Freedom of Information Act Implementation, 29633-29640 [2011-12485]
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29633
Rules and Regulations
Federal Register
Vol. 76, No. 99
Monday, May 23, 2011
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Part 1202
RIN 2590–AA44
Freedom of Information Act
Implementation
Federal Housing Finance
Agency.
ACTION: Interim Final Regulation with
request for comments.
AGENCY:
The Federal Housing Finance
Agency (FHFA) is issuing this interim
final regulation with a request for
comments on changes to its existing
Freedom of Information Act (FOIA)
regulation. The changes to the existing
FOIA regulation provide the procedures
and guidelines under which FHFA and
FHFA Office of Inspector General
(FHFA–OIG) will implement FOIA. The
interim final regulation describes the
policies and procedures for public
disclosure of information required to be
disclosed under FOIA, and procedures
to protect from disclosure business
confidential and trade secret
information, as appropriate.
DATES: The interim final regulation is
effective May 23, 2011. FHFA will
accept written comments on the interim
final regulation on or before July 22,
2011. For additional information, see
SUPPLEMENTARY INFORMATION.
ADDRESSES: You may submit your
comments on the interim final
regulation, identified by ‘‘RIN 2590–
AA44,’’ by any of the following
methods:
• E-mail: Comments to Alfred M.
Pollard, General Counsel, may be sent
by e-mail to RegComments@fhfa.gov.
Please include ‘‘RIN 2590–AA44’’ in the
subject line of the message.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments. If
you submit your comment to the
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SUMMARY:
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Federal eRulemaking Portal, please also
sent it by e-mail to FHFA at
RegComments@fhfa.gov to ensure
timely receipt by FHFA. Include the
following information in the subject line
of your submission: ‘‘Comments/RIN
2590–AA44.’’
• U.S. Mail Service, United Parcel
Service, Federal Express, or other
commercial delivery service to: Alfred
M. Pollard, General Counsel, Attention:
Comments/RIN 2590–AA44, Federal
Housing Finance Agency, Fourth Floor,
1700 G Street, NW., Washington, DC
20552. Please note that all mail sent to
FHFA via the U.S. Mail service is routed
through a national irradiation facility, a
process that may delay delivery by
approximately two weeks. For any timesensitive correspondence, please plan
accordingly.
• Hand Delivery/Courier to: Alfred M.
Pollard, General Counsel, Attention:
Comments/RIN 2590–AA44, Federal
Housing Finance Agency, Fourth Floor,
1700 G Street, NW., Washington, DC
20552. The package must be logged at
the Guard Desk, First Floor, on business
days between 9 a.m. and 3 p.m.
FOR FURTHER INFORMATION CONTACT:
David A. Lee, Chief FOIA Officer,
telephone (202) 414–3804 (not a toll free
number), Federal Housing Finance
Agency, Fourth Floor, 1700 G Street,
NW., Washington, DC 20552. The
telephone number for the
Telecommunications Device for the Deaf
is (800) 877–8339.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA is issuing a revision to 12 CFR
part 1202 to include language
concerning FOIA requests as they relate
to FHFA–OIG, as well as to clarify and
update the existing regulation. FHFA
invites comments on all aspects of the
interim final regulation and will take all
relevant comments into consideration
before issuing the final regulation. All
submissions received must include the
agency name or Regulatory Information
Number (RIN) for this rulemaking.
Copies of all comments received will be
posted without change on the FHFA
Internet Web site, https://www.fhfa.gov,
and will include any personal
information provided. In addition,
copies of all comments received will be
available for examination by the public
on business days between the hours of
10 a.m. and 3 p.m. at the Federal
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Housing Finance Agency, Fourth Floor,
1700 G Street, NW., Washington, DC
20552. To make an appointment to
inspect comments, please call the Office
of General Counsel at (202) 414–3751.
II. Effective Date and Request for
Comments
FHFA has concluded that good cause
exists, under 5 U.S.C. 553(b)(B) and
(d)(3), to waive the notice-and-comment
and delayed effective date requirements
of the Administrative Procedure Act and
to proceed with this interim final
regulation. The changes to part 1202
primarily cover how FHFA–OIG will
implement FOIA and make clarifying
and general updates to the existing
regulation, but do not fundamentally
change the regulation’s nature or scope.
Further, in light of the significant need
for immediate guidance regarding
FHFA–OIG’s role in the FOIA process,
FHFA has determined that notice-andcomment rulemaking is impracticable
and contrary to public policy.
Nevertheless, FHFA is providing the
public with a 60-day period following
publication of the interim final
regulation to submit comments. Any
comments received will be considered
prior to issuing a final regulation.
III. Background
A. Establishment of the Federal Housing
Finance Agency
The Housing and Economic Recovery
Act of 2008 (HERA), Public Law 110–
289, 122 Stat. 2654, amended the
Federal Housing Enterprises Financial
Safety and Soundness Act of 1992
(Safety and Soundness Act) (12 U.S.C.
4501 et seq.) and the Federal Home
Loan Bank Act (12 U.S.C. 1421–1449) to
establish FHFA as an independent
agency of the Federal Government to
ensure that the Federal National
Mortgage Association, the Federal Home
Loan Mortgage Corporation, and the
Federal Home Loan Banks (collectively,
the regulated entities) are capitalized
adequately; foster liquid, efficient,
competitive and resilient national
housing finance markets; operate in a
safe and sound manner; comply with
the Safety and Soundness Act and all
rules, regulations, guidelines and orders
issued under the Safety and Soundness
Act, and the regulated entities’
respective authorizing statutes; carry out
their missions through activities
consistent with the aforementioned
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authorities; and the activities and
operations of the regulated entities are
consistent with the public interest.
In 2009 FHFA issued a final
regulation on FOIA at 12 CFR part 1202
(74 FR 2342 (January 15, 2009)). This
final regulation provided the procedures
and guidelines under which FHFA
would implement FOIA. FHFA–OIG did
not exist when it was issued, but came
into existence the following year (2010).
This interim final regulation updates
FHFA’s 2009 FOIA regulation to
provide how FHFA–OIG will implement
FOIA as well as to clarify and update
the existing regulation.
B. Establishment of the Office of
Inspector General for the Federal
Housing Finance Agency
Section 1105 of HERA amended the
Safety and Soundness Act and the
Inspector General Act of 1978, as
amended, by specifying that there shall
be established an Inspector General
within FHFA. See 12 U.S.C. 4517(d).
Among other duties, FHFA–OIG is
responsible for conducting audits,
evaluations, and investigations of
FHFA’s programs and operations;
recommending policies that promote
economy and efficiency in the
administration of FHFA’s programs and
operations; and preventing and
detecting fraud, waste, and abuse in
FHFA’s programs and operations.
IV. Section-by-Section Analysis
Section 1202.1 Why did FHFA issue
this regulation?
This section describes the purposes of
the regulation, which are to implement
FOIA and explain general policies and
procedures for disclosing information
under FOIA. In addition, there are
minor editorial changes to the existing
regulation for clarity and consistency
purposes, as well as notification to the
public that this regulation applies to
FHFA–OIG.
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Section 1202.2 What do the terms in
this regulation mean?
This section sets forth definitions of
many terms relevant to the regulation
and includes new definitions as well as
definitions related to FHFA–OIG.
Section 1202.3 What information can I
obtain through FOIA?
This section is updated to explain the
type of information that may be
obtained under FOIA.
Section 1202.4 What information is
exempt from disclosure?
This section describes records that
FHFA and FHFA–OIG do not have to
disclose, even if requested.
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Section 1202.5 How do I request
information from FHFA or FHFA–OIG
under FOIA?
This section explains what a person
must do to submit a valid request to
FHFA or FHFA–OIG to disclose records.
It describes the information to provide,
to enable FHFA or FHFA–OIG to
identify the records sought and
determine whether they can be
disclosed.
Section 1202.6 What if my request
does not have all the information FHFA
or FHFA–OIG requires?
This section explains that FHFA or
FHFA–OIG will give requesters an
opportunity to modify or amend a
request that is incomplete or
insufficient. It also explains how FHFA
or FHFA–OIG will treat such requests
until adequate information is received.
Section 1202.7 How will FHFA or
FHFA–OIG respond to my FOIA
request?
This section describes a multi-track
method of processing requests and the
times within which FHFA or FHFA–
OIG will respond to requests. It also
explains that FHFA or FHFA–OIG will
grant or deny requests in writing,
provide reasons if a request is denied in
whole or in part, refer the request to
another agency if it is appropriate to do
so, and explain the right of appeal.
Section 1202.8 If the requested records
contain confidential commercial
information, what procedures will FHFA
or FHFA–OIG follow?
This section explains how FHFA and
FHFA–OIG comply with Executive
Order No. 12600 and describes special
procedures required before FHFA or
FHFA–OIG disclose confidential
commercial information in response to
a FOIA request.
Section 1202.9 How do I appeal a
response denying my FOIA request?
This section describes the process by
which a requester whose request is
denied in whole or in part may appeal.
It explains when and how to appeal and
how and within what time limits FHFA
or FHFA–OIG will respond to appeals.
Section 1202.10 Will FHFA or FHFA–
OIG expedite my request or appeal?
This section explains how a person
can ask FHFA or FHFA–OIG to expedite
a request or appeal. It describes the
reasons that justify expediting a request
or an appeal and the time within which
FHFA or FHFA–OIG will notify the
person that the request or appeal will or
will not be expedited.
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Section 1202.11 What will it cost to get
the records I requested?
This section explains when FHFA or
FHFA–OIG will charge for searching for
and providing copies of records and
how to identify the costs FHFA or
FHFA–OIG will charge. In addition,
language is being added regarding fee
waivers.
Section 1202.12 Is there anything else
I need to know about FOIA procedures?
This section explains that this
regulation does not create any
independent rights, but provides
procedures for exercising rights granted
by FOIA.
Regulatory Impacts
Paperwork Reduction Act
The regulations in this part do not
contain any information collection
requirement that requires the approval
of OMB under the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires that a
regulation that has a significant
economic impact on a substantial
number of small entities, small
businesses, or small organizations must
include an initial regulatory flexibility
analysis describing the regulation’s
impact on small entities. Such an
analysis need not be undertaken if the
agency has certified that the regulation
does not have a significant economic
impact on a substantial number of small
entities (5 U.S.C. 605(b)). FHFA has
considered the impact of the regulation
under the Regulatory Flexibility Act.
FHFA certifies that the regulation is not
likely to have a significant economic
impact on a substantial number of small
business entities because the regulation
is applicable only to the internal
operations and legal obligations of
FHFA and FHFA–OIG.
List of Subjects in 12 CFR Part 1202
Appeals, Confidential commercial
information, Disclosure, Exemptions,
Fees, Final action, Freedom of
Information Act, Judicial review,
Records, Requests.
Authority and Issuance
Accordingly, for the reasons stated in
the preamble, FHFA is revising part
1202 of Chapter XII of title 12 of the
Code of Federal Regulations as follows:
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PART 1202—FREEDOM OF
INFORMATION ACT
(e) This regulation applies to both
FHFA and FHFA–OIG.
Sec.
1202.1 Why did FHFA issue this
regulation?
1202.2 What do the terms in this regulation
mean?
1202.3 What information can I obtain
through FOIA?
1202.4 What information is exempt from
disclosure?
1202.5 How do I request information from
FHFA or FHFA–OIG under FOIA?
