Availability of Non-Public Information, 6042-6044 [2013-01427]
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6042
Proposed Rules
Federal Register
Vol. 78, No. 19
Tuesday, January 29, 2013
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
FEDERAL HOUSING FINANCE BOARD
12 CFR Part 911
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Part 1214
RIN 2590–AA06
Availability of Non-Public Information
Federal Housing Finance
Board; Federal Housing Finance
Agency.
ACTION: Notice of proposed rulemaking;
request for comments.
AGENCIES:
The Federal Housing Finance
Agency (FHFA or Agency) proposes to
adopt a rule governing the disclosure of
FHFA non-public information. The
proposed rule would replace rules
issued by FHFA’s predecessor agencies
the Federal Housing Finance Board
(Finance Board) and the Office of
Federal Housing Enterprise Oversight
(OFHEO). The proposed rule would
prohibit the unauthorized disclosure of
FHFA non-public information, replace
the Finance Board’s rule on the
Availability of Unpublished
Information, and parallel those portions
of OFHEO’s former rule on non-public
information that were not replaced by
FHFA’s Freedom of Information Act
regulation.
SUMMARY:
Written comments must be
received on or before April 1, 2013.
ADDRESSES: You may submit your
comments, identified by Regulatory
Information Number (RIN) 2590–AA06,
by any of the following methods:
• Email: Comments to Alfred M.
Pollard, General Counsel, may be sent
by email to RegComments@fhfa.gov.
Please include Comments/RIN 2590–
AA06 in the message’s subject line.
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments. If
you submit your comment to the
Federal eRulemaking Portal, please also
send it by email to FHFA at
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DATES:
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16:28 Jan 28, 2013
Jkt 229001
RegComments@fhfa.gov to ensure
timely receipt by the Agency. Please
include Comments/RIN 2590–AA06 in
the subject line of the message.
• Courier/Hand Delivery: The hand
delivery address is: Alfred M. Pollard,
General Counsel, Attention: Comments/
RIN 2590–AA06, Federal Housing
Finance Agency, 400 Seventh Street
SW., Eighth Floor, Washington, DC
20024. The package should be logged in
at the Guard’s Desk, First Floor, on
business days between 9 a.m. and 5 p.m.
• U.S. Mail, United Parcel Service,
Federal Express or Other Mail Service:
The mailing address for comments is:
Alfred M. Pollard, General Counsel,
Attention: Comments/RIN 2590–AA06,
Federal Housing Finance Agency, 400
Seventh Street SW., Eighth Floor,
Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT:
James P. Jordan, Senior Counsel, 202–
649–3075 (not a toll-free number),
Federal Housing Finance Agency, 400
Seventh Street, SW., Eighth Floor,
Washington, DC 20024. The telephone
number for the Telecommunications
Device for the Hearing Impaired is 800–
877–8339.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA invites comments on all aspects
of the proposed rule, and will revise the
language of the proposed rule as
appropriate after taking all comments
into consideration. FHFA will accept
comments on this proposed rule in
writing on or before April 1, 2013.
Copies of all comments received will be
posted without change on the FHFA
web site at http://www.fhfa.gov, and
will include any personal information
you provide, such as your name,
address, email address, and telephone
number. Copies of all comments
received will be made 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 400 Seventh Street, SW.,
Washington, DC 20024. To make an
appointment to inspect comments,
please call the Office of General Counsel
at 202–649–3804.
II. Background
Establishment of FHFA
Effective July 30, 2008, the Housing
and Economic Recovery Act of 2008
(Pub. L. 110–289, 122 Stat. 2654)
PO 00000
Frm 00001
Fmt 4702
Sfmt 4702
(HERA), amended the Federal Housing
Enterprises Financial Safety and
Soundness Act of 1992 (12 U.S.C. 4501
et seq.) (Safety and Soundness Act), and
the Federal Home Loan Bank Act (12
U.S.C. 1421–1449) to establish FHFA as
an independent regulatory agency of the
Federal Government. FHFA was
established with all of the authorities
necessary to supervise and regulate the
Federal National Mortgage Association,
the Federal Home Loan Mortgage
Corporation, the Federal Home Loan
Banks (collectively, regulated entities),
and the Office of Finance of the Federal
Home Loan Bank System (Office of
Finance).
HERA transferred to FHFA the
employees, functions, and regulations of
OFHEO, the Finance Board, and the
Government-Sponsored Enterprise
mission team within the U.S.
