Availability of Non-Public Information, 39957-39959 [2013-15905]
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39957
Rules and Regulations
Federal Register
Vol. 78, No. 128
Wednesday, July 3, 2013
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 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.
AGENCY:
ACTION:
Final rule.
The Federal Housing Finance
Agency (FHFA or Agency) is issuing a
final rule governing the disclosure of
FHFA non-public information. The final
rule replaces rules issued by FHFA’s
predecessor agencies the Federal
Housing Finance Board (Finance Board)
and the Office of Federal Housing
Enterprise Oversight (OFHEO). The final
rule prohibits the unauthorized
disclosure of FHFA non-public
information, replaces the Finance
Board’s rule on the Availability of
Unpublished Information, and parallels
those portions of OFHEO’s former rule
on non-public information that were not
replaced by FHFA’s Freedom of
Information Act regulation.
SUMMARY:
The effective date of this
regulation is: August 2, 2013.
DATES:
WREIER-AVILES on DSK5TPTVN1PROD with RULES
FOR FURTHER INFORMATION CONTACT:
James P. Jordan, Senior Counsel, 202–
649–3075 (not a toll-free number),
Federal Housing Finance Agency,
Constitution Center, 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:
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I. 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.
The FHFA published a proposed
regulation on the Availability of NonPublic Information for public comment
in the Federal Register, 78 FR 6042
(January 29, 2013). No comments were
received. Accordingly, the proposed
regulation is adopted as a final
regulation with only minor editorial
changes.
II. Analysis of 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 final rule
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Fmt 4700
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updates, clarifies, and simplifies
existing regulations and eliminates
redundant provisions. It reduces
confusion about the applicability of
predecessor agencies’ rules.
The final rule prohibits 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
final rule does not affect 12 CFR part
1703 Subparts E–F. As described below,
FHFA is issuing a separate rule to
replace those subparts.
The final rule §§ 1214.3 and 1214.4
are substantively analogous to the
former 12 CFR 1703.6 to 1703.8 and to
the existing 12 CFR 911.3, which the
final rule replaces. The final 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 nonpublic 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. Today, FHFA also sent to
be published in this issue of the Federal
Register a final rule on ‘‘Production of
FHFA Records, Information, and
Employee Testimony in Third-Party
Legal Proceedings (‘‘Touhy’’) which sets
forth FHFA’s process for handling those
demands and requests.
Use of the Term ‘‘Confidential’’
The final 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 13526,
Classified National Security
Information, December 29, 2009.
Confidential supervisory information is
used in part 1214 to refer to the distinct
category of information defined in final
§ 1214.1. FHFA used the word
‘‘confidential’’ within the label for this
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Federal Register / Vol. 78, No. 128 / Wednesday, July 3, 2013 / Rules and Regulations
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 final 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 final rule’s
impact under the Regulatory Flexibility
Act (5 U.S.C. 602 et seq.) and Executive
Order 13272 of August 13, 2002. The
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
12 CFR Part 911
Credit, Federal home loan banks,
Reporting and recordkeeping
requirements.
12 CFR Part 1214
Administrative practice and
procedure, Confidential commercial
information, Disclosure, Exemptions,
Government employees, Records.
Accordingly, for the reasons set forth
in the SUPPLEMENTARY INFORMATION, and
under the authority of 12 U.S.C. 4526,
FHFA hereby amends 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.
WREIER-AVILES on DSK5TPTVN1PROD with RULES
Chapter XII—Federal Housing Finance
Agency
■
2. Add part 1214 to read as follows:
PART 1214—AVAILABILITY OF NONPUBLIC INFORMATION
Sec.
1214.1
1214.2
1214.3
1214.4
Definitions.
Purpose and scope.
General rule.
Exceptions.
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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, 122 Stat.
2654.
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 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 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 24 CFR subpart F,
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Fmt 4700
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and any FHFA successor rules; 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.
§ 1214.2
Purpose and scope.
(a) Purpose. The purpose of this part
is to control the dissemination of nonpublic information, which includes
confidential supervisory 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).
§ 1214.3
General rule.
(a) In general, Non-FHFA Employees.
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 any person in
possession or control of confidential
supervisory information make public or
disclose, in any manner, the
confidential supervisory information, or
any portion of the contents thereof,
except as authorized in writing by the
Director.
(b) In general, FHFA Employees.
Except as authorized in writing by the
Director, no FHFA employee 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.
