Organization and functions, etc.: public agency information; disclosure,
[Federal Register: November 10, 1998 (Volume 63, Number 217)]
[Rules and Regulations]
[Page 62927-62930]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no98-6]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 4
[Docket No. 98-18]
RIN 1557-AB65
Organization and Functions, Availability and Release of Information, Contracting Outreach Program
AGENCY: Office of the Comptroller of the Currency, Treasury.
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ACTION: Interim rule with request for comments.
SUMMARY: The Office of the Comptroller of the Currency (OCC) is amending its disclosure regulation. Among other things, the amendment clarifies that Suspicious Activity Reports are non-public documents and that the OCC may make non-public OCC information available to a supervised entity and to other persons, as in the sole discretion of the Comptroller may be necessary or appropriate, without a request for records or testimony.
DATES: This interim rule is effective on November 10, 1998. Comments must be received by January 11, 1999.
ADDRESSES: Comments should be directed to: Office of the Comptroller of the Currency, Communications Division, 250 E Street, SW, Washington, DC 20219, Attention: Docket No. 98-18. Comments will be available for public inspection and photocopying at the same location. In addition, comments may be sent by facsimile transmission to FAX number (202) 874- 5274 or by electronic mail to REGS.COMMENTS@OCC.TREAS.GOV.
FOR FURTHER INFORMATION CONTACT: Ursula Pfeil, Attorney, Legislative and Regulatory Activities (202) 874-5090; or Stuart Feldstein, Assistant Director, Legislative and Regulatory Activities (202) 874- 5090.
SUPPLEMENTARY INFORMATION:
Background and Discussion of Interim Rule
The OCC is amending subpart C of 12 CFR Part 4 which governs the release of non-public OCC information. Part 4 currently requires a person seeking non-public OCC information to submit a request in writing to the OCC. The current rule does not include a procedure for the release of non-public OCC information to supervised entities and other persons without a specific request for the information.
The OCC has authority to prescribe rules governing the release of agency records and information under its grant of statutory authority to promulgate substantive regulations to carry out the responsibilities of the office, 12 U.S.C. 93a, as well as under statutes that contemplate the sharing of information with other agencies and persons. See, e.g., 12 U.S.C. 481; 12 U.S.C. 1867; 12 U.S.C. 1820(d)(6).
In some circumstances, the safety and soundness or financial stability of national banks may be affected unless the OCC discloses non-public information to supervised entities or certain other persons without a request. For example, if the OCC obtains information that a check fraud ring has targeted multiple banks in a particular area, it may be necessary for the OCC to disclose confidential supervisory information obtained from one of the targeted banks to other banks that may also be targets of the same scheme. Similarly, the OCC's ability to help national banks attain Year 2000 readiness depends, in part, on the OCC's ability to share information concerning third parties with supervised entities and other persons.‹SUP›1‹/SUP›
\1\ For example, ``other persons'' may include self-regulatory organizations or state banks with whom the OCC seeks to share information.
This interim rule amends part 4 to include a new section on the dissemination of non-public OCC information without a request. This new section authorizes the OCC to make non-public OCC information available to a supervised entity and to other persons, as in the sole discretion of the Comptroller may be necessary or appropriate, without a request for records or testimony.‹SUP›2‹/SUP› This interim rule defines the term ``supervised entity'' to include a national bank, a subsidiary of a national bank, or a federal branch or agency of a foreign bank licensed by the OCC. The OCC may continue to impose conditions and limitations on the disclosure of information through the entry of a protective order or a written agreement of confidentiality, as provided for under the current rule.
\2\ This approach is consistent with the long-standing disclosure regulation of the Federal Reserve Board (FRB). See 12 CFR 261.20. The FRB disclosure regulation similarly authorizes the FRB to share confidential supervisory information with supervised financial institutions and, from time to time, to make other discretionary disclosures that the FRB determines necessary.
Current Sec. 4.32 defines non-public OCC information as information, confidential or otherwise, that the OCC is not required to release under the Freedom of Information Act (FOIA) (5 U.S.C. 552) or that the OCC has not yet published or made available under 12 U.S.C. 1818(u), the statute requiring publication of certain enforcement orders. FOIA specifically exempts from disclosure several categories of information including records contained in, or related to, examination and operating or condition reports concerning financial institutions. This interim rule adds a new provision to the part 4 definition of non- public OCC information to include a Suspicious Activity Report (SAR) filedby the OCC or a supervised entity under 12 CFR 21.11. This new provision clarifies that SARs, which are sensitive and confidential documents, are subject to the procedures for the release of non-public OCC information under part 4.
