the determination.
*
*
*
*
*
(d) * * *
(1) Procedure. A requester may appeal
an adverse determination, including
denials of requests for records, requests
for expedited processing under
paragraph (c)(5) of this section, and
requests for fee waivers or reductions
under § 4.17(b)(4). All appeals must be
submitted in writing within 90 calendar
days after the date of the initial
determination. The appeal must include
the circumstances and arguments
supporting disclosure of the requested
records. Appeals of initial
determinations to deny expedited
processing must also follow the
procedure set forth in paragraph
(c)(5)(v) of this section.
(2) Appellate determination. The
Comptroller or the Comptroller’s
delegate determines whether to grant an
appeal of a denial of:
(i) A request for OCC records;
(ii) A request for expedited
processing; or
(iii) A waiver or reduction of fees.
*
*
*
*
*
■ 3. Amend § 4.16 by:
■ a. Revising and republishing
paragraph (a)(1);
■ b. Revising paragraph (b)(1)(i) and (ii);
and
■ c. Removing in paragraph (b)(2)(v), the
phrase ‘‘, unless the OCC has substantial
reason to believe that disclosure of the
information would result in competitive
harm’’.
The revisions and republication read
as follows:
§ 4.16 Predisclosure notice for confidential
commercial information.
(a) Definitions. For purposes of this
section, the following definitions apply:
(1) Confidential commercial
information means commercial or
financial information obtained by the
OCC from a submitter that may be
protected from disclosure under
VerDate Sep<11>2014
16:47 Feb 21, 2024
Jkt 262001
Exemption 4 of FOIA, 5 U.S.C.
552(b)(4).
*
*
*
*
*
(b) * * *
(1) * * *
(i) With respect to confidential
commercial information submitted to
the OCC or to the Federal Home Loan
Bank Board, the predecessor of the OTS,
prior to January 1, 1988, if the
information is subject to a prior express
commitment of confidentiality from the
OCC or the Federal Home Loan Bank
Board, the predecessor of the OTS; and
(ii) With respect to confidential
commercial information submitted to
the OCC or to the OTS (or the Federal
Home Loan Bank Board, its predecessor
agency) on or after January 1, 1988, if:
(A) The submitter in good faith
designated the information as
confidential commercial information; or
(B) The OCC or the OTS (or the
Federal Home Loan Bank Board, its
predecessor agency) designated the class
of information to which the requested
information belongs as confidential
commercial information.
*
*
*
*
*
■ 4. Amend § 4.17 by revising paragraph
(b)(4) to read as follows:
§ 4.17
FOIA request fees.
*
*
*
*
*
(b) * * *
(4) Waiving or reducing a fee. (i) The
OCC must waive or reduce a fee under
this section whenever, in its opinion,
disclosure of records is in the public
interest because the disclosure:
(A) Is likely to contribute significantly
to public understanding of the
operations or activities of the
government; and
(B) Is not primarily in the commercial
interest of the requester.
(ii) A requester may appeal the OCC’s
determination not to grant a request for
a waiver or reduction of fees under this
paragraph pursuant to the procedure set
forth in § 4.15(d) of this section.
*
*
*
*
*
Michael J. Hsu,
Acting Comptroller of the Currency.
[FR Doc. 2024–02990 Filed 2–21–24; 8:45 am]
BILLING CODE 4810–33–P
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
13293
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG–132569–17]
RIN 1545–BO40
Definition of Energy Property and
Rules Applicable to the Energy Credit;
Correction
Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking;
correction.
AGENCY:
This document corrects a
notice of proposed rulemaking (REG–
132569–17) published in the Federal
Register on November 22, 2023,
containing proposed regulations that
would amend the regulations relating to
the energy credit for the taxable year in
which eligible energy property is placed
in service.
DATES: The comment period for REG–
132569–17 (88 FR 82188, November 22,
2023) is reopened, and additional
written or electronic comments must be
received by March 25, 2024.
ADDRESSES: Commenters are strongly
encouraged to submit public comments
electronically. Submit electronic
submissions via the Federal
eRulemaking Portal at https://
www.regulations.gov (indicate IRS and
REG–132569–17). Once submitted to the
Federal eRulemaking Portal, comments
cannot be edited or withdrawn. The
Department of the Treasury (Treasury
Department) and the IRS will publish
for public availability any comment
submitted to its public docket.
Send paper submissions to:
CC:PA:LPD:PR (REG–132569–17), Room
5203, Internal Revenue Service, P.O.
