[Title 12 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2023 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 12
Banks and Banking
________________________
Part 1100 to End
Revised as of January 1, 2023
Containing a codification of documents of general
applicability and future effect
As of January 1, 2023
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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It is prohibited to use NARA's official seal and the stylized Code
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Table of Contents
Page
Explanation................................................. v
Title 12:
Chapter XI--Federal Financial Institutions
Examination Council 3
Chapter XII--Federal Housing Finance Agency 43
Chapter XIII--Financial Stability Oversight Council 631
Chapter XIV--Farm Credit System Insurance
Corporation 679
Chapter XV--Department of the Treasury 717
Chapter XVI-- Office of Financial Research,
Department of the Treasury 739
Chapter XVII--Office of Federal Housing Enterprise
Oversight, Department of Housing and Urban
Development 749
Chapter XVIII--Community Development Financial
Institutions Fund, Department of the Treasury 763
Finding Aids:
Table of CFR Titles and Chapters........................ 853
Alphabetical List of Agencies Appearing in the CFR...... 873
List of CFR Sections Affected........................... 883
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 12 CFR 1101.1 refers
to title 12, part 1101,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2023), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
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free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
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law numbers, Federal Register finding aids, and related information.
Connect to NARA's website at www.archives.gov/federal-register.
The eCFR is a regularly updated, unofficial editorial compilation of
CFR material and Federal Register amendments, produced by the Office of
the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2023
[[Page ix]]
THIS TITLE
Title 12--Banks and Banking is composed of ten volumes. The parts in
these volumes are arranged in the following order: Parts 1-199, 200-219,
220-229, 230-299, 300-346, 347-599, 600-899, 900-1025, 1026-1099, and
1100-end. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 2023.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 12--BANKS AND BANKING
(This book contains part 1100 to end)
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Part
chapter xi--Federal Financial Institutions Examination
Council................................................... 1101
chapter xii--Federal Housing Finance Agency................. 1206
chapter xiii--Financial Stability Oversight Council......... 1301
chapter xiv--Farm Credit System Insurance Corporation....... 1400
chapter xv--Department of the Treasury...................... 1510
chapter xvi--Office of Financial Research, Department of the
Treasury.................................................. 1600
chapter xvii--Office of Federal Housing Enterprise
Oversight, Department of Housing and Urban Development.... 1700
chapter xviii--Community Development Financial Institutions
Fund, Department of the Treasury.......................... 1805
[[Page 3]]
CHAPTER XI--FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
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Part Page
1100
[Reserved]
1101 Description of office, procedures, public
information............................. 5
1102 Appraiser regulation........................ 12
1103-1199
[Reserved]
[[Page 5]]
PART 1100 [RESERVED]
PART 1101_DESCRIPTION OF OFFICE, PROCEDURES, PUBLIC INFORMATION-
-Table of Contents
Sec.
1101.1 Scope and purpose.
1101.2 Authority and functions.
1101.3 Organization and methods of operation.
1101.4 Disclosure of information, policies, and records.
1101.5 Testimony and production of documents in response to subpoena,
order, etc.
Authority: 5 U.S.C. 552; 12 U.S.C. 3307.
Source: 45 FR 46794, July 11, 1980, unless otherwise noted.
Sec. 1101.1 Scope and purpose.
This part implements the Freedom of Information Act (FOIA), 5 U.S.C.
552, with respect to the Federal Financial Institutions Examination
Council (Council), and establishes related information disclosure
procedures.
Sec. 1101.2 Authority and functions.
(a) The Council was established by the Federal Financial
Institutions Examination Council Act of 1978 (Act), 12 U.S.C. 3301-3308.
It is composed of the Comptroller of the Currency; the Chairman of the
Federal Deposit Insurance Corporation; a Governor of the Board of
Governors of the Federal Reserve System; the Chairman of the Federal
Home Loan Bank Board; and the Chairman of the National Credit Union
Administration Board.
(b) The statutory functions of the Council are set out at 12 U.S.C.
3305. In summary, the mission of the Council is to promote consistency
and progress in federal examination and supervision of financial
institutions and their affiliates. The Council is empowered to prescribe
uniform principles, standards, and reporting forms and systems; make
recommendations in the interest of uniformity; and conduct examiner
schools open to personnel of the agencies represented on the Council and
employees of state financial institutions supervisory agencies.
Sec. 1101.3 Organization and methods of operation.
(a) Statutory requirements relating to the Council's organization
are stated in 12 U.S.C. 3303.
(b) Council staff. Administrative support and substantive
coordination for Council activities are provided by a small staff
detailed on a full-time basis from the five member agencies. The
Executive Secretary and Deputy Executive Secretary of the Council
supervise this staff.
(c) Agency Liaison Group, Task Forces and Legal Advisory Group. Most
staff support in the substantive areas of the Council's duties is
provided by interagency task forces and the Council's Legal Advisory
Group (LAG). These task forces and the LAG are responsible for securing
the services, as needed, of staff experts from the five agencies;
supervising research and other investigative work for the Council; and
preparing reports and recommendations for the Council. The Agency
Liaison Group (ALG) is responsible for the overall coordination of the
respective agencies' staff contributions to Council business. The ALG,
the task forces, and the LAG are each composed of Council member agency
staff serving the Council on a part-time basis.
(d) State Liaison Committee. Under 12 U.S.C. 3306, the Council has
established a State Liaison Committee, composed of five representatives
of state financial institutions supervisory agencies.
(e) Council address. Council offices are located at 3501 Fairfax
Drive, Room B-7081a, Arlington, VA, 22226-3550.
[45 FR 46794, July 11, 1980, as amended at 53 FR 7341, Mar. 8, 1988; 75
FR 71014, Nov. 22, 2010]
Sec. 1101.4 Disclosure of information, policies, and records.
(a) Statements of policy published in the Federal Register or
available for public inspection in an electronic format; indices. (1)
Under 5 U.S.C. 552(a)(l), the Council publishes general rules, policies
and interpretations in the Federal Register.
(2) Under 5 U.S.C. 552(a)(2), policies and interpretations adopted
by the Council, including instructions to Council staff affecting
members of the
[[Page 6]]
public are available for public inspection in an electronic format at
the office of the Executive Secretary of the Council, 3501 Fairfax
Drive, Room B-7081a, Arlington, VA, 22226-3550, during regular business
hours. Policies and interpretations of the Council may be withheld from
disclosure under the principles stated in paragraph (b)(1) of this
section.
(3) Copies of all records, regardless of form or format, are
available for public inspection in an electronic format if they:
(i) Have been released to any person under paragraph (b) of this
section; and
(ii)(A) Because of the nature of their subject matter, the Council
determines that they have become or are likely to become the subject of
subsequent requests for substantially the same records; or
(B) They have been requested three or more times.
(4) An index of the records referred to in paragraphs (a)(1) through
(3) of this section is available for public inspection in an electronic
format.
(b) Other records of the Council available to the public upon
request; procedures--(1) General rule and exemptions. Under 5 U.S.C.
552(a)(3), all other records of the Council are available to the public
upon request, except to the extent exempted from disclosure as provided
in 5 U.S.C. 552(b) and described in this paragraph (b)(1), or if
disclosure is prohibited by law. Unless specifically authorized by the
Council, or as set forth in paragraph (b)(2) of this section, the
following records, and portions thereof, are not available to the
public:
(i) A record, or portion thereof, which is specifically authorized
under criteria established by an Executive Order to be kept secret in
the interest of national defense or foreign policy and which is, in
fact, properly classified pursuant to such Executive Order.
(ii) A record, or portion thereof, relating solely to the internal
personnel rules and practices of an agency.
(iii) A record, or portion thereof, specifically exempted from
disclosure by statute (other than 5 U.S.C. 552b), provided that such
statute:
(A) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(iv) A record, or portion thereof, containing trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.
(v) An intra-agency or interagency memorandum or letter that would
not be routinely available by law to a private party in litigation,
including, but not limited to, memoranda, reports, and other documents
prepared by the personnel of the Council or its constituent agencies,
and records of deliberations of the Council and discussions of meetings
of the Council, any Council Committee, or Council staff, that are not
subject to 5 U.S.C. 552b (the Government in the Sunshine Act). In
applying this exemption, the Council will not withhold records based on
the deliberative process privilege if the records were created 25 years
or more before the date on which the records were requested.
(vi) A personnel, medical, or similar record, including a financial
record, or any portion thereof, the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy.
(vii) Records or information compiled for law enforcement purposes,
to the extent permitted under 5 U.S.C. 552(b)(7), including records
relating to a proceeding by a financial institution's State or Federal
regulatory agency for the issuance of a cease-anddesist order, or order
of suspension or removal, or assessment of a civil money penalty and the
granting, withholding, or revocation of any approval, permission, or
authority.
(viii) A record, or portion thereof, containing, relating to, or
derived from an examination, operating, or condition report prepared by,
or on behalf of, or for the use of any State or Federal agency directly
or indirectly responsible for the regulation or supervision of financial
institutions.
(ix) A record, or portion thereof, which contains or is related to
geological and geophysical information and data, including maps,
concerning wells.
[[Page 7]]
(2) Discretionary release of exempt information. Notwithstanding the
applicability of an exemption, the Council will only withhold records
requested under this paragraph (b) if the Council reasonably foresees
that disclosure would harm an interest protected by an exemption listed
in 5 U.S.C. 552(b) and described in paragraph (b)(1) of this section. In
addition, whenever the Council determines that full disclosure of a
requested record is not possible, the Council will consider whether
partial disclosure is possible and will take reasonable steps necessary
to segregate and release the nonexempt portion of a record. The Council
or the Council's designee may elect, under the circumstances of a
particular request, to disclose all or a portion of any requested record
where permitted by law. Such disclosure has no precedential
significance.
(3) Procedure for records request-(i) Initial request. Requests for
records shall be submitted in writing to the Executive Secretary of the
Council:
(A) By sending a letter to: FFIEC, Attn: Executive Secretary, 3501
Fairfax Drive, Room B-708la, Arlington, VA, 22226-3550. Both the mailing
envelope and the request should be marked ``Freedom of Information
Request,'' ``FOIA Request,'' or the like; or
(B) By facsimile clearly marked ``Freedom of Information Act
Request,'' ``FOIA Request,'' or the like to the Executive Secretary at
(703) 562-6446; or
(C) By email to the address provided on the FFIEC's World Wide Web
page, found at: http://www.ffiec.gov. Requests must reasonably describe
the records sought.
(ii) Contents of request. All requests should contain the following
information:
(A) The name and mailing address of the requester, an electronic
mail address, if available, and the telephone number at which the
requester may be reached during normal business hours;
(B) A statement as to whether the information is intended for
commercial use, and whether the requester is an educational or
noncommercial scientific institution, or news media representative; and
(C) A statement agreeing to pay all applicable fees, or a statement
identifying any desired fee limitation, or a request for a waiver or
reduction of fees that satisfies paragraph (b)(5)(ii)(H) of this
section.
(iii) Defective requests. The Council need not accept or process a
request that does not reasonably describe the records requested or that
does not otherwise comply with the requirements of this section. The
Executive Secretary may return a defective request specifying the
deficiency. The requester may submit a corrected request, which will be
treated as an initial request.
(iv) Expedited processing. (A) Where a person requesting expedited
access to records has demonstrated a compelling need for the records, or
where the Executive Secretary has determined to expedite the response,
the Executive Secretary shall process the request as soon as
practicable. To show a compelling need for expedited processing, the
requester shall provide a statement demonstrating that:
(1) Failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(2) The requester is primarily engaged in information dissemination
as a main professional occupation or activity, and there is urgency to
inform the public of the government activity involved in the request.
(B) The requester's statement must be certified to be true and
correct to the best of the person's knowledge and belief and explain in
detail the basis for requesting expedited processing.
(C) The formality of the certification required to obtain expedited
treatment may be waived by the Executive Secretary as a matter of
administrative discretion.
(v) Response to initial requests. (A) Except where the Executive
Secretary has determined to expedite the processing of a request, the
Executive Secretary will respond by mail or electronic mail to all
properly submitted initial requests within 20 working days of receipt.
The time for response may be extended up to 10 additional working
[[Page 8]]
days in unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B),
where the Council has provided written notice to the requester setting
forth the reasons for the extension and the date on which a
determination is expected to be dispatched. In addition, where the
extension of the 20-day time limit exceeds 10 working days, as described
by the FOIA, the requester shall be provided with an opportunity to
modify the scope of the FOIA request so that it can be processed within
that time frame or provided an opportunity to arrange an alternative
time frame for processing the request or a modified request. To aid the
requester, the Council's FOIA Public Liaison is available to assist the
requester for this purpose and in the resolution of any disputes between
the requester and the Council. The Council's FOIA Public Liaison's
contact information is available at http://www.ffiec.gov/foia.htm. The
requester may also seek dispute resolution services from the Office of
Government Information Services.
(B) In response to a request that reasonably describes the records
sought and otherwise satisfies the requirements of this section, a
search shall be conducted of records in existence and maintained by the
Council on the date of receipt of the request, and a review made of any
responsive information located. The Executive Secretary shall notify the
requester of:
(1) The Executive Secretary's determination of the response to the
request;
(2) The reasons for the determination;
(3) The right of the requester to seek assistance from the Council's
FOIA Public Liaison; and
(4) When an adverse determination is made (including a determination
that the requested record is exempt, in whole or in part; the request
does not reasonably describe the records sought; the information
requested is not a record subject to the FOIA; the requested record does
not exist, cannot be located, or has been destroyed; the requested
record is not readily reproducible in the form or format sought by the
requester; a fee waiver request or other fee categorization matter is
denied; and a request for expedited processing is denied), the Executive
Secretary will advise the requester in writing of that determination and
will further advise the requester:
(i) If the denial is in part or in whole;
(ii) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(iii) The exemptions relied on for the denial;
(iv) The right of the requester to appeal any adverse determination
to the Chairman of the Council within 90 days following the date of
issuance of the notification, as specified in paragraph (b)(3)(vi) of
this section; and
(v) The right of the requester to seek dispute resolution services
from the Council's FOIA Public Liaison or the Office of Government
Information Services.
(vi) Appeals of responses to initial requests. A requester may
appeal any adverse determination in writing, within 90 days of the date
of issuance of the adverse determination. Appeals should refer to the
date and tracking number of the original request and the date of the
Council's initial ruling. Appeals should include an explanation of the
basis for the appeal. Appeals shall be submitted to the Chairman of the
Council:
(A) By sending a letter to: FFIEC, Attn: Executive Secretary, 3501
Fairfax Drive, Room B-7081a, Arlington, VA, 22226-3550. Both the mailing
envelope and the request should be marked ``Freedom of Information Act
Appeal,'' ``FOIA Appeal,'' or the like; or
(B) By facsimile clearly marked ``Freedom of Information Act
Appeal,'' ``FOIA Appeal,'' or the like to the Executive Secretary at
(703) 562-6446; or
(C) By email with the subject line marked ``Freedom of Information
Act Appeal,'' ``FOIA Appeal,'' or the like to [email protected].
(vii) Council response to appeals. The Chairman of the Council, or
another member designated by the Chairman, will respond to all properly
submitted appeals within 20 working days of actual receipt of the appeal
by the Executive Secretary. The time for response may be extended up to
10 additional working days, as provided in 5 U.S.C. 552(a)(6)(B), or for
other periods by
[[Page 9]]
agreement between the requester and the Chairman or the Chairman's
designee.
(4) Procedure for access to records if request is granted. (i) When
a request for access to records is granted, in whole or in part, a copy
of the records to be disclosed will be promptly delivered to the
requester or made available for inspection in an electronic format,
whichever was requested. Inspection of records, or duplication and
delivery of copies of records, will be arranged so as not to interfere
with their use by the Council and other users of the records.
(ii) When delivery to the requester is to be made, copies of
requested records shall be sent to the requester by regular U.S. mail to
the address indicated in the request, unless the Executive Secretary
deems it appropriate to send the documents by another means.
(iii) The Council shall provide a copy of the record in any form or
format requested if the record is readily reproducible by the Council in
that form or format, but the Council need not provide more than one copy
of any record to a requester.
(iv) By arrangement with the requester, the Executive Secretary may
elect to send the responsive records electronically if a substantial
portion of the records is in electronic format. If the information
requested is subject to disclosure under the Privacy Act of 1974, 5
U.S.C. 552a, it will not be sent by electronic means unless reasonable
security measures can be established.
(5) Fees for document search, review, and duplication; waiver and
reduction of fee--(i) Definitions--(A) Direct costs means those
expenditures which the Council actually incurs in searching for,
duplicating, and reviewing documents to respond to a FOIA request.
(B) Search means all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming.
(C) Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form of
paper copy, microfilm, audiovisual records, or machine readable records
(e.g., magnetic tape or computer disk).
(D) Review means the process of examining documents located in
response to a request that is for a commercial use (see paragraph
(b)(5)(i)(E) of this section) to determine whether any portion of any
document located is permitted to be withheld and processing such
documents for disclosure.
(E) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a request falls
within this category, the Executive Secretary will determine the use to
which a requester will put the records requested and seek additional
information as the Executive Secretary deems necessary.
(F) Educational institution means a preschool, an elementary or
secondary school, an institution of undergraduate higher education, an
institution of graduate higher education, an institution of professional
education, and an institution of vocational education, which operates a
program or programs of scholarly research.
(G) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis as that term is referenced in
paragraph (b)(5)(i)(E) of this section, and which is operated solely for
the purposes of conducting scientific research, the results of which are
not intended to promote any particular product or industry.
(H) Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. In this paragraph
(b)(5)(i)(H), the term ``news'' means information that is about current
events or that would be of current interest to the public. Examples of
news-media entities are television or radio stations broadcasting to the
public at large and publishers of periodicals (but only if such entities
qualify as disseminators of ``news'') who make their products available
for purchase
[[Page 10]]
by or subscription by or free distribution to the general public. These
examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media
shall be considered to be news-media entities. A freelance journalist
shall be regarded as working for a news-media entity if the journalist
can demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation; the Council may also consider the past publication record
of the requester in making such a determination.
(ii) Fees to be charged. The Council will charge fees that recoup
the full allowable direct costs it incurs, except that the charging of
search and/or duplication fees is subject to the restrictions of
paragraph (b)(5)(ii)(G) of this section. The Council may contract with
the private sector to locate, reproduce, and/or disseminate records.
Provided, however, that the Council has ensured that the ultimate cost
to the requester is no greater than it would be if the Council performed
these tasks. Fees are subject to change as costs change. In no case will
the Council contract out responsibilities which the FOIA provides that
it alone may discharge, such as determining the applicability of an
exemption, or determining whether to waive or reduce fees.
(A) Manual searches and review. The Council will charge fees at the
following rates for manual searches for and review of records:
(1) If search/review is done by clerical staff, the hourly rate for
GS-7, step 5, plus 16 percent of the rate to cover benefits;
(2) If search/review is done by professional staff, the hourly rate
for GS-13, step 5, plus 16 percent of the rate to cover benefits.
(B) Computer searches. The Council will charge fees at the hourly
rate for GS-13, step 5, plus 16 percent of the rate to cover benefits,
plus the hourly cost of operating the computer for computer searches for
records.
(C) Duplication of records. (1) The per-page fee for paper copy
reproduction of a document is $.25;
(2) The fee for records generated by computer is the hourly rate for
the computer operator (at GS-7, step 5, plus 16 percent for benefits if
clerical staff, and GS-13, step 5, plus 16 percent for benefits if
professional staff) plus the cost of materials (computer paper, tapes,
disks, labels, etc.).
(3) If any other method of duplication is used, the Council will
charge the actual direct cost of duplicating the records.
(D) Hourly rates. If search, duplication and/or review is provided
by personnel of member agencies of the Council, fees will reflect their
actual hourly rates, plus 16 percent for benefits.
(E) Fees to exceed $25. If the Council estimates that duplication
and/or search fees are likely to exceed $25, it will notify the
requester of the estimated amount of fees, unless the requester has
indicated in advance his/her willingness to pay fees as high as those
anticipated. In the case of such notification by the Council, the
requester will then have the opportunity to confer with the Council's
FOIA Public Liaison with the object of reformulating the request to meet
his/her needs at a lower cost.
(F) Other services. Complying with requests for special services
such as certifying records as true copies or mailing records by express
mail is entirely at the discretion of the Council. The Council will
recover the full costs of providing such services to the extent it
elects to provide them.
(G) Restriction on assessing fees. (1) The Council will not charge
fees to any requester, including commercial use requesters, if the cost
of collecting a fee would be equal to or greater than the fee itself.
(2)(i) If the Council fails to comply with the time limits specified
in the FOIA in which to respond to a request, the Council will not
charge search fees, or, in the case of a requester described in
paragraph (b)(5)(iii)(B) of this section, will not charge duplication
fees, except as described in paragraphs (b)(5)(ii)(G)(2)(ii) through
(iv) of this section.
[[Page 11]]
(ii) If the Council has determined that unusual circumstances apply
(as the term is defined in the FOIA) and the Council provided a timely
written notice to the requester in accordance with the FOIA, a failure
to comply with the time limit shall be excused for an additional 10
working days.
(iii) If the Council has determined that unusual circumstances apply
(as the term is defined in the FOIA) and more than 5,000 pages are
necessary to respond to the request, the Council may charge search fees,
or, in the case of requesters described in paragraph (b)(5)(iii)(B) of
this section, may charge duplication fees, if the following steps are
taken: The Council provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA; and The
Council discussed with the requester via written mail, email message, or
telephone (or made not less than three good-faith attempts to do so) how
the requester could effectively limit the scope of the request in
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is
satisfied, the Council may charge all applicable fees incurred in the
processing of the request.
(iv) If a court has determined that exceptional circumstances exist,
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(H) Waiving or reducing fees. As part of the initial request for
records, a requester may ask that the Council waive or reduce fees if
disclosure of the records is in the public interest because it is likely
to contribute significantly to public understanding of the operations or
activities of the Council and is not primarily in the commercial
interest of the requester. The initial request for records must also
state the justification for a waiver or reduction of fees.
Determinations as to a waiver or reduction of fees will be made by the
Executive Secretary of the Council and the requester will be notified in
writing of his/her determination. A determination not to grant a request
for a waiver or reduction of fees under this paragraph (b)(5)(ii)(H) may
be appealed to the Chairman of the Council pursuant to the procedure set
forth in paragraph (b)(3)(vi) of this section.
(iii) Categories of requesters--(A) Commercial use requesters. The
Council will assess fees for commercial use requesters sufficient to
recover the full direct costs of searching for, reviewing for release,
and duplicating the records sought. Commercial use requesters are not
entitled to two hours of free search time nor 100 free pages of
reproduction of documents.
(B) News media, educational and noncommercial scientific institution
requesters. Requesters who are representatives of the news media,
educational and noncommercial scientific institution requesters. The
Council shall provide documents to requesters in these categories for
the cost of reproduction alone, excluding fees for the first 100 pages.
(C) All other requesters. The Council shall charge requesters who do
not fit into any of the categories in paragraphs (b)(5)(iii)(A) and (B)
of this section fees which recover the full reasonable direct cost of
searching for and reproducing records that are responsive to the
request, except that the first 100 pages of reproduction and the first
two hours of search time shall be furnished without a fee.
(D) Description of records. All requesters must specifically
describe records sought.
(iv) Interest on unpaid fees. The Council may begin assessing
interest charges on an unpaid bill starting on the 31st day following
the day on which the bill was sent. Interest will be at the rate
prescribed in 31 U.S.C. 3717 and will accrue from the date of the
billing.
(v) Fees for unsuccessful search and review. The Council may assess
fees for time spent searching and reviewing, even if it fails to locate
the records or if records located are determined to be exempt from
disclosure.
(vi) Aggregating requests. A requester(s) may not file multiple
requests each seeking portions of a document or documents, solely in
order to avoid payment of fees. If this is done, the Council may
aggregate any such requests and charge accordingly. In no case will the
Council aggregate multiple requests on unrelated subjects from the same
requester.
[[Page 12]]
(vii) Advance payment of fees. The Council will not require a
requester to make an assurance of payment or an advance payment unless:
(A) The Council estimates or determines that allowable charges that
a requester may be required to pay are likely to exceed $250. The
Council will notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a history
of prompt payment of FOIA fees, or require an advance payment of an
amount up to the full estimated charges in the case of requesters with
no history of payment; or
(B) A requester has previously failed to pay a fee charged in a
timely fashion. The Council may require the requester to pay the full
amount owed plus any applicable interest as provided in paragraph
(b)(5)(iv) of this section or demonstrate that he/she has, in fact, paid
the fee, and to make an advance payment of the full amount of the
estimated fee before the Council begins to process a new request or a
pending request from that requester.
(C) When the Council acts under paragraph (b)(5)(vii)(A) or (B) of
this section, the administrative time limits prescribed in subsection
(a)(6) of the FOIA (i.e., 20 working days from receipt of initial
requests, plus permissible extensions of these time limits) will begin
only after the Council has received the fee payments described.
(6) Records of another agency. If a requested record originated with
or incorporates the information of another State or Federal agency or
department, upon receipt of a request for the record the Council will
promptly inform the requester of this circumstance and immediately shall
forward the request to the originating agency or department either for
processing in accordance with the latter's regulations or for guidance
with respect to disposition.
[82 FR 30726, July 3, 2017]
Sec. 1101.5 Testimony and production of documents in response to subpoena,
order, etc.
No person shall testify, in court or otherwise, as a result of
activities on behalf of the Council without prior written authorization
from the Council. This section shall not restrict the authority of a
Council member to testify before Congress on matters within his or her
official responsibilities as a Council member. No person shall furnish
documents reflecting information of the Council in compliance with a
subpoena, order, or otherwise, without prior written authorization from
the Council. The Council may authorize testimony or production of
documents after the litigant (or the litigant's attorney) submits an
affidavit to the Council setting forth the interest of the litigant and
the testimony or documents desired. Authorization to testify or produce
documents is limited to authority expressly granted by the Council. When
the Council has not authorized testimony or production of documents, the
individual to whom the subpoena or order has been directed will appear
in court and respectfully state that he or she is unable to comply
further with the subpoena or order by reason of this section.
PART 1102_APPRAISER REGULATION--Table of Contents
Subpart A_Temporary Waiver Requests
Sec.
1102.1 Authority, purpose, and scope.
1102.2 Definitions.
1102.3 Request for Temporary Waiver.
1102.4 Petition requesting the ASC initiate a temporary waiver
proceeding.
1102.5 Order initiating a temporary waiver proceeding.
1102.6 Notice and comment.
1102.7 ASC determination.
1102.8 Waiver extension.
1102.9 Waiver termination.
Subpart B_Rules of Practice for Proceedings
1102.20 Authority, purpose, and scope.
1102.21 Definitions.
1102.22 Appearance and practice before the Subcommittee.
1102.23 Formal requirements as to papers filed.
1102.24 Filing requirements.
1102.25 Service.
1102.26 When papers are deemed filed or served.
1102.27 Computing time.
1102.28 Documents and exhibits in proceedings public.
1102.29 Conduct of proceedings.
1102.30 Rules of evidence.
1102.31 Burden of proof.
[[Page 13]]
1102.32 Notice of Intention to Commence a Proceeding.
1102.33 Rebuttal or Notice Not To Contest.
1102.34 Briefs, memoranda and statements.
1102.35 Opportunity for informal settlement.
1102.36 Oral presentations.
1102.37 Decision of the Subcommittee and judicial review.
1102.38 Compliance activities.
1102.39 Duty to cooperate.
Subpart C_Rules Pertaining to the Privacy of Individuals and Systems of
Records Maintained by the Appraisal Subcommittee
1102.100 Authority, purpose and scope.
1102.101 Definitions.
1102.102 Times, places and requirements for requests pertaining to
individual records in a record system and for the
identification of individuals making requests for access to
records pertaining to them.
1102.103 Disclosure of requested records.
1102.104 Special procedure: Medical records.
1102.105 Requests for amendment of records.
1102.106 Review of requests for amendment.
1102.107 Appeal of initial adverse agency determination regarding access
or amendment.
1102.108 General provisions.
1102.109 Fees.
1102.110 Penalties.
Subpart D_Description of Office, Procedures, Public Information
1102.300 Purpose and scope.
1102.301 Definitions.
1102.302 ASC authority and functions.
1102.303 Organization and methods of operation.
1102.304 Federal Register publication.
1102.305 Publicly available records.
1102.306 Procedures for requesting records.
1102.307 Disclosure of exempt records.
1102.308 Right to petition for issuance, amendment and repeal of rules
of general application.