This interim rule also clarifies that non-public OCC information remains the property of the OCC even after it is disclosed, and that it may not be disclosed to others except as authorized by the OCC. In addition, no current or former OCC employee or agent may disclose or permit the disclosure of any non-public OCC information to anyone other than an employee or agent of the OCC who is entitled to the information for the performance of OCC duties. Current or former OCC employees or agents subpoenaed or otherwise requested to provide OCC information must notify the OCC immediately under procedures set forth in Sec. 4.37(a)(2).
Effective Date
Section 553 of the Administrative Procedure Act permits an agency to issue a rule without prior notice and comment when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B); 5 U.S.C. 553(d). Likewise, section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRI), Pub. L. 103-325, authorizes a banking agency to issue a rule without notice and comment to be effective before the first day of the calender quarter that begins on or after the date on which the regulations are published in final form if the agency finds good cause for an earlier effective date. 12 U.S.C. 4802(b)(1).
The OCC finds good cause for issuing this interim rule without prior notice and comment and for the rule to take effect upon publication in the Federal Register. Among other things, making this interim rule effective immediately will allow the OCC to disclose non- public OCC information to supervised entities and other persons in certain enforcement contexts requiring immediate action where a request for the information may not be forthcoming or may be delayed. The OCC's ability to help national banks attain Year 2000 readiness in the short time remaining also depends, in part, on the OCC's ability to provide information rapidly concerning third parties to supervised entities and other persons without a request. The OCC's ability to carry out its mission to ensure national banks' safety and soundness, in certain circumstances, may be impaired unless it can make disclosures, as authorized by this interim rule, promptly after acquiring the information in question. For these reasons, the OCC concludes that prior notice and comment
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procedures and a delayed effective date are impracticable and would be contrary to the public interest. 5 U.S.C. 553(b)(B).
Request for Comment
The OCC is interested in the views of the public regarding this interim rule and therefore welcomes comments on any and all aspects of this interim rule.
Regulatory Flexibility Act
An initial regulatory flexibility analysis under the Regulatory Flexibility Act is only required whenever an agency is required to publish a general notice of proposed rulemaking. 5 U.S.C. 603. As noted previously, the OCC has determined that it is not necessary to publish a notice of proposed rulemaking for this rule. Accordingly, an initial regulatory flexibility analysis is not required. Nonetheless, since this interim rule imposes no new requirements on any national bank, the OCC finds that this interim rule does not have a secondary or incidental effect on a substantial number of small entities or create any additional burden on small entities.
OCC Executive Order 12866 Statement
The OCC has determined that the interim rule is not a significant regulatory action under Executive Order 12866.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 104-4 (Unfunded Mandates Act), applies only when an agency is required to promulgate a general notice of proposed rulemaking or a final rule for which a general notice of proposed rulemaking was published. 2 U.S.C. 1532. As noted previously, the Agencies have determined that it is not necessary to publish a notice of proposed rulemaking for these Guidelines. Accordingly, an unfunded mandates act analysis is not required. Nonetheless, since this interim rule prescribed no mandate of any kind, the OCC finds that this interim rule will not result in expenditure by State, local, and tribal governments, or by the private sector, of more than $100 million in any one year. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.
List of Subjects in 12 CFR Part 4
Freedom of information, National banks, Organization and functions (Government agencies), Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set out in the preamble, part 4 of chapter I of title 12 of the Code of Federal Regulations is amended as set forth below:
PART 4--ORGANIZATIONS AND FUNCTIONS, AVAILABILITY AND RELEASE OF INFORMATION, CONTRACTING OUTREACH PROGRAM
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The authority citation for part 4 is revised to read as follows:
Authority: 12 U.S.C. 93a. Subpart A also issued under 5 U.S.C. 552; Subpart B also issued under 5 U.S.C. 552; E.O. 12600 (3 CFR 1987 Comp., p. 235). Subpart C also issued under 5 U.S.C. 301, 552; 12 U.S.C. 161, 481, 482, 484(a), 1442, 1817(a)(3), 1818(u) and (v), 1820(d)(6), 1821(c), 1821(o), 1821(t), 1831m, 1831p-1, 1831o, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq., 3101 et seq., 3401 et seq.; 15 U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 9701; 42 U.S.C. 3601; 44 U.S.C. 3506, 3510. Subpart D also issued under 12 U.S.C. 1833e.