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Federal Register / Vol. 78, No. 128 / Wednesday, July 3, 2013 / Rules and Regulations
(c) Persons possessing confidential
supervisory information. All
confidential supervisory 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.
(d) 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.
(e) Penalties, Confidential Supervisory
Information. Any person that discloses
or uses confidential supervisory
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.
(f) Penalties, Non-Public Information.
Any FHFA employee 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, other applicable laws, and
appropriate administrative,
enforcement, or disciplinary
proceedings.
WREIER-AVILES on DSK5TPTVN1PROD with RULES
§ 1214.4
Exceptions.
(a) FHFA Employees. Current FHFA
employees may disclose or permit the
disclosure of non-public information to
another FHFA employee or regulated
entity or the Office of Finance, when
necessary and appropriate, for 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 confidential
supervisory information to any person
currently engaged by the 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
confidential supervisory information to
a consultant under this paragraph if the
consultant is under a written contract to
provide services to the regulated entity
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Jkt 229001
or the Office of Finance and the
consultant has agreed in writing:
(i) To abide by the prohibition on the
disclosure of confidential supervisory
information contained in this section;
and
(ii) That it will not use the
confidential supervisory 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, 92 Stat. 1101 (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 § 1214.4,
including, but not limited to attorneyclient, attorney-work product,
deliberative process, and examination
privileges.
Dated: June 27, 2013.
Edward J. DeMarco,
Acting Director, Federal Housing Finance
Agency.
[FR Doc. 2013–15905 Filed 7–2–13; 8:45 am]
BILLING CODE 8070–01–P
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Part 1215
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Office of Federal Housing Enterprise
Oversight
12 CFR Part 1703
RIN 2590–AA51
Production of FHFA Records,
Information, and Employee Testimony
in Third-Party Legal Proceedings
Federal Housing Finance
Agency, Office of Federal Housing
Enterprise Oversight, HUD.
ACTION: Final rule.
AGENCY:
The Federal Housing Finance
Agency (FHFA) is issuing a final rule
governing the production of FHFA
records, information or employee
testimony in connection with legal
proceedings in which neither the United
States nor FHFA is a party. This final
rule establishes requirements and
procedures for parties to submit
demands or requests, and factors for
SUMMARY:
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39959
FHFA to consider in determining
whether FHFA employees will provide
records, information, or testimony
relating to their official duties. FHFA’s
intent is to standardize practices,
promote uniformity in decisions,
preserve the ability of FHFA to conduct
agency business, protect confidential
information, provide guidance to
demanding or requesting parties,
minimize involvement in matters
unrelated to FHFA’s missions and
programs, avoid wasteful allocation of
agency resources, and preclude
spending public time and money for
private purposes.
DATES: The effective date of this
regulation is: August 2, 2013.
FOR FURTHER INFORMATION CONTACT:
James P. Jordan, Senior Counsel, 202–
649–3075 (not a toll-free number),
Federal Housing Finance Agency,
Constitution Center, Eighth Floor, 400
Seventh Street SW., Washington, DC
20024. The telephone number for the
Telecommunications Device for the
Hearing Impaired is 800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. Establishment of FHFA
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.
HERA transferred the supervisory and
oversight responsibilities of the Office of
Federal Housing Enterprise Oversight
over Fannie Mae and Freddie Mac, and
of the Federal Housing Finance Board
over the Federal Home Loan Banks and
the Bank System’s Office of Finance, to
FHFA. FHFA is tasked with ensuring
that the Federal National Mortgage
Association, the Federal Home Loan
Mortgage Corporation, and the Federal
Home Loan Banks (collectively, the
regulated entities) operate in a safe and
sound manner; foster liquid, efficient,
competitive and resilient national
housing finance markets; comply with
their respective authorizing statutes,
and all rules, regulations, guidelines,
and orders issued pursuant to those
authorities; carry out their missions
through duly authorized activities; and
that their activities and operations are
consistent with the public interest.
Section 1105 of HERA amended the
Safety and Soundness Act and the
Inspector General Act of 1978 to
establish an Inspector General within
E:\FR\FM\03JYR1.SGM
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]]>Agencies
[Federal Register Volume 78, Number 128 (Wednesday, July 3, 2013)]
[Rules and Regulations]
[Pages 39957-39959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15905]
========================================================================
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. 78, No. 128 / Wednesday, July 3, 2013 / Rules
and Regulations
[[Page 39957]]
FEDERAL HOUSING FINANCE BOARD
12 CFR Part 911
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1214
RIN 2590-AA06
Availability of Non-Public Information
AGENCY: Federal Housing Finance Board; Federal Housing Finance Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Agency (FHFA or Agency) is issuing
a final rule governing the disclosure of FHFA non-public information.