1102.309 Confidential treatment procedures.
1102.310 Service of process.
Subpart E_Collection and Transmission of Appraisal Management Company
(AMC) Registry Fees
1102.400 Authority, purpose, and scope.
1102.401 Definitions.
1102.402 Establishing the annual AMC registry fee.
1102.403 Collection and transmission of annual AMC registry fees.
Authority: 12 U.S.C. 3348(a), 3332, 3335, 3338 (a)(4)(B), 3348(c), 5
U.S.C. 552a, 553(e); Executive Order 12600, 52 FR 23781 (3 CFR, 1987
Comp., p. 235).
Editorial Note: Nomenclature changes to part appear at 83 FR 43739,
Aug. 28, 2018.
Subpart A_Temporary Waiver Requests
Authority: 12 U.S.C. 3348(b).
Source: 87 60875, Oct. 7, 2022, unless otherwise noted.
Sec. 1102.1 Authority, purpose, and scope.
(a) Authority. This subpart is issued under section 1119(b) of Title
XI of the Financial Institutions Reform, Recovery, and Enforcement Act
of 1989 (Title XI; 12 U.S.C. 3348(b)).
(b) Purpose and scope. This subpart prescribes rules of practice and
procedure governing temporary waiver proceedings under section 1119(b)
of Title XI (12 U.S.C. 3348(b)). These procedures apply whenever a
Request for Temporary Waiver is submitted to the Appraisal Subcommittee
(ASC) of the Federal Financial Institutions Examination Council (FFIEC)
for a temporary waiver of any requirement relating to State
certification or licensing (credentialing requirements) of persons
eligible to perform appraisals for federally related transactions (FRTs)
under Title XI. These procedures also apply in the event the ASC
receives a Petition requesting the ASC initiate a temporary waiver
proceeding. This subpart also contains the ASC's interpretations of
terms used in section 1119(b) of Title XI.
Sec. 1102.2 Definitions.
For purposes of this subpart:
(a) Federally related transaction (FRT) means any real estate-
related financial transaction which:
(1) A Federal financial institutions regulatory agency engages in,
contracts for, or regulates; and
(2) Requires the services of an appraiser under the interagency
appraisal rules. ((Title XI, section 1121(4), 12 U.S.C. 3350),
implemented by the Office of the Comptroller of the Currency: 12 CFR
34.42(g) and 34.43(a); Federal Reserve Board: 12 CFR 225.62 and
225.63(a); Federal Deposit Insurance Corporation: 12 CFR 323.2(f) and
323.3(a); and National Credit Union Administration: 12 CFR 722.2(f) and
722.3(a).)
[[Page 14]]
(b) Performance of appraisals means the appraisal service requested
of an appraiser is provided to the lender or appraisal management
company (AMC).
(c) Petition means information submitted to the ASC by the Federal
or State financial institutions regulatory agencies, their respective
regulated financial institutions, or other persons or institutions with
a demonstrable interest in appraiser regulation, including a State
Appraisal Agency, asking the ASC to exercise its discretionary authority
to initiate a temporary waiver proceeding, and that meets the
requirements, as determined by the ASC, set forth in Sec. 1102.4.
(d) Request for Temporary Waiver means information submitted to the
ASC by a State Appraisal Agency with a written determination requesting
a temporary waiver that meets the requirements, as determined by the
ASC, set forth in Sec. 1102.3.
(e) Scarcity of certified or licensed appraisers means the number of
active certified or licensed appraisers within a State or a specified
geographical political subdivision is insufficient to meet the demand
for appraisal services and such appraisers are difficult to retain.
(f) Significant delays in the performance of appraisals means delays
that are substantially out of the ordinary when compared to performance
of appraisals for similarly situated FRTs based on factors such as
geographic location (e.g., rural versus urban) and assignment type, and
the delay is not the result of intervening circumstances outside the
appraiser's control or brought about by the appraiser's client (e.g.,
inability to access the subject property).
(g) State Appraisal Agency means the State appraiser certifying and
licensing agency (Title XI, section 1121(1); see also 12 U.S.C.
3350(1)).
(h) Temporary waiver means a waiver of any or all credentialing
requirements for persons eligible to perform appraisals for FRTs; if
granted, a temporary waiver does not waive the requirement for a Uniform
Standards of Professional Appraisal Practice (USPAP)-compliant
appraisal.
Sec. 1102.3 Request for Temporary Waiver.
(a) Who can file a Request for Temporary Waiver. The State Appraisal
Agency for the State in which the temporary waiver relief is sought may
file a Request for Temporary Waiver.
(b) Contents and receipt of a Request for Temporary Waiver. A
Request for Temporary Waiver from a State Appraisal Agency will not be
deemed received by the ASC unless it fully and accurately sets out:
(1) A written determination by the State Appraisal Agency that there
is a scarcity of certified or licensed appraisers leading to significant
delays in the performance of appraisals for FRTs or a specified class of
FRTs within either a portion of, or the entire State;
(2) The requirement(s) of State law from which relief is being
sought;
(3) The nature of the scarcity of certified or licensed appraisers
(including supporting documentation, statistical or otherwise
verifiable);
(4) The extent of the delays anticipated or experienced in the
performance of appraisals by certified or licensed appraisers (including
supporting documentation, statistical or otherwise verifiable);
(5) How complaints concerning appraisals by persons who are not
certified or licensed would be processed in the event a temporary waiver
is granted; and
(6) Meaningful suggestions and recommendations for remedying the
situation.
(c) Receipt of a Request for Temporary Waiver. A Request for
Temporary Waiver shall be deemed received for purposes of publication in
the Federal Register for notice and comment if the ASC determines that
the information submitted meets the requirements of paragraph (b) of
this section to support that a scarcity of appraisers exists and that
the scarcity is leading to significant delays in the performance of
appraisals for FRTs or a specified class of FRTs within either a portion
of, or the entire State.
(d) Deny or refer back. In the event the Request for Temporary
Waiver is not deemed received, it may be denied in its entirety or
referred back to the
[[Page 15]]
State Appraisal Agency for further action. In either case, the ASC shall
provide written notice to the State Appraisal Agency providing an
explanation for the determination.
Sec. 1102.4 Petition requesting the ASC initiate a temporary waiver
proceeding.
(a) Who can file a Petition requesting the ASC initiate a temporary
waiver proceeding. The Federal or State financial institutions
regulatory agencies, their respective regulated financial institutions,
and other persons or institutions with a demonstrable interest in
appraiser regulation, including a State Appraisal Agency, may petition
the ASC to exercise its discretionary authority to initiate a temporary
waiver proceeding.
(b) Contents of a Petition. (1) A Petition should include:
(i) Information (statistical or otherwise verifiable) to support the
existence of a scarcity of certified or licensed appraisers leading to
significant delays in the performance of appraisals for FRTs or a
specified class of FRTs for either a portion of, or the entire State;
and
(ii) The extent of the delays anticipated or experienced in the
performance of appraisals by certified or licensed appraisers (including
supporting documentation, statistical or otherwise verifiable).
(2) A Petition may also include meaningful suggestions and
recommendations for remedying the situation.
(c) Copy of Petition to State Appraisal Agency. In the case of a
Petition from a party other than a State Appraisal Agency, the party
must promptly provide a copy of its Petition to the State Appraisal
Agency.
(d) ASC review of a Petition. A Petition may be processed for
further action if the ASC determines that the information submitted
meets the requirements of paragraph (b) of this section and that further
action should be taken to determine whether a scarcity of appraisers
exists and that the scarcity is leading to significant delays in the
performance of appraisals for FRTs or a specified class of FRTs within
either a portion of, or the entire State.
(e) Deny or refer back. In the event a Petition does not meet the
requirements of paragraph (b) of this section it may be denied in its
entirety or referred back to the petitioner for further action. In
either event, the ASC shall provide written notice to the petitioner
providing an explanation for the determination.
(f) Further action on a Petition. If the ASC determines that a
Petition should be processed for further action, at its discretion the
ASC may:
(1) Refer a Petition to the State Appraisal Agency where temporary
waiver relief is sought for further evaluation and study, to include
items that would be addressed in a Request for Temporary Waiver (see
Sec. 1102.3(b)); or
(2) Take further action without referring the Petition to the State
Appraisal Agency.
(g) State Appraisal Agency action. (1) In the event the State
Appraisal Agency opts to conduct further evaluation and study on a
Petition, the State Appraisal Agency may:
(i) Issue a written determination that there is a scarcity of
certified or licensed appraisers leading to significant delays in the
performance of appraisals for FRTs or a class of FRTs within either a
portion of, or the entire State (or request that the ASC issue such a
written determination), in which case, the procedures and requirements
of Sec. Sec. 1102.3 and 1102.6(a) shall apply; or
(ii) Recommend that the ASC take no further action.
(2) In the event the State Appraisal Agency either recommends no
further action or declines to conduct further evaluation and study on a
Petition, the ASC may exercise its discretion in determining whether to
issue an Order initiating a temporary waiver proceeding in accordance
with Sec. 1102.5(a).
Sec. 1102.5 Order initiating a temporary waiver proceeding.
The ASC may exercise discretion in determining whether to issue an
Order initiating a temporary waiver proceeding in response to a
Petition, or alternatively, the ASC may exercise discretion to initiate
a temporary waiver
[[Page 16]]
proceeding on its own initiative without a Petition being submitted. In
either event, such an Order would include consideration of certain items
that would be addressed in a Request for Temporary Waiver. (See, e.g.,
Sec. 1102.3(b)(2) through (6).) If such an Order is issued, the ASC
shall publish a Federal Register notice in accordance with Sec.
1102.6(b).
Sec. 1102.6 Notice and comment.
(a) The ASC shall publish promptly in the Federal Register a notice
respecting:
(1) A received Request for Temporary Waiver (see Sec. 1102.3(c));
or
(2) An ASC Order initiating a temporary waiver proceeding (see Sec.
1102.5).
(b) The notice of a received Request for Temporary Waiver or ASC
Order initiating a temporary waiver proceeding shall contain a concise
statement of the nature and basis for the action and shall give
interested persons 30 calendar days from its publication in which to
submit written data, views, and arguments.
Sec. 1102.7 ASC determination.
(a) Order by the ASC. Within 90 calendar days of the date of
publication of the notice in the Federal Register, the ASC, by Order,
shall either grant or deny a waiver, in whole or in part, and upon
specified terms and conditions, including provisions for waiver
termination. The Order shall be published in the Federal Register, which
in the case of an Order approving a waiver, shall only be published
after FFIEC approval of the waiver (see paragraph (b) of this section).
Such Order shall respond to comments received from interested members of
the public and shall provide the reasons for the ASC's finding(s).
(b) Approval by the FFIEC. Any ASC Order approving a waiver shall be
effective only upon FFIEC approval of the waiver. FFIEC consideration of
a waiver is not subject to the ASC's 90-day timeframe for a
determination.
Sec. 1102.8 Waiver extension.
The ASC may initiate an extension of temporary waiver relief and
shall follow Sec. Sec. 1102.6, 1102.7 and 1102.9. A State Appraisal
Agency also may seek an extension of temporary waiver relief by
forwarding an additional written Request for Temporary Waiver to the
ASC. A request for an extension from a State Appraisal Agency shall be
subject to all the requirements of this subpart.
Sec. 1102.9 Waiver termination.
(a) Mandatory waiver termination. The ASC shall terminate a
temporary waiver Order when the ASC determines that significant delays
in the performance of appraisals by certified or licensed appraisers no
longer exist.
(b) Discretionary waiver termination. The ASC at any time may
terminate a waiver Order on the finding that the terms and conditions of
the waiver Order are not being satisfied.
(c) Publication in the Federal Register. The ASC shall publish
either a mandatory or discretionary waiver termination in the Federal
Register, and a discretionary waiver termination requires such
publication with a 30-day comment period. In the absence of further ASC
action to the contrary, a discretionary waiver termination automatically
becomes final 21 calendar days after the close of the comment period. A
mandatory waiver termination is final upon such a determination being
made by the ASC.
Subpart B_Rules of Practice for Proceedings
Authority: 12 U.S.C. 3332, 3335, 3347, and 3348(c).
Source: 57 FR 31650, July 17, 1992, unless otherwise noted.
Sec. 1102.20 Authority, purpose, and scope.
(a) Authority. This subpart is issued under sections 1103, 1106,
1118 and 1119(c) of title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (FIRREA) (12 U.S.C. 3332, 3335,
3347, and 3348(c)).
(b) Purpose and scope. This subpart prescribes rules of practice and
procedure governing non-recognition proceedings under section 1118 of
title XI (12 U.S.C. 3347); and other proceedings necessary to carry out
the purposes of
[[Page 17]]
title XI under section 1119(c) of title XI (12 U.S.C. 3348(c)).
[57 FR 31650, July 17, 1992, as amended at 57 FR 35004, Aug. 7, 1992]
Sec. 1102.21 Definitions.
As used in this subpart:
(a) Subcommittee or ASC means the Appraisal Subcommittee of the
Federal Financial Institutions Examination Council, as established under
section 1011 of title XI (12 U.S.C. 3310).
(b) Party means the ASC or a person, agency or other entity named as
a party, including, when appropriate, persons appearing in the
proceeding under Sec. 1102.22 of this subpart.
(c) Respondent means any party other than the ASC.
(d) Secretary means the Secretary of the ASC under its Rules of
Operation.
Sec. 1102.22 Appearance and practice before the Subcommittee.
(a) By attorneys and notice of appearance. Any person who is a
member in good standing of the bar of the highest court of any State or
of the District of Columbia, or of any possession, territory, or
commonwealth of the United States, may represent parties before the ASC
upon filing with the Secretary a written notice of appearance stating
that he or she is currently qualified as provided in this paragraph and
is authorized to represent the particular party on whose behalf he or
she acts.
(b) By non-attorneys. An individual may appear on his or her own
behalf. A member of a partnership may represent the partnership, and an
officer, director or employee of any government unit, agency,
institution, corporation or authority may represent that unit, agency,
institution, corporation or authority. The partner, officer, director or
employee must file with the Secretary a written statement that he or she
has been duly authorized by the partnership, government unit, agency,
institution, corporation or authority to act on its behalf. The ASC may
require the representative to attach to the statement appropriate
supporting documentation, such as a corporate resolution.
(c) Conduct during proceedings. All participants in a proceeding
shall conduct themselves with dignity and in an orderly and ethical
manner. The attorney or other representative of a party shall make every
effort to restrain a client from improper conduct in connection with a
proceeding. Improper language or conduct, refusal to comply with
directions, use of dilatory tactics, or refusal to adhere to reasonable
standards of orderly and ethical conduct constitute grounds for
immediate exclusion from the proceeding at the direction of the ASC.
Sec. 1102.23 Formal requirements as to papers filed.
(a) Form. All papers filed under this subpart must be double-spaced
and printed or typewritten on 8\1/2\ x 11 paper.
All copies shall be clear and legible.
(b) Caption. All papers filed must include at the head thereof, or
on a title page, the name of the ASC and of the filing party, the title
and/or docket number of the proceeding and the subject of the particular
paper.
(c) Party names, signatures, certificates of service. All papers
filed must set forth the name, address and telephone number of the
attorney or party making the filing, must be signed by the attorney or
party, and must be accompanied by a certification setting forth when and
how service has been made on all other parties.
(d) Copies. Unless otherwise specifically provided in the notice of
proceeding or by the ASC during the proceeding, an original and one copy
of all documents and papers shall be furnished to the Secretary.
Sec. 1102.24 Filing requirements.
(a) Filing. All papers filed with the ASC in any proceeding shall be
filed with the Secretary, Appraisal Subcommittee, 1325 G Street NW,
Suite 500, Washington, DC 20005.
(b) Manner of filing. Unless otherwise specified by the ASC, filing
may be accomplished by:
(1) Personal service;
(2) Delivering the papers to a reliable commercial courier service,
overnight delivery service, or to the U.S. Post Office for Express Mail
delivery; and
[[Page 18]]
(3) Mailing the papers by first class, registered, or certified
mail.
[57 FR 31650, July 17, 1992, as amended at 69 FR 2501, Jan. 16, 2004]
Sec. 1102.25 Service.
(a) Methods; appearing party. A serving party, who has made an
appearance under Sec. 1102.22 of this subpart, shall use one or more of
the following methods of service:
(1) Personal service;
(2) Delivering the papers to a reliable commercial courier service,
overnight delivery service, or to the U.S. Post Office for Express Mail
delivery; and
(3) Mailing the papers by first class, registered, or certified
mail.
(b) Methods; non-appearing party. If a party has not appeared in the
proceeding in accordance with Sec. 1102.22 of this subpart, the ASC or
any other party shall make service by any of the following methods:
(1) By personal service;
(2) By delivery to a person of suitable age and discretion at the
party's last known address;
(3) By registered or certified mail addressed to the party's last
known address; or
(4) By any other manner reasonably calculated to give actual notice.
(c) By the Subcommittee. All papers required to be served by the ASC
shall be served by the Secretary unless some other person shall be
designated for such purpose by the ASC.
(d) By the respondent. All papers filed in a proceeding under this
subpart shall be served by a respondent on the Secretary and each
party's attorney, or, if any party is not so represented, then upon such
party. Such service may be made by any of the appropriate methods
specified in paragraphs (a) and (b) of this section.
Sec. 1102.26 When papers are deemed filed or served.
(a) Effectiveness. Filing and service are deemed effective:
(1) For personal service or same-day commercial courier delivery,
upon actual delivery; and
(2) For overnight commercial delivery service, U.S. Express Mail
delivery, or first class, registered, or certified mail, upon deposit
in, or delivery to, an appropriate point of collection.
(b) Modification. The effective times for filing and service in
paragraph (a) of this section may be modified by the ASC in the case of
filing or by agreement of the parties in the case of service.
Sec. 1102.27 Computing time.
(a) General rule. In computing any period of time prescribed or
allowed by this subpart, the date of the act, event or default from
which the designated period of time begins to run is not included. The
last day so computed is included, unless it is a Saturday, Sunday, or
Federal holiday, in which event the period runs until the end of the
next day which is not a Saturday, Sunday or Federal holiday.
Intermediate Saturdays, Sundays, and Federal holidays shall not be
included in the computation.
(b) For service and filing responsive papers. Whenever a time limit
is measured by a prescribed period from the service of any notice or
paper, the applicable time periods are calculated as follows:
(1) If service is made by first class, registered or certified mail,
add three days to the prescribed period; and
(2) If service is made by express mail or overnight delivery
service, add one day to the prescribed period.
Sec. 1102.28 Documents and exhibits in proceedings public.
Unless and until otherwise ordered by the ASC or unless otherwise
provided by statute or by ASC regulation, all documents, papers and
exhibits filed in connection with any proceeding, other than those that
may be withheld from disclosure under applicable law, shall be placed by
the Secretary in the proceeding's public file and will be available for
public inspection and copying at the address set out in Sec. 1102.24 of
this subpart.
Sec. 1102.29 Conduct of proceedings.
(a) In general. Unless otherwise provided in the notice of
proceedings, all proceedings under this subpart shall be conducted as
hereinafter provided.
(b) Written submissions. All aspects of the proceeding shall be
conducted by
[[Page 19]]
written submissions only, with the exception of oral presentations
allowed under Sec. 1102.36 of this subpart.
(c) Disqualification. A Subcommittee member who deems himself or
herself disqualified may at any time withdraw. Upon receipt of a timely
and sufficient affidavit of personal bias or disqualification of such
member, the ASC will rule on the matter as a part of the record and
decision in the case.
(d) User of ASC staff. Appropriate members of the ASC's staff who
are not engaged in the performance of investigative or prosecuting
functions in the proceeding may advise and assist the ASC in the
consideration of the case and in the preparation of appropriate
documents for its disposition.
(e) Authority of Subcommittee Chairperson. The Chairperson of the
ASC, in consultation with other members of the ASC whenever appropriate,
shall have complete charge of the proceeding and shall have the duty to
conduct it in a fair and impartial manner and to take all necessary
action to avoid delay in the disposition of proceedings in accordance
with this subpart.
(f) Conferences. (1) The ASC may on its own initiative or at the
request of any party, direct all parties or counsel to meet with one or
more duly authorized ASC members or staff at a specified time and place,
or to submit to the ASC or its designee, suggestions in writing for the
purpose of considering any or all of the following:
(i) Scheduling of matters, including a timetable for the
information-gathering phase of the proceeding;
(ii) Simplification and clarification of the issues;
(iii) Stipulations and admissions of fact and of the content and
authenticity of documents;
(iv) Matters of which official notice will be taken; and
(v) Such other matters as may aid in the orderly disposition of the
proceeding, including disclosure of the names of persons submitting
affidavits or other documents and exhibits which may be introduced into
the public file of the proceeding.
(2) Such conferences will not be recorded, but the Secretary shall
place in the proceeding's public file a memorandum summarizing the
results of the conference and shall provide a copy of the memorandum to
each party. The memorandum shall control the subsequent course of the
proceedings, unless the ASC for good cause shown by one or more parties
to the conference, modifies those results and instructs the Secretary to
place an amendatory memorandum to that effect in the public file.
(g) Changes or extensions of time and changes of place of
proceeding. The ASC, in connection with initiating a specific
proceedings under Sec. 1102.32 of this subpart, may instruct the
Secretary to publish in the Federal Register time limits different from
those specified in this subpart, and may, on its own initiative or for
good cause shown, issue an exemption changing the place of the
proceeding or extending any time limit prescribed by this subpart,
including the date for ending the information-gathering phase of the
proceeding.
(h) Call for further briefs, memoranda, statements; reopening of
matters. The ASC may call for the production of further information upon
any issue, the submission of briefs, memoranda and statements (together
with written responses), and, upon appropriate notice, may reopen any
aspect of the proceeding at any time prior to a decision on the matter.
[57 FR 31650, July 17, 1992, as amended at 57 FR 35004, Aug. 7, 1992]
Sec. 1102.30 Rules of evidence.
(a) In general. (1) Except as is otherwise set forth in this
section, relevant, material and reliable evidence that is not unduly
repetitive is admissible to the fullest extent authorized by the
Administrative Procedure Act (5 U.S.C. 551 et seq.) and other applicable
law.
(2) Evidence that would be admissible under the Federal Rules of
Evidence is admissible in a proceeding conducted under this subpart.
(3) Evidence that would be inadmissible under the Federal Rules of
Evidence may be deemed or ruled admissible in a proceeding conducted
under this subpart if such evidence is relevant, material, reliable and
not unduly repetitive.
(b) Stipulations. Any party may stipulate in writing as to any
relevant matters of fact, law, or the authenticity of
[[Page 20]]
any relevant documents. The Secretary shall place such stipulations in
the public file, and they shall be binding on the parties.
(c) Official notice. Every matter officially noticed by the ASC
shall appear in the public file, unless the ASC determines that the
matter must be withheld from public disclosure under applicable Federal
law.
Sec. 1102.31 Burden of proof.
The ultimate burden of proof shall be on the respondent. The burden
of going forward with a prima facie case shall be on the ASC.
Sec. 1102.32 Notice of Intention to Commence a Proceeding.
The ASC shall instruct the Secretary or other designated officer
acting for the ASC to publish in the Federal Register a Notice of
Intention To Commence A Proceeding (Notice of Intention). The Notice of
Intention shall be served upon the party or parties to the proceeding
and shall commence at the time of service. The Notice of Intention shall
state the legal authority and jurisdiction under which the proceeding is
to be held; shall contain, or incorporate by appropriate reference, a
specific statement of the matters of fact or law constituting the
grounds for the proceeding; and shall state a date no sooner than 25
days after service of the Notice of Intention is made for termination of
the information-gathering phase of the proceeding. The Notice of
Intention also must contain a bold-faced warning respecting the effect
of a failure to file a Rebuttal or Notice Not To Contest under Sec.
1102.33(d) of this subpart. The ASC may amend a Notice of Intention in
any manner and to the extent consistent with provisions of applicable
law.
Sec. 1102.33 Rebuttal or Notice Not To Contest.
(a) When required. A party to the proceeding may file either a
Rebuttal or a Notice Not to Contest the statements contained in the
Notice of Intention or any amendment thereto with the Secretary within
15 days after being served with the Notice of Intention or an amendment
to such Notice. The Secretary shall place the Rebuttal or the Notice Not
To Contest in the public file.
(b) Requirements of Rebuttal; effect of failure to deny. A Rebuttal
filed under this section shall specifically admit, deny or state that
the party does not have sufficient information to admit or deny each
statement in the Notice of Intention. A statement of lack of information
shall have the effect of a denial. Any statement not denied shall be
deemed to be admitted. When a party intends to deny only a part or a
qualification of a statement, the party shall admit so much of it as is
true and shall deny only the remainder.
(c) Notice Not To Contest. A party filing a Notice Not To Contest
the statement of fact set forth in the Notice of Intention shall
constitute a waiver of the party's opportunity to rebut the facts
alleged, and together with the Notice of Intention and any referenced
documents, will provide a record basis on which the ASC shall decide the
matter. The filing of a Notice Not To Contest shall not constitute a
waiver of the right of such party to a judicial review of the ASC's
decision, findings and conclusions.
(d) Effect of failure to file Rebuttal or Notice Not To Contest.
Failure of a party to file a response required by this section within
the time provided shall constitute a waiver of the party's opportunity
to rebut and to contest the statements in the Notice of Intention and
shall constitute authorization for the ASC to find the facts to be as
presented in the Notice of Intention and to file with the Secretary a
decision containing such findings and appropriate conclusions. The ASC,
for good cause shown, will permit the filing of a Rebuttal after the
prescribed time.
Sec. 1102.34 Briefs, memoranda and statements.
(a) By the parties. Until the end of the information-gathering phase
of the proceeding, any party may file with the Secretary a written
brief, memorandum or other statement providing factual data and policy
and legal arguments regarding the matters set out in the Notice of
Intention. The filing party shall simultaneously serve other parties to
the proceeding with a copy of the document. No later than ten
[[Page 21]]
days after such service, any party may file with the Secretary a written
response to the document and must simultaneously serve a copy thereof on
the other parties to the proceeding. The Secretary will receive
documents and responses and will place them in the public file.
(b) By interested persons, in non-recognition proceedings. Until the
end of the information-gathering phase of a proceeding under section
1118 of FIRREA (12 U.S.C. 3347), any person with a demonstrable, direct
interest in the outcome of the proceeding may file with the Secretary a
written brief, memorandum or other statement providing factual data and
policy and legal arguments regarding the matters set out in the Notice
of Intention. The ASC's Chairperson or his or her designee may not
accept any such written brief, memorandum or other statement if the
submitting person cannot demonstrate a direct interest in the outcome of
the proceeding. Upon acceptance of the written brief, memorandum or
other statement, the Secretary shall make copies of the document and
forward one copy thereof to each party to the proceeding. No later than
ten days after such service, any party may file with the Secretary a
written response to the document and must simultaneously serve one copy
thereof on the other parties to the proceeding. The Secretary will place
a copy of such briefs, memoranda, statements and responses in the public
file.
Sec. 1102.35 Opportunity for informal settlement.
Any party may at any time submit to the Secretary, for consideration
by the Subcommittee, written offers or proposals for settlement of a
proceeding, without prejudice to the rights of the parties. No offer or
proposal shall be included in the proceeding's public file over the
objection of any party to such proceeding. This paragraph shall not
preclude settlement of any proceeding by the filing of a Notice Not To
Contest as provided in Sec. 1102.33(c) or by the submission of the case
to the ASC on a stipulation of facts.
Sec. 1102.36 Oral presentations.
(a) In general. A party does not have a right to an oral
presentation. Under this section, a party's request to make an oral
presentation may be denied if such a denial is appropriate and
reasonable under the circumstances. An oral presentation shall be
considered as an opportunity to offer, emphasize and clarify the facts,
policies and laws concerning the proceeding.
(b) Method and time of request. Between the commencement of the
proceeding and ten days before the end of the information-gathering
phase, any party to the proceeding may file with the Secretary a letter
requesting that the Secretary schedule an opportunity for the party to
give an oral presentation to the ASC. That letter shall include the
reasons why an oral presentation is necessary.
(c) ASC processing. The Secretary must promptly forward the letter
request to the Chairman of the ASC. The Chairman, after informally
contacting other ASC members and the ASC's senior staff for their views,
will instruct the Secretary to forward a letter to the party either:
Scheduling a date and time for the oral presentation and specifying the
allowable duration of the presentation; or declining the request and
providing the reasons therefor. The party's letter request and the ASC's
response will be included in the proceeding's public file.
(d) Procedure on presentation day. On the appropriate date and time,
the party or his or her attorney (if any) will make the oral
presentation before the ASC. Any ASC member may ask the party or the
attorney, as the case may be, pertinent questions relating to the
content of the oral presentation. Oral presentations will not be
recorded or otherwise transcribed. The Secretary must enter promptly
into the proceeding's public file a memorandum summarizing the subjects
discussed during the oral presentation.