Box 7604, Ben Franklin Station,
Washington, DC 20044.
FOR FURTHER INFORMATION CONTACT:
Concerning the proposed regulations,
Office of Associate Chief Counsel
(Passthroughs & Special Industries) at
(202) 317–6853 (not a toll-free number);
concerning submissions of comments,
Vivian Hayes, (202) 317–6901 (not tollfree number) or by email to
publichearings@irs.gov (preferred).
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
The notice of proposed rulemaking
(REG–132569–17) that is the subject of
this correction proposes regulations
under section 48 of the Internal Revenue
Code (Code) (Proposed Regulations)
addressing the energy credit determined
under section 48 for purposes of
E:\FR\FM\22FEP1.SGM
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]]>Agencies
[Federal Register Volume 89, Number 36 (Thursday, February 22, 2024)]
[Proposed Rules]
[Pages 13289-13293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02990]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 89, No. 36 / Thursday, February 22, 2024 /
Proposed Rules
[[Page 13289]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 4
[Docket ID OCC-2022-0008]
RIN 1557-AE76
Availability of Information Under the Freedom of Information Act
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Office of the Comptroller of the Currency (OCC) is
proposing to amend its Freedom of Information Act (FOIA) regulations.
The proposal would amend the OCC's FOIA regulations to provide for
expedited processing of FOIA requests and establish procedures for
requestors to appeal denials of expedited processing and fee waiver
requests. The proposal also would remove the competitive harm standard
for information provided to the government on an involuntary basis and
make a conforming amendment to the OCC's FOIA regulations to be
consistent with FOIA.
DATES: Comments must be received by April 22, 2024.
ADDRESSES: Commenters are encouraged to submit comments through the
Federal eRulemaking Portal. Please use the title ``Availability of
Information Under the Freedom of Information Act'' to facilitate the
organization and distribution of the comments. You may submit comments
by any of the following methods:
Federal eRulemaking Portal--Regulations.gov:
Go to https://regulations.gov/. Enter ``Docket ID OCC-2022-0008''
in the Search Box and click ``Search.'' Public comments can be
submitted via the ``Comment'' box below the displayed document
information or by clicking on the document title and then clicking the
``Comment'' box on the top-left side of the screen. For help with
submitting effective comments, please click on ``Commenter's
Checklist.'' For assistance with the Regulations.gov site, please call
1-866-498-2945 (toll free) Monday-Friday, 9 a.m.-5 p.m. ET, or email
[email protected].
Mail: Chief Counsel's Office, Attention: Comment
Processing, Office of the Comptroller of the Currency, 400 7th Street
SW, Suite 3E-218, Washington, DC 20219.
Hand Delivery/Courier: 400 7th Street SW, Suite 3E-218,
Washington, DC 20219.
Instructions: You must include ``OCC'' as the agency name and
``Docket ID OCC-2022-0008'' in your comment. In general, the OCC will
enter all comments received into the docket and publish the comments on
the Regulations.gov website without change, including any business or
personal information provided such as name and address information,
email addresses, or phone numbers. Comments received, including
attachments and other supporting materials, are part of the public
record and subject to public disclosure. Do not include any information
in your comment or supporting materials that you consider confidential
or inappropriate for public disclosure.
You may review comments and other related materials that pertain to
this action by the following method:
Viewing Comments Electronically--Regulations.gov:
Go to https://regulations.gov/. Enter ``Docket ID OCC-2022-0008''
in the Search Box and click ``Search.'' Click on the ``Dockets'' tab
and then the document's title. After clicking the document's title,
click the ``Browse All Comments'' tab. Comments can be viewed and
filtered by clicking on the ``Sort By'' drop-down on the right side of
the screen or the ``Refine Comments Results'' options on the left side
of the screen. Supporting materials can be viewed by clicking on the
``Browse Documents'' tab. Click on the ``Sort By'' drop-down on the
right side of the screen or the ``Refine Results'' options on the left
side of the screen checking the ``Supporting & Related Material''
checkbox. For assistance with the Regulations.gov site, please call 1-
866-498-2945 (toll free) Monday-Friday, 9 a.m.-5 p.m. ET, or email
[email protected].
The docket may be viewed after the close of the comment period in
the same manner as during the comment period.