Department of Housing and Urban
Development. FHFA is responsible for
ensuring that the regulated entities
operate in a safe and sound manner,
including maintaining adequate capital
and internal controls; foster liquid,
efficient, competitive, and resilient
national housing finance markets;
comply with the Safety and Soundness
Act and their respective authorizing
statutes, as well as all rules, regulations,
guidelines, and orders issued under law;
and carry out their missions through
activities that are authorized by law and
are consistent with the public interest.
In addition, FHFA may prescribe
regulations as determined to be
appropriate regarding the conduct of
conservatorships or receiverships.
III. Analysis of Proposed Rule
The Safety and Soundness Act
mandates that FHFA issue regulations
in connection with FHFA’s supervision
and regulation of the regulated entities
and the Office of Finance. The proposed
rule updates, clarifies, and simplifies
existing regulations and eliminates
redundant provisions. It reduces
confusion about the applicability of
predecessor agencies’ rules. The
proposed rule is internal and procedural
rather than substantive.
FHFA has concluded that this rule
would be exempt from the notice and
comment requirement under the
Administrative Procedure Act, 5 U.S.C.
553, because this rule falls under the
agency ‘‘procedure’’ exemption
described in 5 U.S.C. 553(b)(A).
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However, in recognition of the
Administrative Conference of the
United States Recommendation 92–1,
paragraph 2, The Procedural and
Practice Rule Exemption from the APA
Notice-and-Comment Rulemaking
Requirements, 57 FR 30,102 (1992),
FHFA is voluntarily submitting this rule
as a proposed rule to the public for
notice and comment with a 60-day
comment period following publication.
The proposed rule is of a ‘‘housekeeping
nature.’’ That is, the consolidation and
migration of FHFA’s predecessor
agencies’ rules on non-public
information involve primarily the
agency’s management of its own
information and minor technical
amendments.
The proposed rule would prohibit the
unauthorized disclosure of FHFA nonpublic information, replace the Finance
Board’s rule on the Availability of
Unpublished Information at 12 CFR part
911, and parallel those portions of
OFHEO’s former rule on non-public
information that were not replaced by
FHFA’s Freedom of Information Act
regulation at 12 CFR part 1202. The
proposed rule does not affect 12 CFR
1703 Subparts E–F. As described below,
FHFA is proposing a separate rule to
replace those subparts.
Proposed §§ 1214.3, 1214.4, and
1214.5 are substantively analogous to
the former 12 CFR 703.6 to 1703.8 and
to the existing 12 CFR 911.3, which the
proposed rule would replace. The
proposed FHFA rule (12 CFR part 1214),
the former OFHEO rule (12 CFR part
1703), and the existing Finance Board
rule (12 CFR part 911), all generally
prohibit disclosure of non-public agency
information to parties that are not
agency employees, and set forth the
limited circumstances when disclosure
is permitted. The Finance Board rule, 12
CFR part 911, also outlines how the
Finance Board handled demands and
requests for information in the context
of legal proceedings. FHFA is separately
proposing the ‘‘Production of FHFA
Records, Information, and Employee
Testimony in Legal Proceedings
(‘‘Touhy’’) rule which would set forth
FHFA’s process for handling those
demands and requests.
Use of the Term ‘‘Confidential’’
The proposed rule would define
‘‘confidential supervisory information,’’
to be included as a subset of ‘‘nonpublic information.’’ The inclusion of
the term ‘‘confidential’’ within the
definition of ‘‘confidential supervisory
information’’ is not intended to invoke
the meaning of ‘‘confidential,’’ as that
term is used in Executive Order No.
13526, 75 FR 707 (2009) (President’s
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17:32 Jan 28, 2013
Jkt 229001
order on the classification of National
Security Information). Confidential
supervisory information is used in part
1214 to refer to the distinct category of
information defined in proposed
§ 1214.1. FHFA used the word
‘‘confidential’’ within the label for this
category of information simply to be
consistent with the manner in which
federal banking agencies refer to similar
or identical types of information.
Regulatory Impacts
Paperwork Reduction Act
The proposed rule does not contain
any information collection requirement
that requires the approval of the Office
of Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act and Executive
Order 13272—Consideration of Small
Entities
FHFA has considered the proposed
rule’s impact under the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.) and
Executive Order 13272 of August 13,
2002. The proposed rule, if adopted as
a final rule, is not likely to have a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act and
Executive Order 13272, because it will
not: (1) Impose record-keeping
requirements on them; (2) affect their
competitive position in relation to large
entities; and (3) affect their cash flow,
liquidity or ability to remain in the
market. (5 U.S.C. 605(b)).