1202.6 What if my request does not have all
the information FHFA or FHFA–OIG
requires?
1202.7 How will FHFA or FHFA–OIG
respond to my FOIA request?
1202.8 If the requested records contain
confidential commercial information,
what procedures will FHFA or FHFA–
OIG follow?
1202.9 How do I appeal a response denying
my FOIA request?
1202.10 Will FHFA or FHFA–OIG expedite
my request or appeal?
1202.11 What will it cost to get the records
I requested?
1202.12 Is there anything else I need to
know about FOIA procedures?
§ 1202.2 What do the terms in this
regulation mean?
Authority: Pub. L. 110–289, 122 Stat. 2654;
5 U.S.C. 301, 552; 12 U.S.C. 4526; E.O.
12600, 52 FR 23781, 3 CFR, 1987 Comp., p.
235; E.O. 13392, 70 FR 75373–75377, 3 CFR,
2006 Comp., p. 216–200.
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§ 1202.1 Why did FHFA issue this
regulation?
(a) The Freedom of Information Act
(FOIA) (5 U.S.C. 552), is a federal law
that requires FHFA and other Federal
Government agencies to disclose certain
Federal Government records to the
public.
(b) This regulation explains the rules
that FHFA and the FHFA Office of
Inspector General (FHFA–OIG) both
follow when processing and responding
to requests for records under FOIA. It
also explains what you must do to
request records from FHFA or FHFA–
OIG under FOIA. You should read this
regulation together with FOIA, which
explains in more detail your rights and
the records FHFA or FHFA–OIG may
release to you.
(c) If you want to request information
about yourself under the Privacy Act (5
U.S.C. 552a), you should file your
request using FHFA’s Privacy Act
regulations at part 1204 of this title. If
you file a FOIA request for information
about yourself, FHFA or FHFA–OIG will
process it as a request under the Privacy
Act regulation.
(d) FHFA and FHFA–OIG may make
public information that they routinely
publish or disclose when performing
their activities without following these
procedures.
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Some of the terms you need to
understand while reading this
regulation are—
Appeals Officer or FOIA Appeals
Officer means a person designated by
the FHFA Director to process appeals of
denials of requests for FHFA records
under FOIA. For appeals pertaining to
FHFA–OIG records, Appeals Officer or
FOIA Appeals Officer means a person
designated by the FHFA Inspector
General to process appeals of denials of
requests for FHFA–OIG records under
FOIA.
Confidential commercial information
means records provided to the Federal
Government by a submitter that contain
material exempt from release under
Exemption 4 of FOIA, 5 U.S.C.
552(b)(4), because disclosure could
reasonably be expected to cause
substantial competitive harm.
Days, unless stated as ‘‘calendar days,’’
are working days and do not include
Saturdays, Sundays, and federal
holidays. If the last day of any period
prescribed herein falls on a Saturday,
Sunday, or federal holiday, the last day
of the period will be the next working
day that is not a Saturday, Sunday, or
federal holiday.
Direct costs means the expenses,
including contract services, incurred by
FHFA or FHFA–OIG, in searching for,
reviewing and/or duplicating records to
respond to a request for information. In
the case of a commercial use request,
the term also means those expenditures
FHFA or FHFA–OIG actually incurs in
reviewing records to respond to the
request. Direct costs include the cost of
the time of the employee performing the
work, the cost of any computer searches,
and the cost of operating duplication
equipment. Direct costs do not include
overhead expenses such as costs of
space, and heating or lighting the
facility in which the records are stored.
Employee, for the purposes of this
regulation, means any person holding
an appointment to a position of
employment with FHFA or FHFA–OIG,
or any person who formerly held such
an appointment; any conservator
appointed by FHFA; or any agent or
independent contractor acting on behalf
of FHFA or FHFA–OIG, even though the
appointment or contract has terminated.
FHFA means the Federal Housing
Finance Agency and includes its
predecessor agencies, the Office of
Federal Housing Enterprise Oversight
(OFHEO) and the Federal Housing
Finance Board (FHFB).
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FHFA–OIG means the Office of
Inspector General for FHFA.
FOIA Officer and Chief FOIA Officer
are persons designated by the FHFA
Director to process and respond to
requests for FHFA records under FOIA.
FOIA Official is a person designated
by the FHFA Inspector General to
process requests for FHFA–OIG records
under FOIA.
Office of Finance means the Office of
Finance of the Federal Home Loan Bank
System or any successor thereto.
Readily reproducible means that the
requested record or records exist in
electronic format and can be
downloaded or transferred intact to a
computer disk, tape, or another
electronic medium with equipment and
software currently in use by FHFA or
FHFA–OIG.
Record means information or
documentary material FHFA or FHFA–
OIG maintains in any form or format,
including electronic, which FHFA or
FHFA–OIG—
(1) Created or received under federal
law or in connection with the
transaction of public business;
(2) Preserved or determined is
appropriate for preservation as evidence
of operations or activities of FHFA or
FHFA–OIG, or because of the value of
the information it contains; and
(3) Controls at the time it receives a
request for disclosure.
Regulated entities means the Federal
Home Loan Mortgage Corporation and
any affiliate thereof, the Federal
National Mortgage Association and any
affiliate thereof, and the Federal Home
Loan Banks.
Requester means any person seeking
access to FHFA or FHFA–OIG records
under FOIA.
Search time means the amount of
time spent by or on behalf of FHFA or
FHFA–OIG in attempting to locate
records responsive to a request, whether
manually or by electronic means,
including but not limited to page-bypage or line-by-line identification of
responsive material within a record or
extraction of electronic information
from electronic storage media.
Submitter means any person or entity
providing confidential information to
the Federal Government. The term
‘‘submitter’’ includes, but is not limited
to corporations, state governments, and
foreign governments.
Unusual circumstances means the
need to—
(1) Search for and/or collect records
from agencies, offices, facilities, or
locations that are separate from the
office processing the request;
(2) Search, review, and/or duplicate a
voluminous amount of separate and
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distinct records in order to process a
single request; or
(3) Consult with another agency or
among two or more components of
FHFA or FHFA–OIG that have a
substantial interest in the determination
of a request.
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§ 1202.3 What information can I obtain
through FOIA?
(a) General. FHFA and FHFA–OIG
prohibit employees from releasing or
disclosing confidential or otherwise
non-public information that FHFA or
FHFA–OIG possesses, except as
authorized by this regulation, by the
Director of FHFA for FHFA records, or
by the FHFA Inspector General for
FHFA–OIG records, when the disclosure
is necessary for the performance of
official duties.
(b) Records. You may request that
FHFA or FHFA–OIG disclose to you its
records on a subject of interest to you.
FOIA only requires the disclosure of
records. It does not require FHFA or
FHFA–OIG to create compilations of
information or to provide narrative
responses to questions or queries. Some
information is exempt from disclosure.
(c) Reading rooms.—(1) FHFA
maintains electronic and physical
reading rooms. FHFA’s physical reading
room is located at 1700 G Street, NW.,
Fourth Floor, Washington, DC 20552,
and is open to the public by
appointment from 9 a.m. to 3 p.m. each
business day. For an appointment,
contact the FOIA Officer by calling (202)
414–6425 or by e-mail at foia@fhfa.gov.
The electronic reading room is part of
the FHFA Web site at https://
www.fhfa.gov. FHFA–OIG also
maintains electronic and physical
reading rooms. FHFA–OIG’s physical
reading room is located at 1625 Eye
Street, NW., Washington, DC 20006, and
is open to the public by appointment
from 9 a.m. to 3 p.m. each business day.
For an appointment, contact FHFA–OIG
by calling (202) 408–2577 or by e-mail
at bryan.saddler@fhfa.gov. The
electronic reading room is part of the
FHFA–OIG Web site at https://
www.fhfaoig.gov.
(2) Each reading room has the
following records created after
November 1, 1996, by FHFA or its
predecessor agencies, or by FHFA–OIG,
and current indices to the following
records created by FHFA or its
predecessor agencies or FHFA–OIG
before or after November 1, 1996:
(i) Final opinions or orders issued in
adjudication;
(ii) Statements of policy and
interpretation that are not published in
the Federal Register;
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(iii) Administrative staff manuals and
instructions to staff that affect a member
of the public and are not exempt from
disclosure under FOIA; and
(iv) Copies of records released under
FOIA that FHFA or FHFA–OIG
determines have become or are likely to
become the subject of subsequent
requests for substantially similar
records.
§ 1202.4 What information is exempt from
disclosure?
(a) General. Unless the Director of
FHFA or his or her designee for FHFA
records, the FHFA Inspector General or
his or her designee for FHFA–OIG
records, or any regulation or statute
specifically authorizes disclosure,
neither FHFA nor FHFA–OIG will
release records that are—
(1) Specifically authorized under
criteria established by an Executive
Order to be kept secret in the interest of
national defense or foreign policy, and
in fact is properly classified pursuant to
such Executive Order;
(2) Related solely to FHFA’s or
FHFA–OIG’s internal personnel rules
and practices;
(3) Specifically exempted from
disclosure by statute (other than 5
U.S.C. 552a), provided that such
statute—
(i) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue, or
(ii) Establishes particular criteria for
withholding or refers to particular types
of matters to be withheld;
(4) Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential;
(5) Contained in inter-agency or intraagency memoranda or letters that would
not be available by law to a private party
in litigation with FHFA or FHFA–OIG;
(6) Contained in personnel, medical
or similar files (including financial files)
the disclosure of which would
constitute a clearly unwarranted
invasion of personal privacy;
(7) Compiled for law enforcement
purposes, but only to the extent that the
production of such law enforcement
records or information—
(i) Could reasonably be expected to
interfere with enforcement proceedings;
(ii) Would deprive a person of a right
to fair trial or an impartial adjudication;
(iii) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(iv) Could reasonably be expected to
disclose the identity of a confidential
source, including a state, local, or
foreign agency or authority or any
private institution or an entity that is
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regulated and examined by FHFA that
furnished information on a confidential
basis, and, in the case of a record
compiled by FHFA–OIG or a criminal
law enforcement authority in the course
of a criminal investigation or by an
agency conducting a lawful national
security intelligence investigation,
information furnished by a confidential
source;
(v) Would disclose techniques and
procedures for law enforcement
investigations or prosecutions, or would
disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected
to risk circumvention of the law; or
(vi) Could reasonably be expected to
endanger the life or physical safety of
any individual.
(8) Contained in or related to
examination, operating, or condition
reports that are prepared by, on behalf
of, or for the use of an agency
responsible for the regulation or
supervision of financial institutions; or
(9) Geological and geophysical
information and data, including maps,
concerning wells.
(b) Discretion to apply exemptions.
Although records or parts of them may
be exempt from disclosure, FHFA or
FHFA–OIG may elect under the
circumstances of any particular request
not to apply an exemption. This election
does not generally waive the exemption
and it does not have precedential effect.
FHFA or FHFA–OIG may still apply an
exemption to any other records or
portions of records, regardless of when
the request is received.
(c) Redacted portion. If a requested
record contains exempt information and
information that can be disclosed and
the portions can reasonably be
segregated from each other, the
disclosable portion of the record will be
released to the requester after FHFA or
FHFA–OIG deletes the exempt portions.
If it is technically feasible, FHFA or
FHFA–OIG will indicate the amount of
the information deleted at the place in
the record where the deletion is made
and include a notation identifying the
exemption that was applied, unless
including that indication would harm
an interest protected by an exemption.