FOR FURTHER INFORMATION CONTACT: Kristin Merritt, Assistant Director,
MaryAnn Nash, Counsel, or Christopher D'Alessio, Counsel, Chief
Counsel's Office, (202) 649-5490; 400 7th Street SW, Washington, DC
20219. If you are deaf, hard of hearing, or have a speech disability,
please dial 7-1-1 to access telecommunications relay services.
SUPPLEMENTARY INFORMATION:
I. Background
The Freedom of Information Act (FOIA) \1\ enacted in 1966, revised
the public disclosure section of the Administrative Procedure Act to
allow for easier public access to government records. FOIA makes
government records accessible to members of the public, unless the
records (or any portion thereof) are protected from disclosure by one
of FOIA's nine exemptions or by one of its three special law
enforcement record exclusions.\2\ FOIA outlines a process for members
of the public to obtain records.\3\ This process also affords
requesters administrative appeals and remedy in United States district
courts.\4\
---------------------------------------------------------------------------
\1\ 5 U.S.C. 552.
\2\ 5 U.S.C. 552(b)(1)-(9) (exemptions); 5 U.S.C. 552(c)(1)-(3)
(exclusions).
\3\ 5 U.S.C. 552(a)(3) (agency obligation to search for and
provide records pursuant to request); 5 U.S.C. 552(a)(4)(A) (fees);
5 U.S.C. 552(a)(6) (processing requests, including appeals).
\4\ 5 U.S.C. 552(a)(6)(A)(III)(aa) (administrative appeal); 5
U.S.C. 552(a)(4)(B)-(C) (district court).
---------------------------------------------------------------------------
FOIA requires Federal agencies to promulgate regulations to
implement the statute.\5\ The OCC's FOIA regulations create a process
by which requesters can request and obtain agency records, including
how to request records, the format requests must take, and the time
limits for OCC response, appeals, and fees.\6\
---------------------------------------------------------------------------
\5\ E.g., 5 U.S.C. 552(a)(4)(A)(i) (In order to carry out the
provisions of this section, each agency shall promulgate
regulations, pursuant to notice and receipt of public comment,
specifying the schedule of fees applicable to the processing of
requests under this section and establishing procedures and
guidelines for determining when such fees should be waived or
reduced.); 5 U.S.C. 552(a)(6)(E)(i) (Each agency shall promulgate
regulations, pursuant to notice and receipt of public comment,
providing for expedited processing of requests for records[.]).
\6\ 12 CFR 4.15 (request process, including request format, time
limits for response, and appeals); 12 CFR 4.17 (fees).
---------------------------------------------------------------------------
[[Page 13290]]
II. Proposed Changes
Expedited Processing. FOIA mandates that each Federal agency
promulgate regulations, pursuant to notice and receipt of public
comment, providing for expedited processing of requests for records.\7\
However, the OCC's current FOIA regulations do not address expedited
processing requests. Presently, when the OCC grants a request for
expedited processing, the agency processes the request as soon as
practicable. Accordingly, the proposal would amend the OCC's FOIA
regulations to include procedures for expedited processing.
---------------------------------------------------------------------------
\7\ 5 U.S.C. 552(a)(6)(E)(i).
---------------------------------------------------------------------------
FOIA also provides specific requirements for agencies' expedited
processing regulations. The statute requires that the regulations allow
for expedited processing when the requester ``demonstrates a compelling
need'' and ``in other cases determined by the agency.'' \8\ The statute
defines ``compelling need'' as either: (1) ``that a failure to obtain
requested records on an expedited basis . . . could reasonably be
expected to pose an imminent threat to the life or physical safety of
an individual'' or (2) ``urgency to inform the public concerning actual
or alleged Federal Government activity'' when ``a request [is] made by
a person primarily engaged in disseminating information[.]'' \9\ FOIA
requires that the requester's ``demonstration of compelling need'' be
made by a statement certifying it is true and correct to the best of
the requester's knowledge and belief.\10\ The statute also requires an
agency to provide the requester with notice of the decision on a
request for expedited processing ``within 10 days after the date of the
request.'' \11\ Finally, the statute requires that the regulations
ensure ``expeditious consideration of administrative appeals'' of
decisions on requests for expedited processing.\12\
---------------------------------------------------------------------------
\8\ 5 U.S.C. 552(a)(6)(E)(i)(I)-(II).
\9\ 5 U.S.C. 552(a)(6)(E)(v)(I)-(II).
\10\ 5 U.S.C. 552(a)(6)(E)(vi).
