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RFPA
Form S -- DOJ Order 2110.40
DEPARTMENT OF
JUSTICE {DOJ 22110.40}
ORDER
RIGHT TO FINANCIAL PRIVACY ACT REIMBURSEMENT PROCEDURES AND REPORTING
REQUIREMENTS
_________________________________________________________________
- PURPOSE. This order provides procedures for the payment of fees
to
financial institutions and for the preparation of the congressional report
as
required by the Right to Financial Privacy Act of 1978, P.L. 95-630, 12
U.S.C.
3401 et seq.
- SCOPE. The provisions of this order apply to all Offices, Boards,
Divisions, and Bureaus of the Department of Justice.
- CANCELLATION. This order cancels Order DOJ 2740.2.
- SUMMARY. Section 3415 of Title 12 of the U.S. Code requires Government
authorities under limited circumstances to reimburse financial Institutions
for
the direct costs incurred in researching, assembling, reproducing, and
transmitting financial information on individuals and partnerships comprised
of
five or fewer persons. 12 U.S.C. 3421(b) requires the submission of an
annual
report to the Congress on requests for financial records and incidents of
judicially delayed notification relating thereto. The Assistant Attorney
General
for Administration (AAG/A) is assigned the responsibility for preparing the
Department report. In order to facilitate the preparation of the report, a
standardized reporting format (Appendix 1) has been developed for submission
to
the AAG/A and for the consolidated Department report to the Congress.
- DEFINITIONS
- Financial Institution. Any office of a bank,
savings
bank, card issuer as defined in Section 103 of the Consumers Credit
Protection
Act (15 U.S.C. § 1602(n)), industrial loan company, trust company,
savings
and loan, building and loan, or homestead association (including cooperative
bank), credit union, or consumer finance institution, located in any State
or
territory of the United States, the District of Columbia, Puerto Rico, Guam,
American Samoa or the Virgin Islands.
- Financial Record. An original of, a copy of, or information
known
to have been derived from any record held by a financial institution
pertaining
to a customer's relationship with the financial institution.
- Government Authority. Any agency or department of the United
States, or any officer, employee or agent thereof.
- Person. An individual or a partnership of five or fewer individuals.
- Customer. Any person or authorized representative of that
person
who utilized or is utilizing any service of a financial institution, or for
whom
a financial institution is acting or has acted as a fiduciary, in relation
to an
account maintained in the person's name. "Customer" does not include
corporations or partnerships comprised of more than five persons.
- Directly Incurred Costs. Costs incurred solely and necessarily
as
a consequence of searching for, reproducing or transporting books, papers,
records, or other data in order to comply with legal process or a formal
written
request or a customer's authorization to produce a customer's financial
record.
The term does not include any allocation of fixed costs (overhead,
equipment,
depreciation, etc.). 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.
- COST REIMBURSEMENT PROCEDURES. Each Office, Board, Division and
Bureau which requires or requests access to financial records pertaining to
a
customer shall pay to the financial institution that assembles or provides
the
financial records a fee for reimbursement of reasonably necessary costs
which
have been directly incurred. Paragraph 6a sets forth reimbursable coats and
rates for reimbursement. Incurred costs for requests for assembling or
providing
certain types of financial records which are not reimbursable are set forth
in
paragraph 6b. Action required for payment of reimbursable costs are
contained
in paragraph 6c.
- Allowable Costs.
- Search and processing costs.
- Reimbursement of search and processing costs shall be for the
total amount of personnel direct time incurred in locating and retrieving,
reproducing, packaging and preparing financial records for shipment.
- The rate for search and processing costs is $10 per hour per person,
computed on the basis of $2.50 per quarter hour or fraction thereof, and is
limited to the total amount of personnel time spent in locating and
retrieving
documents or information or reproducing or packaging and preparing documents
for
shipment where required or requested by government authority. Specific
salaries
of such persons shall not be included in search costs. In addition, search
and
processing costs do not include salaries, fees, or similar costs for
analysis of
material or for managerial or legal advice, expertise, research, or time
spent
for any of these activities. If itemized separately, search and processing
costs
may include the actual cost of extracting information stored by computer in
the
format in which it is normally produced, based on computer time and
necessary
supplies; however, personnel time for computer search may be paid only at
the
rate specified In this paragraph.
- Reproduction costs
- Reimbursement for reproduction costs shall be for costs
Incurred in making copies of documents required or requested.
- The rate for reproduction costs for making copies of required or
requested
documents is 15 cents for each page, including copies produced by
reader/printer
reproduction processes. Photographs, films, and other materials are
reimbursed
at actual cost.