List of Subjects in 12 CFR Part 1214
Administrative practice and
procedure, Confidential commercial
information, Disclosure, Exemptions,
Government employees, Records.
For the reasons set forth in the
SUPPLEMENTARY INFORMATION, FHFA
proposes to: Amend chapters IX and XII
of title 12 of the Code of Federal
Regulations as follows:
CHAPTER IX—FEDERAL HOUSING
FINANCE BOARD
PART 911—[REMOVED]
■
1. Remove part 911.
CHAPTER XII—FEDERAL HOUSING
FINANCE AGENCY
■
2. Add part 1214 to read as follows:
PART 1214—AVAILABILITY OF NON–
PUBLIC INFORMATION
Sec.
1214.1
1214.2
1214.3
1214.4
PO 00000
Definitions.
Purpose and scope.
General rule.
Exceptions.
Frm 00002
Fmt 4702
Sfmt 4702
6043
1214.5 Confidential supervisory
information.
Authority: 5 U.S.C. 301, 552; 12 U.S.C.
4501, 4513, 4522, 4526, 4639.
§ 1214.1
Definitions.
Confidential supervisory information
means information prepared or received
by FHFA that meets all of the following
criteria:
(1) The information is not a document
prepared by a regulated entity or the
Office of Finance for its own business
purposes that is in its possession;
(2) The information is exempt from
the Freedom of Information Act, 5
U.S.C. 552 (1966); and
(3) The information—
(i) Consists of reports of examination,
inspection and visitation, confidential
operating and condition reports, and
any information derived from, related
to, or contained in such reports, or
(ii) Is gathered by FHFA in the course
of any investigation, suspicious activity
report, cease-and-desist order, civil
money penalty enforcement order,
suspension, removal or prohibition
order, or other supervisory or
enforcement orders or actions taken
under the Federal Housing Enterprises
Financial Safety and Soundness Act of
1992, Public Law 102–550 (1992).
Conservatorship or Receivership
information means information in
FHFA’s possession strictly for the
purpose of administering the
conservatorship or receivership of a
regulated entity.
Disclosure means release or
divulgence of information by any person
to a person outside of FHFA.
FHFA employee means strictly for the
purpose of this regulation, any person
employed by FHFA, including any
current or former officer, intern, agent,
contractor or contractor personnel, or
detailee of FHFA, and any person
employed by the FHFA Office of the
Inspector General (FHFA–OIG),
including any current or former officer,
intern, agent, contractor or contractor
personnel, or detailee of FHFA–OIG.
Non-public information means
information that FHFA has not made
public that is created by, obtained by, or
communicated to an FHFA employee in
connection with the performance of
official duties, regardless of who is in
possession of the information. This
includes, but is not limited to
conservatorship or receivership
information and confidential
supervisory information as defined
above. It does not include information
or documents that FHFA has disclosed
under the Freedom of Information Act
(5 U.S.C. 552; 12 CFR part 1202), or
Privacy Act of 1974 (5 U.S.C. 552a; 12
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Federal Register / Vol. 78, No. 19 / Tuesday, January 29, 2013 / Proposed Rules
CFR part 1204). It also does not include
specific information or documents that
were previously disclosed to the public
at large or information or documents
that are customarily furnished to the
public at large in the course of the
performance of official FHFA duties,
including but not limited to: disclosures
made by the Director pursuant to the
Enterprise Public Use Database Rule
(currently located at 24 CFR subpart F,
and any FHFA successor rule); the
annual report that FHFA submits to
Congress pursuant to the Federal
Housing Enterprises Financial Safety
and Soundness Act of 1992 (12 U.S.C.
4501 et seq.), press releases, FHFA
blank forms, and materials published in
the Federal Register.
Person means individual or business
entity.
(c) No Waiver. FHFA’s disclosure of
non-public information to any person
does not constitute a waiver by FHFA of
any privilege or FHFA’s right to control,
supervise, or impose limitations on, the
subsequent use and disclosure of the
non-public information.