Sec. 1102.37 Decision of the Subcommittee and judicial review.
At a reasonable time after the end of the information-gathering
phase of the proceeding, but not exceeding 35 days, the ASC shall issue
a final decision,
[[Page 22]]
containing specified terms and conditions as it deems appropriate, in
the matter and shall cause the decision to be published promptly in the
Federal Register. The final decision shall be effective on issuance. The
Secretary shall serve the decision upon the parties promptly, shall
place it in the proceeding's public file and shall furnish it to such
other persons as the ASC may direct. Pursuant to the provisions of
chapter 7 of title 5 of the U.S. Code and section 1118(c)(3) of title XI
of FIRREA (12 U.S.C. 3348(c)(3)), a final decision of the ASC is a
prerequisite to seeking judicial review.
Sec. 1102.38 Compliance activities.
(a) Where, from complaints received from members of the public,
communications from Federal or State agencies, examination of
information by the ASC, or otherwise, it appears that a person has
violated, is violating or is about to violate title XI of FIRREA or the
rules or regulations thereunder, the ASC staff may commence an informal,
preliminary inquiry into the matter. If, upon such inquiry, it appears
that one or more allegations relate to possible violations of
regulations administered by another agency or instrumentality of the
Federal Government, then the matter shall be referred to that agency or
instrumentality for appropriate action. The ASC, pursuant to its
responsibilities under section 1103(a)(2) of title XI (12 U.S.C.
3332(a)(2)) and section 1119(c) of title XI (12 U.S.C. 3348)), shall
monitor the matter. If, upon inquiry, it appears that one or more
allegations are within the ASC's jurisdiction, then the ASC, in its
discretion, may determine to commence a formal investigation respecting
the matter and shall instruct the Secretary to create a public file for
the formal investigation. The Secretary shall place in that file a
memorandum naming the person or persons subject to the investigation and
the statutory basis for the investigation.
(b) Unless otherwise instructed by the ASC or required by law, the
Secretary shall ensure that all other papers, documents and materials
gathered or submitted in connection with the investigation are non-
public and for ASC use only.
(c) Persons who become involved in preliminary inquiries or formal
investigations may, on their own initiative, submit a written statement
to the Secretary setting forth their interests, positions or views
regarding the subject matter of the investigation. Upon request, the
staff, in its discretion, may advise such persons of the general nature
of the investigation, including the indicated violations as they pertain
to them and the amount of time that may be available for preparing and
submitting such a statement prior to the presentation of a staff
recommendation to the ASC. Upon the commencement of a formal
investigation or a proceeding under this subpart, the Secretary shall
place any such statement in the appropriate public file.
(d) In instances where the staff has concluded its inquiry of a
particular matter and has determined that it will not recommend the
commencement of a formal investigation or a proceeding under this
subpart against a person, the staff shall advise the person that its
inquiry has been terminated. Such advice, if given, must in no way be
construed as indicating that the person has been exonerated or that no
action may ultimately result from the staff's inquiry into the
particular matter.
Sec. 1102.39 Duty to cooperate.
In the course of the investigations and proceedings, the ASC (and
its staff, with appropriate authorization) must provide parties or
persons ample opportunity to work out problems by consent, by
settlement, or in some other manner.
Subpart C_Rules Pertaining to the Privacy of Individuals and Systems of
Records Maintained by the Appraisal Subcommittee
Authority: Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896; 12
U.S.C. 552a, as amended.
Source: 57 FR 36357, Aug. 13, 1992, unless otherwise noted.
Sec. 1102.100 Authority, purpose and scope.
(a) This subpart is issued under the Privacy Act of 1974, Public Law
93-579,
[[Page 23]]
88 Stat. 1896; 12 U.S.C. 552a, as amended.
(b) The Privacy Act of 1974 is based, in part, on the finding by
Congress that ``in order to protect the privacy of individuals
identified in information systems maintained by Federal agencies, it is
necessary and proper for the Congress to regulate the collection,
maintenance, use, and dissemination of information by such agencies.''
To achieve this objective, the Act generally provides that Federal
agencies must advise an individual upon request whether records
maintained by the agency in a system of records pertain to the
individual and must grant the individual access to such records. The Act
further provides that individuals may request amendments to records
pertaining to them that are maintained by the agency, and that the
agency shall either grant the requested amendments or set forth fully
its reasons for refusing to do so.
(c) The Appraisal Subcommittee of the Federal Financial Institutions
Examination Council (ASC), pursuant to subsection (f) of the Privacy
Act, adopts the following rules and procedures to implement the
provisions of the Act summarized above and other provisions of the Act.
These rules and procedures are applicable to all requests for
information and access or amendment to records pertaining to an
individual that are contained in any system of records that is
maintained by the ASC.
Sec. 1102.101 Definitions.
The following definitions shall apply for purposes of this subpart:
(a) The terms individual, maintain, record, system of records, and
routine use are defined for purposes of these rules as they are defined
in 5 U.S.C. 552a(a)(2), (a)(3), (a)(4), (a)(5) and (a)(7).
(b) ASC or Subcommittee means the Appraisal Subcommittee of the
Federal Financial Institutions Examination Council.
(c) Privacy Act Officer means the ASC's Associate Director for
Administration or such other ASC staff officer, other than the Executive
Director, duly designated by the ASC's Executive Director.
Sec. 1102.102 Times, places and requirements for requests pertaining
to individual records in a record system and for the identification of
individuals making requests for access to records pertaining to them.
(a) Place to make request. Any request by an individual to be
advised whether any system of records maintained by the ASC and named by
the individual contains a record pertaining to him or her, or any
request by an individual for access to a record pertaining to him or her
that is contained in a system of records maintained by the ASC, shall be
submitted in person at the ASC between 9 a.m. and 4:30 p.m., Monday
through Friday, which is located at 1325 G Street NW, Suite 500,
Washington, DC 20005, or by mail addressed to: Privacy Act Officer, ASC,
1325 G Street NW, Suite 500, Washington, DC 20005. All requests will be
required to be put in writing and signed by the individual making the
request. In the case of requests for access that are made by mail, the
envelope should be clearly marked ``Privacy Act Request.''
(1) Information to be included in requests. Each request by an
individual concerning whether the ASC maintains in a system of records a
record that pertains to the individual, or for access to any record
pertaining to the individual that is maintained by the ASC in a system
of records, shall include such information as will assist the ASC in
identifying those records as to which the individual is seeking
information or access. Where practicable, the individual should identify
the system of records that is the subject of his or her request by
reference to the ASC's notices of systems of records, which are
published in the Federal Register, as required by section (e)(4) of the
Privacy Act, 5 U.S.C. 552a(e)(4). Where a system of records is compiled
on the basis of a specific identification scheme, the individual should
include in his or her request the identification number or other
identifier assigned to the individual. In the event the individual does
not know that number or identifier, the individual shall provide other
information, including his or her full name, address, date of birth and
subject matter of the record, to aid in
[[Page 24]]
processing his or her request. If additional information is required
before a request can be processed, the individual shall be so advised.
(2) Verification of identity. When the fact of the existence of a
record is not required to be disclosed under the Freedom of Information
Act, 5 U.S.C. 552, as amended, or when a record as to which access has
been requested is not required to be disclosed under that Act, the
individual seeking the information or requesting access to the record
shall be required to verify his or her identity before access will be
granted or information given. For this purpose, individuals shall appear
at the ASC located at 1325 G Street NW, Suite 500, Washington, DC 20005,
between 9 a.m. to 4:30 p.m., Monday through Friday. The ASC's Office is
not open on Saturdays, Sundays or Federal holidays.
(3) Methods for verifying identity--appearance in person. For the
purpose of verifying identity, an individual seeking information
regarding pertinent records or access to those records shall furnish
documentation that may reasonably be relied on to establish the
individual's identity. Such documentation might include a valid birth
certificate, driver's license, employee or military identification card,
and medicare card.
(4) Method for verifying identity--by mail. Where an individual
cannot appear at the ASC's Office for the purpose of verifying identity,
the individual shall submit, along with the request for information or
access, a signed and notarized statement attesting to his or her
identity. Where access is being sought, the sworn statement shall
include a representation that the records being sought pertain to the
individual and a stipulation that the individual is aware that knowingly
and willfully requesting or obtaining records pertaining to an
individual from the ASC under false pretenses is a criminal offense.
(5) Additional procedures for verifying identity. When it appears
appropriate to the Privacy Act Officer, other arrangements may be made
for the verification of identity as are reasonable under the
circumstances and appear to be effective to prevent unauthorized
disclosure of, or access to, individual records.
(b) Acknowledgement of requests for information pertaining to
individual records in a record system or for access to individual
records. (1) Except where an immediate acknowledgement is given for
requests made in person, the receipt of a request for information
pertaining to individual records in a record system will be acknowledged
within 10 days, excluding Saturdays, Sundays and Federal holidays.
Requests will be processed as promptly as possible and a response to
such requests will be given within 30 days (excluding Saturdays,
Sundays, and Federal holidays) unless, within the 30 day period and for
cause shown, the individual making the request is notified in writing
that a longer period is necessary.
[57 FR 36357, Aug. 13, 1992, as amended at 69 FR 2501, Jan. 16, 2004; 75
FR 36270, June 25, 2010]
Sec. 1102.103 Disclosure of requested records.
(a) Initial review. Requests by individuals for access to records
pertaining to them will be referred to the ASC's Privacy Act Officer,
who initially will determine whether access will be granted.
(b) Grant of request for access. (1) If it is determined that a
request for access to records pertaining to an individual will be
granted, the individual will be advised by mail that access will be
given at the ASC or a copy of the requested record will be provided by
mail if the individual shall so indicate. Where the individual requests
that copies of the record be mailed to or her or requests copies of a
record upon reviewing it at the ASC, the individual shall pay the cost
of making requested copies, as set forth in Sec. 1102.109 of this
subpart.
(2) In granting access to an individual to a record pertaining to
him or her, the ASC staff shall take steps to prevent the unauthorized
disclosure of information pertaining to other individuals.
(c) Denial of request for access. If it is determined that access
will not be granted, the individual making the request will be notified
of that fact and given the reasons why access is being denied. The
individual also will be advised of his or her right to seek review
[[Page 25]]
by the Executive Director of the initial decision to deny access, in
accordance with the procedures set forth in Sec. 1102.107 of this
subpart.
(d) Time for acting on requests for access. Access to a record
pertaining to an individual normally will be granted or denied within 30
days (excluding Saturdays, Sundays, and Federal holidays) after the
receipt of the request for access, unless the individual making the
request is notified in writing within the 30 day period that, for good
cause shown, a longer time is required. In such cases, the individual
making the request shall be informed in writing of the difficulties
encountered and an indication shall be given as to when it is
anticipated that access may be granted or denied.
(e) Authorization to allow designated person to review and discuss
records pertaining to another individual. An individual, who is granted
access to records pertaining to him or her and who appears at the ASC
Office to review the records, may be accompanied by another person of
his or her choosing. Where the records as to which access has been
granted are not required to be disclosed under provisions of the Freedom
of Information Act, 5 U.S.C. 552, as amended, the individual requesting
the records, before being granted access, shall execute a written
statement, signed by him or her, specifically authorizing the latter
individual to review and discuss the records. If such authorization has
not been given as described, the person who has accompanied the
individual making the request will be excluded from any review or
discussion of the records.
(f) Exclusion for certain records. Nothing contained in these rules
shall allow an individual access to any information compiled in
reasonable anticipation of an administrative judicial or civil action or
proceeding.
Sec. 1102.104 Special procedure: Medical records.
(a) Statement of physician or mental health professional. When an
individual requests access to records pertaining to the individual that
include medical and/or psychological information, the ASC, if it deems
it necessary under the particular circumstances, may require the
individual to submit with the request a signed statement by the
individual's physician or a mental health professional indicating that,
in his or her opinion, disclosure of the requested records or
information directly to the individual will not have an adverse effect
on the individual.
(b) Designation of physician or mental health professional to
receive records. If the ASC believes, in good faith, that disclosure of
medical and/or psychological information, directly to an individual
could have an adverse effect on that individual, the individual may be
asked to designate in writing a physician or mental health professional
to whom the individual would like the records to be disclosed, and
disclosure that otherwise would be made to the individual will instead
be made to the designated physician or mental health professional.
Sec. 1102.105 Requests for amendment of records.
(a) Place to make requests. A request by an individual to amend
records pertaining to him or her may be made in person during normal
business hours at the ASC located at 1325 G Street NW, Suite 500,
Washington, DC 20005, or by mail addressed to the Privacy Act Officer,
ASC, 1325 G Street NW, Suite 500, Washington, DC 20005.
(1) Information to be included in requests. Each request to amend an
ASC record shall reasonably describe the record sought to be amended.
Such description should include, for example, relevant names, dates and
subject matter to permit the record to be located among the records
maintained by the ASC. An individual who has requested that a record
pertaining to the individual be amended will be advised promptly if the
record cannot be located on the basis of the description given and that
further identifying information is necessary before the request can be
processed. An initial evaluation of a request presented in person will
be made immediately to ensure that the request is complete and to
indicate what, if any, additional information will be required.
Verification of the individual's identity as set forth in Sec.
1102.102(a) (2), (3), (4) and (5) may also be required.
[[Page 26]]
(2) Basis for amendment. An individual requesting an amendment to a
record pertaining to the individual shall specify the substance of the
amendment and set forth facts and provide such materials that would
support his or her contention that the record as maintained by the ASC
is not accurate, timely or complete, or that the record is not necessary
and relevant to accomplish a statutory purpose of the ASC as authorized
by law or by Executive Order of the President.
(b) Acknowledgement of requests for amendment. Receipt of a request
to amend a record pertaining to an individual normally will be
acknowledged in writing within 10 days after such request has been
received, excluding Saturdays, Sundays and Federal holidays. When a
request to amend is made in person, the individual making the request
will be given a written acknowledgement when the request is presented.
The acknowledgement will describe the request received and indicate when
it is anticipated that action will be taken on the request. No
acknowledgement will be sent when the request for amendment will be
reviewed, and an initial decision made, within the 10 day period after
such request has been received.
[57 FR 36357, Aug. 13, 1992, as amended at 69 FR 2501, Jan. 16, 2004; 75
FR 36270, June 25, 2010]
Sec. 1102.106 Review of requests for amendment.
(a) Initial review. As in the case of requests for access, requests
by individuals for amendment to records pertaining to them will be
referred to the ASC's Privacy Act Officer for an initial determination.
(b) Standards to be applied in reviewing requests. In reviewing
requests to amend records, the Privacy Act Officer will be guided by the
criteria set forth in 5 U.S.C. 552(e) (1) and (5), i.e., that records
maintained by the ASC shall contain only such information as is
necessary and relevant to accomplish a statutory purpose of the ASC as
required by statute or Executive Order of the President and that such
information also be accurate, timely, relevant and complete. These
criteria will be applied whether the request is to add material to a
record or to delete information from a record.
(c) Time for acting on requests. Initial review of a request by an
individual to amend a record shall be completed as promptly as is
reasonably possible and normally within 30 days (excluding Saturdays,
Sundays, and Federal holidays) from the date the request was received,
unless unusual circumstances preclude completion of review within that
time. If the anticipated completion date indicated in the
acknowledgement cannot be met, the individual requesting the amendment
will be advised in writing of the delay and the reasons therefor, and
also advised when action is expected to be completed.
(d) Grant of requests to amend records. If a request to amend a
record is granted in whole or in part, the Privacy Act Officer will:
(1) Advise the individual making the request in writing of the
extent to which it has been granted;
(2) Amend the record accordingly; and
(3) Where an accounting of disclosures of the record has been kept
pursuant to 5 U.S.C. 552a(c), advise all previous recipients of the
record of the fact that the record has been amended and the substance of
the amendment.
(e) Denial of requests to amend records. If an individual's request
to amend a record pertaining to him is denied in whole or in part, the
Privacy Act Officer will:
(1) Promptly advise the individual making the request in writing of
the extent to which the request has been denied;
(2) State the reasons for the denial of the request;
(3) Describe the procedures established by the ASC to obtain further
review within the ASC of the request to amend, including the name and
address of the person to whom the appeal is to be addressed; and
(4) Inform the individual that the Privacy Act Officer will provide
information and assistance to the individual in perfecting an appeal of
the initial decision.
[[Page 27]]
Sec. 1102.107 Appeal of initial adverse agency determination regarding
access or amendment.
(a) Administrative review. Any person who has been notified pursuant
to Sec. 1102.103(c) that a request for access to records pertaining to
him or her has been denied in whole or in part, or pursuant to Sec.
1102.106(e) of this subpart that a request for amendment has been denied
in whole or in part, or who has received no response to a request for
access or to amend within 30 days (excluding Saturdays, Sundays and
Federal holidays) after the request was received by the ASC's staff (or
within such extended period as may be permitted in accordance with
Sec. Sec. 1102.103(d) and 1102.106(c) of this subpart), may appeal the
adverse determination or failure to respond by applying for an order of
the Executive Director determining and directing that access to the
record be granted or that the record be amended in accordance with his
or her request.
(1) The application shall be in writing and shall describe the
record in issue and set forth the proposed amendment and the reasons
therefor.
(2) The application shall be delivered to the ASC, 1325 G Street NW,
Suite 500, Washington, DC 20005, or by mail addressed to the Privacy Act
Officer, ASC, 1325 G Street NW, Suite 500, Washington, DC 20005.
(3) The applicant may state such facts and cite such legal or other
authorities in support of the application.
(4) The Executive Director will make a determination with respect to
any appeal within 30 days after the receipt of such appeal (excluding
Saturdays, Sundays, and Federal holidays), unless for good cause shown,
the Executive Director shall extend that period. If such an extension is
made, the individual who is appealing shall be advised in writing of the
extension, the reasons therefor, and the anticipated date when the
appeal will be decided.
(5) In considering an appeal from a denial of a request to amend a
record, the Executive Director shall apply the same standards as set
forth in Sec. 1102.106(b).
(6) If the Executive Director concludes that access should be
granted, the Executive Director shall issue an order granting access and
instructing the Privacy Act Officer to comply with Sec. 1102.103(b).
(7) If the Executive Director concludes that the request to amend
the record should be granted in whole or in part, the Executive Director
shall issue an order granting the requested amendment in whole or in
part and instructing the Privacy Act Officer to comply with the
requirements of Sec. 1102.106(d) of this subpart, to the extent
applicable.
(8) If the Executive Director affirms the initial decision denying
access, the Executive Director shall issue an order denying access and
advising the individual seeking access of:
(i) The order;
(ii) The reasons for denying access; and
(iii) The individual's right to obtain judicial review of the
decision pursuant to 5 U.S.C. 552a(g)(1)(B).
(9) If the Executive Director determines that the decision of the
Privacy Act Officer denying a request to amend a record should be
upheld, the Executive Director shall issue an order denying the request
and the individual shall be advised of:
(i) The order refusing to amend the record and the reasons therefor;
(ii) The individual's right to file a concise statement setting
forth his or her disagreement with the Executive Director's decision not
to amend the record;
(iii) The procedures for filing such a statement of disagreement
with the Executive Director;
(iv) The fact that any such statement of disagreement will be made
available to anyone to whom the record is disclosed, together with, if
the Executive Director deems it appropriate, a brief statement setting
forth the Executive Director's reasons for refusing to amend;
(v) The fact that prior recipients of the record in issue will be
provided with the statement of disagreement and the Executive Director's
statement, if any, to the extent that an accounting of such disclosures
has been maintained pursuant to 5 U.S.C. 552a(c); and
[[Page 28]]
(vi) The individual's right to seek judicial review of the Executive
Director's refusal to amend, pursuant to 5 U.S.C. 552a(g)(1)(A).
(b) Statement of disagreement. As noted in paragraph (a)(9)(ii) of
this section, an individual may file with the Executive Director a
statement setting forth his or her disagreement with the Executive
Director's denial of his or her request to amend a record.
(1) Such statement of disagreement shall be delivered to the ASC,
1325 G Street NW, Suite 500, Washington, DC 20005, within 30 days after
receipt by the individual of the Executive Director's order denying the
amendment, excluding Saturdays, Sundays and Federal holidays. For good
cause shown, this period can be extended for a reasonable time.
(2) Such statement of disagreement shall concisely state the basis
for the individual's disagreement. Unduly lengthy or irrelevant
materials will be returned to the individual by the Executive Director
for appropriate revisions before they become a permanent part of the
individual's record.
(3) The record about which a statement of disagreement has been
filed will clearly note which part of the record is disputed and the
Executive Director will provide copies of the statement of disagreement
and, if the Executive Director deems it appropriate, provide a concise
statement of his or her reasons for refusing to amend the record, to
persons or other agencies to whom the record has been or will be
disclosed.
[57 FR 36357, Aug. 13, 1992, as amended at 69 FR 2501, Jan. 16, 2004; 75
FR 36270, June 25, 2010]
Sec. 1102.108 General provisions.
(a) Extensions of time. Pursuant to Sec. Sec. 1102.103(b),
1102.104(d), 1102.109(c) and 1102.109(a)(4) of this subpart, the time
within which a request for information, access or amendment by an
individual with respect to records maintained by the ASC that pertain to
him or her normally would be processed may be extended for good cause
shown or because of unusual circumstances. As used in these rules, good
cause and unusual circumstances shall include, but only to the extent
reasonably necessary to the proper processing of a particular request:
(1) The need to search for and collect the requested records from
establishments that are separate from the ASC. Some records of the ASC
may be stored in Federal Records Centers in accordance with law--
including many of the documents that have been on file with the ASC for
more than 2 years--and cannot be made available promptly. Any person who
has requested for personal examination a record stored at the Federal
Records Center will be notified when the record will be made available.
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which may be demanded
in a single request. While every reasonable effort will be made to
comply fully with each request as promptly as possible on a first-come,
first-served basis, work done to search for, collect and appropriately
examine records in response to a request for a large number of records
will be contingent upon the availability of processing personnel in
accordance with an equitable allocation of time to all members of the
public who have requested or wish to request records.
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request, or among two or more components within
the ASC having substantial subject-matter interest herein.
(b) Effective date of action. Whenever it is provided in this
subpart that an acknowledgement or response to a request will be given
by specific times, deposit in the mails of such acknowledgement or
response by that time, addressed to the person making the request, will
be deemed full compliance.
(c) Records in use by a member of the ASC or its staff. Although
every effort will be made to make a record in use by a member of the ASC
or its staff available when requested, it may occasionally be necessary
to delay making such a record available when doing so at the time the
request is made would seriously interfere with the work of the ASC or
its staff.
[[Page 29]]
(d) Missing or lost records. Any person who has requested a record
or a copy of a record pertaining to him or her will be notified if the
record sought cannot be found. If the person so requests, he or she will
be notified if the record subsequently is found.
(e) Oral requests; misdirected written requests--(1) Telephone and
other oral requests. Before responding to any request by an individual
for information concerning whether records maintained by the ASC in a
system of records pertain to the individual or to any request for access
to records by an individual, such request must be in writing and signed
by the individual making the request. The Executive Director will not
entertain any appeal from an alleged denial of failure to comply with an
oral request. Any person who has made an oral request for information or
access to records who believes that the request has been improperly
denied should resubmit the request in appropriate written form to obtain
proper consideration and, if need be, administrative review.
(2) Misdirected written requests. The ASC cannot assure that a
timely or satisfactory response will be given to written requests for
information, access or amendment by an individual with respect to
records pertaining to him or her that are directed to the ASC other than
in a manner prescribed in Sec. Sec. 1102.103(a), 1102.106(a),
1102.108(a)(2), and 1102.110 of this subpart. Any staff member who
receives a written request for information, access or amendment should
promptly forward the request to the Privacy Act Officer. Misdirected
requests for records will be considered to have been received by the ASC
only when they have been actually received by the Privacy Act Officer in
cases under Sec. 1102.108(a)(2). The Executive Director will not
entertain any appeal from an alleged denial or failure to comply with a
misdirected request, unless it is clearly shown that the request was in
fact received by the Privacy Act Officer.
Sec. 1102.109 Fees.
(a) There will be no charge assessed to the individual for the ASC's
expense involved in searching for or reviewing the record. Copies of the
ASC's records will be provided by a commercial copier at rates
established by a contract between the copier and the ASC or by the ASC
at the rates in Sec. 1101.4(b)(5)(ii) of 12 CFR part 1101.
(b) Waiver or reduction of fees. Whenever the Executive Director of
the ASC determines that good cause exists to grant a request for
reduction or waiver of fees for copying documents, he or she may reduce
or waive any such fees.
Sec. 1102.110 Penalties.
Title 18 U.S.C. 1001 makes it a criminal offense, subject to a
maximum fine of $10,000, or imprisonment for not more than 5 years or
both, to knowingly and willingly make or cause to be made any false or
fraudulent statements or representations in any matter within the
jurisdiction of any agency of the United States. 5 U.S.C. 552a(i) makes
it a misdemeanor punishable by a fine of not more than $5,000 for any
person knowingly and willfully to request or obtain any record
concerning an individual from the ASC under false pretenses. 5 U.S.C.
552a(i) (1) and (2) provide criminal penalties for certain violations of
the Privacy Act by officers and employees of the ASC.
Subpart D_Description of Office, Procedures, Public Information
Authority: 5 U.S.C. 552, 553(e); and Executive Order 12600, 52 FR
23781 (3 CFR, 1987 Comp., p. 235).
Source: 57 FR 60724, Dec. 22, 1992, unless otherwise noted.
Sec. 1102.300 Purpose and scope.
This part sets forth the basic policies of the Appraisal
Subcommittee of the Federal Financial Institutions Examination Council
(``ASC'') regarding information it maintains and the procedures for
obtaining access to such information. This part does not apply to the
Federal Financial Institutions Examination Council. Section 1102.301
sets forth definitions applicable to this part 1102, subpart D. Section
1102.302 describes the ASC's statutory authority and functions. Section
1102.303 describes the ASC's organization and methods of operation.
Section 1102.304 describes the types of information and
[[Page 30]]
documents typically published in the Federal Register. Section 1102.305
explains how to access public records maintained on the ASC's World Wide
Web site and at the ASC's office and describes the categories of records
generally found there. Section 1102.306 implements the Freedom of
Information Act (``FOIA'') (5 U.S.C. 552). Section 1102.307 authorizes
the discretionary disclosure of exempt records under certain limited
circumstances. Section 1102.308 provides anyone with the right to
petition the ASC to issue, amend, and repeal rules of general
application. Section 1102.309 sets out the ASC's confidential treatment
procedures. Section 1102.310 outlines procedures for serving a subpoena
or other legal process to obtain information maintained by the ASC.
[64 FR 72496, Dec. 28, 1999]
Sec. 1102.301 Definitions.
For purposes of this subpart:
(a) ASC means the Appraisal Subcommittee of the Federal Financial
Institutions Examination Council.
(b) Commercial use request means a request from, or on behalf of, a
requester who seeks records for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person on
whose behalf the request is made. In determining whether a request falls
within this category, the ASC will determine the use to which a
requester will put the records requested and seek additional information
as it deems necessary.
(c) Direct costs means those expenditures the ASC actually incurs in
searching for, duplicating, and, in the case of commercial requesters,
reviewing records in response to a request for records.
(d) Disclose or disclosure mean to give access to a record, whether
by producing the written record or by oral discussion of its contents.
Where the ASC member or employee authorized to release ASC documents
makes a determination that furnishing copies of the documents is
necessary, these words include the furnishing of copies of documents or
records.
(e) Duplication means the process of making a copy of a record
necessary to respond to a request for records or for inspection of
original records that contain exempt material or that cannot otherwise
be directly inspected. Such copies can take the form of paper copy,
microfilm, audiovisual records, or machine readable records (e.g.,
magnetic tape or computer disk).
(f) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education, and
an institution of vocational education, which operates a program or
programs of scholarly research.
(g) Field review includes, but is not limited to, formal and
informal investigations of potential irregularities occurring at State
appraiser regulatory agencies involving suspected violations of Federal
or State civil or criminal laws, as well as such other investigations as
may conducted pursuant to law.
(h) Non-commercial scientific institution means an institution that
is not operated on a commercial basis as that term is defined in
paragraph (b) of this section, and which is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry.
(i) Record includes records, files, documents, reports
correspondence, books, and accounts, or any portion thereof, in any form
the ASC regularly maintains them.
(j) Representative of the news media means any person primarily
engaged in gathering news for, or a free-lance journalist who can
demonstrate a reasonable expectation of having his or her work product
published or broadcast by, an entity that is organized and operated to
publish or broadcast news to the public. The term news means information
that is about current events or that would be of current interest to the
general public.