\11\ 5 U.S.C. 552(a)(6)(E)(ii)(I).
\12\ 5 U.S.C. 552(a)(6)(E)(ii)(II).
---------------------------------------------------------------------------
The OCC's proposal would address each of the statute's requirements
for expedited processing regulations in new proposed paragraph 12 CFR
4.15(c)(5). Under proposed paragraph (c)(5)(i), individuals would be
able to request expedited processing with their initial request for
records or at any time thereafter. If the individual requests expedited
processing on paper, both the envelope and the request itself would
have to be labeled, ``Expedited Processing Requested.''
Under proposed paragraph (c)(5)(ii), the OCC would grant requests
for expedited processing when they involve: (A) circumstances in which
the lack of expedited processing could reasonably be expected to pose
an imminent threat to the life or physical safety of an individual; (B)
an urgency to inform the public about an actual or alleged Federal
government activity, if made by a person who is primarily engaged in
disseminating information; \13\ or (C) the loss of substantial due
process rights. Under proposed paragraph (c)(5)(ii)(B), the ``urgency
to inform'' standard would require that records requested pertain to a
matter of current exigency to the public and that delaying a response
to a request for records would compromise a significant recognized
interest to and throughout the general public. This proposed provision
would implement FOIA's requirement that each agency promulgate
regulations providing for expedited processing when the requester
demonstrates ``compelling need,'' or ``in other cases determined by the
agency.'' \14\ The proposed standard for compelling need fulfills the
requirements in FOIA \15\ and includes language similar to the U.S.
Department of the Treasury's FOIA regulations.\16\
---------------------------------------------------------------------------
\13\ Under the proposed Sec. 4.15(c)(5)(iii)(B), a requester
``primarily engaged in disseminating information'' does not include
individuals who are engaged only incidentally in the dissemination
of information.
\14\ See 5 U.S.C. 552(a)(6)(E)(i)(I)-(II).
\15\ See 5 U.S.C. 552(a)(6)(E)(v)(I)-(II).
\16\ See 31 CFR 1.4(e)(1)(i)-(ii).
---------------------------------------------------------------------------
Under proposed paragraph (c)(5)(iii), a requester who seeks
expedited processing would be required to submit a statement, certified
to be true and correct, demonstrating the compelling need for expedited
processing, which is consistent with FOIA.\17\ The certified statement
demonstrating compelling need must address at least one of the
criterion in paragraph (c)(5)(ii). Further, the proposed rule would
allow the OCC to waive this certification requirement as a matter of
administrative discretion. This proposed language is similar to the
U.S. Department of the Treasury's FOIA regulations.\18\
---------------------------------------------------------------------------
\17\ See 5 U.S.C. 552(a)(6)(E)(vi).
\18\ See 31 CFR 1.4(e)(3).
---------------------------------------------------------------------------
Under proposed paragraph (c)(5)(iv), the OCC would have 10 calendar
days after receipt of the request for expedited processing to notify
the requester of the OCC's decision to grant or deny the request. The
10-day timetable conforms to the requirement in FOIA.\19\ Further, the
decision to grant or deny an expedited processing request would be
based solely on the information contained in the initial letter
requesting expedited processing. Under the proposal, the OCC would
process the records ``as soon as practicable'' in conformance with
FOIA.\20\ The proposed rule also includes a provision for appeals of a
denial of an expedited processing request. This provision is included
in the proposal because FOIA requires that agencies' FOIA regulations
ensure ``expeditious consideration of administrative appeals'' of
decisions on requests for expedited processing.\21\ Under proposed
paragraph (c)(5)(v), a requester could appeal the denial of a request
for expedited processing by following the appeal procedures in 12 CFR
4.15(d). The procedures in Sec. 4.15(d) require the requester to
appeal within 90 calendar days because FOIA provides for a timetable of
``not less than 90 days'' for a requester to appeal an adverse
determination.\22\ Under proposed paragraph (c)(5)(v), if the requester
submits an appeal on paper, the envelope and appeal would need to be
clearly marked ``Appeal for Expedited Processing.'' In addition, the
proposed rule would amend Sec. 4.15(d), which outlines the OCC's
administrative appeal procedures, to state that requesters may appeal
an ``adverse determination,'' a term which appears, but is not defined,
in FOIA.\23\ The proposal would amend Sec. 4.15(d) to clarify that the
denial of an expedited processing request constitutes an adverse
determination and, therefore, requesters can appeal the denial of an
expedited processing request. The proposal further clarifies that the
Comptroller or the Comptroller's delegate would decide appeals from
denials of expedited processing requests.