(d) Penalties. Any person that
discloses or uses non-public
information except as authorized under
this part may be subject to the penalties
provided in 18 U.S.C. 641 and other
applicable laws. In addition to those
penalties, FHFA, regulated entity, Office
of Finance, affiliate (as defined in 12
U.S.C. 4502(20)), or entity-affiliated
party (as defined in 12 U.S.C. 4502(11))
employees may be subject to
appropriate administrative,
enforcement, or disciplinary
proceedings.
§ 1214.2
§ 1214.4
Purpose and Scope.
(a) Purpose. The purpose of this part
is to control the dissemination of nonpublic information and maintain its
controlled, sensitive, privileged, or
proprietary nature, as appropriate.
(b) Scope. This part imposes a broadbased prohibition against unauthorized
disclosure of any non-public
information. This part does not
supersede the regulations at 12 CFR part
1202 (governing disclosure under the
Freedom of Information Act); 12 CFR
part 1204 (governing disclosure under
the Privacy Act); and the sections
describing permitted disclosures in any
FHFA rules on Federal home Loan Bank
Information Sharing or on the FHFA
Public Use Database.
(c) These provisions also do not
supersede or otherwise alter the rights
or liabilities created by 5 U.S.C. 7211
(governing disclosures to Congress); 5
U.S.C. 2302(b)(8) (governing disclosures
of illegality, waste, fraud, abuse, or
public health or safety threats); or 12
U.S.C. 3401 (governing disclosure of
financial institution customer
information).
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§ 1214.3
General Rule.
(a) In general. Except as authorized in
writing by the Director, no person in
possession or control of non-public
information may disclose or permit the
use or disclosure of such information in
any manner or for any purpose.
(b) Persons possessing non-public
information. All non-public
information, for which the Director
authorizes disclosure, remains the
property of FHFA and may not be used
or disclosed for any purpose other than
that authorized under this part without
the prior written permission of the
Director.
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16:28 Jan 28, 2013
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Exceptions.
(a) FHFA Employees. Subject to the
scope restrictions of § 1214.2, except as
authorized by this part, no FHFA
employee may disclose or permit the
disclosure in any manner of any nonpublic information to anyone except
another FHFA employee or regulated
entity or the Office of Finance, when
appropriate, for use in the performance
of their official duties.
(b) Regulated Entity Agents and
Consultants.—(1) When necessary and
appropriate for regulated entity or Office
of Finance business purposes, a
regulated entity, the Office of Finance,
or any director, officer, or employee
thereof may disclose non-public
information to any person officially
connected with a regulated entity or the
Office of Finance, as officer, director,
employee, attorney, auditor, or
independent auditor (‘‘regulated entity
agents’’).
(2) A regulated entity, the Office of
Finance, or a director, officer, employee,
or agent thereof, also may disclose nonpublic information to a consultant
under this paragraph if the consultant is
under a written contract to provide
services to the regulated entity or the
Office of Finance and the consultant has
agreed in writing:
(i) To abide by the prohibition on the
disclosure of non-public information
contained in this section; and
(ii) That it will not use the non-public
information for any purposes other than
those stated in its contract to provide
services to the regulated entity or the
Office of Finance.
(c) Law Enforcement Proceedings.
Notwithstanding the general prohibition
of disclosure of non-public information,
to the minimum extent required by the
Inspector General Act, Public Law 95–
452 (1978), FHFA’s Office of Inspector
PO 00000
Frm 00003
Fmt 4702
Sfmt 9990
General is permitted under this section
to disclose non-public FHFA
information without Director approval.
(d) Privilege. FHFA retains all
privilege claims for non-public
information shared under § 1214.4,
including, but not limited to attorneyclient, attorney-work product,
deliberative process, and examination
privileges.
§ 1214.5 Confidential Supervisory
Information.
(a) General. Confidential supervisory
information may be disclosed only in
accordance with this part. Confidential
supervisory information is the property
of FHFA and any unauthorized use or
disclosure of such information may be
subject to the penalties identified in
§ 1214.3(d).
(b) Regulated Entities and Office of
Finance. The Director makes available
to each regulated entity a copy of
FHFA’s report of examination of that
regulated entity. The report of
examination and all other confidential
supervisory information is the property
of FHFA and is provided to the
regulated entity for its confidential
internal use only. Under no
circumstance shall a regulated entity or
any director, officer, employee,
regulated entity agent, or consultant,
make public or disclose, in any manner,
the report of examination, other
confidential supervisory information, or
any portion of the contents thereof to
any individual or organization which is
not a director, officer, employee,
attorney, auditor, or independent
auditor of the regulated entity; or, in the
case of the Federal Home Loan Banks,
the Office of Finance. Any other
disclosure or use of confidential
supervisory information, except as
expressly permitted by the Director,
may be subject to the penalties of 18
U.S.C. 641 and such administrative
enforcement actions as may be
appropriate.