(k) Review means the process of examining documents located in a
response to a request that is for a commercial use to determine whether
any portion of any document located is permitted to be withheld. It also
includes processing any documents for disclosure, e.g, doing all that is
necessary to
[[Page 31]]
excise them and otherwise prepare them for release. Review does not
include time spent resolving general legal or policy issues regarding
the application of exemptions.
(l) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within records. Searches may be done manually
and/or by computer using existing programming.
(m) State appraiser regulatory agency includes, but is not limited
to, any board, commission, individual or other entity that is authorized
by State law to license, certify, and supervise the activities or
persons authorized to perform appraisals in connections with federally
related transactions and real estate related financial transactions that
require the services of a State licensed or certified appraiser.
[64 FR 72496, Dec. 28, 1999]
Sec. 1102.302 ASC authority and functions.
(a) Authority. The ASC was established on August 9, 1989, pursuant
to title XI of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended (``FIRREA''), 12 U.S.C. 3331 and
3310 through 3351. title XI is intended ``to provide that Federal
financial and public policy interests in real estate related
transactions will be protected by requiring that real estate appraisals
utilized in connection with federally related transactions are performed
in writing, in accordance with uniform standards, by individuals whose
competency has been demonstrated and whose professional conduct will be
subject to effective supervision.'' 12 U.S.C. 3331.
(b) Functions. The ASC's statutory functions are generally set out
in 12 U.S.C. 3332. In summary, the ASC must:
(1) Monitor the requirements established by the States for the
certification and licensing of individuals who are qualified to perform
appraisals in connection with federally related transactions, including
a code of professional responsibility;
(2) Monitor the requirements of the Federal financial institutions
regulatory agency and Resolution Trust Corporation with respect to
appraisal standards for federally related transactions and
determinations as to which federally related transactions require the
services of a State certified appraiser and which require the services
of a State licensed appraiser;
(3) Monitor and review the practices, procedures, activities and
organizational structure of the Appraisal Foundation; and
(4) Maintain a national registry of State certified and licensed
appraisers eligible to perform appraisals in federally related
transactions.
Sec. 1102.303 Organization and methods of operation.
(a) Statutory and other guidelines. Statutory requirements relating
to the ASC's organization are stated in 12 U.S.C. 3310, 3333 and 3334.
The ASC has adopted and published Rules of Operation guiding its
administration, meetings and procedures. These Rules of Operation were
published at 56 FR 28561 (June 21, 1991) and 56 FR 33451 (July 22,
1991).
(b) ASC members and staff. The ASC is composed of six members, each
being designated by the head of their respective agencies: the Board of
Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency, National Credit
Union Administration, Office of Thrift Supervision, and the Department
of Housing and Urban Development. Administrative support and substantive
program, policy, and legal guidance for ASC activities are provided by a
small, full-time, professional staff supervised by an Executive
Director.
(c) FFIEC. title XI placed the ASC within FFIEC as a separate,
appropriated agency of the United States Government with specific
statutory responsibilities under Federal law.
(d) ASD Address ASC offices are located at 1325 G Street NW, Suite
500, Washington, DC 20005.
[57 FR 60724, Dec. 22, 1992, as amended at 64 FR 72497, Dec. 28, 1999]
[[Page 32]]
Sec. 1102.304 Federal Register publication.
The ASC publishes the following information in the Federal Register
for the guidance of the public:
(a) Description of its organization and the established places at
which, the officers from whom, and the methods whereby, the public may
secure information, make submittals or re nests, or obtain decisions;
(b) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports or examinations;
(d) Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the ASC;
(e) Every amendment, revision or repeal of the foregoing; and
(f) General notices of proposed rulemaking.
[64 FR 72497, Dec. 28, 1999]
Sec. 1102.305 Publicly available records.
(a) Records available on the ASCs World Wide Web site--(1)
Discretionary release of documents. The ASC encourages the public to
explore the wealth of resources available on the ASC's Internet World
Wide Web site, located at: http://www.asc.gov. The ASC has elected to
publish a broad range to materials on its Web site.
(2) Documents required to be made available via computer
telecommunications. (i) The following types of documents created on or
after November 1, 1996, and required to be made available through
computer telecommunications, may be found on the ASC's Internet World
Wide Web site located at: http://www.asc.gov:
(A) Final opinions, including concurring and dissenting opinions, as
well as final orders, made in the adjudication of cases;
(B) Statements of policy and interpretations adopted by the ASC that
are not published in the Federal Register;
(C) Administrative staff manuals and instructions to staff that
affect a member of the public;
(D) Copies of all records (regardless of form or format), such as
correspondence relating to field reviews or other regulatory subjects,
released to any person under Sec. 1102.306 that, because of the nature
of their subject matter, the ASC has determined are likely to be the
subject of subsequent requests;
(E) A general index of the records referred to in paragraph
(a)(2)(i)(D) of this section.
(ii) To the extent permitted by law, the ASC may delete identifying
details when it makes available or publishes any records. If reduction
is necessary, the ASC will, to the extent technically feasible, indicate
the amount of material deleted at the place in the record where such
deletion is made unless that indication in and of itself will jeopardize
the purpose for the redaction.
(b) Types of written communications. The following types of written
communications shall be subject to paragraph (a) of this section:
(1) The ASC's annual report to Congress;
(2) All final opinions and orders made in the adjudication of cases;
(3) All statements of general policy not published in the Federal
Register.
(4) Requests for the ASC or its staff to provide interpretive advice
with respect to the meaning or application of any statute administered
by the ASC or any rule or regulation adopted thereunder and any ASC
responses thereto;
(5) Requests for a statement that, on the basis of the facts
presented in such a request, the ASC would not take any enforcement
action pertaining to the facts as represented and any ASC responses
thereto: and
(6) Correspondence between the ASC and a State appraiser regulatory
agency arising out of the ASC's field review of the State agency's
appraiser regulatory program.
(c) Applicable fees. (1) If applicable, fees for furnishing records
under this section are as set forth in Sec. 1102.306(e).
[[Page 33]]
(2) Information on the ASC's World Wide Web site is available to the
public without charge. If, however, information available on the ASC's
World Wide Web site is provided pursuant to a Freedom of Information Act
request processed under g 1102.306 then fees apply and will be assessed
pursuant to Sec. 1102.306(e).
[59 FR 1902, Jan. 13, 1994, as amended at 64 FR 72497, Dec. 28, 1999]
Sec. 1102.306 Procedures for requesting records.
(a) Making a request for records. (1) The request shall be submitted
in writing to the Executive Director:
(i) By facsimile clearly marked ``Freedom of Information Act
Request'' to (202) 293-6251;
(ii) By letter to the Executive Director marked ``Freedom of
Information Act Request''; 1325 G Street NW, Suite 500, Washington, DC
20005; or
(iii) By sending Internet e-mail to the Executive Director marked
``Freedom of Information Act Request'' at his or her e-mail address
listed on the ASC's World Wide Web site.
(2) The request shall contain the following information:
(i) The name and address of the requester, an electronic mail
address, if available, and the telephone number at which the requester
may be reached during normal business hours;
(ii) Whether the requester is an educational institution, non-
commercial scientific institution, or news media representative;
(iii) A statement agreeing to pay the applicable fees, or a
statement identifying a maximum fee that is acceptable to the requester,
or a request for a waiver or reduction of fees that satisfies paragraph
(e)(1)(x) of this section; and
(iv) The preferred form and format of any responsive information
requested, if other than paper copies.
(3) A request for identifiable records shall reasonably describe the
records in a way that enables the ASC's staff to identify and produce
the records with reasonable effort and without unduly burdening or
significantly interfering with any ASC operations.
(b) Defective requests. The ASC need not accept or process a request
that does not reasonably describe the records requested or that does not
otherwise comply with the requirements of this subpart. The ASC may
return a defective request, specifying the deficiency. The requester may
submit a corrected request, which will be treated as a new request.
(c) Processing requests--(1) Receipt of requests. Upon receipt of
any request that satisfies paragraph (a) of this section, the Executive
Director shall assign the request to the appropriate processing track
pursuant to this section. The date of receipt for any request, including
one that is addressed incorrectly or that is referred by another agency,
is the date the Executive Director actually receives the request.
(2) Expedited processing. (i) Where a person requesting expedited
access to records has demonstrated a compelling need for the records, or
where the ASC has determined to expedite the response, the ASC shall
process the request as soon as practicable. To show a compelling need
for expedited processing, the requester shall provide a statement
demonstrating that:
(A) The failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(B) The requester can establish that it is primarily engaged in
information dissemination as its main professional occupation or
activity, and there is urgency to inform the public of the government
activity involved in the re request; and
(C) The requester's statement must be certified to be true and
correct to the best of the person's knowledge and belief and explain in
detail the basis for requesting expedited processing.
(ii) The formality of the certification required to obtain expedited
treatment may be waived by the Executive Director as a matter of
administrative discretion.
(3) A requester seeking expedited processing will be notified
whether expedited processing has been granted within ten (10) working
days of the receipt of the request. If the request for expedited
processing is denied, the requester may file an appeal pursuant to the
procedures set forth in paragraph
[[Page 34]]
(g) of this section, and the ASC shall respond to the appeal within ten
(10) working days after receipt of the appeal.
(4) Priority of responses. Consistent with sound administrative
process, the ASC processes requests in the order they are received.
However, in the ASC's discretion, or upon a court order in a matter to
which the ASC is a party, a particular request may be processed out of
turn.
(5) Notification. (i) The time for response to requests will be
twenty (20) working days except:
(A) In the case of expedited treatment under paragraph (c)(2) of
this section;
(B) Where the running of such time is suspended for the calculation
of a cost estimate for the requester if the ASC determines that the
processing of the request may exceed the requester's maximum fee
provision or if the charges are likely to exceed $250 as provided for in
paragraph (e)(1)(iv) of this section;
(C) Where the running of such time is suspended for the payment of
fees pursuant to the paragraph (c)(5)(i)(B) and (e)(1) of this section;
or
(D) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B)
and further described in paragraph (c)(5)(iii) of this section.
(ii) In unusual circumstances as referred to in paragraph
(c)(5)(i)(D) of this section, the time limit may be extended for a
period of:
(A) Ten (10) working days as provided by written notice to the
requester, setting forth the reasons for the extension and the date on
which a determination is expected to be dispatched; or
(B) Such alternative time period as agreed to by the requester or as
reasonably determined by the ASC when the ASC notifies the requester
that the request cannot be processed in the specified time limit.
(iii) Unusual circumstances may arise when:
(A) The records are in facilities that are not located at the ASC's
Washington office;
(B) The records requested are voluminous or are not in close
proximity to one another; or
(C) There is a need to consult with another agency or among two or
more components of the ASC having a substantial interest in the
determination.
(6) Response to request. In response to a request that satisfies the
requirements of paragraph (a) of this section, a search shall be
conducted of records maintained by the ASC in existence on the date of
receipt of the request, and a review made of any responsive information
located. To the extent permitted by law, the ASC may redact identifying
details when it makes available or publishes any records. If redaction
is appropriate, the ASC will, to the extent technically feasible,
indicate the amount of material deleted at the place in the record where
such deletion is made unless that indication in and of itself will
jeopardize the purpose for the redaction. The ASC shall notify the
requester of:
(i) The ASC's determination of the request;
(ii) The reasons for the determination;
(iii) If the response is a denial of an initial request or if any
information is withheld, the ASC will advise the requester in writing:
(A) If the denial is in part or in whole;
(B) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(C) The exemptions relied on for the denial; and
(D) The right of the requester to appeal the denial to the Chairman
of the ASC within 30 business days following receipt of the
notification, as specified in paragraph (h) of this section.
(d) Providing responsive records. (1) Copies of requested records
shall be sent to the requester by regular U.S. mail to the address
indicated in the request, unless the requester elects to take delivery
of the documents at the ASC or makes other acceptable arrangements, or
the ASC deems it appropriate to send the documents by another means.
(2) The ASC shall provide a copy of the record in any form or format
requested if the record is readily reproducible by the ASC in that form
or format, but the ASC need not provide
[[Page 35]]
more than one copy of any record to a requester.
(3) By arrangement with the requester, the ASC may elect to send the
responsive records electronically if a substantial portion of the
request is in electronic format. If the information requested is made
pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, it will not be sent
by electronic means unless reasonable security measures can be provided.
(e) Fees--(1) General rules. (i) Persons requesting records of the
ASC shall be charged for the direct costs of search, duplication, and
review as set forth in paragraphs (e)(2) and (e)(3) of this section,
unless such costs are less than the ASC's cost of processing the
requester's remittance.
(ii) Requesters will be charged for search and review costs even if
responsive records are not located or, if located, are determined to be
exempt from disclosure.
(iii) Multiple requests seeking similar or related records from the
same requester or group of requesters will be aggregated for the
purposes of this section.
(iv) If the ASC determines that the estimated costs of search,
duplication, or review of requested records will exceed the dollar
amount specified in the request, or if no dollar amount is specified,
the ASC will advise the requester of the estimated costs. The requester
must agree in writing to pay the costs of search, duplication, and
review prior to the ASC initiating any records search.
(v) If the ASC estimates that its search, duplication, and review
costs will exceed $250, the requester must pay an amount equal to 20
percent of the estimated costs prior to the ASC initiating any records
search.
(vi) The ASC ordinarily will collect all applicable fees under the
final invoice before releasing copies of requested records to the
requester.
(vii) The ASC may require any requester who has previously failed to
pay charges under this section within 30 calendar days of mailing of the
invoice to pay in advance the total estimated costs of search,
duplication, and review. The ASC also may require a requester who has
any charges outstanding in excess of 30 calendar days following mailing
of the invoice to pay the full amount due, or demonstrate that the fee
has been paid in full, prior to the ASC initiating any additional
records search.
(viii) The ASC may begin assessing interest charges on unpaid bills
on the 31st day following the day on which the invoice was sent.
Interest will be at the rate prescribed in Sec. 3717 of title 31 of the
United States Code and will accrue from the date of the invoice.
(ix) The time limit for the ASC to respond to a request will not
begin to run until the ASC has received the requester's written
agreement under paragraph (e)(1)(iv) of this section, and advance
payment under paragraph (e)(1)(v) or (vii) of this section, or payment
of outstanding charges under paragraph (e)(1)(vii) or (viii) of this
section.
(x) As part of the initial request, a requester may ask that the ASC
waive or reduce fees if disclosure of the records is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
Determinations as to a waiver or reduction of fees will be made by the
Executive Director (or designee), and the requester will be notified in
writing of his or her determination. A determination not to grant a
request for a waiver or reduction of fees under this paragraph may be
appealed to the ASC's Chairman pursuant to the procedure set forth in
paragraph (g) of this section.
(2) Chargeable fees by category of requester. (i) Commercial use
requesters shall be charged search, duplication, and review costs.
(ii) Educational institutions, noncommercial scientific
institutions, and news media representatives shall be charged
duplication costs, except for the first 100 pages.
(iii) Requesters not described in paragraph (e)(2)(i) or (ii) of
this section shall be charged the full reasonable direct cost of search
and duplication, except for the first two hours of search time and first
100 pages of duplication.
[[Page 36]]
(3) Fee schedule. The dollar amount of fees which the ASC may charge
to records requesters will be established by the Executive Director. The
ASC may charge fees that recoup the full allowable direct costs it
incurs. Fees are subject to change as costs change. The fee schedule
will be published periodically on the ASC's Internet World Wide Web site
(http://www.asc.gov) and will be effective on the date of publication.
Copies of the fee schedule may be obtained by request at no charge by
contacting the Executive Director by letter, Internet email or
facsimile.
(i) Manual searches for records. The ASC will charge for manual
searches for records at the basic rate of pay of the employee making the
search plus 16 percent to cover employee benefit costs.
(ii) Computer searches for records. The fee for searches of
computerized records is the actual direct cost of the search, including
computer time, computer runs, and the operator's time apportioned to the
search multiplied by the operator's basic rate of pay plus 16 percent to
cover employee benefit costs.
(iii) Duplication of records. (A) The per-page fee for paper copy
reproduction of documents is $.25.
(B) For other methods of reproduction or duplication, the ASC will
charge the actual direct costs of reproducing or duplicating the
documents, including each involved employee's basic rate of pay plus 16
percent to cover employee benefit costs.
(iv) Review of records. The ASC will charge commercial use
requesters for the review of records at the time of processing the
initial request to determine whether they are exempt from mandatory
disclosure at the basic rate of pay of the employee making the search
plus 16 percent to cover employee benefit costs. The ASC will not charge
at the administrative appeal level for review of an exemption already
applied. When records or portions of records are withheld in full under
an exemption which is subsequently determined not to apply, the ASC may
charge for a subsequent review to determine the applicability of other
exemptions not previously considered.
(v) Other services. Complying with requests for special services,
other than a readily produced electronic form or format, is at the ASC's
discretion. The ASC may recover the full costs of providing such
services to the requester.
(4) Use of contractors. The ASC may contact with independent
contractors to locate, reproduce, and/or disseminate records; provided,
however, that the ASC has determined that the ultimate cost to the
requester will be no greater than it would be if the ASC performed these
tasks itself. In no case will the ASC contract our responsibilities
which FOIA provides that the ASC alone may discharge, such as
determining the applicability of an exemption or whether to waive or
reduce fees.
(f) Exempt information. A request for records may be denied if the
requested record contains information that falls into one or more of the
following categories. \1\ If the requested record contains both exempt
and nonexempt information, the nonexempt portions, which may reasonable
be segregated from the exempt portions, will be released to the
requester. If redaction is necessary, the ASC will, to the extent
technically feasible, indicate the amount of material deleted at the
place in the record where such deletion is made unless that indication
in and of itself will jeopardize the purpose for the redaction. The
categories of exempt records are as follows:
---------------------------------------------------------------------------
\1\ Classification of a record as exempt from disclosure under the
provisions of this paragraph (f) shall not be construed as authority to
withhold the record if it is otherwise subject to disclosure under the
Privacy Act of 1974 (5 U.S.C. 552a) or other Federal statute, any
applicable regulation of ASC or any other Federal agency having
jurisdiction thereof, or any directive or order of any court of
competent jurisdiction.
---------------------------------------------------------------------------
(1) Records that are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the ASC;
[[Page 37]]
(3) Records specifically exempted from disclosure by statute,
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 that is privileged or confidential;
(5) Interagency or intra-agency memoranda or letters that would not
be available by law to a private party in litigation with the ASC;
(6) Personnel, medical, and similar files (including financial
files) the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trail or an
impartial adjudication;
(ii) 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 which furnished records on a
confidential basis;
(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) Records that are contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the ASC or any agency responsible for the regulation or
supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(g) Appeals. (1) Appeals should be addressed to the Executive
Director; ASC; 1325 G Street NW, Suite 500, Washington, DC 20005.
(2) A person whose initial request for records under this section,
or whose request for a waiver of fees under paragraph (e)(1)(x) of this
section, has been denied, either in part or in whole, has the right to
appeal the denial to the ASC's Chairman (or designee) within 30 business
days after receipt of notification of the denial. Appeals of denials of
initial requests or for a waiver of fees must be in writing and include
any additional information relevant to consideration of the appeal.
(3) Except in the case of an appeal for expedited treatment under
paragraph (c)(3) of this section, the ASC will notify the appellant in
writing within 20 business days after receipt of the appeal and will
state:
(i) Whether it is granted or denied in whole or in part;
(ii) The name and title of each person responsible for the denial
(if other than the person signing the notification);
(iii) The exemptions relied upon for the denial in the case of
initial requests for records; and
(iv) The right to judicial review of the denial under the FOIA.
(4) If a requester is appealing for denial of expedited treatment,
the ASC will notify the appellant within ten business days after receipt
of the appeal of the ASC's disposition.
(5) Complete payment of any outstanding fee invoice will be required
before an appeal is processed.
(h) Records of another agency. If a requested record is the property
of another Federal agency or department, and that agency or department,
either in writing or by regulation, expressly retains ownership of such
record, upon receipt of a request for the record the ASC will promptly
inform the requester of this ownership and immediately shall forward the
request to the proprietary agency or department either for processing in
accordance with
[[Page 38]]
the latter's regulations or for guidance with respect to disposition.
[64 FR 72497, Dec. 28, 1999; 65 FR 31960, May 19, 2000, as amended at 69
FR 2501, Jan. 16, 2004]
Sec. 1102.307 Disclosure of exempt records.
(a) Disclosure prohibited. Except as provided in paragraph (b) of
this section or by 12 CFR part 1102, subpart C, no person shall disclose
or permit the disclosure of any exempt records, or information contained
therein, to any persons other than those officers, directors, employees,
or agents of the ASC or a State appraiser regulatory agency who has a
need for such records in the performance of their official duties. In
any instance in which any person has possession, custody or control of
ASC exempt records or information contained therein, all copies of such
records shall remain the property of the ASC and under no circumstances
shall any person, entity or agency disclose or make public in any manner
the exempt records or information without written authorization from the
Executive Director, after consultation with the ASC General Counsel.
(b) Disclosure authorized. Exempt records or information of the ASC
may be disclosed only in accordance with the conditions and requirements
set forth in this paragraph (b). Requests for discretionary disclosure
of exempt records of information pursuant to this paragraph (b) may be
submitted directly to the Executive Director. Such administrative
request must clearly state that it seeks discretionary disclosure of
exempt records, clearly identify the records sought, provide sufficient
information for the ASC to evaluate whether there is good cause for
disclosure, and meet all other conditions set forth in paragraph (b)(1)
through (3) of this section. Authority to disclose or authorize
disclosure of exempt records of the ASC is delegated to the Executive
Director, after consultation with the ASC General Counsel.
(1) Disclosure by Executive Director. (i) The Executive Director, or
designee, may disclose or authorize the disclosure of any exempt record
in response to a valid judicial subpoena, court order, or other legal
process, and authorize any current or former member, officer, employee,
agent of the ASC, or third party, to appear and testify regarding an
exempt record or any information obtained in the performance of such
person's official duties, at any administrative or judicial hearing or
proceeding where such person has been served with a valid subpoena,
court order, or other legal process requiring him or her to testify. The
Executive Director shall consider the relevancy of such exempt records
or testimony to the ligation, and the interests of justice, in
determining whether to disclose such records or testimony. Third parties
seeking disclosure of exempt records or testimony in litigation to which
the ASC is not a party shall submit a request for discretionary
disclosure directly to the Executive Director. Such requests shall
specify the information sought with reasonable particularity and shall
be accompanied by a statement with supporting documentation showing in
detail the relevance of such exempt information to the litigation,
justifying good cause for disclosure, and a commitment to be bound by a
protective order. Failure to exhaust such administration request prior
to service of a subpoena or other legal process may, in the Executive
Director's discretion, serve as a basis for objection to such subpoena
or legal process.
(ii) The Executive Director, or designee, may in his or her
discretion and for good cause, disclose or authorize disclosure of any
exempt record or testimony by a current or former member, officer,
employee, agent of the ASC, or third party, sought in connection with
any civil or criminal hearing, proceeding or investigation without the
service of a judicial subpoena, or other legal process requiring such
disclosure or testimony. If he or she determines that the records or
testimony are relevant to the hearing, proceeding or investigation and
that disclosure is in the best interests of justice and not otherwise
prohibited by Federal statute. Where the Executive Director or designee
authorizes a current or former member, officer, director, empl9oyee or
agent of the ASC to testify or disclose exempt records pursuant to this
paragraph (b)(1), he or she may, in his or
[[Page 39]]
her discretion, limit the authorization to so much of the record or
testimony as is relevant to the issues at such hearing, proceeding or
investigation, and he or she shall give authorization only upon
fulfillment of such conditions as he or she deems necessary and
practicable to protect the confidential nature of such records or
testimony.
(2) Authorization for disclosure by the Chairman of the ASC. Except
where expressly prohibited by law, the Chairman of the ASC may, in his
or her discretion, authorize the disclosure of any ASC records. Except
where disclosure is required by law, the Chairman may direct any current
or former member, officer, director, employee or agent of the ASC to
refuse to disclose any record or to give testimony if the Chairman
determines, in his or her discretion, that refusal to permit such
disclosure is in the public interest.
(3) Limitations on disclosure. All steps practicable shall be taken
to protect the confidentiality of exempt records and information. Any
disclosure permitted by paragraph (b) of this section is discretionary
and nothing in paragraph (b) of this section shall be construed as
requiring the disclosure of information. Further, nothing in paragrah
(b) of this section shall be construed as restricting, in any manner,
the authority of the ASC, the Chairman of the ASC, the Executive
Director, the ASC General Counsel, or their designees, in their
discretion and in light of the facts and circumstances attendant in any
given case, to require conditions upon, and to limit, the form, manner,
and extent of any disclosure permitted by this section. Wherever
practicable, disclosure of exempt records shall be made pursuant to a
protective order and redacted to exclude all irrelevant or non-
responsive exempt information.
[64 FR 72500, Dec. 28, 1999]
Sec. 1102.308 Right to petition for issuance, amendment and repeal of
rules of general application.
Any person desiring the issuance, amendment or repeal of a rule of
general application may file a petition for those purposes with the
Executive Director of the ASC. The petition shall include a statement
setting forth the text or substance of any proposed rule or amendment
desired or shall specify the rule for which repeal is desired. The
petitioner also shall state the nature of his or her interest and the
reasons for seeking ASC action. The Executive Director shall acknowledge
receipt of the petition within ten business days of receipt. As soon as
reasonably practicable, the ASC shall consider the petition and related
staff recommendations and shall take such action as it deems
appropriate. The Executive Director shall notify the petitioner in
writing of the ASC action within ten business days of the action.
[59 FR 1902, Jan. 13, 1994. Redesignated at 64 FR 72497, Dec. 28, 1999]
Sec. 1102.309 Confidential treatment procedures.
(a) In general. Any submitter of written information to the ASC who
desires that some or all of his or her submission be afforded
confidential treatment under 5 U.S.C. 552(b)(4) (i.e., trade secrets and
commercial or financial information obtained from a person and
privileged or confidential) shall file a request for confidential
treatment with the Executive Director of the ASC at the time the written
information is submitted to the ASC or within ten business days
thereafter. Nothing in this section limits the authority of the ASC and
its staff to make determinations regarding access to documents under
this subpart.
(b) Form of request. A request for confidential treatment shall be
submitted in a separate letter or memorandum conspicuously entitled,
``Request for Confidential Treatment.'' Each request shall state in
reasonable detail the facts and arguments supporting the request and its
legal justification. If the submitter had been required by the ASC to
provide the particular information, conclusory statements that the
information would be useful to competitors or would impair sales or
similar statements generally will not be considered sufficient to
justify confidential treatment. When the submitter had voluntarily
provided the particular information to the ASC, the submitter must
specifically identify the documents or information which are of a kind
the submitter would not
[[Page 40]]
customarily make available to the public.
(c) Designation and separation of confidential material. Submitters
shall clearly designate all information considered confidential and
shall clearly separate such information from other non-confidential
information, whenever possible.
(d) ASC action on request. A request for confidential treatment of
information will be considered only in connection with a request for
access to the information under FOIA as implemented by this subpart.
Upon the receipt of a request for access, the Executive Director or his
or her designee (``ASC Officer'') as soon as possible shall provide the
submitter with a written notice describing the request and shall provide
the submitter with a reasonable opportunity, no longer than ten business
days, to submit written objections to disclosure of the information.
Notice may be given orally, and such notice shall be promptly confirmed
in writing. The ASC Officer may provide a submitter with a notice if the
submitter did not request confidential treatment of the requested
information. If the ASC required the submitter to provide the requested
information, the ASC Officer would need substantial reason to believe
that disclosure of the requested information would result in substantial
competitive harm to the submitter. If the submitter provided the
information voluntarily to the ASC, the ASC officer would need to
believe that the information is of a kind the submitter would not
customarily make available to the public. The ASC Officer similarly
shall notify the person seeking disclosure of the information under FOIA
of the existence of a request for confidential treatment. These notice
requirements need not be followed if the ASC Officer determines under
this subpart that the information should not be disclosed; the
information has been published or has been officially made available to
the public; disclosure of the information is required by law (other than
FOIA); or the submitter's request for confidential treatment appears
obviously frivolous, in such instance the submitter shall be given
written notice of the determination to disclose the information at least
five business days prior to release. The ASC Officer shall carefully
consider the issues involved, and if disclosure of the requested
information is warranted, a written notice, containing a brief
description of why the submitter's objections were not sustained, must
be forwarded to the submitter within ten business days. The time for
response may be extended up to ten additional business days, as provided
in 5 U.S.C. 552(a)(6)(B), or for other periods by agreement between the
requester and the ASC Officer. This notice shall be provided to the
submitter at least five business days prior to release of the requested
information.
(e) Notice of lawsuit. The ASC Officer shall notify a submitter of
any filing of any suit against the ASC pursuant to 5 U.S.C. 552 to
compel disclosure of documents or information covered by the submitter's
request for confidential treatment within ten business days of service
of the suit. The ASC Officer also shall notify the requester of the
documents or information of any suit filed by the submitter against the
ASC to enjoin their disclosure within ten business days of service of
the suit.