(d) Exempt and redacted material.
FHFA and FHFA–OIG are not required
to provide an itemized index correlating
each withheld document (or redacted
portion) with a specific exemption
justification.
(e) Disclosure to Congress. This
section does not allow FHFA or FHFA–
OIG to withhold any information from,
or to prohibit the disclosure of any
information to, Congress or any
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Congressional committee or
subcommittee.
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§ 1202.5 How do I request information
from FHFA or FHFA–OIG under FOIA?
(a) Where to send your request. FOIA
requests must be in writing. You may
make a request for FHFA or FHFA–OIG
records by writing directly to FHFA’s
FOIA Office through electronic mail,
mail, delivery service, or facsimile. The
electronic mail address is:
foia@fhfa.gov. For mail or delivery
service, the mailing address is: FOIA
Officer, Federal Housing Finance
Agency, 1700 G Street, NW.,
Washington, DC 20552. The facsimile
number is: (202) 414–8917. Requests for
FHFA–OIG records will be forwarded to
FHFA–OIG for processing and direct
response. You can help FHFA and
FHFA–OIG process your request by
marking electronic mail, letters, or
facsimiles and the subject line,
envelope, or facsimile cover sheet with
‘‘FOIA Request.’’ FHFA’s ‘‘Freedom of
Information Act Reference Guide,’’
which is available on FHFA’s Web site,
https://www.fhfa.gov, provides
additional information to assist you in
making your request.
(b) Provide your name and address.
Your request must include your full
name, your address and, if different, the
address at which FHFA or FHFA–OIG is
to notify you about your request, a
telephone number at which you can be
reached during normal business hours,
and an electronic mail address, if any.
(c) Request is under FOIA. Your
request must have a statement
identifying it as being made under
FOIA.
(d) Your FOIA status. If you are
submitting your request as a
‘‘commercial use’’ requester, an
‘‘educational institution’’ requester, a
‘‘non-commercial scientific institution’’
requester, or a ‘‘representative of the
news media’’ for the purposes of the fee
provisions of FOIA, your request must
include a statement specifically
identifying your status.
(e) Describing the records you request.
You must describe the records that you
seek in enough detail to enable FHFA or
FHFA–OIG personnel to locate them
with a reasonable amount of effort. Your
request should include as much specific
information as possible that you know
about each record you request, such as
the date, title, name, author, recipient,
subject matter, or file designations, or
the description of the record.
(f) How you want the records
produced to you. Your request must tell
FHFA or FHFA–OIG whether you will
inspect the records before duplication or
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want them duplicated and furnished
without inspection.
(g) Agreement to pay fees. In your
FOIA request you must agree to pay all
applicable fees charged under § 1202.11,
up to $100.00, unless you seek a fee
waiver. When making a request, you
may specify a higher or lower amount
you will pay without consultation. Your
inability to pay a fee does not justify
granting a fee waiver.
(h) Valid requests. FHFA and FHFA–
OIG will only process valid requests. A
valid request must meet all the
requirements of this part.
§ 1202.6 What if my request does not have
all the information FHFA or FHFA–OIG
requires?
If FHFA or FHFA–OIG determines
that your request does not reasonably
describe the records you seek, is overly
broad, cannot yet be processed for
reasons related to fees, or lacks required
information, you will be informed in
writing why your request cannot be
processed. You will be given 15
calendar days to modify your request to
meet all requirements. This request for
additional information tolls the time
period for FHFA or FHFA–OIG to
respond to your request under § 1202.7.
(a) If you respond with the necessary
information, FHFA or FHFA–OIG will
process that response as a new request
and the time period for FHFA or FHFA–
OIG to respond to your request will start
from the date the additional information
is actually received by FHFA or FHFA–
OIG.
(b) If you do not respond or provide
additional information within the time
allowed, or if the additional information
you provide is still incomplete or
insufficient, FHFA and FHFA–OIG will
consider your request withdrawn and
will notify you that it will not be
processed.
§ 1202.7 How will FHFA and FHFA–OIG
respond to my FOIA request?
(a) Authority to grant or deny
requests. The FOIA Officer and the
Chief FOIA Officer are authorized to
grant or deny any request for FHFA
records. For FHFA–OIG records, the
designated FHFA–OIG FOIA Official is
authorized to grant or deny any request
for FHFA–OIG records.
(b) Multi-Track request processing.
FHFA and FHFA–OIG use a multi-track
system to process FOIA requests. This
means that a FOIA request is processed
based on its complexity. When FHFA or
FHFA–OIG receives your request, it is
assigned to a Standard Track or
Complex Track. FHFA or FHFA–OIG
will notify you if your request is
assigned to the Complex Track as
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described in paragraph (f) of this
section.
(1) Standard Track. FHFA and FHFA–
OIG assign FOIA requests that are
routine and require little or no search
time, review, or analysis to the Standard
Track. FHFA and FHFA–OIG respond to
these requests within 20 days after
receipt, in the order in which they are
received. If FHFA or FHFA–OIG
determines while processing your
Standard Track request, that it is more
appropriately a Complex Track request,
it will be reassigned to the Complex
Track and you will be notified as
described in paragraph (f) of this
section.
(2) Complex Track.—(i) FHFA and
FHFA–OIG assign requests that are nonroutine to the Complex Track. Complex
Track requests are those to which FHFA
or FHFA–OIG determines that the
request and/or response may—
(A) Be voluminous;
(B) Involve two or more FHFA or
FHFA–OIG units;
(C) Require consultation with other
agencies or entities;
(D) Require searches of archived
documents;
(E) Seek confidential commercial
information as described in § 1202.8;
(F) Require an unusually high level of
effort to search for, review and/or
duplicate records;
(G) Cause undue disruption to the
day-to-day activities of FHFA in
regulating and supervising the regulated
entities; or
(H) Cause undue disruption to the
day-to-day activities of FHFA–OIG in
carrying out its statutory
responsibilities.
(ii) FHFA or FHFA–OIG will respond
to Complex Track requests as soon as
reasonably possible, regardless of the
date of receipt.
(c) Referrals to other agencies. When
FHFA or FHFA–OIG receives a request
seeking records that originated in
another Federal Government agency,
FHFA or FHFA–OIG will refer the
request to the other agency for response.
You will be notified if your request is
referred to another agency.
(d) Responses to FOIA requests. FHFA
or FHFA–OIG will respond to your
request by granting or denying it in full,
or by granting and denying it in part.
The response will be in writing. In
determining which records are
responsive to your request, FHFA and
FHFA–OIG will conduct searches for
records FHFA or FHFA–OIG possesses
as of the date of your request.
(1) Requests that FHFA or FHFA–OIG
grants. If FHFA or FHFA–OIG grants
your request, the response will include
the requested records or details about
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how FHFA or FHFA–OIG will provide
them to you and the amount of any fees
charged.
(2) Requests that FHFA or FHFA–OIG
denies, or grants and denies in part. If
FHFA or FHFA–OIG denies your
request in whole or in part because a
requested record does not exist or
cannot be located, is not readily
reproducible in the form or format you
sought, is not subject to FOIA, or is
exempt from disclosure, the written
response will include the requested
releasable records, if any, the amount of
any fees charged, the reasons for denial,
and a notice and description of your
right to file an administrative appeal
under § 1202.9.
(e) Format and delivery of disclosed
records. If FHFA or FHFA–OIG grants,
in whole or in part, your request for
disclosure of records under FOIA, the
records may be made available to you in
the form or format you requested, if they
are readily reproducible in that form or
format. The records will be sent to the
address you provided by regular U.S.
Mail or by electronic mail unless
alternate arrangements are made by
mutual agreement, such as your
agreement to pay express or expedited
delivery service fees or to pick up
records at FHFA or FHFA–OIG offices.
(f) Extensions of time.—(1) In unusual
circumstances, FHFA or FHFA–OIG
may extend the Standard Track time
limit in paragraph (b)(1) of this section
for no more than 10 days and notify you
of—
(i) The reason for the extension; and
(ii) The date on which the
determination is expected.
(2) For requests in the Complex Track,
FHFA or FHFA–OIG will provide you
with an opportunity to modify or
reformulate your request so that it may
be processed on the Standard Track. If
the request cannot be modified or
reformulated to permit processing on
the Standard Track, FHFA or FHFA–
OIG will notify you regarding an
alternative time period for processing
the request.
jdjones on DSK8KYBLC1PROD with RULES
§ 1202.8 If the requested records contain
confidential commercial information, what
procedures will FHFA or FHFA–OIG follow?
(a) General. FHFA or FHFA–OIG will
not disclose confidential commercial
information in response to your FOIA
request except as described in this
section.
(b) Designation of confidential
commercial information. Submitters of
commercial information must use goodfaith efforts to designate, by appropriate
markings, either at the time of
submission or at a reasonable time
thereafter, those portions of the
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information they deem to be protected
under 5 U.S.C. 552(b)(4) and
§ 1202.4(a)(4). Any such designation
will expire 10 years after the records are
submitted to the Federal Government,
unless the submitter requests, and
provides reasonable justification for, a
designation period of longer duration.
(c) Pre-disclosure notification. Except
as provided in paragraph (e) of this
section, if your FOIA request
encompasses confidential commercial
information, FHFA or FHFA–OIG will,
prior to disclosure of the information
and to the extent permitted by law,
provide prompt written notice to a
submitter that confidential commercial
information was requested when—
(1) The submitter has in good faith
designated the information as
confidential commercial information
protected from disclosure under 5
U.S.C. 552(b)(4) and § 1202.4(a)(4); or
(2) FHFA or FHFA–OIG has reason to
believe that the request seeks
confidential commercial information,
the disclosure of which may result in
substantial competitive harm to the
submitter.
(d) Content of pre-disclosure
notification. When FHFA or FHFA–OIG
sends a pre-disclosure notification to a
submitter, it will contain—
(1) A description of the confidential
commercial information requested or
copies of the records or portions thereof
containing the confidential business
information; and
(2) An opportunity to object to
disclosure within 10 days or such other
time period that FHFA or FHFA–OIG
may allow, by providing to FHFA or
FHFA–OIG a detailed written statement
demonstrating all reasons the submitter
opposes disclosure.
(e) Exceptions to pre-disclosure
notification. FHFA or FHFA–OIG is not
required to send a pre-disclosure
notification if—
(1) FHFA or FHFA–OIG determines
that information should not be
disclosed;
(2) The information has been
published lawfully or has been made
officially available to the public;
(3) Disclosure of the information is
required by law, other than FOIA;
(4) The information requested is not
designated by the submitter as
confidential commercial information
pursuant to this section; or
(5) The submitter’s designation, under
paragraph (b) of this section, appears on
its face to be frivolous; except that
FHFA or FHFA–OIG will provide the
submitter with written notice of any
final decision to disclose the designated
confidential commercial information
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within a reasonable number of days
prior to a specified disclosure date.
(f) Submitter’s objection to disclosure.
A submitter may object to disclosure
within 10 days after date of the Predisclosure Notification, or such other
time period that FHFA or FHFA–OIG
may allow, by delivering to FHFA or
FHFA–OIG a statement demonstrating
all grounds on which it opposes
disclosure, and all reasons supporting
its contention that the information
should not be disclosed. The submitter’s
objection must contain a certification by
the submitter, or an officer or authorized
representative of the submitter, that the
grounds and reasons presented are true
and correct to the best of the submitter’s
knowledge. The submitter’s objection
may itself be subject to disclosure under
FOIA.