(c) Privilege. FHFA retains all
privilege claims for non-public
information disclosed by FHFA under
this section, including, but not limited
to attorney-client, attorney-work
product, deliberative process, and
examination privileges.
Dated: January 17, 2013.
Edward J. DeMarco,
Acting Director, Federal Housing Finance
Agency.
[FR Doc. 2013–01427 Filed 1–28–13; 8:45 am]
BILLING CODE 8070–01–P
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Agencies
[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Proposed Rules]
[Pages 6042-6044]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01427]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 78, No. 19 / Tuesday, January 29, 2013 /
Proposed Rules
[[Page 6042]]
FEDERAL HOUSING FINANCE BOARD
12 CFR Part 911
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1214
RIN 2590-AA06
Availability of Non-Public Information
AGENCIES: Federal Housing Finance Board; Federal Housing Finance
Agency.
ACTION: Notice of proposed rulemaking; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Agency (FHFA or Agency) proposes
to adopt a rule governing the disclosure of FHFA non-public
information. The proposed rule would replace rules issued by FHFA's
predecessor agencies the Federal Housing Finance Board (Finance Board)
and the Office of Federal Housing Enterprise Oversight (OFHEO). The
proposed rule would prohibit the unauthorized disclosure of FHFA non-
public information, replace the Finance Board's rule on the
Availability of Unpublished Information, and parallel those portions of
OFHEO's former rule on non-public information that were not replaced by
FHFA's Freedom of Information Act regulation.
DATES: Written comments must be received on or before April 1, 2013.
ADDRESSES: You may submit your comments, identified by Regulatory
Information Number (RIN) 2590-AA06, by any of the following methods:
Email: Comments to Alfred M. Pollard, General Counsel, may
be sent by email to RegComments@fhfa.gov. Please include Comments/RIN
2590-AA06 in the message's subject line.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. If you submit your
comment to the Federal eRulemaking Portal, please also send it by email
to FHFA at RegComments@fhfa.gov to ensure timely receipt by the Agency.
Please include Comments/RIN 2590-AA06 in the subject line of the
message.
Courier/Hand Delivery: The hand delivery address is:
Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA06,
Federal Housing Finance Agency, 400 Seventh Street SW., Eighth Floor,
Washington, DC 20024. The package should be logged in at the Guard's
Desk, First Floor, on business days between 9 a.m. and 5 p.m.
U.S. Mail, United Parcel Service, Federal Express or Other
Mail Service: The mailing address for comments is: Alfred M. Pollard,
General Counsel, Attention: Comments/RIN 2590-AA06, Federal Housing
Finance Agency, 400 Seventh Street SW., Eighth Floor, Washington, DC
20024.
FOR FURTHER INFORMATION CONTACT: James P. Jordan, Senior Counsel, 202-
649-3075 (not a toll-free number), Federal Housing Finance Agency, 400
Seventh Street, SW., Eighth Floor, Washington, DC 20024. The telephone
number for the Telecommunications Device for the Hearing Impaired is
800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA invites comments on all aspects of the proposed rule, and will
revise the language of the proposed rule as appropriate after taking
all comments into consideration. FHFA will accept comments on this
proposed rule in writing on or before April 1, 2013. Copies of all
comments received will be posted without change on the FHFA web site at
http://www.fhfa.gov, and will include any personal information you
provide, such as your name, address, email address, and telephone
number. Copies of all comments received will be made 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 400 Seventh Street,
SW., Washington, DC 20024. To make an appointment to inspect comments,
please call the Office of General Counsel at 202-649-3804.
II. Background
Establishment of FHFA
Effective July 30, 2008, the Housing and Economic Recovery Act of
2008 (Pub. L. 110-289, 122 Stat. 2654) (HERA), amended the Federal
Housing Enterprises Financial Safety and Soundness Act of 1992 (12
U.S.C. 4501 et seq.) (Safety and Soundness Act), and the Federal Home
Loan Bank Act (12 U.S.C. 1421-1449) to establish FHFA as an independent
regulatory agency of the Federal Government. FHFA was established with
all of the authorities necessary to supervise and regulate the Federal
National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Federal Home Loan Banks (collectively, regulated
entities), and the Office of Finance of the Federal Home Loan Bank
System (Office of Finance).