---------------------------------------------------------------------------
\19\ See 5 U.S.C. 552(a)(6)(E)(ii)(I).
\20\ See 5 U.S.C. 552(a)(6)(E)(iii).
\21\ See 5 U.S.C. 552(a)(6)(E)(ii)(II).
\22\ See 5 U.S.C. 552(a)(6)(A)(i)(III)(aa).
\23\ See 5 U.S.C. 552(a)(6)(A)(i)(III).
---------------------------------------------------------------------------
Finally, under proposed 12 CFR 4.15(c)(5)(vi), consistent with
FOIA, the OCC would be required to expeditiously (1) consider the
appeal and (2) notify the requestor of the determination. This proposed
standard tracks the language of FOIA, which requires expeditious
consideration of administrative appeals.\24\
---------------------------------------------------------------------------
\24\ See 5 U.S.C. 552(a)(6)(E)(ii)(II).
---------------------------------------------------------------------------
Question 1. FOIA requires that the OCC's FOIA regulations provide
for expedited processing ``in other cases determined by the agency.''
\25\ In what situations should the OCC grant a request for expedited
processing?
---------------------------------------------------------------------------
\25\ 5 U.S.C. 552(a)(6)(E)(i)(II).
---------------------------------------------------------------------------
[[Page 13291]]
Question 2. Should the OCC provide a more specific timeline for
deciding and responding to an appeal regarding expedited processing,
i.e., a specific number of days, rather than ``expeditiously''?
Appeal of Fee Waiver Denials. FOIA requires that each agency
promulgate regulations establishing fees for processing FOIA
requests.\26\ But, under certain circumstances, the requester must be
granted a fee waiver.\27\ FOIA does not expressly state whether a
requester can appeal fee waiver denials, although FOIA allows
requesters to appeal ``adverse determinations.'' \28\ However, the
statute does not explicitly define an adverse determination. Further,
FOIA requires that each agency shall promulgate regulations
establishing procedures and guidelines for determining when the agency
should waive or reduce fees.\29\ In addition, FOIA specifies that a
court shall determine the matter de novo in any action by a requester
regarding the waiver of fees for FOIA purposes.\30\
---------------------------------------------------------------------------
\26\ 5 U.S.C. 552(a)(4)(A)(i).
\27\ 5 U.S.C. 552(a)(4)(A)(iii) (Documents shall be furnished
without any charge).
\28\ See 5 U.S.C. 552(a)(6)(A)(i)(III)(aa).
\29\ 5 U.S.C. 552(a)(4)(A)(i).
\30\ 5 U.S.C. 552(a)(4)(A)(vii).
---------------------------------------------------------------------------
The statutory language discussed above does not expressly grant
requesters the right to appeal the denial of a fee waiver. However,
FOIA's statement that courts consider actions regarding fee waivers de
novo suggests that fee waiver denials are appealable. Additionally, the
Federal Deposit Insurance Corporation, U.S. Department of the Treasury
(Treasury), and U.S. Department of Justice (DOJ) have promulgated
regulations that grant an express right to appeal a fee waiver
denial.\31\ In addition, the DOJ Office of Information Policy's model
FOIA regulations suggest that agencies should include the right to
appeal a denial of a fee waiver.\32\ Currently, the OCC's FOIA
regulations do not address appeals from denial of a fee waiver request.
Accordingly, consistent with the statute's requirement that courts
consider actions regarding fee waivers de novo, other agencies'
regulations, and the DOJ's model FOIA regulations, the OCC proposes to
amend its regulations to explicitly grant requesters the ability to
appeal a denial of a fee waiver.
---------------------------------------------------------------------------
\31\ See 12 CFR 309.5(f)(x) (FDIC); 31 CFR 1.4(h)-(i), 1.6(a)
(Treasury); 28 CFR 16.6(d)-(e), 16.8(a) (DOJ).
\32\ See Department of Justice, Office of Information Policy,
Template for Agency FOIA Regulations, Sec. VI. Responses to
Requests, https://www.justice.gov/oip/template-agency-foia-regulations#Responses%20to%20Requests (last updated Dec. 2, 2022).
---------------------------------------------------------------------------
This proposed rule would amend 12 CFR 4.17(b), which governs the
OCC's standards for fee waivers by adding a provision in Sec.