(g) Notice of intent to disclose
information. FHFA or FHFA–OIG will
carefully consider all grounds and
reasons provided by a submitter
objecting to disclosure. If FHFA or
FHFA–OIG decides to disclose the
information over the submitter’s
objection, the submitter will be
provided with a written notice of intent
to disclose at least 10 days before the
date of disclosure. The written notice
will contain—
(1) A statement of the reasons why the
information will be disclosed;
(2) A description of the information to
be disclosed; and
(3) A specific disclosure date.
(h) Notice to requester. FHFA or
FHFA–OIG will give a requester whose
request encompasses confidential
commercial information—
(1) A written notice that the request
encompasses confidential commercial
information that may be exempt from
disclosure under 5 U.S.C. 552(b)(4) and
§ 1202.4(a)(4) and that the submitter of
the information has been given a predisclosure notification with the
opportunity to comment on the
proposed disclosure of the information;
and
(2) A written notice that a notice of
intent to disclose has been provided to
the submitter, and that the submitter has
10 days, or such other time period that
FHFA or FHFA–OIG may allow, to
respond.
(i) Notice of FOIA lawsuit. FHFA or
FHFA–OIG will promptly notify the
submitter whenever a requester files suit
seeking to compel disclosure of the
submitter’s confidential commercial
information. FHFA or FHFA–OIG will
promptly notify the requester whenever
a submitter files suit seeking to prevent
disclosure of information.
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§ 1202.9 How do I appeal a response
denying my FOIA request?
(a) Right of appeal. If FHFA or FHFA–
OIG denied your request in whole or in
part, you may appeal the denial by
writing directly to the FOIA Appeals
Officer through electronic mail, mail,
delivery service, or facsimile. The
electronic mail address is:
foia@fhfa.gov. For mail or delivery
service, the mailing address is: FOIA
Appeals Officer, Federal Housing
Finance Agency, 1700 G Street, NW.,
Washington, DC 20552. The facsimile
number is: (202) 414–8917. You can
help FHFA and FHFA–OIG process your
appeal by marking electronic mail,
letters, or facsimiles and the subject
line, envelope, or facsimile cover sheet
with ‘‘FOIA Appeal.’’ For appeals of
denials, whether in whole or in part,
made by FHFA–OIG, the appeal must be
clearly marked by adding ‘‘FHFA–OIG’’
after ‘‘FOIA Appeal.’’ All appeals from
denials, in whole or in part, made by
FHFA–OIG will be forwarded to the
FHFA–OIG FOIA Appeals Officer for
processing and direct response. FHFA’s
‘‘Freedom of Information Act Reference
Guide,’’ which is available on FHFA’s
Web site, https://www.fhfa.gov, provides
additional information to assist you in
making your appeal.
(b) Timing, form, content, and receipt
of an appeal. Your appeal must be
written and submitted within 30
calendar days of the date of the decision
by FHFA or FHFA–OIG denying, in
whole or in part, your request. Your
appeal must include a copy of the initial
request, a copy of the letter denying the
request in whole or in part, and a
statement of the circumstances, reasons,
or arguments you believe support
disclosure of the requested record(s).
FHFA and FHFA–OIG will not consider
an improperly addressed appeal to have
been received for the purposes of the 20day time period of paragraph (d) of this
section until it is actually received by
FHFA.
(c) Extensions of time to appeal. If
you need more time to file your appeal,
you may request, in writing, an
extension of time of no more than 10
calendar days in which to file your
appeal, but only if your request is made
within the original 30-calendar day time
period for filing the appeal. Granting
such an extension is in the sole
discretion of the FHFA or FHFA–OIG
FOIA Appeals Officer.
(d) Final action on appeal. FHFA’s or
FHFA–OIG’s determination on your
appeal will be in writing, signed by the
FHFA or FHFA–OIG FOIA Appeals
Officer, and sent to you within 20 days
after the appeal is received, or by the
last day of the last extension under
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paragraph (e) of this section. The
determination of an appeal is the final
action of FHFA or FHFA–OIG on a
FOIA request. A determination may—
(1) Affirm, in whole or in part, the
initial denial of the request and may
include a brief statement of the reason
or reasons for the decision, including
each FOIA exemption relied upon;
(2) Reverse, in whole or in part, the
denial of a request in whole or in part,
and require the request to be processed
promptly in accordance with the
decision; or
(3) Remand a request to FHFA or
FHFA–OIG, as appropriate, for reprocessing, stating the time limits for
responding to the remanded request.
(e) Notice of delayed determinations
on appeal. If FHFA or FHFA–OIG
cannot send a determination on your
appeal within the 20-day time limit, the
designated Appeals Officer will
continue to process the appeal and upon
expiration of the time limit, will inform
you of the reason(s) for the delay and
the date on which a determination may
be expected. In this notice of delay, the
FHFA or FHFA–OIG FOIA Appeals
Officer may request that you forebear
seeking judicial review until a final
determination is made.
(f) Judicial review. If the denial of
your request for records is upheld in
whole or in part, or if a determination
on your appeal has not been sent at the
end of the 20-day period in paragraph
(d) of this section, or the last extension
thereof, you may seek judicial review
under 5 U.S.C. 552(a)(4).
§ 1202.10 Will FHFA or FHFA–OIG expedite
my request or appeal?
(a) Request for expedited processing.
You may request, in writing, expedited
processing of an initial request or of an
appeal. FHFA or FHFA–OIG may grant
expedited processing, and give your
request or appeal priority if your request
for expedited processing demonstrates a
compelling need by establishing one or
more of the following—
(1) Circumstances in which the lack of
expedited treatment could reasonably be
expected to pose an imminent threat to
the life or physical safety of an
individual;
(2) An urgency to inform the public
about an actual or alleged Federal
Government activity if you are a person
primarily engaged in disseminating
information;
(3) The loss of substantial due process
or rights;
(4) A matter of widespread and
exceptional media interest in which
there exists possible questions about the
Federal Government’s integrity,
affecting public confidence; or
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29639
(5) Humanitarian need.
(b) Certification of compelling need.
Your request for expedited processing
must include a statement certifying that
the reason(s) you present demonstrate a
compelling need are true and correct to
the best of your knowledge.
(c) Determination on request. FHFA or
FHFA–OIG will notify you within 10
days of receipt of your request whether
expedited processing has been granted.
If a request for expedited treatment is
granted, the request will be given
priority and will be processed as soon
as practicable. If a request for expedited
processing is denied, any appeal under
§ 1202.9 of that decision will be acted
on expeditiously.
§ 1202.11 What will it cost to get the
records I requested?
(a) Assessment of fees, generally.
FHFA or FHFA–OIG will assess you for
fees covering the direct costs of
responding to your request and costs for
duplicating records, except as otherwise
provided in a statute with respect to the
determination of fees that may be
assessed for disclosure, search time, or
review of particular records.
(b) Assessment of fees, categories of
requesters. The fees that FHFA or
FHFA–OIG may assess vary depending
on the type of request or the type of
requester you are—
(1) Commercial use. If you request
records for a commercial use, the fees
that FHFA or FHFA–OIG may assess are
limited to FHFA’s or FHFA–OIG’s
operating costs incurred for document
search, review, and duplication.
(2) Educational institution,
noncommercial scientific institution, or
representative of the news media. If you
are not requesting records for
commercial use and you are an
educational institution or a
noncommercial scientific institution,
whose purpose is scholarly or scientific
research, or a representative of the news
media, the fees that may be assessed are
limited to standard reasonable charges
for duplication in excess of 100 pages or
an electronic equivalent of 100 pages.
(3) Other. If neither paragraph (b)(1)
nor paragraph (b)(2) of this section
applies, the fees assessed are limited to
the costs for document searching in
excess of two hours and duplication in
excess of 100 pages, or an electronic
equivalent of 100 pages.
(c) Fee schedule. The current
schedule of fees is maintained on
FHFA’s Web site at: https://
www.fhfa.gov.
(d) Notice of anticipated fees in excess
of $100.00. When FHFA or FHFA–OIG
determines or estimates that the fees
chargeable to you will exceed $100.00,
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you will be notified of the actual or
estimated amount of fees you will incur,
unless you earlier indicated your
willingness to pay fees as high as those
anticipated. When you are notified that
the actual or estimated fees exceed
$100.00, your FOIA request will not be
considered received by FHFA or FHFA–
OIG until you agree to pay the
anticipated total fee.
(e) Advance payment of fees. FHFA or
FHFA–OIG may request that you pay
estimated fees or a deposit in advance
of responding to your request. If FHFA
or FHFA–OIG requests advance
payment or a deposit, your request will
not be considered received by FHFA or
FHFA–OIG until the advance payment
or deposit is received. FHFA or FHFA–
OIG will request advance payment or a
deposit if—
(1) The fees are likely to exceed
$500.00. FHFA or FHFA–OIG will
notify you of the likely cost and obtain
from you satisfactory assurance of full
payment if you have a history of prompt
payment of FOIA fees to FHFA or
FHFA–OIG;
(2) You do not have a history of
payment, or if the estimate of fees
exceeds $1,000.00, FHFA or FHFA–OIG
may require an advance payment of fees
in an amount up to the full estimated
charge that will be incurred;
(3) You previously failed to pay a fee
to FHFA or FHFA–OIG in a timely
fashion, i.e., within 30 calendar days of
the date of a billing, FHFA or FHFA–
OIG may require you to make advance
payment of the full amount of the fees
anticipated before processing a new
request or finishing processing of a
pending request; or
(4) You have an outstanding balance
due from a prior request. FHFA or
FHFA–OIG may require you to pay the
full amount owed plus any applicable
interest, as provided in paragraph (f) of
this section, or demonstrate that the fee
owed has been paid, as well as payment
of the full amount of anticipated fees
before processing your request.
(f) Interest. FHFA or FHFA–OIG may
charge you interest on an unpaid bill
starting on the 31st calendar day
following the day on which the bill was
sent. Once a fee payment has been
received by FHFA or FHFA–OIG, even
if not processed, FHFA or FHFA–OIG
will stay the accrual of interest. Interest
charges will be assessed at the rate
prescribed by 31 U.S.C. 3717 and will
accrue from the date of the billing.
(g) FHFA or FHFA–OIG assistance to
reduce costs. If FHFA or FHFA–OIG
notifies you of estimated fees exceeding
$100.00 or requests advance payment or
a deposit, you will have an opportunity
to consult with FHFA or FHFA–OIG
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FOIA staff to modify or reformulate your
request to meet your needs at a lower
cost.
(h) Fee waiver requests. You may
request a fee waiver in accordance with
FOIA and this regulation. FHFA or
FHFA–OIG may grant your fee waiver
request if 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 Federal Government
and is not primarily in the commercial
interest of the requester. In submitting a
fee waiver request, you must address the
following six factors—
(1) Whether the subject of the
requested records concerns the
operations or activities of the Federal
Government;
(2) Whether the disclosure is likely to
contribute to an understanding of
Federal Government operations or
activities;
(3) Whether disclosure of the
requested information will contribute to
public understanding;
(4) Whether the disclosure is likely to
contribute significantly to public
understanding of Federal Government
operations or activities;
(5) Whether the requester has a
commercial interest that would be
furthered by the requested disclosure;
and
(6) Whether the magnitude of the
identified commercial interest of the
requester is sufficiently large, in
comparison with the public interest in
disclosure, that disclosure is primarily
in the commercial interest of the
requester.