- Transportation costs. Reimbursement for transportation costs
shall
be for necessary costs directly incurred to transport personnel to locate
and
retrieve the information required or requested, and necessary costs directly
incurred solely by the need to convey the required or requested material to
the
place of examination.
- Exceptions. A financial institution is not entitled to
reimbursement for costs incurred In assembling or providing the following
financial records or information.
- Security interests, bankruptcy claims, debt collection.
Any
financial records provided as an incident to perfecting a security interest,
proving a claim In bankruptcy, or otherwise collecting a debt owing either
to the
financial institution itself or in its role an fiduciary.
- Government Loan Programs. Financial records provided in
connection
with a government authority's consideration or administration of assistance
to
a customer in the form of a government loan, loan guaranty, or loan
insurance
program or as an incident to processing an application for assistance to a
customer in the form of a government loan, loan guaranty, or loan insurance
agreement; or as an incident to processing a default on, or administering, a
government-guaranteed or insured loan, as necessary authority to permit a
responsible government authority to carry out its responsibilities under the
loan, loan guaranty, or loan insurance agreement.
- Nonidentifiable Information. Financial records that are not
identified with or identifiable as being derived from the financial records
of
a particular customer.
- Federally Required Reports. Financial records required to be
reported in accordance with any federal statute or rule promulgated
thereunder.
- Government Civil or Criminal Litigation. Financial records
sought
by a government authority under the Federal Rules of Civil or Criminal
Procedure
or comparable rules of other courts in connection with litigation to which
the
government authority and the customer are parties. This exception does not
apply
to grand jury subpoenas. A financial institution is entitled to
reimbursement
for the costs incurred in providing records, data or information pursuant to
a
subpoena or court order issued in connection with proceedings before a grand
jury. 12 U.S.C. 3413(i), 3415.
- Administrative Agency Subpoenas. Financial records sought by a
government authority pursuant to an administrative subpoena issued by an
administrative law judge in an adjudicatory proceeding subject to Section
554 of
Title 5, U.S. Code, and to which the government authority and the customer
are
parties.
- Identity of Accounts In Limited Circumstances. Financial
information sought by a government authority in accordance with the Right to
Financial Privacy Act and for a legitimate law enforcement inquiry, and
limited
only to the name, address, account number and type of account of any
customer or
ascertainable group of customers associated with a financial transaction or
class
of financial transactions, or with a foreign country or subdivision thereof
in
the case of government authority exercising financial controls over foreign
accounts in the United States under section 5(b) of the Trading With the
Enemy
Act (50 U.S.C. App. 5(b); the International Emergency Economic Powers Act
(Title
11, P. L. 95-223); or section 5 of the United Nations Participation Act (22
U.S.C. 287(c)).
- Investigation of a Financial Institution or its
Noncustomers.
Financial records sought by a government authority in connection with a
lawful
proceeding, investigation, examination or inspection directed at the
financial
institution in possession of such records or at a legal entity or person
which
is not a customer.
- Payments. Payments are to be made for reasonably necessary
direct
coats incurred by the financial institution. Payments will be for work
completed
or for work done prior to withdrawal of the request or legal process. No
payments will be made without an itemized bill or Invoice which identifies
costs
as search and processing, reproduction, and transportation. See 6a(l), (2)
and
(3) above. See 12 CFR 219.6. The cost of furnishing such records shall be
charged to the organizational appropriation of the official who directly
obtained
the legal process for the production of the financial records.
- REPORTING PROCEDURES. The head of each Office, Board, Division
and
Bureau which accesses financial records pursuant to 12 U.S.C. 3404, 3405,
3406,
3407, 3408, 3414, or 3420 shall submit to the Office of the Controller,
Justice
Management Division, a report by February 28 covering the preceding calendar
year. This report shall enumerate the number of requests for financial
records
made under each of the above sections. The information regarding requests
under
12 U.S.C. 3420 (grand jury requests) is being collected for Departmental
use, and
will not be included in the congressional submission. The report will also
reflect organization experience under the subject Act for the reporting
period.
The individual reports will be consolidated by the Office of the Controller
and
directed to the AAG/A for submission to the House Banking, Finance and Urban
Affairs Committee and the Senate Banking, Housing, and Urban Affairs
Committee
by April 30 of each year. Appendix 1 sets forth an acceptable format for
reporting the required Information.
- IMPLEMENTING PROCEDURES. The Administrator of the Drug
Enforcement Administration, Commissioner of the Immigration and
Naturalization Service, Director of the Federal Bureau of Investigation,
and the Deputy Assistant Attorney General for Administration, Office of
the Controller, for the offices, Boards, Divisions and U.S. Marshals
Service shall promulgate procedural directives in accordance with the
guidance contained in this order.
Kevin D. Rooney
Assistant Attorney General
for Administration
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