Subpart C--Release of Non-Public OCC Information
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Section 4.31 is amended by revising paragraphs (a)(1) and (b)(1) to read as follows:
Sec. 4.31 Purpose and scope.
(a) Purpose. * * *
(1) Afford an orderly mechanism for the OCC to process expeditiously requests for non-public OCC information; to address the release of non-public OCC information without a request; and, when appropriate, for the OCC to assert evidentiary privileges in litigation; * * * * *
(b) Scope. (1) This subpart applies to requests for, and dissemination of, non-public OCC information, including requests for records or testimony arising out of civil lawsuits and administrative proceedings to which the OCC is not a party and the release of non- public OCC information without a specific request. Lawsuits and administrative proceedings to which the OCC is not a party include proceedings in which a Federal agency is a party in opposition to the private requester. * * * * *
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Section 4.32 is amended by redesignating paragraph (e) as paragraph (f); by removing the word ``and'' from paragraph (b)(1)(v); and by adding new paragraphs (b)(1)(vii) and (e) to read as follows:
Sec. 4.32 Definitions.
* * * * *
(b) * * *
(1) * * *
(vii) A Suspicious Activity Report filedby the OCC or a supervised entity under 12 CFR 21.11; and * * * * *
(e) Supervised entity includes a national bank, a subsidiary of a national bank, a Federal branch or agency of a foreign bank licensed by the OCC as defined under 12 CFR 28.11(h) and (i), or any other entity supervised by the OCC. * * * * *
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Sections 4.36 through 4.39 are redesignated as Secs. 4.37 through 4.40, respectively.
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A new Sec. 4.36 is added to read as follows:
Sec. 4.36 Disclosure of non-public OCC information.
(a) Discretionary disclosure of non-public OCC information. The OCC may make non-public OCC information available to a supervised entity and to other persons, as in the sole discretion of the Comptroller may be necessary or appropriate, without a request for records or testimony.
(b) Conditions and limitations. The OCC may impose any conditions or limitations on disclosures under this section, including the restrictions on dissemination contained in Sec. 4.38, that it determines are necessary to effect the purposes of this section.
(c) Unauthorized disclosures prohibited. All non-public OCC information remains the property of the OCC. No supervised entity, government agency, person, or other party to whom the information is made available, or any officer, director, employee, or agent thereof, may disclose non-public OCC information without the prior written permission of the OCC, except in published statistical material that does not disclose, either directly or when used in conjunction with other publicly available information, the affairs of any individual, corporation, or other entity. Except as authorized by the OCC, no person obtaining access to non-public OCC information under this section may make a copy of the information and no person may remove non-public OCC information from the premises of the institution, agency, or other party in authorized possession of the information.
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Paragraph (a) of newly designated Sec. 4.37 is revised to read as follows:
Sec. 4.37 Persons and entities with access to OCC information; prohibition on dissemination.
(a) Current and former OCC employees or agents--(1) Generally.
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Except as authorized by this subpart or otherwise by the OCC, no current or former OCC employee or agent in any manner, may disclose or permit the disclosure of any non-public OCC information to anyone other than an employee or agent of the Comptroller for use in the performance of OCC duties.
(2) Duty of person served. Any current or former OCC employee or agent subpoenaed or otherwise requested to provide information covered by this subpart must immediately notify the OCC as provided in this paragraph. The OCC may intervene, attempt to have the compulsory process withdrawn, and register appropriate objections when a current or former OCC employee or agent receives a subpoena and the subpoena requires the current or former employee or agent to appear or produce OCC information. If necessary, the current or former employee or agent must appear as required and respectfully decline to produce the information sought, citing this subpart as authority and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The current or former OCC employee or agent must immediately notify the OCC if subpoenaed or otherwise asked for non-public OCC information:
(i) In a civil action, by notifying the Director of the OCC's Litigation Division at the Washington, DC office; or
(ii) In a criminal action, by notifying the appropriate district counsel for current and former district employees or agents; or the Director of the OCC's Enforcement and Compliance Division at the Washington, DC office, for current and former Washington employees or agents. * * * * *
Dated: October 28, 1998. Julie L. Williams, Acting Comptroller of the Currency.
[FR Doc. 98-30044Filed11-9-98; 8:45 am]
BILLING CODE 4870-33-P