4.17(b)(4) to explicitly grant requesters the ability to appeal the
denial of a fee waiver request. Furthermore, the proposed rule would
amend 12 CFR 4.15(d), which outlines the OCC's administrative appeal
procedures, to clarify that the denial of a fee waiver constitutes an
adverse determination and, therefore, requesters can appeal the denial
of a fee waiver request. The proposal further clarifies that the
Comptroller or the Comptroller's delegate would decide appeals from
denials of fee waiver requests.
Fee Waivers. FOIA requires that each agency promulgate regulations,
pursuant to notice and comment, stating the agency's fee schedule for
processing FOIA requests.\33\ FOIA also requires that documents shall
be furnished without any charge or at a charge below the agency's fee
schedule when the applicable standard is met.\34\ However, current 12
CFR 4.17(b)(4) states that the OCC may waive or reduce a fee when it
determines the standard is met.\35\ For consistency, the OCC is
proposing an amendment to align its regulations with the statutory
standard. Under the proposed rule, consistent with FOIA, the OCC
``must'' grant the requester's request for a fee waiver if the
requester meets the standard for fee waiver.
---------------------------------------------------------------------------
\33\ 5 U.S.C. 552(a)(4)(A)(i).
\34\ Under 5 U.S.C. 552(a)(4)(A)(iii), a fee waiver must be
granted when disclosure of the information is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government and
is not primarily in the commercial interest of the requester.
\35\ 12 CFR 4.17(b)(4)(i)-(ii).
---------------------------------------------------------------------------
Exemption 4. FOIA Exemption 4, 5 U.S.C. 552(b)(4), protects ``trade
secrets and commercial or financial information obtained from a person
and privileged or confidential[.]'' Historically, the OCC has operated
in a manner consistent with caselaw in determining whether commercial
or financial information is ``confidential'' under Exemption 4. In Food
Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019)
(FMI), the Supreme Court overruled the longstanding substantial
competitive harm standard for information provided to the government on
an involuntary basis that was first announced in National Parks &
Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). In FMI,
the Supreme Court held that commercial or financial information
submitted to the government will be considered ``confidential'' for
purposes of FOIA Exemption 4 at least where the information is ``both
customarily and actually treated as private by its owner and provided
to the government under an assurance of privacy.'' \36\ Accordingly,
the OCC proposes to remove all references to the competitive harm
standard in 12 CFR 4.16. Because the definition of confidential
commercial information in the current OCC regulation was based on the
competitive harm standard, the proposal would update the definition to
more closely follow FOIA and would remove references to the competitive
harm standard throughout Sec. 4.16. Additionally, the proposal would
remove 12 CFR 4.16(b)(1)(i)(A), which is the requirement for the OCC to
provide a submitter of information with a prompt notice of receipt of
the request when the request is for confidential information submitted
to the OCC, Office of Thrift Supervision, or Federal Home Loan Bank
Board prior to 1988 and where the records are less than 10 years old.
It is impossible for those records to be less than 10-years old today,
thus, Sec. 4.16(b)(1)(i)(A) is irrelevant. Finally, the proposal would
make corresponding typographical changes for grammatical purposes.
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\36\ 139 S. Ct. 2356, 2366 (2019).
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Question 3. Should the OCC define the term ``confidential
commercial information'' in the regulation?
Effective Date
The proposed rule would have an effective date of at least 60
calendar days after publication of the final rule in the Federal
Register or the first day of a calendar quarter that begins on or after
the date on which the regulations are published in final form in the
Federal Register, whichever period is longer. The OCC requests comment
on the proposed effective date.
Comment Invitation
The OCC invites comment on all aspects of this proposal.
Regulatory Analysis
Paperwork Reduction Act of 1995
This notice of proposed rulemaking has been reviewed for compliance
with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.). In accordance with PRA, the OCC may not conduct or sponsor, and
an organization is not required to respond to, an information
collection unless the information collection displays a currently valid
Office of Management and Budget (OMB) control number. The
[[Page 13292]]
proposed rule contains no information collection requirements under the
PRA.
Regulatory Flexibility Act
In general, the Regulatory Flexibility Act (RFA) \37\ requires an
agency, in connection with a proposed rule, to prepare an Initial
Regulatory Flexibility Analysis describing the impact of the rule on
small entities (defined by the U.S. Small Business Administration for
purposes of the RFA to include commercial banks and savings
institutions with total assets of $850 million or less and trust
companies with total assets of $47 million or less). However, under
section 605(b) of the RFA, this analysis is not required if an agency
certifies that the rule would 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.