(i) Determination on request. FHFA or
FHFA–OIG will notify you within 20
days of receipt of your request whether
the fee waiver has been granted. A
request for fee waiver that is denied may
only be appealed when a final decision
has been made on the initial FOIA
request.
§ 1202.12 Is there anything else I need to
know about FOIA procedures?
This FOIA regulation does not and
shall not be construed to create any
right or to entitle any person, as of right,
to any service or to the disclosure of any
record to which such person is not
entitled under FOIA. This regulation
only provides procedures for requesting
records under FOIA.
Dated: May 12, 2011.
Edward J. DeMarco,
Acting Director, Federal Housing Finance
Agency.
[FR Doc. 2011–12485 Filed 5–20–11; 8:45 am]
BILLING CODE 8070–01–P
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DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket No. USCG–2011–0126]
RIN 1625–AA08
Special Local Regulations for Marine
Events; Chester River, Chestertown,
MD
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing special local regulations
during the reenactment portion of the
‘‘Chestertown Tea Party Festival,’’ a
marine event to be held on the waters
of the Chester River, Chestertown, MD
on May 28, 2011. These special local
regulations are necessary to provide for
the safety of life on navigable waters
during the event. This action is
intended to temporarily restrict vessel
traffic in a portion of the Chester River
during the event.
DATES: This rule is effective from
10 a.m. until 5 p.m. on May 28, 2011.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–2011–0126 and are
available online by going to https://
www.regulations.gov, inserting USCG–
2011–0126 in the ‘‘Keyword’’ box, and
then clicking ‘‘Search.’’ This material is
also available for inspection or copying
at the Docket Management Facility (M–
30), U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
rule, call or e-mail Mr. Ronald Houck,
Sector Baltimore Waterways
Management Division, Coast Guard;
telephone 410–576–2674, e-mail
Ronald.L.Houck@uscg.mil. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Regulatory Information
On March 21, 2011, we published a
notice of proposed rulemaking (NPRM)
entitled ‘‘Special Local Regulations for
Marine Events; Chester River,
Chestertown, MD’’ in the Federal
Register (76 FR 54). We received no
E:\FR\FM\23MYR1.SGM
23MYR1
]]>Agencies
[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Rules and Regulations]
[Pages 29633-29640]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12485]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 76, No. 99 / Monday, May 23, 2011 / Rules and
Regulations
[[Page 29633]]
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1202
RIN 2590-AA44
Freedom of Information Act Implementation
AGENCY: Federal Housing Finance Agency.
ACTION: Interim Final Regulation with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Agency (FHFA) is issuing this
interim final regulation with a request for comments on changes to its
existing Freedom of Information Act (FOIA) regulation. The changes to
the existing FOIA regulation provide the procedures and guidelines
under which FHFA and FHFA Office of Inspector General (FHFA-OIG) will
implement FOIA. The interim final regulation describes the policies and
procedures for public disclosure of information required to be
disclosed under FOIA, and procedures to protect from disclosure
business confidential and trade secret information, as appropriate.
DATES: The interim final regulation is effective May 23, 2011. FHFA
will accept written comments on the interim final regulation on or
before July 22, 2011. For additional information, see SUPPLEMENTARY
INFORMATION.
ADDRESSES: You may submit your comments on the interim final
regulation, identified by ``RIN 2590-AA44,'' by any of the following
methods:
E-mail: Comments to Alfred M. Pollard, General Counsel,
may be sent by e-mail to RegComments@fhfa.gov. Please include ``RIN
2590-AA44'' in the subject line of the message.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. If you submit your
comment to the Federal eRulemaking Portal, please also sent it by e-
mail to FHFA at RegComments@fhfa.gov to ensure timely receipt by FHFA.
Include the following information in the subject line of your
submission: ``Comments/RIN 2590-AA44.''
U.S. Mail Service, United Parcel Service, Federal Express,
or other commercial delivery service to: Alfred M. Pollard, General
Counsel, Attention: Comments/RIN 2590-AA44, Federal Housing Finance
Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. Please
note that all mail sent to FHFA via the U.S. Mail service is routed
through a national irradiation facility, a process that may delay
delivery by approximately two weeks. For any time-sensitive
correspondence, please plan accordingly.
Hand Delivery/Courier to: Alfred M. Pollard, General
Counsel, Attention: Comments/RIN 2590-AA44, Federal Housing Finance
Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. The
package must be logged at the Guard Desk, First Floor, on business days
between 9 a.m. and 3 p.m.
FOR FURTHER INFORMATION CONTACT: David A. Lee, Chief FOIA Officer,
telephone (202) 414-3804 (not a toll free number), Federal Housing
Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552.
The telephone number for the Telecommunications Device for the Deaf is
(800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA is issuing a revision to 12 CFR part 1202 to include language
concerning FOIA requests as they relate to FHFA-OIG, as well as to
clarify and update the existing regulation. FHFA invites comments on
all aspects of the interim final regulation and will take all relevant
comments into consideration before issuing the final regulation. All
submissions received must include the agency name or Regulatory
Information Number (RIN) for this rulemaking. Copies of all comments
received will be posted without change on the FHFA Internet Web site,
https://www.fhfa.gov, and will include any personal information
provided. In addition, copies of all comments received will be
available for examination by the public on business days between the
hours of 10 a.m. and 3 p.m. at the Federal Housing Finance Agency,
Fourth Floor, 1700 G Street, NW., Washington, DC 20552. To make an
appointment to inspect comments, please call the Office of General
Counsel at (202) 414-3751.
II. Effective Date and Request for Comments
FHFA has concluded that good cause exists, under 5 U.S.C. 553(b)(B)
and (d)(3), to waive the notice-and-comment and delayed effective date
requirements of the Administrative Procedure Act and to proceed with
this interim final regulation. The changes to part 1202 primarily cover
how FHFA-OIG will implement FOIA and make clarifying and general
updates to the existing regulation, but do not fundamentally change the
regulation's nature or scope. Further, in light of the significant need
for immediate guidance regarding FHFA-OIG's role in the FOIA process,
FHFA has determined that notice-and-comment rulemaking is impracticable
and contrary to public policy. Nevertheless, FHFA is providing the
public with a 60-day period following publication of the interim final
regulation to submit comments. Any comments received will be considered
prior to issuing a final regulation.
III. Background
A. Establishment of the Federal Housing Finance Agency
The Housing and Economic Recovery Act of 2008 (HERA), Public Law
110-289, 122 Stat. 2654, amended the Federal Housing Enterprises
Financial Safety and Soundness Act of 1992 (Safety and Soundness Act)
(12 U.S.C. 4501 et seq.) and the Federal Home Loan Bank Act (12 U.S.C.
1421-1449) to establish FHFA as an independent agency of the Federal
Government to ensure that the Federal National Mortgage Association,
the Federal Home Loan Mortgage Corporation, and the Federal Home Loan
Banks (collectively, the regulated entities) are capitalized
adequately; foster liquid, efficient, competitive and resilient
national housing finance markets; operate in a safe and sound manner;
comply with the Safety and Soundness Act and all rules, regulations,
guidelines and orders issued under the Safety and Soundness Act, and
the regulated entities' respective authorizing statutes; carry out
their missions through activities consistent with the aforementioned
[[Page 29634]]
authorities; and the activities and operations of the regulated
entities are consistent with the public interest.
In 2009 FHFA issued a final regulation on FOIA at 12 CFR part 1202
(74 FR 2342 (January 15, 2009)). This final regulation provided the
procedures and guidelines under which FHFA would implement FOIA. FHFA-
OIG did not exist when it was issued, but came into existence the
following year (2010). This interim final regulation updates FHFA's
2009 FOIA regulation to provide how FHFA-OIG will implement FOIA as
well as to clarify and update the existing regulation.
B. Establishment of the Office of Inspector General for the Federal
Housing Finance Agency
Section 1105 of HERA amended the Safety and Soundness Act and the
Inspector General Act of 1978, as amended, by specifying that there
shall be established an Inspector General within FHFA. See 12 U.S.C.
4517(d). Among other duties, FHFA-OIG is responsible for conducting
audits, evaluations, and investigations of FHFA's programs and
operations; recommending policies that promote economy and efficiency
in the administration of FHFA's programs and operations; and preventing
and detecting fraud, waste, and abuse in FHFA's programs and
operations.
IV. Section-by-Section Analysis
Section 1202.1 Why did FHFA issue this regulation?
This section describes the purposes of the regulation, which are to
implement FOIA and explain general policies and procedures for
disclosing information under FOIA. In addition, there are minor
editorial changes to the existing regulation for clarity and
consistency purposes, as well as notification to the public that this
regulation applies to FHFA-OIG.
Section 1202.2 What do the terms in this regulation mean?
This section sets forth definitions of many terms relevant to the
regulation and includes new definitions as well as definitions related
to FHFA-OIG.
Section 1202.3 What information can I obtain through FOIA?
This section is updated to explain the type of information that may
be obtained under FOIA.
Section 1202.4 What information is exempt from disclosure?
This section describes records that FHFA and FHFA-OIG do not have
to disclose, even if requested.
Section 1202.5 How do I request information from FHFA or FHFA-OIG under
FOIA?
This section explains what a person must do to submit a valid
request to FHFA or FHFA-OIG to disclose records. It describes the
information to provide, to enable FHFA or FHFA-OIG to identify the
records sought and determine whether they can be disclosed.
Section 1202.6 What if my request does not have all the information
FHFA or FHFA-OIG requires?
This section explains that FHFA or FHFA-OIG will give requesters an
opportunity to modify or amend a request that is incomplete or
insufficient. It also explains how FHFA or FHFA-OIG will treat such
requests until adequate information is received.
Section 1202.7 How will FHFA or FHFA-OIG respond to my FOIA request?
This section describes a multi-track method of processing requests
and the times within which FHFA or FHFA-OIG will respond to requests.
It also explains that FHFA or FHFA-OIG will grant or deny requests in
writing, provide reasons if a request is denied in whole or in part,
refer the request to another agency if it is appropriate to do so, and
explain the right of appeal.
Section 1202.8 If the requested records contain confidential commercial
information, what procedures will FHFA or FHFA-OIG follow?
This section explains how FHFA and FHFA-OIG comply with Executive
Order No. 12600 and describes special procedures required before FHFA
or FHFA-OIG disclose confidential commercial information in response to
a FOIA request.
Section 1202.9 How do I appeal a response denying my FOIA request?
This section describes the process by which a requester whose
request is denied in whole or in part may appeal. It explains when and
how to appeal and how and within what time limits FHFA or FHFA-OIG will
respond to appeals.
Section 1202.10 Will FHFA or FHFA-OIG expedite my request or appeal?
This section explains how a person can ask FHFA or FHFA-OIG to
expedite a request or appeal. It describes the reasons that justify
expediting a request or an appeal and the time within which FHFA or
FHFA-OIG will notify the person that the request or appeal will or will
not be expedited.
Section 1202.11 What will it cost to get the records I requested?
This section explains when FHFA or FHFA-OIG will charge for
searching for and providing copies of records and how to identify the
costs FHFA or FHFA-OIG will charge. In addition, language is being
added regarding fee waivers.