[59 FR 1902, Jan. 13, 1994. Redesignated at 64 FR 72497, Dec. 28, 1999]
Sec. 1102.310 Service of process.
(a) Service. Any subpoena or other legal process to obtain
information maintained by the ASC shall be duly issued by a court having
jurisdiction over the ASC, and served upon the Chairman ASC; 1325 G
Street NW, Suite 500, Washington, DC 20005. Where the ASC is named as a
party, service of process shall be made pursuant to the Federal Rules of
Civil Procedure upon the Chairman at the above address. The Chairman
shall immediately forward any subpoena, court order or legal process to
the General Counsel. If consistent with the terms of the subpoena, court
order or legal process, the ASC may require the payment of fees, in
accordance with the fee schedule referred to in Sec. 1102.306(e) prior
to the release of any records requested pursuant to any subpoena or
other legal process.
(b) Notification by person served. If any current or former member,
officer, employee or agent of the ASC, or any other person who has
custody of records belonging to the ASC, is served
[[Page 41]]
with a subpoena, court order, or other process requiring that person's
attendance as a witness concerning any matter related to official
duties, or the production of any exempt record of the ASC, such person
shall promptly advise the Executive Director of such service, the
testimony and records described in the subpoena, and all relevant facts
that may assist the Executive Director, in consultation with the ASC
General Counsel, in determining whether the individual in question
should be authorized to testify or the records should be produced. Such
person also should inform the court or tribunal that issued the process
and the attorney for the party upon whose application the process was
issued, if known, of the substance of this section.
(c) Appearance by person served. Absent the written authorization of
the Executive Director or designee to disclose the requested
information, any current or former member, officer, employee, or agent
of the ASC, and any other person having custody of records of the ASC,
who is required to respond to a subpoena or other legal process, shall
attend at the time and place therein specified and respectfully decline
to produce any such record or give any testimony with respect thereto,
basing such refusal on this section.
[64 FR 72501, Dec. 28, 1999]
Subpart E_Collection and Transmission of Appraisal Management Company
(AMC) Registry Fees
Source: 82 FR 44501, Sept. 25, 2017, unless otherwise noted.
Sec. 1102.400 Authority, purpose, and scope.
(a) Authority. This subpart is issued by the Appraisal Subcommittee
(ASC) under sections 1106 and 1109 (a)(4)(B) of Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989
(Title XI), as amended by the Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act) (Pub. L. 111-203, 124 Stat. 1376
(2010)), 12 U.S.C. 3335, 3338 (a)(4)(B)).
(b) Purpose. The purpose of this subpart is to implement section
1109 (a)(4)(B) of Title XI, 12 U.S.C. 3338.
(c) Scope. This subpart applies to States that elect to register and
supervise appraisal management companies pursuant to 12 U.S.C. 3346 and
3353, and the regulations promulgated thereunder.
Sec. 1102.401 Definitions.
For purposes of this subpart:
(a) AMC Registry means the national registry maintained by the ASC
of those AMCs that meet the Federal definition of AMC, as defined in 12
U.S.C. 3350(11), are registered by a State or are Federally regulated,
and have paid the annual AMC registry fee.
(b) AMC Rule means the interagency final rule on minimum
requirements for AMCs. (12 CFR 34.210-34.216; 12 CFR 225.190-225.196; 12
CFR 323.8-323.14; 12 CFR 1222.20-1222.26).
(c) ASC means the Appraisal Subcommittee of the Federal Financial
Institutions Examination Council established under section 1102 (12
U.S.C. 3310) as it amended the Federal Financial Institutions
Examination Council Act of 1978 (12 U.S.C. 3301 et seq.) by adding
section 1011.
(d) Performed an appraisal means the appraisal service requested of
an appraiser by the AMC was provided to the AMC.
(e) State means any State, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, the United States Virgin Islands, and American Samoa.
(f) Other terms. Definitions of: Appraisal management company (AMC);
appraisal management services; appraisal panel; consumer credit; covered
transaction; dwelling; Federally regulated AMC are incorporated from the
AMC Rule by reference.
Sec. 1102.402 Establishing the annual AMC registry fee.
The annual AMC registry fee to be applied by States that elect to
register and supervise AMCs is established as follows:
(a) In the case of an AMC that has been in existence for more than a
year,
[[Page 42]]
$25 multiplied by the number of appraisers who have performed an
appraisal for the AMC in connection with a covered transaction in such
State during the previous year; and
(b) In the case of an AMC that has not been in existence for more
than a year, $25 multiplied by the number of appraisers who have
performed an appraisal for the AMC in connection with a covered
transaction in such State since the AMC commenced doing business.
Sec. 1102.403 Collection and transmission of annual AMC registry fees.
(a) Collection of annual AMC registry fees. States that elect to
register and supervise AMCs pursuant to the AMC Rule shall collect an
annual registry fee as established in Sec. 1102.402 from AMCs eligible
to be on the AMC Registry.
(b) Transmission of annual AMC registry fee. States that elect to
register and supervise AMCs pursuant to the AMC Rule shall transmit AMC
registry fees as established in Sec. 1102.402 to the ASC on an annual
basis. States may align a one-year period with any 12-month period,
which may, or may not, be based on the calendar year. Only those AMCs
whose registry fees have been transmitted to the ASC will be eligible to
be on the AMC Registry.
PARTS 1103 1199 [RESERVED]
[[Page 43]]
CHAPTER XII--FEDERAL HOUSING FINANCE AGENCY
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SUBCHAPTER A--ORGANIZATION AND OPERATIONS
Part Page
1200 Organization and functions.................. 47
1201 General definitions applying to all Federal
Housing Finance Agency regulations...... 51
1202 Freedom of Information Act.................. 53
1203 Equal Access to Justice Act................. 66
1204 Privacy Act implementation.................. 72
1206 Assessments................................. 81
1207 Minority and Women Outreach Program......... 83
1208 Debt collection............................. 84
1209 Rules of practice and procedure............. 105
1211 Procedures.................................. 143
1212 Post-employment restriction for senior
examiners............................... 145
1213 Office of the Ombudsman..................... 147
1214 Availability of non-public information...... 149
1215 Production of FHFA records, information, and
employee testimony in third-party legal
proceedings............................. 151
1217 Program Fraud Civil Remedies Act............ 157
SUBCHAPTER B--ENTITY REGULATIONS
1221 Margin and capital requirements for covered
swap entities........................... 163
1222 Appraisals.................................. 186
1223 Minority and women inclusion................ 190
1225 Minimum capital--temporary increase......... 198
1227 Suspended Counterparty Program.............. 200
1228 Restrictions on the acquisition of, or
taking security interests in, mortgages
on properties encumbered by certain
private transfer fee covenants and
related securities...................... 206
1229 Capital classifications and prompt
corrective action....................... 208
1230 Executive compensation...................... 217
[[Page 44]]
1231 Golden parachute and indemnification
payments................................ 220
1233 Reporting of fraudulent financial
instruments............................. 226
1234 Credit risk retention....................... 228
1235 Record retention for regulated entities and
office of finance....................... 265
1236 Prudential management and operations
standards............................... 268
1237 Conservatorship and receivership............ 277
1238 Stress testing of regulated entities........ 282
1239 Responsibilities of boards of directors,
corporate practices, and corporate
governance.............................. 284
SUBCHAPTER C--ENTERPRISES
1240 Capital adequacy of enterprises............. 294
1242 Resolution planning......................... 403
1248 Uniform Mortgage-backed securities.......... 412
1249 Book-entry procedures....................... 416
1250 Flood insurance............................. 420
1251 Contributions to the housing trust and
capital magnet funds.................... 421
1252 Portfolio holdings.......................... 421
1253 Prior approval for enterprise products...... 422
1254 Validation and approval of credit score
models.................................. 441
SUBCHAPTER D--FEDERAL HOME LOAN BANKS
1260 Sharing of information among Federal Home
Loan Banks.............................. 447
1261 Federal Home Loan Bank directors............ 449
1263 Members of the banks........................ 462
1264 Federal Home Loan Bank housing associates... 482
1265 Core mission activities..................... 485
1266 Advances.................................... 486
1267 Federal Home Loan Bank investments.......... 497
1268 Acquired member assets...................... 500
1269 Standby letters of credit................... 503
1270 Liabilities................................. 506
1271 Miscellaneous Federal Home Loan Bank
operations and authorities.............. 515
1272 New business activities..................... 522
1273 Office of Finance........................... 523
1274 Financial statements of the banks........... 531
1277 Federal Home Loan Bank capital requirements,
capital stock and capital plans......... 532
1278 Voluntary mergers of Federal Home Loan Banks 550
SUBCHAPTER E--HOUSING GOALS AND MISSION
1281 Federal Home Loan Bank housing goals........ 556
1282 Enterprise housing goals and mission........ 562
[[Page 45]]
1290 Community support requirements.............. 592
1291 Federal Home Loan Banks' Affordable Housing
Program................................. 598
1292 Community Investment Cash Advance Programs.. 626
1293-1299
[Reserved]
[[Page 47]]
SUBCHAPTER A_ORGANIZATION AND OPERATIONS
PART 1200_ORGANIZATION AND FUNCTIONS--Table of Contents
Sec.
1200.1 Federal Housing Finance Agency.
1200.2 Organization of the Federal Housing Finance Agency.
1200.3 Official logo and seal.
1200.4 OMB control numbers assigned under the Paperwork Reduction Act.
Authority: 5 U.S.C. 552, 12 U.S.C. 4512, 12 U.S.C. 4526, 44 U.S.C.
3506.
Source: 77 FR 73264, Dec. 10, 2012, unless otherwise noted.
Sec. 1200.1 Federal Housing Finance Agency.
(a) Scope and authority. The Federal Housing Finance Agency (FHFA)
is an independent agency of the Federal Government. Division A of the
Housing and Economic Recovery Act of 2008, Public Law 110-289, 122 Stat.
2654, titled the Federal Housing Finance Regulatory Reform Act of 2008,
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. FHFA
administers the Safety and Soundness Act and the regulated entities'
authorizing statutes: the Federal Home Loan Bank Act, the Federal
National Mortgage Association Charter Act, and the Federal Home Loan
Mortgage Corporation Act. FHFA is responsible for the supervision and
regulation of the Federal National Mortgage Corporation (Fannie Mae),
the Federal Home Loan Mortgage Corporation (Freddie Mac), (together,
Enterprises), the Federal Home Loan Banks (Banks) (collectively, the
``regulated entities''), and the Office of Finance (OF). FHFA is charged
with 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, and rules, regulations and orders
issued under the Safety and Soundness Act and the authorizing statutes;
and carry out their respective statutory missions through activities and
operations that are authorized and consistent with the Safety and
Soundness Act, their respective authorizing statutes, and the public
interest. FHFA's costs and expenses are funded by annual assessments
paid by the regulated entities. FHFA is headed by a director, who is
appointed by the President and confirmed by the Senate for a five-year
term.
(b) Location. FHFA's headquarters is located at 400 Seventh Street
SW., Washington, DC 20219. FHFA's official hours of business are 8:00
a.m.-5 p.m. (Eastern Time), Monday through Friday, excluding Federal
holidays.
[77 FR 73264, Dec. 10, 2012, as amended at 80 FR 80233, Dec. 24, 2015]
Sec. 1200.2 Organization of the Federal Housing Finance Agency.
(a) Director. The Director is responsible for overseeing the
prudential operations of each regulated entity, and for ensuring that
each regulated entity: Operates in a safe and sound manner; operates and
acts to foster liquid, efficient, competitive, and resilient national
housing financing markets; complies with the Safety and Soundness Act,
its authorizing statute, and rules, regulations, guidelines, and orders
issued under those statutes; carries out its mission only through
activities that are authorized by statute; and acts and operates
consistent with the public interest. The Director may delegate to FHFA
officers and employees any of the functions, powers, and duties of the
Director as the Director considers appropriate. The Director manages
FHFA, including through authorities delegated to FHFA officers and
employees.
(b) Deputy Director of the Division of Enterprise Regulation. The
Deputy Director is responsible for managing FHFA's program of prudential
supervision of the Enterprises. The Deputy
[[Page 48]]
Director provides management oversight, direction, and support for all
examination activity involving the Enterprises, the development of
supervision findings, and preparation of the annual reports of
examination. The Deputy Director provides support and advice to the
Director and other senior executives and represents the division on
significant and emerging supervisory issues and development of FHFA
supervisory policy, and has such other responsibilities as the Director
may prescribe.
(c) Deputy Director of the Division of Housing Mission and Goals.
The Deputy Director is responsible for FHFA policy development and
analysis, oversight of housing and regulatory policy, and oversight of
the mission and goals of the Enterprises. The Deputy Director oversees
and coordinates FHFA activities regarding data analysis, market
surveillance, policy development, policy research and analysis affecting
housing finance and financial markets, and policy analysis and research
in support of FHFA's mission and the Director's responsibilities as a
member of the Federal Housing Finance Oversight board, the Financial
Stability Oversight Board, and the Financial Stability Oversight
Council, and has such other responsibilities as the Director may
prescribe.
(d) Deputy Director of the Division of Federal Home Loan Bank
Regulation. The Deputy Director is responsible for managing FHFA's
program of prudential supervision of the Banks and the OF. The Deputy
Director provides management oversight, direction and support for all
examination activity involving the Banks, the development of supervision
findings, and preparation of the annual reports of examination. The
Deputy Director provides support and advice to the Director and other
senior executives and represents the division on significant and
emerging supervisory issues and development of FHFA supervisory policy,
and has such other responsibilities as the Director may prescribe.
(e) Offices and functions--(1) Office of the Director. The Office of
the Director supports the activities of the Director and includes
Offices as the Director may create within the Office of the Director.
(2) Division of Enterprise Regulation. The division supports and
implements the responsibilities of the Deputy Director described in
paragraph (b) of this section. The division oversees and directs all
Enterprise supervisory activities, develops examination findings,
prepares reports of examination, and prepares the sections of the Annual
Report to Congress that describe the condition and performance of each
Enterprise. The division monitors and assesses the financial condition
and performance of the Enterprises. By means of annual examinations and
a continuous on-site presence, the division monitors and assesses the
amount of risk each Enterprise assumes, the quality of risk management,
and compliance with regulations.
(3) Division of Housing Mission and Goals. The division supports and
implements the responsibilities of the Deputy Director described in
paragraph (c) of this section. In support of FHFA's mission and the
Director's responsibilities as a member of the Federal Housing Finance
Oversight Board, the Financial Stability Oversight Board, and the
Financial Stability Oversight Committee, the division also oversees and
coordinates FHFA activities that involve certain data analysis, and
analysis affecting housing finance and financial markets.
(4) Division of Federal Home Loan Bank Regulation. The division
supports and implements the responsibilities of the Deputy Director
described in paragraph (d) of this section, including overseeing and
directing all Bank supervisory activities, developing examination
findings, preparing reports of examination, and preparing the sections
of the annual report to Congress that describe the condition and
performance of the Banks. The division monitors and assesses the
financial condition and performance of the Banks and the OF and monitors
and assesses their compliance with regulations, the amount of risk they
assume, and the quality of their risk management through annual on-site
examinations, periodic visits, and ongoing off-site monitoring and
analysis.
[[Page 49]]
(5) Office of Inspector General. The office is headed by a
presidentially appointed and Senate-confirmed Inspector General who
serves under the general supervision of the Director. The office carries
out activities and responsibilities established in the Inspector General
Act of 1978.
(6) Office of General Counsel. The office advises and supports the
Director and FHFA staff on legal matters related to the functions,
activities, and operations of FHFA and the regulated entities; it
supports supervision functions, development and promulgation of
regulations and orders, and enforcement actions. The office manages the
Freedom of Information, Privacy Act and ethics programs. The Designated
Agency Ethics Official advises, counsels, and trains FHFA employees on
ethical standards and conflicts of interest, and manages the agency's
financial disclosure program.
(7) Office of the Ombudsman. The office is responsible for
considering complaints and appeals from the regulated entities, the OF
and any person that has a business relationship with a regulated entity
or the OF concerning any matter relating to FHFA's regulation and
supervision of that entity or the OF.
(8) Office of Minority and Women Inclusion. The office is
responsible for all matters of FHFA relating to diversity in management,
employment, and business activities, and for supervising the diversity
requirements applicable to the regulated entities and the OF.
(f) Other Offices and Departments. The Director may from time to
time establish or terminate Offices and Divisions of the agency as the
Director deems necessary or appropriate to carry out FHFA's mission. The
Director may establish Offices and positions as the Director deems
necessary and appropriate to support the operations of a federal agency,
such as a Deputy Director for one or more specified areas of
responsibility, a Chief Operating Officer, a Chief Financial Officer, an
Office of Information Technology, and such other offices, departments,
and positions as are necessary and appropriate or may be required by
statute.
(g) Additional information. Current information on the organization
of FHFA may be obtained by mail from the Office of Congressional Affairs
and Communications, 400 Seventh Street, SW., Washington, DC 20219. Such
information, as well as other FHFA information, also may be obtained
electronically by accessing FHFA's Web site located at www.FHFA.gov.
[77 FR 73264, Dec. 10, 2012, as amended at 80 FR 45599, July 31, 2015;
80 FR 80233, Dec. 24, 2015]
Sec. 1200.3 Official logo and seal.
This section describes and displays the logo adopted by the Director
as the official symbol representing FHFA. It is displayed on
correspondence, selected documents, and signage. The logo serves as the
official seal to certify and authenticate official documents of the
agency.
(a) Description. The logo is a disc consisting of three polygons
each drawn in a manner resembling a silhouette of a pitched roof house
and with distinctive eaves under its roof. Each polygon is placed one in
front of the other, two of which are diminished in size from the polygon
behind it. Placed in the center of the smallest polygon is the acronym
for the organization, ``FHFA.'' The polygons are encircled by a
designation scroll having a solid background and containing the words
``FEDERAL HOUSING FINANCE AGENCY'' in capital letters with serifs, with
two mullets on the extreme left and right of the scroll. Upon approval
by the Director, FHFA may employ variations of the color or shading of
its logo and seal for specified purposes; these will be available for
reference on the agency Web site at www.fhfa.gov.
(b) Display. FHFA's official logo and seal appears below:
[[Page 50]]
[GRAPHIC] [TIFF OMITTED] TR31JY15.025
[77 FR 73264, Dec. 10, 2012, as amended at 80 FR 45599, July 31, 2015]
Sec. 1200.4 OMB control numbers assigned under the Paperwork Reduction
Act.
(a) Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3531)
and the implementing regulations of the Office of Management and Budget
(OMB) (5 CFR part 1320), an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information unless
it displays a currently valid OMB control number.
(b) OMB has approved the collections of information contained in
FHFA's regulations and has assigned each collection a control number.
The following table displays the sections of FHFA's regulations (both
those located in this chapter and those promulgated by the former
Federal Housing Finance Board that appear in chapter IX of this title)
containing collections of information, along with the applicable OMB
control numbers and the expirations dates for those control numbers:
------------------------------------------------------------------------
12 CFR part or section where identified OMB control Expiration
and described No. date
------------------------------------------------------------------------
1222.22................................. 2590-0013 07/31/2018
1222.23................................. 2590-0013 07/31/2018
1222.24................................. 2590-0013 07/31/2018
1222.25................................. 2590-0013 07/31/2018
1222.26................................. 2590-0013 07/31/2018
1223.23................................. 2590-0014 07/31/2018
1261.7.................................. 2590-0006 02/28/2021
1261.12................................. 2590-0006 02/28/2021
1261.14................................. 2590-0006 02/28/2021
1263.2.................................. 2590-0003 03/31/2020
1263.4.................................. 2590-0003 03/31/2020
1263.5.................................. 2590-0003 03/31/2020
1263.6.................................. 2590-0003 03/31/2020
1263.7.................................. 2590-0003 03/31/2020
1263.8.................................. 2590-0003 03/31/2020
1263.9.................................. 2590-0003 03/31/2020
1263.11................................. 2590-0003 03/31/2020
1263.12................................. 2590-0003 03/31/2020
1263.13................................. 2590-0003 03/31/2020
1263.14................................. 2590-0003 03/31/2020
1263.15................................. 2590-0003 03/31/2020
1263.16................................. 2590-0003 03/31/2020
1263.17................................. 2590-0003 03/31/2020
1263.18................................. 2590-0003 03/31/2020
1263.19................................. 2590-0003 03/31/2020
1263.24................................. 2590-0003 03/31/2020
1263.26................................. 2590-0003 03/31/2020
1263.31................................. 2590-0003 03/31/2020
1264.4.................................. 2590-0001 12/31/2018
[[Page 51]]
1264.5.................................. 2590-0001 12/31/2018
1264.6.................................. 2590-0001 12/31/2018
1266.17................................. 2590-0001 12/31/2018
1268.7.................................. 2590-0008 02/29/2016
1277.22................................. 2590-0002 04/30/2020
1277.28................................. 2590-0002 04/30/2020
1290.2.................................. 2590-0005 03/31/2020
1290.3.................................. 2590-0005 03/31/2020
1290.4.................................. 2590-0005 03/31/2020
1290.5.................................. 2590-0005 03/31/2020
1291.5.................................. 2590-0007 03/31/2020
1291.6.................................. 2590-0007 03/31/2020
1291.7.................................. 2590-0007 03/31/2020
1291.8.................................. 2590-0007 03/31/2020
1291.9.................................. 2590-0007 03/31/2020
------------------------------------------------------------------------
[81 FR 76294, Nov. 2, 2016, as amended at 83 FR 39325, Aug. 9, 2018]
PART 1201_GENERAL DEFINITIONS APPLYING TO ALL FEDERAL HOUSING FINANCE
AGENCY REGULATIONS--Table of Contents
Authority: 12 U.S.C. 4511(b), 4513(a), 4513(b).
Source: 78 FR 2322, Jan. 11, 2013, unless otherwise noted.
Sec. 1201.1 Definitions.
As used throughout this chapter, the following basic terms relating
to the Federal Housing Finance Agency, the Federal National Mortgage
Association, the Federal Home Loan Mortgage Corporation, the Federal
Home Loan Banks, the Office of Finance, and related entities have the
meanings set forth below, unless otherwise indicated in a particular
subchapter, part, section, or paragraph:
1934 Act means the Securities Exchange Act of 1934 (15 U.S.C. 78a et
seq.).
Acquired member assets or AMA means assets acquired in accordance
with, and satisfying the applicable requirements of, part 1268 of this
chapter.
Advance means a loan from a Bank that is:
(1) Provided pursuant to a written agreement;
(2) Supported by a note or other written evidence of the borrower's
obligation; and
(3) Fully secured by collateral in accordance with the Bank Act and
part 1266 of this chapter.
Affordable Housing Program or AHP means the Affordable Housing
Program that each Bank is required to establish pursuant to section
10(j) of the Bank Act (12 U.S.C. 1430(j)) and part 1291 of this chapter.
Appropriate Federal banking agency has the meaning set forth in
section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q))
and, for federally-insured credit unions, means the NCUA.
Appropriate state regulator means any state officer, agency,
supervisor or other entity that has regulatory authority over, or is
empowered to institute enforcement action against, a particular
institution.
Authorizing Statutes means the Federal National Mortgage Association
Charter Act, the Federal Home Loan Mortgage Corporation Act, and the
Federal Home Loan Bank Act.
Bank, written in title case, means a Federal Home Loan Bank
established under section 12 of the Bank Act (12 U.S.C. 1432).
Bank Act means the Federal Home Loan Bank Act, as amended (12 U.S.C.
1421 et seq.).
Bank System means the Federal Home Loan Bank System, consisting of
all of the Banks and the Office of Finance.
Capital plan means the capital structure plan required for each Bank
by section 6(b) of the Bank Act, as amended (12 U.S.C. 1426(b)).
CIP means the Community Investment Program, an advance program under
CICA required to be offered pursuant to section 10(i) of the Bank Act
(12 U.S.C. 1430(i)).
[[Page 52]]
Community Investment Cash Advance or CICA means any advance made
through a program offered by a Bank under section 10 of the Bank Act (12
U.S.C. 1430) and parts 1291 and 1292 of this chapter to provide funding
for targeted community lending and affordable housing, including
advances made under a Bank's Rural Development Funding (RDF) program,
offered under section 10(j)(10) of the Bank Act (12 U.S.C. 1430(j)(10));
a Bank's Urban Development Funding (UDF) program, offered under section
10(j)(10) of the Bank Act (12 U.S.C. 1430(j)(10)); a Bank's Affordable
Housing Program (AHP), offered under section 10(j) of the Bank Act (12
U.S.C. 1430(j)); a Bank's Community Investment Program (CIP), offered
under section 10(i) of the Bank Act (12 U.S.C. 1430(i)); or any other
program offered by a Bank that meets the requirements of part 1292 of
this chapter.
Community lending means providing financing for economic development
projects for targeted beneficiaries, and, for community financial
institutions (as defined in Sec. 1263.1 of this chapter), purchasing or
funding small business loans, small farm loans, small agri-business
loans, or community development loans (as defined in Sec. 1266.1 of
this chapter).
Consolidated obligation or CO means any bond, debenture, or note on
which the Banks are jointly and severally liable and which was issued
under section 11 of the Bank Act (12 U.S.C. 1431) and any implementing
regulations, whether or not such instrument was originally issued
jointly by the Banks or by the Federal Housing Finance Board on behalf
of the Banks.
Data Reporting Manual or DRM means a manual issued by FHFA and
amended from time to time containing reporting requirements for the
Regulated Entities.
Director, written in title case, means the Director of FHFA or his
or her designee.
Enterprise means Fannie Mae and Freddie Mac (collectively,
Enterprises) and any affiliate thereof.
Excess stock means that amount of a Bank's capital stock owned by a
member or other institution in excess of that member's or other
institution's minimum investment in capital stock required under the
Bank's capital plan, the Bank Act, or FHFA's regulations, as applicable.
Fannie Mae means the Federal National Mortgage Association and any
affiliate thereof.
FDIC means the Federal Deposit Insurance Corporation.
FHFA means the Federal Housing Finance Agency established by Section
1311(a) of the Safety and Soundness Act. (12 U.S.C. 4511(a)).
Financing Corporation or FICO means the Financing Corporation
established and supervised by the Director under section 21 of the Bank
Act (12 U.S.C. 1441) and part 1271 of this chapter.
FRB means the Board of Governors of the Federal Reserve System.
Freddie Mac means the Federal Home Loan Mortgage Corporation and any
affiliate thereof.
Generally Accepted Accounting Principles or GAAP means accounting
principles generally accepted in the United States.
Ginnie Mae means the Government National Mortgage Association.
GLB Act means the Gramm-Leach-Bliley Act (Pub. L. 106-102 (1999)).
HERA means the Housing and Economic Recovery Act of 2008, Public Law
No. 110-289, 122 Stat. 2654.
Housing associate means an entity that has been approved as a
housing associate pursuant to part 1264 of this chapter.
HUD means the United States Department of Housing and Urban
Development.
Member means an institution that has been approved for membership in
a Bank and has purchased capital stock in the Bank in accordance with
Sec. Sec. 1263.20 or 1263.24(b) of this chapter.
NCUA means the National Credit Union Administration.
NRSRO means a credit rating organization registered with the SEC as
a nationally recognized statistical rating organization by the
Securities and Exchange Commission.
OCC means the Office of the Comptroller of the Currency.
Office of Finance or OF means the Office of Finance, a joint office
of the Banks established under part 1273 of this chapter and referenced
in the
[[Page 53]]
Bank Act and the Safety and Soundness Act.
President, when referring to an officer of a Bank only, means a
Bank's principal executive officer.
Regulated Entity means the Federal Home Loan Mortgage Corporation
and any affiliate thereof, the Federal National Mortgage Association and
any affiliate thereof, and any Federal Home Loan Bank.
Resolution Funding Corporation or REFCORP means the Resolution
Funding Corporation established by section 21B of the Bank Act (12
U.S.C. 1441b).
Safety and Soundness Act means the Federal Housing Enterprises
Financial Safety and Soundness Act of 1992, as amended (12 U.S.C. 4501
et seq.).
SBIC means a small business investment company formed pursuant to
section 301 of the Small Business Investment Act (15 U.S.C. 681).
SEC means the United States Securities and Exchange Commission.
State means a state of the United States, American Samoa, the
Commonwealth of the Northern Mariana Islands, the District of Columbia,
Guam, Puerto Rico, or the United States Virgin Islands.
[78 FR 2322, Jan. 11, 2013, as amended at 79 FR 64665, Oct. 31, 2014; 81
FR 76295, Nov. 2, 2016; 81 FR 91688, Dec. 19, 2016]
PART 1202_FREEDOM OF INFORMATION ACT--Table of Contents
Sec.