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\37\ 5 U.S.C. 601 et seq.
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The OCC currently supervises approximately 1,059 institutions
(commercial banks, trust companies, Federal Savings Associations
(FSAs), and branches or agencies of foreign banks, collectively banks)
\38\ of which 661 are small entities.\39\ The OCC expects the costs
associated with the proposed rule to be de minimis because the OCC is
the main entity that would be impacted by reviewing and processing FOIA
requests on an expedited timeframe. Furthermore, because the OCC
expects the majority of those de minimis costs to be incurred by the
OCC as it updates its policies and procedures and its FOIA tracking
system and not by small entities, the OCC certifies that the proposed
rule would not have a significant economic impact on a substantial
number of small entities.
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\38\ Based on data accessed using FINDRS on August 30, 2023.
\39\ Consistent with the General Principles of Affiliation, 13
CFR 121.103(a), the OCC counts the assets of affiliated financial
institutions when determining if it should classify an institution
as a small entity. The OCC used December 31, 2022, to determine size
because a ``financial institution's assets are determined by
averaging the assets reported on its four quarterly financial
statements for the preceding year.'' See footnote 8 of the U.S.
Small Business Administration's Table of Standards.
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Unfunded Mandates Reform Act of 1995
The OCC analyzed the proposed rule under the factors set forth in
the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). Under
this analysis, the OCC considered whether the proposed rule includes 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 (adjusted for inflation). Because the
OCC's overall estimate of the total potential costs associated with
this proposed rule is de minimis, the OCC concludes that the rule would
not result in private sector costs that exceed the UMRA threshold for a
significant rule. Accordingly, the OCC has not prepared the written
statement described in section 202 of the UMRA.
Riegle Community Development and Regulatory Improvement Act of 1994
Pursuant to section 302(a) of the Riegle Community Development and
Regulatory Improvement Act of 1994 (12 U.S.C. 4802(a)), in determining
the effective date and administrative compliance requirements for new
regulations that impose additional reporting, disclosure, or other
requirements on insured depository institutions, the OCC will consider,
consistent with the principles of safety and soundness and the public
interest: (1) any administrative burdens that the proposed rule would
place on depository institutions, including small depository
institutions and customers of depository institutions and (2) the
benefits of the proposed rule. The OCC requests comment on any
administrative burdens that the proposed rule would place on depository
institutions, including small depository institutions and their
customers, and the benefits of the proposed rule that the OCC should
consider in determining the effective date and administrative
compliance requirements for a final rule.
List of Subjects in 12 CFR Part 4
Administrative practice and procedure, Freedom of information,
Individuals with disabilities, Minority businesses, Organization and
functions (Government agencies), Reporting and recordkeeping
requirements, Women.
Authority and Issuance
For the reasons set forth in the preamble, and under the authority
of 12 U.S.C. 93a, the OCC proposes to amend 12 CFR chapter I as
follows:
PART 4--ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF
INFORMATION, CONTRACTING OUTREACH PROGRAM, POST-EMPLOYMENT
RESTRICTIONS FOR SENIOR EXAMINERS
0
1. The authority citation for part 4 continues to read as follows:
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1, 93a, 161, 481, 482,
484(a), 1442, 1462a, 1463, 1464 1817(a), 1818, 1820, 1821, 1831m,
1831p-1, 1831o, 1833e, 1867, 1951 et seq., 2601 et seq., 2801 et
seq., 2901 et seq., 3101 et seq., 3401 et seq., 5321, 5412, 5414; 15
U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 U.S.C.
1204; 31 U.S.C. 5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. 3506,
3510; E.O. 12600 (3 CFR, 1987 Comp., p. 235).
0
2. Amend Sec. 4.15 by:
0
a. Adding paragraph (c)(5); and
0
b. Revising paragraphs (d)(1) and (2).
The addition and revisions read as follows:
Sec. 4.15 How to request records.
* * * * *
(c) * * *
(5) Requests for expedited processing. (i) An individual may submit
a request for expedited processing either with the request for records
or at any time thereafter. The request must be submitted in writing. In
cases where a request is submitted on paper, both the envelope and the
request itself must be clearly marked, ``Expedited Processing
Requested.''