Section 1202.12 Is there anything else I need to know about FOIA
procedures?
This section explains that this regulation does not create any
independent rights, but provides procedures for exercising rights
granted by FOIA.
Regulatory Impacts
Paperwork Reduction Act
The regulations in this part do not contain any information
collection requirement that requires the approval of OMB under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
a regulation that has a significant economic impact on a substantial
number of small entities, small businesses, or small organizations must
include an initial regulatory flexibility analysis describing the
regulation's impact on small entities. Such an analysis need not be
undertaken if the agency has certified that the regulation does not
have a significant economic impact on a substantial number of small
entities (5 U.S.C. 605(b)). FHFA has considered the impact of the
regulation under the Regulatory Flexibility Act. FHFA certifies that
the regulation is not likely to have a significant economic impact on a
substantial number of small business entities because the regulation is
applicable only to the internal operations and legal obligations of
FHFA and FHFA-OIG.
List of Subjects in 12 CFR Part 1202
Appeals, Confidential commercial information, Disclosure,
Exemptions, Fees, Final action, Freedom of Information Act, Judicial
review, Records, Requests.
Authority and Issuance
Accordingly, for the reasons stated in the preamble, FHFA is
revising part 1202 of Chapter XII of title 12 of the Code of Federal
Regulations as follows:
[[Page 29635]]
PART 1202--FREEDOM OF INFORMATION ACT
Sec.
1202.1 Why did FHFA issue this regulation?
1202.2 What do the terms in this regulation mean?
1202.3 What information can I obtain through FOIA?
1202.4 What information is exempt from disclosure?
1202.5 How do I request information from FHFA or FHFA-OIG under
FOIA?
1202.6 What if my request does not have all the information FHFA or
FHFA-OIG requires?
1202.7 How will FHFA or FHFA-OIG respond to my FOIA request?
1202.8 If the requested records contain confidential commercial
information, what procedures will FHFA or FHFA-OIG follow?
1202.9 How do I appeal a response denying my FOIA request?
1202.10 Will FHFA or FHFA-OIG expedite my request or appeal?
1202.11 What will it cost to get the records I requested?
1202.12 Is there anything else I need to know about FOIA procedures?
Authority: Pub. L. 110-289, 122 Stat. 2654; 5 U.S.C. 301, 552;
12 U.S.C. 4526; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235;
E.O. 13392, 70 FR 75373-75377, 3 CFR, 2006 Comp., p. 216-200.
Sec. 1202.1 Why did FHFA issue this regulation?
(a) The Freedom of Information Act (FOIA) (5 U.S.C. 552), is a
federal law that requires FHFA and other Federal Government agencies to
disclose certain Federal Government records to the public.
(b) This regulation explains the rules that FHFA and the FHFA
Office of Inspector General (FHFA-OIG) both follow when processing and
responding to requests for records under FOIA. It also explains what
you must do to request records from FHFA or FHFA-OIG under FOIA. You
should read this regulation together with FOIA, which explains in more
detail your rights and the records FHFA or FHFA-OIG may release to you.
(c) If you want to request information about yourself under the
Privacy Act (5 U.S.C. 552a), you should file your request using FHFA's
Privacy Act regulations at part 1204 of this title. If you file a FOIA
request for information about yourself, FHFA or FHFA-OIG will process
it as a request under the Privacy Act regulation.
(d) FHFA and FHFA-OIG may make public information that they
routinely publish or disclose when performing their activities without
following these procedures.
(e) This regulation applies to both FHFA and FHFA-OIG.
Sec. 1202.2 What do the terms in this regulation mean?
Some of the terms you need to understand while reading this
regulation are--
Appeals Officer or FOIA Appeals Officer means a person designated
by the FHFA Director to process appeals of denials of requests for FHFA
records under FOIA. For appeals pertaining to FHFA-OIG records, Appeals
Officer or FOIA Appeals Officer means a person designated by the FHFA
Inspector General to process appeals of denials of requests for FHFA-
OIG records under FOIA.
Confidential commercial information means records provided to the
Federal Government by a submitter that contain material exempt from
release under Exemption 4 of FOIA, 5 U.S.C. 552(b)(4), because
disclosure could reasonably be expected to cause substantial
competitive harm.
Days, unless stated as ``calendar days,'' are working days and do
not include Saturdays, Sundays, and federal holidays. If the last day
of any period prescribed herein falls on a Saturday, Sunday, or federal
holiday, the last day of the period will be the next working day that
is not a Saturday, Sunday, or federal holiday.
Direct costs means the expenses, including contract services,
incurred by FHFA or FHFA-OIG, in searching for, reviewing and/or
duplicating records to respond to a request for information. In the
case of a commercial use request, the term also means those
expenditures FHFA or FHFA-OIG actually incurs in reviewing records to
respond to the request. Direct costs include the cost of the time of
the employee performing the work, the cost of any computer searches,
and the cost of operating duplication equipment. Direct costs do not
include overhead expenses such as costs of space, and heating or
lighting the facility in which the records are stored.
Employee, for the purposes of this regulation, means any person
holding an appointment to a position of employment with FHFA or FHFA-
OIG, or any person who formerly held such an appointment; any
conservator appointed by FHFA; or any agent or independent contractor
acting on behalf of FHFA or FHFA-OIG, even though the appointment or
contract has terminated.
FHFA means the Federal Housing Finance Agency and includes its
predecessor agencies, the Office of Federal Housing Enterprise
Oversight (OFHEO) and the Federal Housing Finance Board (FHFB).
FHFA-OIG means the Office of Inspector General for FHFA.
FOIA Officer and Chief FOIA Officer are persons designated by the
FHFA Director to process and respond to requests for FHFA records under
FOIA.
FOIA Official is a person designated by the FHFA Inspector General
to process requests for FHFA-OIG records under FOIA.
Office of Finance means the Office of Finance of the Federal Home
Loan Bank System or any successor thereto.
Readily reproducible means that the requested record or records
exist in electronic format and can be downloaded or transferred intact
to a computer disk, tape, or another electronic medium with equipment
and software currently in use by FHFA or FHFA-OIG.
Record means information or documentary material FHFA or FHFA-OIG
maintains in any form or format, including electronic, which FHFA or
FHFA-OIG--
(1) Created or received under federal law or in connection with the
transaction of public business;
(2) Preserved or determined is appropriate for preservation as
evidence of operations or activities of FHFA or FHFA-OIG, or because of
the value of the information it contains; and
(3) Controls at the time it receives a request for disclosure.
Regulated entities means the Federal Home Loan Mortgage Corporation
and any affiliate thereof, the Federal National Mortgage Association
and any affiliate thereof, and the Federal Home Loan Banks.
Requester means any person seeking access to FHFA or FHFA-OIG
records under FOIA.
Search time means the amount of time spent by or on behalf of FHFA
or FHFA-OIG in attempting to locate records responsive to a request,
whether manually or by electronic means, including but not limited to
page-by-page or line-by-line identification of responsive material
within a record or extraction of electronic information from electronic
storage media.
Submitter means any person or entity providing confidential
information to the Federal Government. The term ``submitter'' includes,
but is not limited to corporations, state governments, and foreign
governments.
Unusual circumstances means the need to--
(1) Search for and/or collect records from agencies, offices,
facilities, or locations that are separate from the office processing
the request;
(2) Search, review, and/or duplicate a voluminous amount of
separate and
[[Page 29636]]
distinct records in order to process a single request; or
(3) Consult with another agency or among two or more components of
FHFA or FHFA-OIG that have a substantial interest in the determination
of a request.
Sec. 1202.3 What information can I obtain through FOIA?
(a) General. FHFA and FHFA-OIG prohibit employees from releasing or
disclosing confidential or otherwise non-public information that FHFA
or FHFA-OIG possesses, except as authorized by this regulation, by the
Director of FHFA for FHFA records, or by the FHFA Inspector General for
FHFA-OIG records, when the disclosure is necessary for the performance
of official duties.
(b) Records. You may request that FHFA or FHFA-OIG disclose to you
its records on a subject of interest to you. FOIA only requires the
disclosure of records. It does not require FHFA or FHFA-OIG to create
compilations of information or to provide narrative responses to
questions or queries. Some information is exempt from disclosure.
(c) Reading rooms.--(1) FHFA maintains electronic and physical
reading rooms. FHFA's physical reading room is located at 1700 G
Street, NW., Fourth Floor, Washington, DC 20552, and is open to the
public by appointment from 9 a.m. to 3 p.m. each business day. For an
appointment, contact the FOIA Officer by calling (202) 414-6425 or by
e-mail at foia@fhfa.gov. The electronic reading room is part of the
FHFA Web site at https://www.fhfa.gov. FHFA-OIG also maintains
electronic and physical reading rooms. FHFA-OIG's physical reading room
is located at 1625 Eye Street, NW., Washington, DC 20006, and is open
to the public by appointment from 9 a.m. to 3 p.m. each business day.
For an appointment, contact FHFA-OIG by calling (202) 408-2577 or by e-
mail at bryan.saddler@fhfa.gov. The electronic reading room is part of
the FHFA-OIG Web site at https://www.fhfaoig.gov.
(2) Each reading room has the following records created after
November 1, 1996, by FHFA or its predecessor agencies, or by FHFA-OIG,
and current indices to the following records created by FHFA or its
predecessor agencies or FHFA-OIG before or after November 1, 1996:
(i) Final opinions or orders issued in adjudication;
(ii) Statements of policy and interpretation that are not published
in the Federal Register;
(iii) Administrative staff manuals and instructions to staff that
affect a member of the public and are not exempt from disclosure under
FOIA; and
(iv) Copies of records released under FOIA that FHFA or FHFA-OIG
determines have become or are likely to become the subject of
subsequent requests for substantially similar records.
Sec. 1202.4 What information is exempt from disclosure?
(a) General. Unless the Director of FHFA or his or her designee for
FHFA records, the FHFA Inspector General or his or her designee for
FHFA-OIG records, or any regulation or statute specifically authorizes
disclosure, neither FHFA nor FHFA-OIG will release records that are--
(1) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy, and in fact is properly classified pursuant to such
Executive Order;
(2) Related solely to FHFA's or FHFA-OIG's internal personnel rules
and practices;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552a), provided that such statute--
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Contained in inter-agency or intra-agency memoranda or letters
that would not be available by law to a private party in litigation
with FHFA or FHFA-OIG;
(6) Contained in personnel, medical or similar files (including
financial files) the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy;
(7) Compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information--
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority or any private institution or an entity that is regulated and
examined by FHFA that furnished information on a confidential basis,
and, in the case of a record compiled by FHFA-OIG or a criminal law
enforcement authority in the course of a criminal investigation or by
an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Contained in or related to examination, operating, or condition
reports that are prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) Discretion to apply exemptions. Although records or parts of
them may be exempt from disclosure, FHFA or FHFA-OIG may elect under
the circumstances of any particular request not to apply an exemption.
This election does not generally waive the exemption and it does not
have precedential effect. FHFA or FHFA-OIG may still apply an exemption
to any other records or portions of records, regardless of when the
request is received.
(c) Redacted portion. If a requested record contains exempt
information and information that can be disclosed and the portions can
reasonably be segregated from each other, the disclosable portion of
the record will be released to the requester after FHFA or FHFA-OIG
deletes the exempt portions. If it is technically feasible, FHFA or
FHFA-OIG will indicate the amount of the information deleted at the
place in the record where the deletion is made and include a notation
identifying the exemption that was applied, unless including that
indication would harm an interest protected by an exemption.