1202.1 Why did FHFA issue this part?
1202.2 What do the terms in this part mean?
1202.3 What information can I obtain through the FOIA?
1202.4 What information is exempt from disclosure?
1202.5 How do I request information from FHFA under the FOIA?
1202.6 What if my request does not have all the information FHFA
requires?
1202.7 How will FHFA respond to my FOIA request?
1202.8 If the requested records contain confidential commercial
information, what procedures will FHFA follow?
1202.9 How do I appeal a response denying my FOIA request?
1202.10 Will FHFA 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?
Appendix A to Part 1202--FHFA Headquarters
Appendix B to Part 1202--FHFA Office of Inspector General
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.
Source: 82 FR 13745, Mar. 15, 2017, unless otherwise noted.
Sec. 1202.1 Why did FHFA issue this part?
The Federal Housing Finance Agency (FHFA) issued this regulation to
comply with the Freedom of Information Act (FOIA) (5 U.S.C. 552).
(a) The Freedom of Information Act (FOIA) (5 U.S.C. 552), is a
Federal law that requires the Federal Government to disclose certain
Federal Government records to the public.
(b) This part explains the rules that the FHFA will follow when
processing and responding to requests for records under the FOIA. It
also explains what you must do to request records from FHFA under the
FOIA. You should read this part together with the FOIA, which explains
in more detail your rights and the records FHFA may release to you.
(c) If you want to request information about yourself that is
contained in a system of records maintained by FHFA, you may do so under
the Privacy Act of 1974, as amended (5 U.S.C. 552a). This is considered
a first-party or Privacy Act request under the Privacy Act, and you must
file your request following FHFA's Privacy Act regulation at part 1204
of this title. If you file a request for information about yourself,
FHFA will process your request under both the FOIA and Privacy Act in
order to give you the greatest degree of access to any responsive
material.
(d) Notwithstanding the FOIA and this part, FHFA may routinely
publish or disclose to the public information without following these
procedures.
Sec. 1202.2 What do the terms in this part mean?
Some of the terms you need to understand while reading this
regulation are--
[[Page 54]]
Aggregating means combing multiple requests for documents that could
reasonably have been the subject of a single request and which occur
within a 30-day period, by a single requester or by a group of
requesters acting in concert that would otherwise involve unusual
circumstances.
Appeals Officer or FOIA Appeals Officer means a person designated by
FHFA who processes appeals of denied FOIA requests for FHFA records.
Chief FOIA Officer means the designated high-level official within
FHFA (FHFA-OIG does not have a separate Chief FOIA Officer) who has
overall responsibility for the agency's FOIA program and compliance with
the FOIA.
Confidential commercial information means records provided to the
Federal Government by a submitter that contain material exempt from
release under Exemption 4 of the 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 and
retrieving documents from at a Federal records center operated by the
National Archives and Records Administration, incurred by FHFA, 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 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.
Duplication means reproducing a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
Employee, for the purposes of this regulation, means any person
holding an appointment to a position of employment with FHFA, 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, even though the appointment or contract has terminated.
Fee Waiver means the waiver or reduction of fees if the requester
can demonstrate that certain statutory standards are met.
FHFA means each separate component designated by the agency as a
primary organizational unit that is responsible for processing FOIA
requests, as specified in Appendices A and B to this part. FHFA has two
components: Federal Housing Finance Agency Headquarters (FHFA-HQ) and
FHFA Office of Inspector General (FHFA-OIG).
FOIA Officer, FOIA Official and Chief FOIA Officer are persons
designated by FHFA to process and respond to requests for FHFA records
under the FOIA.
FOIA Public Liaison is a person designated by FHFA who is
responsible for assisting requesters with their requests.
Proactive disclosure means records that are required by the FOIA to
be made publicly available, as well as additional records identified as
being of interest to the public that are appropriate for public
disclosure, and for posting and indexing such records.
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.
Record means information or documentary material FHFA maintains in
any form or format, including electronic, which FHFA--
(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
[[Page 55]]
operations or activities of FHFA, or because of the value of the
information it contains; and
(3) Controls at the time it receives a request under the FOIA.
Regulated entities means the Federal Home Loan Mortgage Corporation,
the Federal National Mortgage Association, and the Federal Home Loan
Banks.
Requester means any person seeking access to FHFA records under the
FOIA. A requester falls into one of three categories for the purpose of
determining what fees may be charged. The three categories are--
(1) Commercial--A request that asks for information for a use or a
purpose that furthers a commercial, trade, or profit interest, which can
include furthering those interests through litigation. A decision to
place a requester in the commercial use category will be made on a case-
by-case basis based on the requester's intended use of the information;
(2) Noncommercial--Three distinct subcategories--
(i) Educational institution--Any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is authorized by, and is made under the auspices of, an
educational institution and that the records are not sought for a
commercial use, but rather are sought to further scholarly research. To
fall with this fee category, the request must serve the scholarly
research goals of the institution rather than an individual research
goal. A student who makes a request in furtherance of their coursework
or other school-sponsored activities and provides a copy of a course
syllabus or other reasonable documentation to indicate the research
purpose for the request would qualify as part of this fee category;
(ii) Noncommercial scientific institution--An institution that is
not operated on a ``commercial'' basis, as defined in this section and
that is operated solely for the purpose of conducting scientific
research the results of which are not intended to promote any particular
product or industry. A request in this category must show that the
request is authorized by and is made under the auspices of a qualifying
institution and that the records are sought to further scientific
research and are not for a commercial use; or
(iii) Representative of the news media--Any person or entity that
publishes or broadcasts news to the public, actively gathers information
of potential interest to a segment of the public, uses its editorial
skills to turn the raw materials into distinct work, and distributes
that work to an audience. The term ``news'' means information that is
about current events or that would be of current interest to the public;
and
(3) Other--All requesters who do not fall within either of the
preceding two categories.
Requester Service Centers serve as the primary contacts for a
requester when the requester has questions, is seeking information about
how the FOIA works, or to check the status of their request.
Review means the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time spent
both obtaining and considering any formal objection to disclosure made
by a confidential commercial information submitter under Sec. 1202.8(f)
of this part.
Search means the process of looking for and retrieving records or
information responsive to a request, whether manually or by electronic
means. Search time includes a page-by-page or line-by-line
identification of information within a record and the reasonable efforts
expanded to locate and retrieve information from electronic records.
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--
[[Page 56]]
(1) Search for and collect records from agencies, offices,
facilities, or locations that are separate from the office processing
the request;
(2) Search for, collect, and appropriately examine a voluminous
amount of separate and distinct records in order to process a single
request; or
(3) Consult with another agency or among two or more components of
the FHFA that have a substantial interest in the determination of a
request.
Vaughn index means an itemized index, used in litigation,
correlating each withheld document (or portion) with a specific FOIA
exemption and the relevant part of the agency's nondisclosure
justification.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018]
Sec. 1202.3 What information can I obtain through the FOIA?
(a) General. You may request that FHFA disclose to you its records
on a subject of interest to you. The FOIA only requires the disclosure
of records. It does not require FHFA to create compilations of
information or to provide narrative responses to questions or queries.
(b) Proactive disclosure. FHFA will make available for public
inspection and copying in its electronic reading room the following
records:
(1) Final opinions or orders made in the adjudication of cases;
(2) Statements of policy and interpretation adopted by FHFA that are
not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public and are not exempt from disclosure under
the FOIA;
(4) Copies of all records, regardless of form or format, that have
been released to any person under 5 U.S.C. 552(a)(3), that because of
the nature of their subject matter, FHFA determines have become or are
likely to become the subject of subsequent requests for substantially
the same records, or that have been requested 3 or more times; and
(5) A general index of the records referred to in paragraph (b)(4)
of this section.
(c) Reading rooms. FHFA maintains an electronic reading room. FHFA
will ensure that its reading room is reviewed and updated on an ongoing
basis. See the Appendices to this part for location and contact
information for FHFA-HQ and FHFA-OIG respective reading rooms.
Sec. 1202.4 What information is exempt from disclosure?
(a) General. Unless the Director of FHFA or his or her designee, or
any regulation or statute specifically authorizes disclosure, FHFA will
not release records if it reasonably foresees that disclosure would harm
an interest protected by one or more of the following--
(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 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; provided that the deliberative process privilege shall not apply
to records created 25 years or more before the date on which the records
were requested.
(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;
[[Page 57]]
(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 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) 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 redacts the exempt
portions. If it is technically feasible, FHFA will indicate the amount
of the information redacted at the place in the record where the
redaction is made and include a notation identifying the exemption that
was applied, unless including that indication would harm an interest
protected by an exemption.
(c) Exempt and redacted material. FHFA is not required to and will
not provide a Vaughn index during the administrative stage of processing
your FOIA request.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018]
Sec. 1202.5 How do I request information from FHFA under the FOIA?
(a) Where to send your request. FHFA has a decentralized system for
processing FOIA requests, made up of two components. To make a request
for FHFA records, the FOIA request must be in writing. A requester must
write directly to the FOIA office of the component that maintains the
records being sought. The Appendices to this part contain the respective
location and contact information for submitting a FOIA request for each
FHFA component.
(b) Provide your name and address. Your request must include your
full name, your address and, if different, the address at which the
component 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 the FOIA. Your request must have a statement
identifying it as being made under the FOIA.
(d) Your FOIA status. Your request should include a statement
specifically identifying your status 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 the FOIA.
(e) Describing the records you request. You must describe the
records that you seek in enough detail to enable FHFA to search for and
locate the records with a reasonable amount of effort. Your request must
include as much specific information as possible that you know about
each record in your request, such as the date, title, name, author,
recipient, subject matter, file designations, or the description of the
record.
(f) How you want the records produced to you. Your request may state
in what form or format you want FHFA to furnish the releasable records,
e.g., hardcopy, or electronic.
(g) Agreement to pay fees. In your FOIA request you must acknowledge
[[Page 58]]
that you are aware of the applicable fees charged under Sec. 1202.11,
and specify an amount, if any, you are willing to pay without
consultation. Your inability to pay a fee does not justify granting a
fee waiver. The fact that FHFA withholds all responsive documents or
does not locate any documents responsive to your request, does not mean
that you are not responsible for paying applicable fees. Your FOIA
request will not be considered received by FHFA until your
acknowledgement of the applicable fees, in writing, is received. FHFA
will notify a requester of any fees above $25.00.
(h) Valid requests. FHFA will only process valid requests. A valid
request must meet all the requirements of this part.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018]
Sec. 1202.6 What if my request does not have all the information FHFA
requires?
If FHFA determines that your request does not reasonably describe
the records you seek, cannot 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 meet
all requirements. If you are notified that your request cannot be
processed for the reasons cited herein, your request will be placed on
hold and will not be considered as being received by FHFA for the
purpose of processing your request under this part.
(a) If you respond with all the necessary information, FHFA will
process this response as a new request and the time period for FHFA to
respond to your request will start from the date the additional
information is actually received by FHFA.
(b) If you do not respond or provide additional information within
the time period allowed, or if the additional information you provide is
still incomplete or insufficient, FHFA will consider your request closed
and will notify you that it will not be processed.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018]
Sec. 1202.7 How will FHFA respond to my FOIA request?
(a) Authority to grant or deny requests. The FOIA Officer, FOIA
Official, and the Chief FOIA Officer are authorized to grant or deny any
request for FHFA records.
(b) Designated standard ``cut-off'' date for searches. In
determining which records are responsive to a request, FHFA will include
only records in its possession as of the date the FOIA request is
received.
(c) Multi-Track request processing. FHFA uses a multi-track system
to process FOIA requests. This means that a FOIA request is processed
based on its complexity. When FHFA receives your request, it is assigned
to a Standard Track or Complex Track. FHFA will notify you if your
request is assigned to the Complex Track as described in paragraph (h)
of this section.
(1) Standard Track. FHFA assigns FOIA requests that are routine and
require little or no search time, review, or analysis to the Standard
Track. FHFA responds to these requests in the order in which they are
received and normally responds within 20 days after receipt. If FHFA
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 (h) of
this section.
(2) Complex Track. (i) FHFA assigns requests that are non-routine to
the Complex Track. Complex Track requests are those to which FHFA
determines that the request and/or response may--
(A) Be voluminous;
(B) Involve two or more FHFA components or 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 of this part;
(F) Require an unusually high level of effort to search for, review
and/or duplicate records; or
(G) Cause undue disruption to the day-to-day activities of FHFA in
regulating and supervising the regulated
[[Page 59]]
entities or in carrying out its statutory responsibilities.
(ii) FHFA will respond to Complex Track requests as soon as
reasonably possible, regardless of the date of receipt.
(d) Referrals to other agencies. If you submit a FOIA request that
seeks records originating in another Federal Government agency, FHFA
will refer those records, as applicable, to the other agency for a
direct response. FHFA will provide you notice of the referral, what
records were referred, and the name of the other agency and relevant
contact information.
(e) Consultation with other agencies. When records originate with
FHFA, but contain within them information of interest to another agency,
FHFA will consult with the other agency(ies) prior to making a
determination on your request.
(f) Responses to FOIA requests. FHFA 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 will conduct a search for records in
its possession as of the date of your request.
(1) Requests that are granted. If FHFA grants your request, the
response will include the requested records or details about how FHFA
will provide them to you and the amount of any fees charged.
(2) Requests that are denied, or granted and denied in part. If FHFA
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 the 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. FHFA will not provide you with a Vaughn index
during the administrative stage of processing your request.
(g) Format and delivery of disclosed records. If FHFA grants, in
whole or in part, your request for disclosure of records under the 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 offices.
(h) Extensions of time. (1) In unusual circumstances, FHFA may
extend the statutory time limit in paragraph (c)(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) When a request requires more than 30 days to process, FHFA will
make available its FOIA Public Liaison or other FOIA contact to assist
you in modifying or reformulating your request. If the request cannot be
modified or reformulated, FHFA will notify you regarding an alternative
time period for processing the request. FHFA will also notify you of the
availability of the Office of Government Information Services to provide
dispute resolution service.
(3) For the purpose of satisfying unusual circumstances under the
FOIA, FHFA may aggregate requests in cases where it reasonably appears
that multiple requests, submitted either by a requester or by a group of
requesters acting in concert, constitute a single request that would
otherwise involve unusual circumstances. FHFA will not aggregate
multiple requests that involve unrelated matters.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018]
Sec. 1202.8 If the requested records contain confidential commercial
information, what procedures will FHFA follow?
(a) General. FHFA 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 or written request, either at
[[Page 60]]
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) of this part. 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 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) of this part; or
(2) FHFA 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 sends a Pre-
Disclosure Notification to a submitter, it will contain--
(1) A description of the commercial information requested or copies
of the records or portions thereof containing the business information;
and
(2) An opportunity to object to disclosure within 10 days or such
other time period that FHFA may allow by providing to FHFA a detailed
written statement demonstrating all reasons the submitter opposes
disclosure.
(e) Exceptions to Pre-Disclosure Notification. FHFA is not required
to send a Pre-Disclosure Notification if--
(1) FHFA 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 the
FOIA;
(4) The information requested is not designated by the submitter as
confidential commercial information pursuant to this section, unless the
agency has substantial reason to believe that disclosure of the
information would result in competitive harm; or
(5) The submitter's designation, under paragraph (b) of this
section, appears on its face to be frivolous; except that FHFA 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 the date of the Pre-Disclosure
Notification, or such other time period that FHFA may allow, by
delivering to FHFA a written 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 the
FOIA.
(g) Notice of Intent to disclose information. FHFA will carefully
consider all grounds and reasons provided by a submitter objecting to
disclosure. If FHFA 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 of Intent 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 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) of this part 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
[[Page 61]]
(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 may allow, to respond.
(i) Notice of FOIA lawsuit. FHFA will promptly notify the submitter
whenever a requester files suit seeking to compel disclosure of the
submitter's confidential commercial information. FHFA will promptly
notify the requester whenever a submitter files suit seeking to prevent
disclosure of information.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018]
Sec. 1202.9 How do I appeal a response denying my FOIA request?
(a) Right of appeal. If FHFA denied your request in whole or in
part, you may appeal the denial by writing directly to the appropriate
FHFA component specified in the Appendices to this part.
(b) Timing, form, content, and receipt of an appeal. Your written
appeal must be postmarked or submitted within 90 calendar days of the
date of the decision by FHFA 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 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 the
correct FHFA component.
(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 90-calendar day time period for
filing the appeal. Granting such an extension is in the sole discretion
of the designated component Appeals Officer.
(d) Final action on appeal. FHFA's determination on your appeal will
be in writing, signed by the designated component 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 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, as appropriate, for re-processing.
(e) Notice of delayed determinations on appeal. If FHFA cannot send
a final determination on your appeal within the 20-day time limit, the
designated component 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.
(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). Before seeking review by a court of FHFA's
adverse determination, a requester generally must first submit a timely
administrative appeal.
(g) Additional resource. To aid the requester, the FOIA Public
Liaison is available and will assist in the resolution of any disputes.
Also, the National Archives and Records Administration (NARA), Office of
Government Information Services (OGIS) offers non-compulsory, non-
binding services to resolve FOIA disputes. If you need information
regarding the OGIS and/or the services it offers, please contact OGIS
directly at Office of Government Information Services, National Archives
and Records Administration, 8601 Adelphi Road-OGIS, College Park, MD
20740-6001; email: [email protected]; phone: (202) 741-5770; toll-free: 1
(877) 684-6448;
[[Page 62]]
or facsimile at (202) 741-5769. This information is provided as a public
service only.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018]
Sec. 1202.10 Will FHFA 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 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 will notify you within 10
calendar 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
of that decision under Sec. 1202.9 of this part will be acted on
expeditiously.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018]
Sec. 1202.11 What will it cost to get the records I requested?
(a) Assessment of fees, generally. FHFA 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
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 may assess are limited to FHFA'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. FHFA will charge fees for processing requests
under the FOIA in accordance with the provisions of this section and OMB
guidelines (basic pay plus 16 percent). There are three different groups
of grades typically involved in processing FOIA requests: Personnel in
grades EL-6 to EL-9; personnel in grades EL-10 to EL-13; and personnel
EL-14 and above. FHFA's Web site, www.fhfa.gov, will contain current
rates for search and review fees for each group. The rates will be
updated as salaries change and will be determined by using the formula
in this regulation. The formula is the sum of the mid-point of each
grade divided
[[Page 63]]
by the number of grades in each category divided by 2088 and then
multiplied by 1.16.\1\ Fees for searches of computerized records are
based on the actual cost to FHFA. For requests that require the
retrieval of records stored by FHFA at a Federal records center operated
by the National Archives and Records Administration, FHFA will charge
additional costs in accordance with the Transaction Billing Rate
Schedule established by NARA.
---------------------------------------------------------------------------
\1\ Example of the rate formula is as follows: For 2016, EL-6 to EL-
9 is [($55,769 + $63,554 + $71,816 + $81,152)/4][1/2088 hours per
year][1.16 OMB markup factor] = $37.82 per hour.
---------------------------------------------------------------------------
(d) Notice of anticipated fees in excess of $25.00. When FHFA
determines or estimates that the fees chargeable to you will exceed
$25.00, 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 $25.00, your request will be tolled until you
agree to pay, in writing, the anticipated total fee.
(e) Advance payment of fees. FHFA may request that you pay estimated
fees or a deposit in advance of responding to your request. If FHFA
requests advance payment or a deposit, your request will be tolled by
FHFA until the advance payment or deposit is received. FHFA may request
advance payment or a deposit if--
(1) The fees are likely to exceed $250.00;
(2) You do not have a history of payment;
(3) You previously failed to pay a FOIA fee to FHFA in a timely
fashion, i.e., within 30 calendar days of the date of a billing; or
(4) You have an outstanding balance due from a prior request. FHFA
will 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 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, even if not
processed, FHFA 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 assistance to reduce costs. If FHFA notifies you of
estimated fees exceeding $100.00 or requests advance payment or a
deposit, you will have an opportunity to consult with FHFA 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 the FOIA and this regulation. Requests for a waiver of fees must be
made in writing and should be made at the time you submit your FOIA
request. However, your fee waiver may be submitted at a later time so
long as the underlying record request is pending or on administrative
appeal. FHFA may grant your fee waiver request or a reduction of fees 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 your commercial interest. 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. The subject of the
request must concern identifiable operations or activities of the
Federal Government with a connection that is direct and clear, not
remote or attenuated;
(2) Whether the disclosure is likely to contribute significantly to
the public understanding of Federal Government operations or activities.
This factor is satisfied when the following criteria are met:
(i) Disclosure of the requested information must be meaningfully
informative about government operations or activities. The disclosure of
information that already is in the public domain, in either the same or
a substantially identical form, would not be meaningfully informative if
nothing new would be added to the public's understanding; and
[[Page 64]]
(ii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to your individual understanding. Your expertise in the subject
area as well as your ability and intention to effectively convey
information to the public must be considered. FHFA will presume that a
representative of the news media will satisfy this consideration.
(3) The disclosure must not be primarily in your commercial
interest. To determine whether disclosure of the requested information
is primarily in your commercial interest FHFA will consider the
following criteria:
(i) FHFA will determine whether you have any commercial interest
that would be furthered by the requested disclosure. A commercial
interest includes any commercial, trade, or profit interest. You will be
given an opportunity to provide explanatory information regarding this
consideration; and
(ii) If there is an identified commercial interest, FHFA will
determine whether that is the primary interest furthered by the request.
(i) Fee Waiver determination. FHFA will notify you within 20 days of
receipt of your request whether the fee waiver has been granted. Where
only some of the records to be released satisfy the requirements for a
waiver of fees, a waiver will be granted for those records. For those
records that do not satisfy the requirements for a waiver of fees, you
may be charged for those records. When you have committed to pay fees
and subsequently ask for a waiver of those fees and that waiver is
denied, you must pay any costs incurred up to the date the fee waiver
request was received. A request for fee waiver that is denied may only
be appealed when a final decision has been made on the initial FOIA
request.
(j) Restrictions on charging fees. (1) When FHFA determines that you
are an educational institution, non-commercial scientific institution,
or representative of the news media, and the records are not sought for
commercial use, FHFA will not charge search fees.
(2)(i) If FHFA fails to comply with the FOIA's time limits in which
to respond to your request, FHFA will not charge search fees, or, in the
instances of requests from requesters described in paragraph (j)(1) of
this section, will not charge duplication fees, except as described in
paragraphs (j)(2)(ii) through (iv) of this section.
(ii) If FHFA has determined that unusual circumstances as defined by
the FOIA apply and FHFA has provided timely written notice to you in
accordance with the FOIA, FHFA's failure to comply with the time limit
will be excused for an additional 10 days.
(iii) If FHFA determines that unusual circumstances, as defined by
the FOIA, apply and more than 5,000 pages are necessary to respond to
your request, FHFA may charge search fees, or, in the case of a
requester described in paragraph (j)(1) of this section, may charge
duplication fees, if the following steps are taken. FHFA must have
provided timely written notice of unusual circumstances to you in
accordance with the FOIA and FHFA must have discussed with you via
written mail, email, or telephone (or made not less than three good-
faith attempts to do so) how you could effectively limit the scope of
your request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this
exception is satisfied, FHFA may charge all applicable fees incurred in
the processing of the request.
(iv) If a court has determined that exceptional circumstances exist,
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) If you seek records for a commercial use, FHFA will provide
without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the
100 free pages (or its cost equivalent) and the first two hours of
search, is equal to or less than $25.00.
(k) Additional resource. The FOIA Public Liaison or other FOIA
contact is available to assist you in modifying or reformulating a
request to meet
[[Page 65]]
your needs at a lower cost. FHFA will also notify you of the
availability of OGIS to provide dispute resolution service.
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018]
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
the FOIA. This regulation only provides procedures for requesting
records under the FOIA.
Sec. Appendix A to Part 1202--FHFA Headquarters
1. This Appendix applies to the Federal Housing Finance Agency's
Headquarters Office.
2. Reading room. FHFA Headquarters only maintains an electronic
reading room. The electronic reading room is located on FHFA's public
website at http://www.fhfa.gov/AboutUs/FOIAPrivacy/Pages/Reading-
Room.aspx.
3. Where to send your request. You may make a request for FHFA
Headquarters records by writing directly to the FOIA Office through
electronic mail, U.S. mail, delivery service, or facsimile. The
electronic mail address is: [email protected]. For U.S. mail or delivery
service, the mailing address is: FOIA Officer, Federal Housing Finance
Agency, 400 Seventh Street SW., Eighth Floor, Washington, DC 20219. The
facsimile number is: (202) 649-1073. When submitting your request,
please mark 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, provides additional information to assist you in making
your request. You can find additional information on FHFA's FOIA program
at http://www.fhfa.gov/AboutUs/FOIAPrivacy/Pages/FOIA-Reference-
Guide.aspx.
4. Right of appeal. If FHFA Headquarters denied your request in
whole or in part, you may appeal the denial by writing directly to the
FOIA Appeals Officer through electronic mail, U.S. mail, delivery
service, or facsimile. The electronic mail address is: [email protected].
For U.S. mail or delivery service, the mailing address is: FOIA Appeals
Officer, Federal Housing Finance Agency, 400 Seventh Street SW., Eighth
Floor, Washington, DC 20219. The facsimile number is: (202) 649-1073.
When submitting your appeal, please mark electronic mail, letters, or
facsimiles and the subject line, envelope, or facsimile cover sheet with
``FOIA Appeal.'' FHFA's ``Freedom of Information Act Reference Guide,''
which is available on FHFA's Web site, provides additional information
to assist you in making your appeal. You can find additional information
on FHFA's FOIA program at http://www.fhfa.gov/AboutUs/FOIAPrivacy/Pages/
FOIA-Reference-Guide.aspx
[82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5685, Feb. 9, 2018]
Sec. Appendix B to Part 1202--FHFA Office of Inspector General
This Appendix applies to the Federal Housing Finance Agency's Office
of Inspector General (FHFA-OIG).
1. Contact information for FOIA Officer. You may contact the FOIA
Officer at (202) 730-0399 or by email at [email protected]. Hearing
impaired users may utilize the Federal Relay Service (external link) by
dialing 1(800) 877-8339. A Communications Assistant will dial the
requested number and relay the conversation between a standard (voice)
telephone user and text telephone (TTY).
2. Information about the FHFA-OIG FOIA process. You may find
information about the FHFA-OIG FOIA process at https://www.fhfaoig.gov/
FOIA.
3. Reading room. FHFA-OIG maintains an electronic reading room. The
electronic reading room is located at https://www.fhfaoig.gov/FOIA/
ReadingRoom.
4. Where to send your request. You may make a request for FHFA-OIG
records by writing directly to the FOIA Office through electronic mail,
U.S. mail, delivery service, or facsimile. The electronic mail address
is: [email protected]. For U.S. mail or delivery service, the mailing
address is: Federal Housing Finance Agency Office of Inspector General,
400 Seventh Street SW., Third Floor, Washington, DC 20219, ATTN: Office
of Inspector General--FOIA Officer. The facsimile number is: (202) 318-
8602. When submitting your request, please mark electronic mail,
letters, or facsimiles and the subject line, envelope, or facsimile
cover sheet with ``FOIA Request.''
5. Right of appeal. If FHFA-OIG denies your request in whole or in
part, you may appeal the denial by writing directly to the FOIA Officer
through electronic mail, U.S. mail, delivery service, or facsimile. The
electronic mail address is: [email protected]. For U.S. mail or delivery
service, the mailing address is: Federal Housing Finance Agency, Office
of Inspector General, 400 Seventh Street SW., Third Floor, Washington,
DC 20219, ATTN: Office of Inspector General--FOIA Officer. The facsimile
number is: (202) 318-8602. When
[[Page 66]]
submitting your appeal, please mark electronic mail, letters, or
facsimiles and the subject line, envelope, or facsimile cover sheet with
``FOIA Appeal.''
PART 1203_EQUAL ACCESS TO JUSTICE ACT--Table of Contents
Subpart A_General Provisions
Sec.
1203.1 Purpose and scope.
1203.2 Definitions.
1203.3 Eligible parties.
1203.4 Standards for awards.
1203.5 Allowable fees and expenses.
1203.6 Rulemaking on maximum rate for fees.
1203.7 Awards against other agencies.
1203.8-1203.9 [Reserved]
Subpart B_Information Required From Applicants
1203.10 Contents of the application for award.
1203.11 Confidentiality of net worth exhibit.
1203.12 Documentation for fees and expenses.
1203.13-1203.19 [Reserved]
Subpart C_Procedures for Filing and Consideration of the Application for
Award
1203.20 Filing and service of the application for award and related
papers.