(ii) The OCC will grant requests for expedited processing when it
is determined that they involve:
(A) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(B) An urgency to inform the public about an actual or alleged
Federal government activity, if made by a person who is primarily
engaged in disseminating information. The standard of ``urgency to
inform'' requires that the records requested pertain to a matter of
current exigency to the public and that delaying a response to a
request for records would compromise a significant recognized interest
to and throughout the general public; or
(C) The loss of substantial due process rights.
(iii) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, demonstrating the
compelling need for expedited processing that meets at least one of the
criterion in paragraph (c)(5)(ii) of this section. As a matter of
administrative discretion, the OCC may waive this certification
requirement.
(iv) Upon receipt by the OCC, the OCC will consider a request for
expedited processing and determine whether to grant or deny the request
for expedited processing. The OCC will notify the requester of the
determination within 10 calendar days after the date of receipt of the
request for expedited processing. The OCC will grant or deny
[[Page 13293]]
a request for expedited processing solely on the information contained
in the initial letter requesting expedited treatment. When the OCC
grants a request for expedited processing, the OCC will process the
records as soon as practicable.
(v) If the OCC denies a request for expedited processing, the
requester may appeal the denial in accordance with paragraph (d) of
this section. If the requester submits an appeal on paper, both the
envelope and the appeal itself must be clearly marked, ``Appeal for
Expedited Processing.''
(vi) The OCC will expeditiously consider the appeal and notify the
requestor of the determination.
* * * * *
(d) * * *
(1) Procedure. A requester may appeal an adverse determination,
including denials of requests for records, requests for expedited
processing under paragraph (c)(5) of this section, and requests for fee
waivers or reductions under Sec. 4.17(b)(4). All appeals must be
submitted in writing within 90 calendar days after the date of the
initial determination. The appeal must include the circumstances and
arguments supporting disclosure of the requested records. Appeals of
initial determinations to deny expedited processing must also follow
the procedure set forth in paragraph (c)(5)(v) of this section.
(2) Appellate determination. The Comptroller or the Comptroller's
delegate determines whether to grant an appeal of a denial of:
(i) A request for OCC records;
(ii) A request for expedited processing; or
(iii) A waiver or reduction of fees.
* * * * *
0
3. Amend Sec. 4.16 by:
0
a. Revising and republishing paragraph (a)(1);
0
b. Revising paragraph (b)(1)(i) and (ii); and
0
c. Removing in paragraph (b)(2)(v), the phrase ``, unless the OCC has
substantial reason to believe that disclosure of the information would
result in competitive harm''.
The revisions and republication read as follows:
Sec. 4.16 Predisclosure notice for confidential commercial
information.
(a) Definitions. For purposes of this section, the following
definitions apply:
(1) Confidential commercial information means commercial or
financial information obtained by the OCC from a submitter that may be
protected from disclosure under Exemption 4 of FOIA, 5 U.S.C.
552(b)(4).
* * * * *
(b) * * *
(1) * * *
(i) With respect to confidential commercial information submitted
to the OCC or to the Federal Home Loan Bank Board, the predecessor of
the OTS, prior to January 1, 1988, if the information is subject to a
prior express commitment of confidentiality from the OCC or the Federal
Home Loan Bank Board, the predecessor of the OTS; and
(ii) With respect to confidential commercial information submitted
to the OCC or to the OTS (or the Federal Home Loan Bank Board, its
predecessor agency) on or after January 1, 1988, if:
(A) The submitter in good faith designated the information as
confidential commercial information; or
(B) The OCC or the OTS (or the Federal Home Loan Bank Board, its
predecessor agency) designated the class of information to which the
requested information belongs as confidential commercial information.
* * * * *
0
4. Amend Sec. 4.17 by revising paragraph (b)(4) to read as follows:
Sec. 4.17 FOIA request fees.
* * * * *
(b) * * *
(4) Waiving or reducing a fee. (i) The OCC must waive or reduce a
fee under this section whenever, in its opinion, disclosure of records
is in the public interest because the disclosure:
(A) Is likely to contribute significantly to public understanding
of the operations or activities of the government; and
(B) Is not primarily in the commercial interest of the requester.
(ii) A requester may appeal the OCC's determination not to grant a
request for a waiver or reduction of fees under this paragraph pursuant
to the procedure set forth in Sec. 4.15(d) of this section.
* * * * *
Michael J. Hsu,
Acting Comptroller of the Currency.
[FR Doc. 2024-02990 Filed 2-21-24; 8:45 am]
BILLING CODE 4810-33-P