HERA transferred to FHFA the employees, functions, and regulations
of OFHEO, the Finance Board, and the Government-Sponsored Enterprise
mission team within the U.S. Department of Housing and Urban
Development. FHFA is responsible for ensuring that the regulated
entities operate in a safe and sound manner, including maintaining
adequate capital and internal controls; foster liquid, efficient,
competitive, and resilient national housing finance markets; comply
with the Safety and Soundness Act and their respective authorizing
statutes, as well as all rules, regulations, guidelines, and orders
issued under law; and carry out their missions through activities that
are authorized by law and are consistent with the public interest. In
addition, FHFA may prescribe regulations as determined to be
appropriate regarding the conduct of conservatorships or receiverships.
III. Analysis of Proposed Rule
The Safety and Soundness Act mandates that FHFA issue regulations
in connection with FHFA's supervision and regulation of the regulated
entities and the Office of Finance. The proposed rule updates,
clarifies, and simplifies existing regulations and eliminates redundant
provisions. It reduces confusion about the applicability of predecessor
agencies' rules. The proposed rule is internal and procedural rather
than substantive.
FHFA has concluded that this rule would be exempt from the notice
and comment requirement under the Administrative Procedure Act, 5
U.S.C. 553, because this rule falls under the agency ``procedure''
exemption described in 5 U.S.C. 553(b)(A).
[[Page 6043]]
However, in recognition of the Administrative Conference of the United
States Recommendation 92-1, paragraph 2, The Procedural and Practice
Rule Exemption from the APA Notice-and-Comment Rulemaking Requirements,
57 FR 30,102 (1992), FHFA is voluntarily submitting this rule as a
proposed rule to the public for notice and comment with a 60-day
comment period following publication. The proposed rule is of a
``housekeeping nature.'' That is, the consolidation and migration of
FHFA's predecessor agencies' rules on non-public information involve
primarily the agency's management of its own information and minor
technical amendments.
The proposed rule would prohibit the unauthorized disclosure of
FHFA non-public information, replace the Finance Board's rule on the
Availability of Unpublished Information at 12 CFR part 911, and
parallel those portions of OFHEO's former rule on non-public
information that were not replaced by FHFA's Freedom of Information Act
regulation at 12 CFR part 1202. The proposed rule does not affect 12
CFR 1703 Subparts E-F. As described below, FHFA is proposing a separate
rule to replace those subparts.
Proposed Sec. Sec. 1214.3, 1214.4, and 1214.5 are substantively
analogous to the former 12 CFR 703.6 to 1703.8 and to the existing 12
CFR 911.3, which the proposed rule would replace. The proposed FHFA
rule (12 CFR part 1214), the former OFHEO rule (12 CFR part 1703), and
the existing Finance Board rule (12 CFR part 911), all generally
prohibit disclosure of non-public agency information to parties that
are not agency employees, and set forth the limited circumstances when
disclosure is permitted. The Finance Board rule, 12 CFR part 911, also
outlines how the Finance Board handled demands and requests for
information in the context of legal proceedings. FHFA is separately
proposing the ``Production of FHFA Records, Information, and Employee
Testimony in Legal Proceedings (``Touhy'') rule which would set forth
FHFA's process for handling those demands and requests.
Use of the Term ``Confidential''
The proposed rule would define ``confidential supervisory
information,'' to be included as a subset of ``non-public
information.'' The inclusion of the term ``confidential'' within the
definition of ``confidential supervisory information'' is not intended
to invoke the meaning of ``confidential,'' as that term is used in
Executive Order No. 13526, 75 FR 707 (2009) (President's order on the
classification of National Security Information). Confidential
supervisory information is used in part 1214 to refer to the distinct
category of information defined in proposed Sec. 1214.1. FHFA used the
word ``confidential'' within the label for this category of information
simply to be consistent with the manner in which federal banking
agencies refer to similar or identical types of information.
Regulatory Impacts
Paperwork Reduction Act
The proposed rule does not contain any information collection
requirement that requires the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Regulatory Flexibility Act and Executive Order 13272--Consideration of
Small Entities
FHFA has considered the proposed rule's impact under the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.) and Executive Order 13272 of
August 13, 2002. The proposed rule, if adopted as a final rule, is not
likely to have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act and Executive Order
13272, because it will not: (1) Impose record-keeping requirements on
them; (2) affect their competitive position in relation to large
entities; and (3) affect their cash flow, liquidity or ability to
remain in the market. (5 U.S.C. 605(b)).