1203.21 Response to the application for award.
1203.22 Reply to the response.
1203.23 Comments by other parties.
1203.24 Settlement.
1203.25 Further proceedings on the application for award.
1203.26 Decision of the adjudicative officer.
1203.27 Review by FHFA.
1203.28 Judicial review.
1203.29 Payment of award.
Authority: 12 U.S.C. 4526, 5 U.S.C. 504.
Source: 75 FR 65219, Oct. 22, 2010, unless otherwise noted..
Subpart A_General Provisions
Sec. 1203.1 Purpose and scope.
(a) This part implements the Equal Access to Justice Act, 5 U.S.C.
504, by establishing procedures for the filing and consideration of
applications for awards of fees and other expenses to eligible
individuals and entities who are parties to adversary adjudications
before FHFA.
(b) This part applies to the award of fees and other expenses in
connection with adversary adjudications before FHFA. However, if a court
reviews the underlying decision of the adversary adjudication, an award
for fees and other expenses may be made only pursuant to 28 U.S.C.
2412(d)(3).
Sec. 1203.2 Definitions.
As used in this part:
Adjudicative officer means the official who presided at the
underlying adversary adjudication, without regard to whether the
official is designated as a hearing examiner, administrative law judge,
administrative judge, or otherwise.
Adversary adjudication means an administrative proceeding conducted
by FHFA under 5 U.S.C. 554 in which the position of FHFA or any other
agency of the United States is represented by counsel or otherwise,
including but not limited to an adjudication conducted under the Safety
and Soundness Act, as amended, and any implementing regulations. Any
issue as to whether an administrative proceeding is an adversary
adjudication for purposes of this part will be an issue for resolution
in the proceeding on the application for award.
Affiliate means an individual, corporation, or other entity that
directly or indirectly controls or owns a majority of the voting shares
or other interests of the party, or any corporation or other entity of
which the party directly or indirectly owns or controls a majority of
the voting shares or other interest, unless the adjudicative officer
determines that it would be unjust and contrary to the purpose of the
Equal Access to Justice Act in light of the actual relationship between
the affiliated entities to consider them to be affiliates for purposes
of this part.
Agency counsel means the attorney or attorneys designated by the
General Counsel of FHFA to represent FHFA in an adversary adjudication
covered by this part.
Demand of FHFA means the express demand of FHFA that led to the
adversary adjudication, but does not include a recitation by FHFA of the
maximum statutory penalty when accompanied
[[Page 67]]
by an express demand for a lesser amount.
Director means the Director of the Federal Housing Finance Agency.
Fees and other expenses means reasonable attorney or agent fees, the
reasonable expenses of expert witnesses, and the reasonable cost of any
study, analysis, engineering report, or test, which the agency finds
necessary for the preparation of the eligible party's case.
FHFA means the Federal Housing Finance Agency.
Final disposition date means the date on which a decision or order
disposing of the merits of the adversary adjudication or any other
complete resolution of the adversary adjudication, such as a settlement
or voluntary dismissal, becomes final and unappealable, both within the
agency and to the courts.
Party means an individual, partnership, corporation, association, or
public or private organization that is named or admitted as a party,
that is admitted as a party for limited purposes, or that is properly
seeking and entitled as of right to be admitted as a party in an
adversary adjudication.
Position of FHFA means the position taken by FHFA in the adversary
adjudication, including the action or failure to act by FHFA upon which
the adversary adjudication was based.
Sec. 1203.3 Eligible parties.
(a) To be eligible for an award of fees and other expenses under the
Equal Access to Justice Act, the applicant must show that it meets all
conditions of eligibility set out in this paragraph and has complied
with all the requirements in subpart B of this part. The applicant must
also be a party to the adversary adjudication for which it seeks an
award.
(b) To be eligible for an award of fees and other expenses for
prevailing parties, a party must be one of the following:
(1) An individual who has a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interest, and not more than 500 employees; however, a party who owns an
unincorporated business will be considered to be an ``individual''
rather than the ``sole owner of an unincorporated business'' if the
issues on which the party prevails are related primarily to personal
interests rather than to business interests;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. 501(c)(3),
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act, 12 U.S.C. 1141j(a), with not more than 500
employees;
(5) Any other partnership, corporation, association, unit of local
government, or organization that has a net worth of not more than $7
million and not more than 500 employees; or
(6) For the purposes of an application filed pursuant to 5 U.S.C.
504(a)(4), a small entity as defined in 5 U.S.C. 601.
(c) For purposes of eligibility under this section:
(1) The employees of a party must include all persons who regularly
perform services for remuneration for the party, under the party's
direction and control. Part-time employees must be included on a
proportional basis.
(2) The net worth and number of employees of the party and its
affiliates must be aggregated to determine eligibility.
(3) The net worth and number of employees of a party will be
determined as of the date the underlying adversary adjudication was
initiated.
(4) A party that participates in an adversary adjudication primarily
on behalf of one or more entities that would be ineligible for an award
is not itself eligible for an award.
Sec. 1203.4 Standards for awards.
(a) An eligible party that files an application for award of fees
and other expenses in accordance with this part will receive an award of
fees and other expenses related to defending against a demand of FHFA if
the demand was in excess of the decision in the underlying adversary
adjudication and was unreasonable when compared with the decision under
the facts and circumstances
[[Page 68]]
of the case, unless the party has committed a willful violation of law
or otherwise acted in bad faith, or unless special circumstances make an
award unjust. The burden of proof that the demand of FHFA was
substantially in excess of the decision and is unreasonable when
compared with the decision is on the eligible party.
(b) An eligible party that submits an application for award in
accordance with this part will receive an award of fees and other
expenses incurred in connection with an adversary adjudication in which
it prevailed or in a significant and discrete substantive portion of the
adversary adjudication in which it prevailed, unless the position of
FHFA in the adversary adjudication was substantially justified or
special circumstances make an award unjust. FHFA has the burden of proof
to show that its position was substantially justified and may do so by
showing that its position was reasonable in law and in fact.
Sec. 1203.5 Allowable fees and expenses.
(a) Awards of fees and other expenses will be based on rates
customarily charged by persons engaged in the business of acting as
attorneys, agents, and expert witnesses, even if the services were made
available without charge or at a reduced rate to the party. However,
except as provided in Sec. 1203.6, an award for the fee of an attorney
or agent may not exceed $125 per hour and an award to compensate an
expert witness may not exceed the highest rate at which FHFA pays expert
witnesses. However, an award may also include the reasonable expenses of
the attorney, agent, or expert witness as a separate item if he or she
ordinarily charges clients separately for such expenses.
(b) In determining the reasonableness of the fee sought for an
attorney, agent, or expert witness, the adjudicative officer will
consider the following:
(1) If the attorney, agent, or expert witness is in private
practice, his or her customary fees for similar services; or, if the
attorney, agent, or expert witness is an employee of the eligible party,
the fully allocated costs of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent, or expert witness ordinarily performs
services;
(3) The time actually spent in the representation of the eligible
party;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the adversary adjudication; and
(5) Such other factors as may bear on the value of the services
provided.
(c) In determining the reasonable cost of any study, analysis,
engineering report, test, project, or similar matter prepared on behalf
of a party, the adjudicative officer will consider the prevailing rate
for similar services in the community in which the services were
performed.
(d) Fees and other expenses incurred before the date on which an
adversary adjudication was initiated will be awarded only if the
eligible party can demonstrate that they were reasonably incurred in
preparation for the adversary adjudication.
Sec. 1203.6 Rulemaking on maximum rate for fees.
If warranted by an increase in the cost of living or by special
circumstances, FHFA may adopt regulations providing for an award of
attorney or agent fees at a rate higher than $125 per hour in adversary
adjudications covered by this part. Special circumstances include the
limited availability of attorneys or agents who are qualified to handle
certain types of adversary adjudications. FHFA will conduct any
rulemaking proceedings for this purpose under the informal rulemaking
procedures of the Administrative Procedure Act, 5 U.S.C. 553.
Sec. 1203.7 Awards against other agencies.
If another agency of the United States participates in an adversary
adjudication before FHFA and takes a position that was not substantially
justified, the award or appropriate portion of the award to an eligible
party that prevailed over that agency will be made against that agency.
[[Page 69]]
Sec. Sec. 1203.8-1203.9 [Reserved]
Subpart B_Information Required From Applicants
Sec. 1203.10 Contents of the application for award.
(a) An application for award of fees and other expenses under either
Sec. 1203.4(a) and Sec. 1203.4(b) must:
(1) Identify the applicant and the adversary adjudication for which
an award is sought;
(2) State the amount of fees and other expenses for which an award
is sought;
(3) Provide the statements and documentation required by paragraph
(b) or (c) of this section and Sec. 1203.12 and any additional
information required by the adjudicative officer; and
(4) Be signed by the applicant or an authorized officer or attorney
of the applicant and contain or be accompanied by a written verification
under oath or under penalty of perjury that the information provided in
the application is true and correct.
(b) An application for award under Sec. 1203.4(a) must show that
the demand of FHFA was substantially in excess of, and was unreasonable
when compared to, the decision in the underlying adversary adjudication
under the facts and circumstances of the case. It must also show that
the applicant is a small entity as defined in 5 U.S.C. 601.
(c) An application for award under Sec. 1203.4(b) must:
(1) Show that the applicant has prevailed in a significant and
discrete substantive portion of the underlying adversary adjudication
and identify the position of FHFA in the adversary adjudication that the
applicant alleges was not substantially justified;
(2) State the number of employees of the applicant and describe
briefly the type and purposes of its organization or business (if the
applicant is not an individual);
(3) State that the net worth of the applicant does not exceed $2
million, if the applicant is an individual; or for all other applicants,
state that the net worth of the applicant and its affiliates, if any,
does not exceed $7 million; and
(4) Include one of the following:
(i) A detailed exhibit showing the net worth (net worth exhibit) of
the applicant and its affiliates, if any, when the underlying adversary
adjudication was initiated. The net worth exhibit may be in any form
convenient to the applicant as long as the net worth exhibit provides
full disclosure of the assets and liabilities of the applicant and its
affiliates, if any, and is sufficient to determine whether the applicant
qualifies as an eligible party;
(ii) A copy of a ruling by the Internal Revenue Service that shows
that the applicant qualifies as an organization described in section
501(c)(3) of the Internal Revenue Code, 26 U.S.C. 501(c)(3); or in the
case of a tax-exempt organization not required to obtain a ruling from
the Internal Revenue Service on its exempt status, a statement that
describes the basis for the belief that the applicant qualifies under
such section; or
(iii) A statement that the applicant is a cooperative association as
defined in section 15(a) of the Agricultural Marketing Act, 12 U.S.C.
1141j(a).
Sec. 1203.11 Confidentiality of net worth exhibit.
Unless otherwise ordered by the Director, or required by law, the
statement of net worth will be for the confidential use of the
adjudicative officer, the Director, and agency counsel.
Sec. 1203.12 Documentation for fees and expenses.
(a) The application for award must be accompanied by full and
itemized documentation of the fees and other expenses for which an award
is sought. The adjudicative officer may require the applicant to provide
vouchers, receipts, logs, or other documentation for any fees or
expenses claimed.
(b) A separate itemized statement must be submitted for each entity
or individual whose services are covered by the application. Each
itemized statement must include:
(1) The hours spent by each entity or individual;
(2) A description of the specific services performed and the rates
at which each fee has been computed; and
(3) Any expenses for which reimbursement is sought, the total amount
[[Page 70]]
claimed, and the total amount paid or payable by the applicant or by any
other person or entity.
Sec. Sec. 1203.13-1203.19 [Reserved]
Subpart C_Procedures for Filing and Consideration of the Application for
Award
Sec. 1203.20 Filing and service of the application for award and
related papers.
(a) An application for an award of fees and other expenses must be
filed no later than 30 days after the final disposition of the
underlying adversary adjudication.
(b) An application for award and other papers related to the
proceedings on the application for award must be filed and served on all
parties in the same manner as papers are filed and served in the
underlying adversary adjudication, except as otherwise provided in this
part.
(c) The computation of time for filing and service of the
application of award and other papers must be computed in the same
manner as in the underlying adversary adjudication.
Sec. 1203.21 Response to the application for award.
(a) Agency counsel must file a response within 30 days after service
of an application for award of fees and other expenses except as
provided in paragraphs (b) and (c) of this section. In the response,
agency counsel must explain any objections to the award requested and
identify the facts relied upon to support the objections. If any of the
alleged facts are not already in the record of the underlying adversary
adjudication, agency counsel must include with the response either
supporting affidavits or a request for further proceedings under Sec.
1203.25.
(b) If agency counsel and the applicant believe that the issues in
the application for award can be settled, they may jointly file a
statement of their intent to negotiate a settlement. The filing of this
statement will extend the time for filing a response for an additional
30 days. Upon request by agency counsel and the applicant, the
adjudicative officer may grant for good cause further time extensions.
(c) Agency counsel may request that the adjudicative officer extend
the time period for filing a response. If agency counsel does not
respond or otherwise does not contest or settle the application for
award within the 30-day period or the extended time period, the
adjudicative officer may make an award of fees and other expenses upon a
satisfactory showing of entitlement by the applicant.
Sec. 1203.22 Reply to the response.
Within 15 days after service of a response, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the underlying adversary adjudication, the applicant must
include with the reply either supporting affidavits or a request for
further proceedings under Sec. 1203.25.
Sec. 1203.23 Comments by other parties.
Any party to the underlying adversary adjudication other than the
applicant and agency counsel may file comments on an application for
award within 30 calendar days after it is served, or on a response
within 15 calendar days after it is served. A commenting party may not
participate further in proceedings on the application unless the
adjudicative officer determines that the public interest requires such
participation in order to permit full exploration of matters raised in
the comments.
Sec. 1203.24 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of an award before the final decision on the application for award is
made, either in connection with a settlement of the underlying adversary
adjudication or after the underlying adversary adjudication has been
concluded. If the eligible party and agency counsel agree on a proposed
settlement of an award before an application for award has been filed,
the application must be filed with the proposed settlement.
[[Page 71]]
Sec. 1203.25 Further proceedings on the application for award.
(a) On request of either the applicant or agency counsel, on the
adjudicative officer's own initiative, or as requested by the Director
under Sec. 1203.27, the adjudicative officer may order further
proceedings, such as an informal conference, oral argument, additional
written submissions, or, as to issues other than substantial
justification (such as the applicant's eligibility or substantiation of
fees and expenses), pertinent discovery or an evidential hearing. Such
further proceedings will be held only when necessary for full and fair
resolution of the issues arising from the application for award and will
be conducted as promptly as possible. The issue as to whether the
position of FHFA in the underlying adversary adjudication was
substantially justified will be determined on the basis of the whole
administrative record that was made in the underlying adversary
adjudication.
(b) A request that the adjudicative officer order further
proceedings under this section must specifically identify the
information sought on the disputed issues and must explain why the
additional proceedings are necessary to resolve the issues.
Sec. 1203.26 Decision of the adjudicative officer.
(a) The adjudicative officer must make the initial decision on the
basis of the written record, except if further proceedings are ordered
under Sec. 1203.25.
(b) The adjudicative officer must issue a written initial decision
on the application for award within 30 days after completion of
proceedings on the application. The initial decision will become the
final decision of FHFA after 30 days from the day it was issued, unless
review is ordered under Sec. 1203.27.
(c) In all initial decisions, the adjudicative officer must include
findings and conclusions with respect to the applicant's eligibility and
an explanation of the reasons for any difference between the amount
requested by the applicant and the amount awarded. If the applicant has
sought an award against more than one agency, the adjudicative officer
must also include findings and conclusions with respect to the
allocation of payment of any award made.
(d) In initial decisions on applications filed pursuant to Sec.
1203.4(a), the adjudicative officer must include findings and
conclusions as to whether FHFA made a demand that was substantially in
excess of the decision in the underlying adversary adjudication and that
was unreasonable when compared with that decision; and, if at issue,
whether the applicant has committed a willful violation of the law or
otherwise acted in bad faith, or whether special circumstances would
make the award unjust.
(e) In decisions on applications filed pursuant to Sec. 1203.4(b),
the adjudicative officer must include written findings and conclusions
as to whether the applicant is a prevailing party and whether the
position of FHFA was substantially justified; and, if at issue, whether
the applicant unduly protracted or delayed the underlying adversary
adjudication or whether special circumstance make the award unjust.
Sec. 1203.27 Review by FHFA.
Within 30 days after the adjudicative officer issues an initial
decision under Sec. 1203.26, either the applicant or agency counsel may
request the Director to review the initial decision of the adjudicative
officer. The Director may also decide, at his or her discretion, to
review the initial decision. If review is ordered, the Director must
issue a final decision on the application for award or remand the
application for award to the adjudicative officer for further
proceedings under Sec. 1203.25.
Sec. 1203.28 Judicial review.
Any party, other than the United States, that is dissatisfied with
the final decision on an application for award of fees and expenses
under this part may seek judicial review as provided in 5 U.S.C.
504(c)(2).
Sec. 1203.29 Payment of award.
To receive payment of an award of fees and other expenses granted
under this part, the applicant must submit a copy of the final decision
that grants the award and a certification that the applicant will not
seek review of the decision in the United States courts to
[[Page 72]]
the Director, Federal Housing Finance Agency, 400 7th Street SW.,
Washington, DC 20219. FHFA must pay the amount awarded to the applicant
within 60 days of receipt of the submission of the copy of the final
decision and the certification, unless judicial review of the award has
been sought by any party to the proceedings.
[75 FR 65219, Oct. 22, 2010, as amended at 80 FR 80233, Dec. 24, 2015]
PART 1204_PRIVACY ACT IMPLEMENTATION--Table of Contents
Sec.
1204.1 Why did FHFA issue this part?
1204.2 What do the terms in this part mean?
1204.3 How do I make a Privacy Act request?
1204.4 How will FHFA or FHFA-OIG respond to my Privacy Act request?
1204.5 What if I am dissatisfied with the response to my Privacy Act
request?
1204.6 What does it cost to get records under the Privacy Act?
1204.7 Are there any exemptions from the Privacy Act?
1204.8 How are records secured?
1204.9 Does FHFA or FHFA-OIG collect and use Social Security numbers?
1204.10 What are FHFA and FHFA-OIG employee responsibilities under the
Privacy Act?
1204.11 May FHFA-OIG obtain Privacy Act records from other Federal
agencies for law enforcement purposes?
Authority: 5 U.S.C. 552a.
Source: 76 FR 51871, Aug. 19, 2011, unless otherwise noted.
Editorial Note: Nomenclature changes to part 1204 appear at 77 FR
4646, Jan. 31, 2012.
Sec. 1204.1 Why did FHFA issue this part?
The Federal Housing Finance Agency (FHFA) issued this part to--
(a) Implement the Privacy Act, a Federal law that helps protect
private information about individuals that Federal agencies collect or
maintain. You should read this part together with the Privacy Act, which
provides additional information about records maintained on individuals;
(b) Establish rules that apply to all FHFA and FHFA Office of
Inspector General (FHFA-OIG) maintained systems of records retrievable
by an individual's name or other personal identifier;
(c) Describe procedures through which you may request access to
records, request amendment or correction of those records, or request an
accounting of disclosures of those records by FHFA or FHFA-OIG;
(d) Inform you, that when it is appropriate to do so, FHFA or FHFA-
OIG automatically processes a Privacy Act request for access to records
under both the Privacy Act and FOIA, following the rules contained in
this part and in FHFA's Freedom of Information Act regulation at part
1202 of this title so that you will receive the maximum amount of
information available to you by law;
(e) Notify you that this part does not entitle you to any service or
to the disclosure of any record to which you are not entitled under the
Privacy Act. It also does not, and may not be relied upon, to create any
substantive or procedural right or benefit enforceable against FHFA or
FHFA-OIG; and
(f) Notify you that this part applies to both FHFA and FHFA-OIG.
Sec. 1204.2 What do the terms in this part mean?
The following definitions apply to the terms used in this part--
Access means making a record available to a subject individual.
Amendment means any correction of, addition to, or deletion from a
record.
Court means any entity conducting a legal proceeding.
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.
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 means the Freedom of Information Act, as amended (5 U.S.C.
552).
Individual means a natural person who is either a citizen of the
United
[[Page 73]]
States of America or an alien lawfully admitted for permanent residence.
Maintain includes collect, use, disseminate, or control.
Privacy Act means the Privacy Act of 1974, as amended (5 U.S.C.
552a).
Privacy Act Appeals Officer means a person designated by the FHFA
Director to process appeals of denials of requests for or seeking
amendment of records maintained by FHFA under the Privacy Act. For
appeals pertaining to records maintained by FHFA-OIG, Privacy Act
Appeals Officer means a person designated by the FHFA Inspector General
to process appeals of denials of requests for or seeking amendment of
records maintained by FHFA-OIG under the Privacy Act.
Privacy Act Officer means a person designated by the FHFA Director
who has primary responsibility for privacy and data protection policy
and is authorized to process requests for or amendment of records
maintained by FHFA under the Privacy Act. For requests pertaining to
records maintained by FHFA-OIG, Privacy Act Officer means a person
designated by the FHFA Inspector General to process requests for or
amendment of records maintained by FHFA-OIG under the Privacy Act.
Record means any item, collection, or grouping of information about
an individual that FHFA or FHFA-OIG maintains within a system of
records, including, but not limited to, the individual's name, an
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print, or photograph.
Routine use means the purposes for which records and information
contained in a system of records may be disclosed by FHFA or FHFA-OIG
without the consent of the subject of the record. Routine uses for
records are identified in each system of records notice. Routine use
does not include disclosure that subsection (b) of the Privacy Act (5
U.S.C. 552a(b)) otherwise permits.
Senior Agency Official for Privacy means a person designated by the
FHFA Director who has the authority and responsibility to oversee and
supervise the FHFA privacy program and implementation of the Privacy
Act.
System of Records means a group of records FHFA or FHFA-OIG
maintains or controls from which information is retrieved by the name of
an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. Single records or
groups of records that are not retrieved by a personal identifier are
not part of a system of records.
System of Records Notice means a notice published in the Federal
Register which announces the creation, deletion, or amendment of one or
more system of records. System of records notices are also used to
identify a system of records' routine uses.
Sec. 1204.3 How do I make a Privacy Act request?
(a) What is a valid request? In general, a Privacy Act request can
be made on your own behalf for records or information about you. You can
make a Privacy Act request on behalf of another individual as the parent
or guardian of a minor, or as the guardian of someone determined by a
court to be incompetent. You also may request access to another
individual's record or information if you have that individual's written
consent, unless other conditions of disclosure apply.
(b) How and where do I make a request? Your request must be in
writing. Regardless of whether your request seeks records from FHFA,
FHFA-OIG, or both, you may appear in person to submit your written
request to the FHFA Privacy Act Officer, or send your written request to
the FHFA Privacy Act Officer by electronic mail, mail, delivery service,
or facsimile. The electronic mail address is: [email protected]. For mail
or delivery service, the address is: FHFA Privacy Act Officer, Federal
Housing Finance Agency, 400 Seventh Street, SW., Eighth Floor,
Washington, DC 20219. The facsimile number is (202) 649-1073. Requests
for FHFA-OIG maintained 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 ``Privacy Act
Request.'' FHFA's ``Privacy Act Reference
[[Page 74]]
Guide,'' which is available on FHFA's Web site, http://www.fhfa.gov,
provides additional information to assist you in making your request.
(c) What must the request include? You must describe the record that
you want in enough detail to enable either the FHFA or FHFA-OIG Privacy
Act Officer to locate the system of records containing it with a
reasonable amount of effort. Include specific information about each
record sought, such as the time period in which you believe it was
compiled, the name or identifying number of each system of records in
which you believe it is kept, and the date, title or name, author,
recipient, or subject matter of the record. As a general rule, the more
specific you are about the record that you want, the more likely FHFA or
FHFA-OIG will be able to locate it in response to your request.
(d) How do I request amendment or correction of a record? If you are
requesting an amendment or correction of any FHFA or FHFA-OIG record,
identify each particular record in question and the system of records in
which the record is located, describe the amendment or correction that
you want, and state why you believe that the record is not accurate,
relevant, timely, or complete. You may submit any documentation that you
think would be helpful, including an annotated copy of the record.
(e) How do I request for an accounting of disclosures? If you are
requesting an accounting of disclosures by FHFA or FHFA-OIG of a record
to another person, organization, or Federal agency, you must identify
each particular record in question. An accounting generally includes the
date, nature, and purpose of each disclosure, as well as the name and
address of the person, organization, or Federal agency to which the
disclosure was made, subject to Sec. 1204.7.
(f) Must I verify my identity? Yes. When making requests under the
Privacy Act, your request must verify your identity to protect your
privacy or the privacy of the individual on whose behalf you are acting.
If you make a Privacy Act request and you do not follow these identity
verification procedures, FHFA or FHFA-OIG cannot and will not process
your request.
(1) How do I verify my identity? To verify your identity, you must
state your full name, current address, and date and place of birth. In
order to help identify and locate the records you request, you also may,
at your option, include your Social Security number. If you make your
request in person and your identity is not known to either the FHFA or
FHFA-OIG Privacy Act Officer, you must provide either two forms of
unexpired identification with photographs issued by a federal, state, or
local government agency or entity (i.e. passport, passport card,
driver's license, ID card, etc.), or one form of unexpired
identification with a photograph issued by a federal, state, or local
government agency or entity (i.e. passport, passport card, driver's
license, ID card, etc.) and a properly authenticated birth certificate.
If you make your request by mail, your signature either must be
notarized or submitted under 28 U.S.C. 1746, a law that permits
statements to be made under penalty of perjury as a substitute for
notarization. You may fulfill this requirement by having your signature
on your request letter witnessed by a notary or by including the
following statement just before the signature on your request letter:
``I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct. Executed on [date]. [Signature].''
(2) How do I verify parentage or guardianship? If you make a Privacy
Act request as the parent or guardian of a minor, or as the guardian of
someone determined by a court to be incompetent, with respect to records
or information about that individual, you must establish--
(i) The identity of the individual who is the subject of the record,
by stating the individual's name, current address, date and place of
birth, and, at your option, the Social Security number of the
individual;
(ii) Your own identity, as required in paragraph (f)(1) of this
section;
(iii) That you are the parent or guardian of the individual, which
you may prove by providing a properly authenticated copy of the
individual's
[[Page 75]]
birth certificate showing your parentage or a properly authenticated
court order establishing your guardianship; and
(iv) That you are acting on behalf of the individual in making the
request.
[76 FR 51871, Aug. 19, 2011, as amended at 77 FR 4646, Jan. 31, 2012; 80
FR 80233, Dec. 24, 2015]
Sec. 1204.4 How will FHFA or FHFA-OIG respond to my Privacy Act request?
(a) How will FHFA or FHFA-OIG locate the requested records? FHFA or
FHFA-OIG will search to determine if requested records exist in the
system of records it owns or controls. You can find FHFA and FHFA-OIG
system of records notices on our Web site at http://www.fhfa.gov. You
can also find descriptions of OFHEO and FHFB system of records that have
not yet been superseded on the FHFA Web site. A description of the
system of records also is available in the ``Privacy Act Issuances''
compilation published by the Office of the Federal Register of the
National Archives and Records Administration. You can access the
``Privacy Act Issuances'' compilation in most large reference and
university libraries or electronically at the Government Printing Office
Web site at: http://www.gpoaccess.gov/privacyact/index.html. You also
can request a copy of FHFA or FHFA-OIG system of records from the
Privacy Act Officer.
(b) How long does FHFA or FHFA-OIG have to respond? Either the FHFA
or FHFA-OIG Privacy Act Officer generally will respond to your request
in writing within 20 days after receiving it, if it meets the Sec.
1204.3 requirements. For requests to amend a record, either the FHFA or
FHFA-OIG Privacy Act Officer will respond within 10 days after receipt
of the request to amend. FHFA or FHFA-OIG may extend the response time
in unusual circumstances, such as when consultation is needed with
another Federal agency (if that agency is subject to the Privacy Act)
about a record or to retrieve a record shipped offsite for storage. If
you submit your written request in person, either the FHFA or FHFA-OIG
Privacy Act Officer may disclose records or information to you directly
and create a written record of the grant of the request. If you are to
be accompanied by another person when accessing your record or any
information pertaining to you, FHFA or FHFA-OIG may require your written
authorization before permitting access or discussing the record in the
presence of the other person.
(c) What will the FHFA or FHFA-OIG response include? The written
response will include a determination to grant or deny your request in
whole or in part, a brief explanation of the reasons for the
determination, and the amount of the fee charged, if any, under Sec.
1204.6. If you are granted a request to access a record, FHFA or FHFA-
OIG will make the record available to you. If you are granted a request
to amend or correct a record, the response will describe any amendments
or corrections made and advise you of your right to obtain a copy of the
amended or corrected record.