The final rule replaces rules issued by FHFA's predecessor agencies the
Federal Housing Finance Board (Finance Board) and the Office of Federal
Housing Enterprise Oversight (OFHEO). The final rule prohibits the
unauthorized disclosure of FHFA non-public information, replaces the
Finance Board's rule on the Availability of Unpublished Information,
and parallels those portions of OFHEO's former rule on non-public
information that were not replaced by FHFA's Freedom of Information Act
regulation.
DATES: The effective date of this regulation is: August 2, 2013.
FOR FURTHER INFORMATION CONTACT: James P. Jordan, Senior Counsel, 202-
649-3075 (not a toll-free number), Federal Housing Finance Agency,
Constitution Center, 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. 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.
The FHFA published a proposed regulation on the Availability of
Non-Public Information for public comment in the Federal Register, 78
FR 6042 (January 29, 2013). No comments were received. Accordingly, the
proposed regulation is adopted as a final regulation with only minor
editorial changes.
II. Analysis of 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 final rule updates, clarifies,
and simplifies existing regulations and eliminates redundant
provisions. It reduces confusion about the applicability of predecessor
agencies' rules.
The final rule prohibits 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 final rule does not affect 12 CFR
part 1703 Subparts E-F. As described below, FHFA is issuing a separate
rule to replace those subparts.
The final rule Sec. Sec. 1214.3 and 1214.4 are substantively
analogous to the former 12 CFR 1703.6 to 1703.8 and to the existing 12
CFR 911.3, which the final rule replaces. The final 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. Today, FHFA also sent to be published in
this issue of the Federal Register a final rule on ``Production of FHFA
Records, Information, and Employee Testimony in Third-Party Legal
Proceedings (``Touhy'') which sets forth FHFA's process for handling
those demands and requests.
Use of the Term ``Confidential''
The final 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 13526, Classified National Security Information,
December 29, 2009. Confidential supervisory information is used in part
1214 to refer to the distinct category of information defined in final
Sec. 1214.1. FHFA used the word ``confidential'' within the label for
this
[[Page 39958]]
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 final 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 final rule's impact under the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.) and Executive Order 13272 of
August 13, 2002. The 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
12 CFR Part 911
Credit, Federal home loan banks, Reporting and recordkeeping
requirements.
12 CFR Part 1214
Administrative practice and procedure, Confidential commercial
information, Disclosure, Exemptions, Government employees, Records.
Accordingly, for the reasons set forth in the SUPPLEMENTARY
INFORMATION, and under the authority of 12 U.S.C. 4526, FHFA hereby
amends 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.
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, 122 Stat. 2654.
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
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 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 24 CFR subpart F, and any FHFA successor
rules; 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, which includes confidential
supervisory 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, Non-FHFA Employees. 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 any person in possession or control of confidential
supervisory information make public or disclose, in any manner, the
confidential supervisory information, or any portion of the contents
thereof, except as authorized in writing by the Director.
(b) In general, FHFA Employees. Except as authorized in writing by
the Director, no FHFA employee 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.
[[Page 39959]]
(c) Persons possessing confidential supervisory information. All
confidential supervisory 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.
(d) 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.
(e) Penalties, Confidential Supervisory Information. Any person
that discloses or uses confidential supervisory 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.
(f) Penalties, Non-Public Information. Any FHFA employee 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,
other applicable laws, and appropriate administrative, enforcement, or
disciplinary proceedings.
Sec. 1214.4 Exceptions.
(a) FHFA Employees. Current FHFA employees may disclose or permit
the disclosure of non-public information to another FHFA employee or
regulated entity or the Office of Finance, when necessary and
appropriate, for 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 confidential supervisory
information to any person currently engaged by the 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 confidential
supervisory 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 confidential
supervisory information contained in this section; and
(ii) That it will not use the confidential supervisory 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, 92
Stat. 1101 (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.
Dated: June 27, 2013.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2013-15905 Filed 7-2-13; 8:45 am]
BILLING CODE 8070-01-P