(d) Exempt and redacted material. FHFA and FHFA-OIG are not
required to provide an itemized index correlating each withheld
document (or redacted portion) with a specific exemption justification.
(e) Disclosure to Congress. This section does not allow FHFA or
FHFA-OIG to withhold any information from, or to prohibit the
disclosure of any information to, Congress or any
[[Page 29637]]
Congressional committee or subcommittee.
Sec. 1202.5 How do I request information from FHFA or FHFA-OIG under
FOIA?
(a) Where to send your request. FOIA requests must be in writing.
You may make a request for FHFA or FHFA-OIG records by writing directly
to FHFA's FOIA Office through electronic mail, mail, delivery service,
or facsimile. The electronic mail address is: foia@fhfa.gov. For mail
or delivery service, the mailing address is: FOIA Officer, Federal
Housing Finance Agency, 1700 G Street, NW., Washington, DC 20552. The
facsimile number is: (202) 414-8917. Requests for FHFA-OIG records will
be forwarded to FHFA-OIG for processing and direct response. You can
help FHFA and FHFA-OIG process your request by marking electronic mail,
letters, or facsimiles and the subject line, envelope, or facsimile
cover sheet with ``FOIA Request.'' FHFA's ``Freedom of Information Act
Reference Guide,'' which is available on FHFA's Web site, https://www.fhfa.gov, provides additional information to assist you in making
your request.
(b) Provide your name and address. Your request must include your
full name, your address and, if different, the address at which FHFA or
FHFA-OIG is to notify you about your request, a telephone number at
which you can be reached during normal business hours, and an
electronic mail address, if any.
(c) Request is under FOIA. Your request must have a statement
identifying it as being made under FOIA.
(d) Your FOIA status. If you are submitting your request as a
``commercial use'' requester, an ``educational institution'' requester,
a ``non-commercial scientific institution'' requester, or a
``representative of the news media'' for the purposes of the fee
provisions of FOIA, your request must include a statement specifically
identifying your status.
(e) Describing the records you request. You must describe the
records that you seek in enough detail to enable FHFA or FHFA-OIG
personnel to locate them with a reasonable amount of effort. Your
request should include as much specific information as possible that
you know about each record you request, such as the date, title, name,
author, recipient, subject matter, or file designations, or the
description of the record.
(f) How you want the records produced to you. Your request must
tell FHFA or FHFA-OIG whether you will inspect the records before
duplication or want them duplicated and furnished without inspection.
(g) Agreement to pay fees. In your FOIA request you must agree to
pay all applicable fees charged under Sec. 1202.11, up to $100.00,
unless you seek a fee waiver. When making a request, you may specify a
higher or lower amount you will pay without consultation. Your
inability to pay a fee does not justify granting a fee waiver.
(h) Valid requests. FHFA and FHFA-OIG will only process valid
requests. A valid request must meet all the requirements of this part.
Sec. 1202.6 What if my request does not have all the information FHFA
or FHFA-OIG requires?
If FHFA or FHFA-OIG determines that your request does not
reasonably describe the records you seek, is overly broad, cannot yet
be processed for reasons related to fees, or lacks required
information, you will be informed in writing why your request cannot be
processed. You will be given 15 calendar days to modify your request to
meet all requirements. This request for additional information tolls
the time period for FHFA or FHFA-OIG to respond to your request under
Sec. 1202.7.
(a) If you respond with the necessary information, FHFA or FHFA-OIG
will process that response as a new request and the time period for
FHFA or FHFA-OIG to respond to your request will start from the date
the additional information is actually received by FHFA or FHFA-OIG.
(b) If you do not respond or provide additional information within
the time allowed, or if the additional information you provide is still
incomplete or insufficient, FHFA and FHFA-OIG will consider your
request withdrawn and will notify you that it will not be processed.
Sec. 1202.7 How will FHFA and FHFA-OIG respond to my FOIA request?
(a) Authority to grant or deny requests. The FOIA Officer and the
Chief FOIA Officer are authorized to grant or deny any request for FHFA
records. For FHFA-OIG records, the designated FHFA-OIG FOIA Official is
authorized to grant or deny any request for FHFA-OIG records.
(b) Multi-Track request processing. FHFA and FHFA-OIG use a multi-
track system to process FOIA requests. This means that a FOIA request
is processed based on its complexity. When FHFA or FHFA-OIG receives
your request, it is assigned to a Standard Track or Complex Track. FHFA
or FHFA-OIG will notify you if your request is assigned to the Complex
Track as described in paragraph (f) of this section.
(1) Standard Track. FHFA and FHFA-OIG assign FOIA requests that are
routine and require little or no search time, review, or analysis to
the Standard Track. FHFA and FHFA-OIG respond to these requests within
20 days after receipt, in the order in which they are received. If FHFA
or FHFA-OIG determines while processing your Standard Track request,
that it is more appropriately a Complex Track request, it will be
reassigned to the Complex Track and you will be notified as described
in paragraph (f) of this section.
(2) Complex Track.--(i) FHFA and FHFA-OIG assign requests that are
non-routine to the Complex Track. Complex Track requests are those to
which FHFA or FHFA-OIG determines that the request and/or response
may--
(A) Be voluminous;
(B) Involve two or more FHFA or FHFA-OIG units;
(C) Require consultation with other agencies or entities;
(D) Require searches of archived documents;
(E) Seek confidential commercial information as described in Sec.
1202.8;
(F) Require an unusually high level of effort to search for, review
and/or duplicate records;
(G) Cause undue disruption to the day-to-day activities of FHFA in
regulating and supervising the regulated entities; or
(H) Cause undue disruption to the day-to-day activities of FHFA-OIG
in carrying out its statutory responsibilities.
(ii) FHFA or FHFA-OIG will respond to Complex Track requests as
soon as reasonably possible, regardless of the date of receipt.
(c) Referrals to other agencies. When FHFA or FHFA-OIG receives a
request seeking records that originated in another Federal Government
agency, FHFA or FHFA-OIG will refer the request to the other agency for
response. You will be notified if your request is referred to another
agency.
(d) Responses to FOIA requests. FHFA or FHFA-OIG will respond to
your request by granting or denying it in full, or by granting and
denying it in part. The response will be in writing. In determining
which records are responsive to your request, FHFA and FHFA-OIG will
conduct searches for records FHFA or FHFA-OIG possesses as of the date
of your request.
(1) Requests that FHFA or FHFA-OIG grants. If FHFA or FHFA-OIG
grants your request, the response will include the requested records or
details about
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how FHFA or FHFA-OIG will provide them to you and the amount of any
fees charged.
(2) Requests that FHFA or FHFA-OIG denies, or grants and denies in
part. If FHFA or FHFA-OIG denies your request in whole or in part
because a requested record does not exist or cannot be located, is not
readily reproducible in the form or format you sought, is not subject
to FOIA, or is exempt from disclosure, the written response will
include the requested releasable records, if any, the amount of any
fees charged, the reasons for denial, and a notice and description of
your right to file an administrative appeal under Sec. 1202.9.
(e) Format and delivery of disclosed records. If FHFA or FHFA-OIG
grants, in whole or in part, your request for disclosure of records
under FOIA, the records may be made available to you in the form or
format you requested, if they are readily reproducible in that form or
format. The records will be sent to the address you provided by regular
U.S. Mail or by electronic mail unless alternate arrangements are made
by mutual agreement, such as your agreement to pay express or expedited
delivery service fees or to pick up records at FHFA or FHFA-OIG
offices.
(f) Extensions of time.--(1) In unusual circumstances, FHFA or
FHFA-OIG may extend the Standard Track time limit in paragraph (b)(1)
of this section for no more than 10 days and notify you of--
(i) The reason for the extension; and
(ii) The date on which the determination is expected.
(2) For requests in the Complex Track, FHFA or FHFA-OIG will
provide you with an opportunity to modify or reformulate your request
so that it may be processed on the Standard Track. If the request
cannot be modified or reformulated to permit processing on the Standard
Track, FHFA or FHFA-OIG will notify you regarding an alternative time
period for processing the request.
Sec. 1202.8 If the requested records contain confidential commercial
information, what procedures will FHFA or FHFA-OIG follow?
(a) General. FHFA or FHFA-OIG will not disclose confidential
commercial information in response to your FOIA request except as
described in this section.
(b) Designation of confidential commercial information. Submitters
of commercial information must use good-faith efforts to designate, by
appropriate markings, either at the time of submission or at a
reasonable time thereafter, those portions of the information they deem
to be protected under 5 U.S.C. 552(b)(4) and Sec. 1202.4(a)(4). Any
such designation will expire 10 years after the records are submitted
to the Federal Government, unless the submitter requests, and provides
reasonable justification for, a designation period of longer duration.
(c) Pre-disclosure notification. Except as provided in paragraph
(e) of this section, if your FOIA request encompasses confidential
commercial information, FHFA or FHFA-OIG will, prior to disclosure of
the information and to the extent permitted by law, provide prompt
written notice to a submitter that confidential commercial information
was requested when--
(1) The submitter has in good faith designated the information as
confidential commercial information protected from disclosure under 5
U.S.C. 552(b)(4) and Sec. 1202.4(a)(4); or
(2) FHFA or FHFA-OIG has reason to believe that the request seeks
confidential commercial information, the disclosure of which may result
in substantial competitive harm to the submitter.
(d) Content of pre-disclosure notification. When FHFA or FHFA-OIG
sends a pre-disclosure notification to a submitter, it will contain--
(1) A description of the confidential commercial information
requested or copies of the records or portions thereof containing the
confidential business information; and
(2) An opportunity to object to disclosure within 10 days or such
other time period that FHFA or FHFA-OIG may allow, by providing to FHFA
or FHFA-OIG a detailed written statement demonstrating all reasons the
submitter opposes disclosure.
(e) Exceptions to pre-disclosure notification. FHFA or FHFA-OIG is
not required to send a pre-disclosure notification if--
(1) FHFA or FHFA-OIG determines that information should not be
disclosed;
(2) The information has been published lawfully or has been made
officially available to the public;
(3) Disclosure of the information is required by law, other than
FOIA;
(4) The information requested is not designated by the submitter as
confidential commercial information pursuant to this section; or
(5) The submitter's designation, under paragraph (b) of this
section, appears on its face to be frivolous; except that FHFA or FHFA-
OIG will provide the submitter with written notice of any final
decision to disclose the designated confidential commercial information
within a reasonable number of days prior to a specified disclosure
date.
(f) Submitter's objection to disclosure. A submitter may object to
disclosure within 10 days after date of the Pre-disclosure
Notification, or such other time period that FHFA or FHFA-OIG may
allow, by delivering to FHFA or FHFA-OIG a statement demonstrating all
grounds on which it opposes disclosure, and all reasons supporting its
contention that the information should not be disclosed. The
submitter's objection must contain a certification by the submitter, or
an officer or authorized representative of the submitter, that the
grounds and reasons presented are true and correct to the best of the
submitter's knowledge. The submitter's objection may itself be subject
to disclosure under FOIA.
