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467

DOJ Order 2110.40—Form S

RFPA

Form S -- DOJ Order 2110.40

DEPARTMENT OF

JUSTICE {DOJ 22110.40}

ORDER

RIGHT TO FINANCIAL PRIVACY ACT REIMBURSEMENT PROCEDURES AND REPORTING REQUIREMENTS

_________________________________________________________________

  1. 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.

  2. SCOPE. The provisions of this order apply to all Offices, Boards, Divisions, and Bureaus of the Department of Justice.

  3. CANCELLATION. This order cancels Order DOJ 2740.2.

  4. 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.

  5. DEFINITIONS

    1. 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.

    2. 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.

    3. Government Authority. Any agency or department of the United States, or any officer, employee or agent thereof.

    4. Person. An individual or a partnership of five or fewer individuals.

    5. 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.

    6. 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.

  6. 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.

    1. Allowable Costs.

      1. Search and processing costs.

        1. 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.

        2. 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.

      2. Reproduction costs

        1. Reimbursement for reproduction costs shall be for costs Incurred in making copies of documents required or requested.

        2. 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.

      3. 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.

    2. Exceptions. A financial institution is not entitled to reimbursement for costs incurred In assembling or providing the following financial records or information.

      1. 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.

      2. 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.

      3. Nonidentifiable Information. Financial records that are not identified with or identifiable as being derived from the financial records of a particular customer.

      4. Federally Required Reports. Financial records required to be reported in accordance with any federal statute or rule promulgated thereunder.

      5. 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.

      6. 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.

      7. 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)).

      8. 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.

    3. 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.

  7. 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.

  8. 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