List of Subjects in 12 CFR Part 1214
Administrative practice and procedure, Confidential commercial
information, Disclosure, Exemptions, Government employees, Records.
For the reasons set forth in the SUPPLEMENTARY INFORMATION, FHFA
proposes to: Amend chapters IX and XII of title 12 of the Code of
Federal Regulations as follows:
CHAPTER IX--FEDERAL HOUSING FINANCE BOARD
PART 911--[REMOVED]
0
1. Remove part 911.
CHAPTER XII--FEDERAL HOUSING FINANCE AGENCY
0
2. Add part 1214 to read as follows:
PART 1214--AVAILABILITY OF NON-PUBLIC INFORMATION
Sec.
1214.1 Definitions.
1214.2 Purpose and scope.
1214.3 General rule.
1214.4 Exceptions.
1214.5 Confidential supervisory information.
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 4501, 4513, 4522, 4526,
4639.
Sec. 1214.1 Definitions.
Confidential supervisory information means information prepared or
received by FHFA that meets all of the following criteria:
(1) The information is not a document prepared by a regulated
entity or the Office of Finance for its own business purposes that is
in its possession;
(2) The information is exempt from the Freedom of Information Act,
5 U.S.C. 552 (1966); and
(3) The information--
(i) Consists of reports of examination, inspection and visitation,
confidential operating and condition reports, and any information
derived from, related to, or contained in such reports, or
(ii) Is gathered by FHFA in the course of any investigation,
suspicious activity report, cease-and-desist order, civil money penalty
enforcement order, suspension, removal or prohibition order, or other
supervisory or enforcement orders or actions taken under the Federal
Housing Enterprises Financial Safety and Soundness Act of 1992, Public
Law 102-550 (1992).
Conservatorship or Receivership information means information in
FHFA's possession strictly for the purpose of administering the
conservatorship or receivership of a regulated entity.
Disclosure means release or divulgence of information by any person
to a person outside of FHFA.
FHFA employee means strictly for the purpose of this regulation,
any person employed by FHFA, including any current or former officer,
intern, agent, contractor or contractor personnel, or detailee of FHFA,
and any person employed by the FHFA Office of the Inspector General
(FHFA-OIG), including any current or former officer, intern, agent,
contractor or contractor personnel, or detailee of FHFA-OIG.
Non-public information means information that FHFA has not made
public that is created by, obtained by, or communicated to an FHFA
employee in connection with the performance of official duties,
regardless of who is in possession of the information. This includes,
but is not limited to conservatorship or receivership information and
confidential supervisory information as defined above. It does not
include information or documents that FHFA has disclosed under the
Freedom of Information Act (5 U.S.C. 552; 12 CFR part 1202), or Privacy
Act of 1974 (5 U.S.C. 552a; 12
[[Page 6044]]
CFR part 1204). It also does not include specific information or
documents that were previously disclosed to the public at large or
information or documents that are customarily furnished to the public
at large in the course of the performance of official FHFA duties,
including but not limited to: disclosures made by the Director pursuant
to the Enterprise Public Use Database Rule (currently located at 24 CFR
subpart F, and any FHFA successor rule); the annual report that FHFA
submits to Congress pursuant to the Federal Housing Enterprises
Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501 et seq.),
press releases, FHFA blank forms, and materials published in the
Federal Register.
Person means individual or business entity.
Sec. 1214.2 Purpose and Scope.
(a) Purpose. The purpose of this part is to control the
dissemination of non-public information and maintain its controlled,
sensitive, privileged, or proprietary nature, as appropriate.
(b) Scope. This part imposes a broad-based prohibition against
unauthorized disclosure of any non-public information. This part does
not supersede the regulations at 12 CFR part 1202 (governing disclosure
under the Freedom of Information Act); 12 CFR part 1204 (governing
disclosure under the Privacy Act); and the sections describing
permitted disclosures in any FHFA rules on Federal home Loan Bank
Information Sharing or on the FHFA Public Use Database.
(c) These provisions also do not supersede or otherwise alter the
rights or liabilities created by 5 U.S.C. 7211 (governing disclosures
to Congress); 5 U.S.C. 2302(b)(8) (governing disclosures of illegality,
waste, fraud, abuse, or public health or safety threats); or 12 U.S.C.