(g) Notice of intent to disclose information. FHFA or FHFA-OIG will
carefully consider all grounds and reasons provided by a submitter
objecting to disclosure. If FHFA or FHFA-OIG decides to disclose the
information over the submitter's objection, the submitter will be
provided with a written notice of intent to disclose at least 10 days
before the date of disclosure. The written notice will contain--
(1) A statement of the reasons why the information will be
disclosed;
(2) A description of the information to be disclosed; and
(3) A specific disclosure date.
(h) Notice to requester. FHFA or FHFA-OIG will give a requester
whose request encompasses confidential commercial information--
(1) A written notice that the request encompasses confidential
commercial information that may be exempt from disclosure under 5
U.S.C. 552(b)(4) and Sec. 1202.4(a)(4) and that the submitter of the
information has been given a pre-disclosure notification with the
opportunity to comment on the proposed disclosure of the information;
and
(2) A written notice that a notice of intent to disclose has been
provided to the submitter, and that the submitter has 10 days, or such
other time period that FHFA or FHFA-OIG may allow, to respond.
(i) Notice of FOIA lawsuit. FHFA or FHFA-OIG will promptly notify
the submitter whenever a requester files suit seeking to compel
disclosure of the submitter's confidential commercial information. FHFA
or FHFA-OIG will promptly notify the requester whenever a submitter
files suit seeking to prevent disclosure of information.
[[Page 29639]]
Sec. 1202.9 How do I appeal a response denying my FOIA request?
(a) Right of appeal. If FHFA or FHFA-OIG denied your request in
whole or in part, you may appeal the denial by writing directly to the
FOIA Appeals Officer through electronic mail, mail, delivery service,
or facsimile. The electronic mail address is: foia@fhfa.gov. For mail
or delivery service, the mailing address is: FOIA Appeals Officer,
Federal Housing Finance Agency, 1700 G Street, NW., Washington, DC
20552. The facsimile number is: (202) 414-8917. You can help FHFA and
FHFA-OIG process your appeal by marking electronic mail, letters, or
facsimiles and the subject line, envelope, or facsimile cover sheet
with ``FOIA Appeal.'' For appeals of denials, whether in whole or in
part, made by FHFA-OIG, the appeal must be clearly marked by adding
``FHFA-OIG'' after ``FOIA Appeal.'' All appeals from denials, in whole
or in part, made by FHFA-OIG will be forwarded to the FHFA-OIG FOIA
Appeals Officer for processing and direct response. FHFA's ``Freedom of
Information Act Reference Guide,'' which is available on FHFA's Web
site, https://www.fhfa.gov, provides additional information to assist
you in making your appeal.
(b) Timing, form, content, and receipt of an appeal. Your appeal
must be written and submitted within 30 calendar days of the date of
the decision by FHFA or FHFA-OIG denying, in whole or in part, your
request. Your appeal must include a copy of the initial request, a copy
of the letter denying the request in whole or in part, and a statement
of the circumstances, reasons, or arguments you believe support
disclosure of the requested record(s). FHFA and FHFA-OIG will not
consider an improperly addressed appeal to have been received for the
purposes of the 20-day time period of paragraph (d) of this section
until it is actually received by FHFA.
(c) Extensions of time to appeal. If you need more time to file
your appeal, you may request, in writing, an extension of time of no
more than 10 calendar days in which to file your appeal, but only if
your request is made within the original 30-calendar day time period
for filing the appeal. Granting such an extension is in the sole
discretion of the FHFA or FHFA-OIG FOIA Appeals Officer.
(d) Final action on appeal. FHFA's or FHFA-OIG's determination on
your appeal will be in writing, signed by the FHFA or FHFA-OIG FOIA
Appeals Officer, and sent to you within 20 days after the appeal is
received, or by the last day of the last extension under paragraph (e)
of this section. The determination of an appeal is the final action of
FHFA or FHFA-OIG on a FOIA request. A determination may--
(1) Affirm, in whole or in part, the initial denial of the request
and may include a brief statement of the reason or reasons for the
decision, including each FOIA exemption relied upon;
(2) Reverse, in whole or in part, the denial of a request in whole
or in part, and require the request to be processed promptly in
accordance with the decision; or
(3) Remand a request to FHFA or FHFA-OIG, as appropriate, for re-
processing, stating the time limits for responding to the remanded
request.
(e) Notice of delayed determinations on appeal. If FHFA or FHFA-OIG
cannot send a determination on your appeal within the 20-day time
limit, the designated Appeals Officer will continue to process the
appeal and upon expiration of the time limit, will inform you of the
reason(s) for the delay and the date on which a determination may be
expected. In this notice of delay, the FHFA or FHFA-OIG FOIA Appeals
Officer may request that you forebear seeking judicial review until a
final determination is made.
(f) Judicial review. If the denial of your request for records is
upheld in whole or in part, or if a determination on your appeal has
not been sent at the end of the 20-day period in paragraph (d) of this
section, or the last extension thereof, you may seek judicial review
under 5 U.S.C. 552(a)(4).
Sec. 1202.10 Will FHFA or FHFA-OIG expedite my request or appeal?
(a) Request for expedited processing. You may request, in writing,
expedited processing of an initial request or of an appeal. FHFA or
FHFA-OIG may grant expedited processing, and give your request or
appeal priority if your request for expedited processing demonstrates a
compelling need by establishing one or more of the following--
(1) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(2) An urgency to inform the public about an actual or alleged
Federal Government activity if you are a person primarily engaged in
disseminating information;
(3) The loss of substantial due process or rights;
(4) A matter of widespread and exceptional media interest in which
there exists possible questions about the Federal Government's
integrity, affecting public confidence; or
(5) Humanitarian need.
(b) Certification of compelling need. Your request for expedited
processing must include a statement certifying that the reason(s) you
present demonstrate a compelling need are true and correct to the best
of your knowledge.
(c) Determination on request. FHFA or FHFA-OIG will notify you
within 10 days of receipt of your request whether expedited processing
has been granted. If a request for expedited treatment is granted, the
request will be given priority and will be processed as soon as
practicable. If a request for expedited processing is denied, any
appeal under Sec. 1202.9 of that decision will be acted on
expeditiously.
Sec. 1202.11 What will it cost to get the records I requested?
(a) Assessment of fees, generally. FHFA or FHFA-OIG will assess you
for fees covering the direct costs of responding to your request and
costs for duplicating records, except as otherwise provided in a
statute with respect to the determination of fees that may be assessed
for disclosure, search time, or review of particular records.
(b) Assessment of fees, categories of requesters. The fees that
FHFA or FHFA-OIG may assess vary depending on the type of request or
the type of requester you are--
(1) Commercial use. If you request records for a commercial use,
the fees that FHFA or FHFA-OIG may assess are limited to FHFA's or
FHFA-OIG's operating costs incurred for document search, review, and
duplication.
(2) Educational institution, noncommercial scientific institution,
or representative of the news media. If you are not requesting records
for commercial use and you are an educational institution or a
noncommercial scientific institution, whose purpose is scholarly or
scientific research, or a representative of the news media, the fees
that may be assessed are limited to standard reasonable charges for
duplication in excess of 100 pages or an electronic equivalent of 100
pages.
(3) Other. If neither paragraph (b)(1) nor paragraph (b)(2) of this
section applies, the fees assessed are limited to the costs for
document searching in excess of two hours and duplication in excess of
100 pages, or an electronic equivalent of 100 pages.
(c) Fee schedule. The current schedule of fees is maintained on
FHFA's Web site at: https://www.fhfa.gov.
(d) Notice of anticipated fees in excess of $100.00. When FHFA or
FHFA-OIG determines or estimates that the fees chargeable to you will
exceed $100.00,
[[Page 29640]]
you will be notified of the actual or estimated amount of fees you will
incur, unless you earlier indicated your willingness to pay fees as
high as those anticipated. When you are notified that the actual or
estimated fees exceed $100.00, your FOIA request will not be considered
received by FHFA or FHFA-OIG until you agree to pay the anticipated
total fee.
(e) Advance payment of fees. FHFA or FHFA-OIG may request that you
pay estimated fees or a deposit in advance of responding to your
request. If FHFA or FHFA-OIG requests advance payment or a deposit,
your request will not be considered received by FHFA or FHFA-OIG until
the advance payment or deposit is received. FHFA or FHFA-OIG will
request advance payment or a deposit if--
(1) The fees are likely to exceed $500.00. FHFA or FHFA-OIG will
notify you of the likely cost and obtain from you satisfactory
assurance of full payment if you have a history of prompt payment of
FOIA fees to FHFA or FHFA-OIG;
(2) You do not have a history of payment, or if the estimate of
fees exceeds $1,000.00, FHFA or FHFA-OIG may require an advance payment
of fees in an amount up to the full estimated charge that will be
incurred;
(3) You previously failed to pay a fee to FHFA or FHFA-OIG in a
timely fashion, i.e., within 30 calendar days of the date of a billing,
FHFA or FHFA-OIG may require you to make advance payment of the full
amount of the fees anticipated before processing a new request or
finishing processing of a pending request; or
(4) You have an outstanding balance due from a prior request. FHFA
or FHFA-OIG may require you to pay the full amount owed plus any
applicable interest, as provided in paragraph (f) of this section, or
demonstrate that the fee owed has been paid, as well as payment of the
full amount of anticipated fees before processing your request.
(f) Interest. FHFA or FHFA-OIG may charge you interest on an unpaid
bill starting on the 31st calendar day following the day on which the
bill was sent. Once a fee payment has been received by FHFA or FHFA-
OIG, even if not processed, FHFA or FHFA-OIG will stay the accrual of
interest. Interest charges will be assessed at the rate prescribed by
31 U.S.C. 3717 and will accrue from the date of the billing.
(g) FHFA or FHFA-OIG assistance to reduce costs. If FHFA or FHFA-
OIG notifies you of estimated fees exceeding $100.00 or requests
advance payment or a deposit, you will have an opportunity to consult
with FHFA or FHFA-OIG FOIA staff to modify or reformulate your request
to meet your needs at a lower cost.
(h) Fee waiver requests. You may request a fee waiver in accordance
with FOIA and this regulation. FHFA or FHFA-OIG may grant your fee
waiver request if 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 Federal Government
and is not primarily in the commercial interest of the requester. In
submitting a fee waiver request, you must address the following six
factors--
(1) Whether the subject of the requested records concerns the
operations or activities of the Federal Government;
(2) Whether the disclosure is likely to contribute to an
understanding of Federal Government operations or activities;
(3) Whether disclosure of the requested information will contribute
to public understanding;
(4) Whether the disclosure is likely to contribute significantly to
public understanding of Federal Government operations or activities;
(5) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and
(6) Whether the magnitude of the identified commercial interest of
the requester is sufficiently large, in comparison with the public
interest in disclosure, that disclosure is primarily in the commercial
interest of the requester.
(i) Determination on request. FHFA or FHFA-OIG will notify you
within 20 days of receipt of your request whether the fee waiver has
been granted. A request for fee waiver that is denied may only be
appealed when a final decision has been made on the initial FOIA
request.
Sec. 1202.12 Is there anything else I need to know about FOIA
procedures?
This FOIA regulation does not and shall not be construed to create
any right or to entitle any person, as of right, to any service or to
the disclosure of any record to which such person is not entitled under
FOIA. This regulation only provides procedures for requesting records
under FOIA.
Dated: May 12, 2011.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2011-12485 Filed 5-20-11; 8:45 am]
BILLING CODE 8070-01-P