3401 (governing disclosure of financial institution customer
information).
Sec. 1214.3 General Rule.
(a) In general. Except as authorized in writing by the Director, no
person in possession or control of non-public information may disclose
or permit the use or disclosure of such information in any manner or
for any purpose.
(b) Persons possessing non-public information. All non-public
information, for which the Director authorizes disclosure, remains the
property of FHFA and may not be used or disclosed for any purpose other
than that authorized under this part without the prior written
permission of the Director.
(c) No Waiver. FHFA's disclosure of non-public information to any
person does not constitute a waiver by FHFA of any privilege or FHFA's
right to control, supervise, or impose limitations on, the subsequent
use and disclosure of the non-public information.
(d) Penalties. Any person that discloses or uses non-public
information except as authorized under this part may be subject to the
penalties provided in 18 U.S.C. 641 and other applicable laws. In
addition to those penalties, FHFA, regulated entity, Office of Finance,
affiliate (as defined in 12 U.S.C. 4502(20)), or entity-affiliated
party (as defined in 12 U.S.C. 4502(11)) employees may be subject to
appropriate administrative, enforcement, or disciplinary proceedings.
Sec. 1214.4 Exceptions.
(a) FHFA Employees. Subject to the scope restrictions of Sec.
1214.2, except as authorized by this part, no FHFA employee may
disclose or permit the disclosure in any manner of any non-public
information to anyone except another FHFA employee or regulated entity
or the Office of Finance, when appropriate, for use in the performance
of their official duties.
(b) Regulated Entity Agents and Consultants.--(1) When necessary
and appropriate for regulated entity or Office of Finance business
purposes, a regulated entity, the Office of Finance, or any director,
officer, or employee thereof may disclose non-public information to any
person officially connected with a regulated entity or the Office of
Finance, as officer, director, employee, attorney, auditor, or
independent auditor (``regulated entity agents'').
(2) A regulated entity, the Office of Finance, or a director,
officer, employee, or agent thereof, also may disclose non-public
information to a consultant under this paragraph if the consultant is
under a written contract to provide services to the regulated entity or
the Office of Finance and the consultant has agreed in writing:
(i) To abide by the prohibition on the disclosure of non-public
information contained in this section; and
(ii) That it will not use the non-public information for any
purposes other than those stated in its contract to provide services to
the regulated entity or the Office of Finance.
(c) Law Enforcement Proceedings. Notwithstanding the general
prohibition of disclosure of non-public information, to the minimum
extent required by the Inspector General Act, Public Law 95-452 (1978),
FHFA's Office of Inspector General is permitted under this section to
disclose non-public FHFA information without Director approval.
(d) Privilege. FHFA retains all privilege claims for non-public
information shared under Sec. 1214.4, including, but not limited to
attorney-client, attorney-work product, deliberative process, and
examination privileges.
Sec. 1214.5 Confidential Supervisory Information.
(a) General. Confidential supervisory information may be disclosed
only in accordance with this part. Confidential supervisory information
is the property of FHFA and any unauthorized use or disclosure of such
information may be subject to the penalties identified in Sec.
1214.3(d).
(b) Regulated Entities and Office of Finance. The Director makes
available to each regulated entity a copy of FHFA's report of
examination of that regulated entity. The report of examination and all
other confidential supervisory information is the property of FHFA and
is provided to the regulated entity for its confidential internal use
only. Under no circumstance shall a regulated entity or any director,
officer, employee, regulated entity agent, or consultant, make public
or disclose, in any manner, the report of examination, other
confidential supervisory information, or any portion of the contents
thereof to any individual or organization which is not a director,
officer, employee, attorney, auditor, or independent auditor of the
regulated entity; or, in the case of the Federal Home Loan Banks, the
Office of Finance. Any other disclosure or use of confidential
supervisory information, except as expressly permitted by the Director,
may be subject to the penalties of 18 U.S.C. 641 and such
administrative enforcement actions as may be appropriate.
(c) Privilege. FHFA retains all privilege claims for non-public
information disclosed by FHFA under this section, including, but not
limited to attorney-client, attorney-work product, deliberative
process, and examination privileges.
Dated: January 17, 2013.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2013-01427 Filed 1-28-13; 8:45 am]
BILLING CODE 8070-01-P