(d) What is an adverse determination? An adverse determination is a
determination on a Privacy Act request that--
(1) Withholds any requested record in whole or in part;
(2) Denies a request for an amendment or correction of a record in
whole or in part;
(3) Declines to provide a requested accounting of disclosures;
(4) Advises that a requested record does not exist or cannot be
located; or
(5) Finds what has been requested is not a record subject to the
Privacy Act.
(e) What will be stated in a response that includes an adverse
determination? If an adverse determination is made with respect to your
request, either the FHFA or FHFA-OIG Privacy Act Officer's written
response under this section will identify the person responsible for the
adverse determination, state that the adverse determination is not a
final action of FHFA or FHFA-OIG, and state that you may appeal the
adverse determination under Sec. 1204.5.
Sec. 1204.5 What if I am dissatisfied with the response to my Privacy
Act request?
(a) May I appeal the response? You may appeal any adverse
determination made in response to your Privacy Act
[[Page 76]]
request. If you wish to seek review by a court of any adverse
determination or denial of a request, you must first appeal it under
this section.
(b) How do I appeal the response?--(1) You may appeal by submitting
in writing, a statement of the reasons you believe the adverse
determination should be overturned. FHFA or FHFA-OIG must receive your
written appeal within 30 calendar days of the date of the adverse
determination under Sec. 1204.4. Your written appeal may include as
much or as little related information as you wish, as long as it clearly
identifies the determination (including the request number, if known)
that you are appealing.
(2) If FHFA or FHFA-OIG denied your request in whole or in part, you
may appeal the denial by writing directly to the FHFA Privacy Act
Appeals Officer through electronic mail, mail, delivery service, or
facsimile. The electronic mail address is: [email protected]. For mail or
express mail, the address is: FHFA Privacy Act Appeals Officer, Federal
Housing Finance Agency, 400 Seventh Street, SW., Eighth Floor,
Washington, DC 20219. The facsimile number is: (202) 649-1073. For
appeals of FHFA-OIG denials, whether in whole or in part, the appeal
must be clearly marked by adding ``FHFA-OIG'' after ``Privacy Act
Appeal.'' All appeals from denials, in whole or part, made by FHFA-OIG
will be forwarded to the FHFA-OIG Privacy Act Appeals Officer for
processing and direct response. 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 ``Privacy Act
Appeal.'' FHFA's ``Privacy Act Reference Guide,'' which is available on
FHFA's Web site, http://www.fhfa.gov, provides additional information to
assist you in making your appeal. FHFA or FHFA-OIG ordinarily will not
act on an appeal if the Privacy Act request becomes a matter of
litigation.
(3) If you need more time to file your appeal, you may request an
extension of time of no more than ten (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 an extension
is in the sole discretion of either the FHFA or FHFA-OIG Privacy Act
Appeals Officer.
(c) Who has the authority to grant or deny appeals? For appeals from
the FHFA Privacy Act Officer, the FHFA Privacy Act Appeals Officer is
authorized to act on your appeal. For appeals from the FHFA-OIG Privacy
Act Officer, the FHFA-OIG Privacy Act Appeals Officer is authorized to
act on your appeal.
(d) When will FHFA or FHFA-OIG respond to my appeal? FHFA or FHFA-
OIG generally will respond to you in writing within 30 days of receipt
of an appeal that meets the requirements of paragraph (b) of this
section, unless for good cause shown, the FHFA or FHFA-OIG Privacy Act
Appeals Officer extends the response time.
(e) What will the FHFA or FHFA-OIG response include? The written
response will include the determination of either the FHFA or FHFA-OIG
Privacy Act Appeals Officer, whether to grant or deny your appeal in
whole or in part, a brief explanation of the reasons for the
determination, and information about the Privacy Act provisions for
court review of the determination.
(1) If your appeal concerns a request for access to records or
information and the appeal determination grants your access, the records
or information, if any, will be made available to you.
(2)(i) If your appeal concerns an amendment or correction of a
record and the appeal determination grants your request for an amendment
or correction, the response will describe any amendment or correction
made to the record and advise you of your right to obtain a copy of the
amended or corrected record under this part. FHFA or FHFA-OIG will
notify all persons, organizations, or Federal agencies to which it
previously disclosed the record, if an accounting of that disclosure was
made, that the record has been amended or corrected. Whenever the record
is subsequently disclosed, the record will be disclosed as amended or
corrected.
(ii) If the response to your appeal denies your request for an
amendment or correction to a record, the response
[[Page 77]]
will advise you of your right to file a Statement of Disagreement under
paragraph (f) of this section.
(f) What is a Statement of Disagreement?--(1) A Statement of
Disagreement is a concise written statement in which you clearly
identify each part of any record that you dispute and explain your
reason(s) for disagreeing with either the FHFA or FHFA-OIG Privacy Act
Appeals Officer's denial, in whole or in part, of your appeal requesting
amendment or correction. Your Statement of Disagreement must be received
by either the FHFA or FHFA-OIG Privacy Act Officer within 30 calendar
days of either the FHFA or FHFA-OIG Privacy Act Appeals Officer's
denial, in whole or in part, of your appeal concerning amendment or
correction of a record. FHFA and FHFA-OIG will place your Statement of
Disagreement in the system of records in which the disputed record is
maintained. FHFA and FHFA-OIG may also append a concise statement of its
reason(s) for denying the request for an amendment or correction of the
record.
(2) FHFA and FHFA-OIG will notify all persons, organizations, and
Federal agencies to which it previously disclosed the disputed record,
if an accounting of that disclosure was made, that the record is
disputed and provide your Statement of Disagreement and the FHFA or
FHFA-OIG concise statement, if any. Whenever the disputed record is
subsequently disclosed, a copy of your Statement of Disagreement and the
FHFA or FHFA-OIG concise statement, if any, will also be disclosed.
[76 FR 51871, Aug. 19, 2011, as amended at 77 FR 4646, Jan. 31, 2012; 80
FR 80233, Dec. 24, 2015]
Sec. 1204.6 What does it cost to get records under the Privacy Act?
(a) Must I agree to pay fees? Your Privacy Act request is your
agreement to pay all applicable fees, unless you specify a limit on the
amount of fees you agree to pay. FHFA or FHFA-OIG will not exceed the
specified limit without your written agreement.
(b) How does FHFA or FHFA-OIG calculate fees? FHFA and FHFA-OIG will
charge a fee for duplication of a record under the Privacy Act in the
same way it charges for duplication of records under FOIA in 12 CFR
1202.11. There are no fees to search for or review records.
Sec. 1204.7 Are there any exemptions from the Privacy Act?
(a) What is a Privacy Act exemption? The Privacy Act authorizes the
Director and the FHFA Inspector General to exempt records or information
in a system of records from some of the Privacy Act requirements, if the
Director or the FHFA Inspector General, as appropriate, determines that
the exemption is necessary.
(b) How do I know if the records or information I want are exempt?--
(1) Each system of records notice will advise you if the Director or the
FHFA Inspector General has determined records or information in records
are exempt from Privacy Act requirements. If the Director or the FHFA
Inspector General has claimed an exemption for a system of records, the
system of records notice will identify the exemption and the provisions
of the Privacy Act from which the system is exempt.
(2) Until superseded by FHFA or FHFA-OIG systems of records, the
following OFHEO and FHFB systems of records are, under 5 U.S.C.
552a(k)(2) or (k)(5), exempt from the Privacy Act requirements of 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f)--
(i) OFHEO-11 Litigation and Enforcement Information System; and
(ii) FHFB-5 Agency Personnel Investigative Records.
(c) What exemptions potentially apply to FHFA-OIG records? Unless
the FHFA Inspector General, his or her designee, or a statute
specifically authorizes disclosure, FHFA-OIG will not release records of
matters that are subject to the following exemptions--
(1) To the extent that the systems of records entitled ``FHFA-OIG
Audit Files Database,'' ``FHFA-OIG Investigative & Evaluative Files
Database,'' ``FHFA-OIG Investigative & Evaluative MIS Database,''
``FHFA-OIG Hotline Database,'' and ``FHFA-OIG Correspondence Database''
contain any information compiled by FHFA-OIG for the purpose of criminal
law enforcement investigations, such information falls within the scope
of exemption (j)(2) of the Privacy Act, 5 U.S.C.
[[Page 78]]
552a(j)(2), and therefore these systems of records are exempt from the
requirements of the following subsections of the Privacy Act to that
extent, for the reasons stated in paragraphs (1)(i) through (vi) of this
section.
(i) From 5 U.S.C. 552a(c)(3), because release of an accounting of
disclosures to an individual who is the subject of an investigation or
evaluation could reveal the nature and scope of the investigation or
evaluation and could result in the altering or destruction of evidence,
improper influencing of witnesses, and other evasive actions that could
impede or compromise the investigation or evaluation.
(ii) From 5 U.S.C. 552a(d)(1), because release of investigative or
evaluative records to an individual who is the subject of an
investigation or evaluation could interfere with pending or prospective
law enforcement proceedings, constitute an unwarranted invasion of the
personal privacy of third parties, reveal the identity of confidential
sources, or reveal sensitive investigative or evaluative techniques and
procedures.
(iii) From 5 U.S.C. 552a(d)(2), because amendment or correction of
investigative or evaluative records could interfere with pending or
prospective law enforcement proceedings, or could impose an impossible
administrative and investigative or evaluative burden by requiring FHFA-
OIG to continuously retrograde its investigations or evaluations
attempting to resolve questions of accuracy, relevance, timeliness, and
completeness.
(iv) From 5 U.S.C. 552a(e)(1), because it is often impossible to
determine relevance or necessity of information in the early stages of
an investigation or evaluation. The value of such information is a
question of judgment and timing; what appears relevant and necessary
when collected may ultimately be evaluated and viewed as irrelevant and
unnecessary to an investigation or evaluation. In addition, FHFA-OIG may
obtain information concerning the violation of laws other than those
within the scope of its jurisdiction. In the interest of effective law
enforcement, FHFA-OIG should retain this information because it may aid
in establishing patterns of unlawful activity and provide leads for
other law enforcement agencies. Further, in obtaining evidence during an
investigation or evaluation, information may be provided to FHFA-OIG
that relates to matters incidental to the main purpose of the
investigation or evaluation, but which may be pertinent to the
investigative or evaluative jurisdiction of another agency. Such
information cannot readily be identified.
(v) From 5 U.S.C. 552a(e)(2), because in a law enforcement
investigation or an evaluation it is usually counterproductive to
collect information to the greatest extent practicable directly from the
subject thereof. It is not always feasible to rely upon the subject of
an investigation or evaluation as a source for information which may
implicate him or her in illegal activities. In addition, collecting
information directly from the subject could seriously compromise an
investigation or evaluation by prematurely revealing its nature and
scope, or could provide the subject with an opportunity to conceal
criminal activities, or intimidate potential sources, in order to avoid
apprehension.
(vi) From 5 U.S.C. 552a(e)(3), because providing such notice to the
subject of an investigation or evaluation, or to other individual
sources, could seriously compromise the investigation or evaluation by
prematurely revealing its nature and scope, or could inhibit
cooperation, permit the subject to evade apprehension, or cause
interference with undercover activities.
(2) To the extent that the systems of records entitled ``FHFA-OIG
Audit Files Database,'' ``FHFA-OIG Investigative & Evaluative Files
Database,'' ``FHFA-OIG Investigative & Evaluative MIS Database,''
``FHFA-OIG Hotline Database,'' and ``FHFA-OIG Correspondence Database,''
contain information compiled by FHFA-OIG for the purpose of criminal law
enforcement investigations, such information falls within the scope of
exemption (k)(2) of the Privacy Act, 5 U.S.C. 552a(k)(2), and therefore
these systems of records are exempt from the requirements of the
following subsections of the Privacy Act to that extent, for the reasons
stated in paragraphs (c)(2)(i) through (iv) of this section.
[[Page 79]]
(i) From 5 U.S.C. 552a(c)(3), because release of an accounting of
disclosures to an individual who is the subject of an investigation or
evaluation could reveal the nature and scope of the investigation or
evaluation and could result in the altering or destruction of evidence,
improper influencing of witnesses, and other evasive actions that could
impede or compromise the investigation or evaluation.
(ii) From 5 U.S.C. 552a(d)(1), because release of investigative or
evaluative records to an individual who is the subject of an
investigation or evaluation could interfere with pending or prospective
law enforcement proceedings, constitute an unwarranted invasion of the
personal privacy of third parties, reveal the identity of confidential
sources, or reveal sensitive investigative or evaluative techniques and
procedures.
(iii) From 5 U.S.C. 552a(d)(2), because amendment or correction of
investigative or evaluative records could interfere with pending or
prospective law enforcement proceedings, or could impose an impossible
administrative and investigative or evaluative burden by requiring FHFA-
OIG to continuously retrograde its investigations or evaluations
attempting to resolve questions of accuracy, relevance, timeliness, and
completeness.
(iv) From 5 U.S.C. 552a(e)(1), because it is often impossible to
determine relevance or necessity of information in the early stages of
an investigation or evaluation. The value of such information is a
question of judgment and timing; what appears relevant and necessary
when collected may ultimately be evaluated and viewed as irrelevant and
unnecessary to an investigation or evaluation. In addition, FHFA-OIG may
obtain information concerning the violation of laws other than those
within the scope of its jurisdiction. In the interest of effective law
enforcement, FHFA-OIG should retain this information because it may aid
in establishing patterns of unlawful activity and provide leads for
other law enforcement agencies. Further, in obtaining evidence during an
investigation or evaluation, information may be provided to FHFA-OIG
that relates to matters incidental to the main purpose of the
investigation or evaluation but which may be pertinent to the
investigative or evaluative jurisdiction of another agency. Such
information cannot readily be identified.
(3) To the extent that the systems of records entitled ``FHFA-OIG
Audit Files Database,'' ``FHFA-OIG Investigative & Evaluative Files
Database,'' ``FHFA-OIG Investigative & Evaluative MIS Database,''
``FHFA-OIG Hotline Database,'' and ``FHFA-OIG Correspondence Database''
contain any investigatory material compiled by FHFA-OIG for the purpose
of determining suitability, eligibility, or qualifications for Federal
civilian employment or Federal contracts, the release of which would
reveal the identity of a source who furnished information to the
Government under an express promise that the identity of the source
would be held in confidence, such information falls within the scope of
exemption (k)(5) of the Privacy Act, 5 U.S.C. 552a(k)(5), and therefore
these systems of records are exempt from the requirements of subsection
(d)(1) of the Privacy Act to that extent, because release would reveal
the identity of a source who furnished information to the Government
under an express promise of confidentiality. Revealing the identity of a
confidential source could impede future cooperation by sources, and
could result in harassment or harm to such sources.
Sec. 1204.8 How are records secured?
(a) What controls must FHFA and FHFA-OIG have in place? FHFA and
FHFA-OIG must establish administrative and physical controls to prevent
unauthorized access to their systems of records, unauthorized or
inadvertent disclosure of records, and physical damage to or destruction
of records. The stringency of these controls corresponds to the
sensitivity of the records that the controls protect. At a minimum, the
administrative and physical controls must ensure that--
(1) Records are protected from public view;
(2) The area in which records are kept is supervised during business
hours to prevent unauthorized persons from having access to them;
[[Page 80]]
(3) Records are inaccessible to unauthorized persons outside of
business hours; and
(4) Records are not disclosed to unauthorized persons or under
unauthorized circumstances in either oral or written form.
(b) Is access to records restricted? Access to records is restricted
to authorized employees who require access in order to perform their
official duties.
Sec. 1204.9 Does FHFA or FHFA-OIG collect and use Social Security numbers?
FHFA and FHFA-OIG collect Social Security numbers only when it is
necessary and authorized. At least annually, the FHFA Privacy Act
Officer or the Senior Agency Official for Privacy will inform employees
who are authorized to collect information that--
(a) Individuals may not be denied any right, benefit, or privilege
as a result of refusing to provide their Social Security numbers, unless
the collection is authorized either by a statute or by a regulation
issued prior to 1975; and
(b) They must inform individuals who are asked to provide their
Social Security numbers--
(1) If providing a Social Security number is mandatory or voluntary;
(2) If any statutory or regulatory authority authorizes collection
of a Social Security number; and
(3) The uses that will be made of the Social Security number.
Sec. 1204.10 What are FHFA and FHFA-OIG employee responsibilities under
the Privacy Act?
At least annually, the FHFA Privacy Act Officer or the Senior Agency
Official for Privacy will inform employees about the provisions of the
Privacy Act, including the Privacy Act's civil liability and criminal
penalty provisions. Unless otherwise permitted by law, an authorized
FHFA or FHFA-OIG employee shall--
(a) Collect from individuals only information that is relevant and
necessary to discharge FHFA or FHFA-OIG responsibilities;
(b) Collect information about an individual directly from that
individual whenever practicable;
(c) Inform each individual from whom information is collected of--
(1) The legal authority to collect the information and whether
providing it is mandatory or voluntary;
(2) The principal purpose for which FHFA or FHFA-OIG intends to use
the information;
(3) The routine uses FHFA or FHFA-OIG may make of the information;
and
(4) The effects on the individual, if any, of not providing the
information.
(d) Ensure that the employee's office does not maintain a system of
records without public notice and notify appropriate officials of the
existence or development of any system of records that is not the
subject of a current or planned public notice;
(e) Maintain all records that are used in making any determination
about an individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to ensure fairness to the
individual in the determination;
(f) Except for disclosures made under FOIA, make reasonable efforts,
prior to disseminating any record about an individual, to ensure that
the record is accurate, relevant, timely, and complete;
(g) When required by the Privacy Act, maintain an accounting in the
specified form of all disclosures of records by FHFA or FHFA-OIG to
persons, organizations, or Federal agencies;
(h) Maintain and use records with care to prevent the unauthorized
or inadvertent disclosure of a record to anyone; and
(i) Notify the appropriate official of any record that contains
information that the Privacy Act does not permit FHFA or FHFA-OIG to
maintain.
Sec. 1204.11 May FHFA-OIG obtain Privacy Act records from other Federal
agencies for law enforcement purposes?
(a) The FHFA Inspector General is authorized under the Inspector
General Act of 1978, as amended, to make written requests under 5 U.S.C.
552a(b)(7) for transfer of records maintained by other Federal agencies
which are necessary to carry out an authorized law enforcement activity
under the Inspector General Act of 1978, as amended.
(b) The FHFA Inspector General delegates the authority under
paragraph
[[Page 81]]
(a) of this section to the following FHFA-OIG officials--
(1) Principal Deputy Inspector General;
(2) Deputy Inspector General for Audits;
(3) Deputy Inspector General for Investigations;
(4) Deputy Inspector General for Evaluations; and
(5) Deputy Inspector General for Administration.
(c) The officials listed in paragraph (b) of this section may not
further delegate or re-delegate the authority described in paragraph (a)
of this section.
PART 1206_ASSESSMENTS--Table of Contents
Sec.
1206.1 Purpose.
1206.2 Definitions.
1206.3 Annual assessments.
1206.4 Increased costs of regulation.
1206.5 Working capital fund.
1206.6 Notice and review.
1206.7 Delinquent payment.
1206.8 Enforcement of payment.
Authority: 12 U.S.C. 4516.
Source: 73 FR 56713, Sept. 30, 2008, unless otherwise noted.
Sec. 1206.1 Purpose.
This part sets forth the policy and procedures of the FHFA with
respect to the establishment and collection of the assessments of the
Regulated Entities under 12 U.S.C. 4516.
Sec. 1206.2 Definitions.
As used in this part:
Act means the Federal Housing Finance Regulatory Reform Act of 2008.
Adequately capitalized means the adequately capitalized capital
classification under 12 U.S.C. 1364 and related regulations.
Director means the Director of the Federal Housing Finance Agency or
his or her designee.
Enterprise means the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation; and ``Enterprises'' means,
collectively, the Federal National Mortgage Association and the Federal
Home Loan Mortgage Corporation.
Federal Home Loan Bank, or Bank, means a Federal Home Loan Bank
established under section 12 of the Federal Home Loan Bank Act (12
U.S.C. 1432).
FHFA means the Federal Housing Finance Agency.
Minimum required regulatory capital means the highest amount of
capital necessary for a Bank to comply with any of the capital
requirements established by the Director and applicable to it.
Regulated Entity means the Federal National Mortgage Association,
the Federal Home Loan Mortgage Corporation, or any of the Federal Home
Loan Banks.
Surplus funds means any amounts that are not obligated as of
September 30 of the fiscal year for which the assessment was made.
Total exposure has the same meaning given to adjusted total assets
in 12 CFR 1240.2.
Working capital fund means an account for amounts collected from the
Regulated Entities to establish an operating reserve that is intended to
provide for the payment of large or multiyear capital and operating
expenditures, as well as unanticipated expenses.
[73 FR 56713, Sept. 30, 2008, as amended at 85 FR 82198, Dec. 17 2020]
Sec. 1206.3 Annual assessments.
(a) Establishing assessments. The Director shall establish annual
assessments on the Regulated Entities in an amount sufficient to
maintain a working capital fund and provide for the payment of the
FHFA's costs and expenses, including, but not limited to:
(1) Expenses of any examinations under 12 U.S.C. 4517 and section 20
of the Federal Home Loan Bank Act (12 U.S.C. 1440);
(2) Expenses of obtaining any reviews and credit assessments under
12 U.S.C. 4519;
(3) Expenses of any enforcement activities under 12 U.S.C. 4635;
(4) Expenses of other FHFA litigation under 12 U.S.C. 4513;
(5) Expenses relating to the maintenance of the FHFA records
relating to examinations and other reviews of the Regulated Entities;
(6) Such amounts in excess of actual expenses for any given year
deemed
[[Page 82]]
necessary to maintain a working capital fund;
(7) Expenses relating to monitoring and ensuring compliance with
housing goals;
(8) Expenses relating to conducting reviews of new products;
(9) Expenses related to affordable housing and community programs;
(10) Other administrative expenses of the FHFA;
(11) Expenses related to preparing reports and studies;
(12) Expenses relating to the collection of data and development of
systems to calculate the House Price Index (HPI) and the conforming loan
limit;
(13) Amounts deemed necessary by the Director to wind up the affairs
of the Office of Federal Housing Enterprise Oversight and the Federal
Housing Finance Board; and
(14) Expenses relating to other responsibilities of the FHFA under
the Safety and Soundness Act, the Federal Home Loan Bank Act and the
Act.
(b) Allocating assessments. The Director shall allocate the annual
assessments as follows:
(1) Enterprises. Assessments collected from the Enterprises shall
not exceed amounts sufficient to provide for payment of the costs and
expenses relating to the Enterprises as determined by the Director. Each
Enterprise shall pay a proportional share that bears the same ratio to
the total portion of the annual assessment allocated to the Enterprises
that the total exposure of each Enterprise bears to the total exposure
of both Enterprises.
(2) Federal Home Loan Banks. Assessments collected from the Banks
shall not exceed amounts sufficient to provide for payment of the costs
and expenses relating to the Banks as determined by the Director. Each
Bank shall pay a pro rata share of the annual assessments based on the
ratio between its minimum required regulatory capital and the aggregate
minimum required regulatory capital of every Bank.
(c) Timing and amount of semiannual payment. Each Regulated Entity
shall pay on or before October 1 and April 1 an amount equal to one-half
of its annual assessment.
(d) Surplus funds. Surplus funds shall be credited to the annual
assessment by reducing the amount collected in the following semiannual
period by the amount of the surplus funds. Surplus funds shall be
allocated to all Regulated Entities in the same proportion in which they
were collected, except as determined by the Director.
[73 FR 56713, Sept. 30, 2008, as amended at 83 FR 39326, Aug. 9, 2018]
Sec. 1206.4 Increased costs of regulation.
(a) Increase for inadequate capitalization. The Director may, at his
or her discretion, increase the amount of a semiannual payment allocated
to a Regulated Entity that is not classified as adequately capitalized
to pay additional estimated costs of regulation of that Regulated
Entity.
(b) Increase for enforcement activities. The Director may, at his or
her discretion, adjust the amount of a semiannual payment allocated to a
Regulated Entity to ensure that the Regulated Entity bears the estimated
costs of enforcement activities under the Act related to that Regulated
Entity.
(c) Additional assessment for deficiencies. At any time, the
Director may make and collect from any Regulated Entity an assessment,
payable immediately or through increased semiannual payments, to cover
the estimated amount of any deficiency for the semiannual period as a
result of increased costs of regulation of a Regulated Entity due to its
classification as other than adequately capitalized, or as a result of
enforcement activities related to that Regulated Entity. Any amount
remaining from such additional assessment and the semiannual payments at
the end of any semiannual period during which such an additional
assessment is made shall be deducted pro rata (based upon the amount of
the additional assessments) from the assessment for the following
semiannual period for that Regulated Entity.
Sec. 1206.5 Working capital fund.
(a) Assessments. The Director shall establish and collect from the
Regulated Entities such assessments he or she deems necessary to
maintain a working capital fund.
[[Page 83]]
(b) Purposes. Assessments collected to maintain the working capital
fund shall be used to establish an operating reserve and to provide for
the payment of large or multiyear capital and operating expenditures as
well as unanticipated expenses.
(c) Remittance of excess assessed funds. At the end of each year for
which an assessment under this section is made, the Director shall remit
to each Regulated Entity any amount of assessed and collected funds in
excess of the amount the Director deems necessary to maintain a working
capital fund in the same proportions as paid under the most recent
annual assessment.
Sec. 1206.6 Notice and review.
(a) Written notice of budget. The Director shall provide to each
Regulated Entity written notice of the projected budget for the Agency
for the upcoming fiscal year. Such notice shall be provided at least 30
days before the beginning of the applicable fiscal year.
(b) Written notice of assessments. The Director shall provide each
Regulated Entity with written notice of assessments as follows:
(1) Annual assessments. The Director shall provide each Regulated
Entity with written notice of the annual assessment and the semiannual
payments to be collected under this part. Notice of the annual
assessment and semiannual payments shall be provided before the start of
the new fiscal year.
(2) Immediate assessments. The Director shall provide each Regulated
Entity with written notice of any immediate assessments to be collected
under Sec. 1206.4 of this chapter. Notice of any immediate assessment
and the required payments shall be provided at such reasonable time as
determined by the Director.
(3) Changes to assessments. The Director shall provide each
Regulated Entity with written notice of any changes in the assessment
procedures that the Director, in his or her sole discretion, deems
necessary under the circumstances.
(c) Request for review. At the written request of a Regulated
Entity, the Director, in his or her discretion, may review the
calculation of the proportional share of the annual assessment, the
semiannual payments, and any partial payments to be collected under this
part. The determination of the Director upon such review is final.
Except as provided by the Director, review by the Director does not
suspend the requirement that the Regulated Entity make the semiannual
payment or partial payment on or before the date it is due. Any
adjustments determined appropriate shall be credited or otherwise
addressed by the following year's assessment for that entity.
Sec. 1206.7 Delinquent payment.
The Director may assess interest and penalties on any delinquent
semiannual payment or other payment assessed under this part in
accordance with 31 U.S.C. 3717 (interest and penalty on claims) and part
1704 of this title (debt collection).
Sec. 1206.8 Enforcement of payment.
The Director may enforce the payment of any assessment under 12
U.S.C. 4631 (cease-and-desist proceedings), 12 U.S.C. 4632 (temporary
cease-and-desist orders), and 12 U.S.C. 4626 (civil money penalties).
PART 1207_MINORITY AND WOMEN OUTREACH PROGRAM--Table of Contents
Sec.
1207.1 Definitions.
1207.2 FHFA workforce diversity; Equal Employment Opportunity Program.
1207.3 FHFA contracting and diversity and inclusion.
1207.4 Limitations.
Authority: 12 U.S.C. 4520 and 4526; 12 U.S.C. 1833e; E.O. 11478.
Source: 82 FR 14994, Mar. 24, 2017, unless otherwise noted.
Sec. 1207.1 Definitions.
The terms in this part have the same meaning as in FHFA's Minority
and Women Inclusion Regulation at part 1223 of this chapter, as may be
amended from time to time.
Sec. 1207.2 FHFA workforce diversity; Equal Employment Opportunity
Program.
(a) Responsibility. FHFA's Office of Minority and Women Inclusion
(OMWI)
[[Page 84]]
shall have overall responsibility for diversity and inclusion in FHFA's
employment practices.
(b) General. FHFA shall maintain an Equal Employment Opportunity
(EEO) program consistent with the Equal Employment Opportunity
Commission requirements for Federal agencies and Executive Order 11478.
(c) Workforce diversity. FHFA shall not discriminate in employment
against any person because of race, color, religion, national origin,
sex, age, genetic information, disability, sexual orientation, gender
identity, or status as a parent.
(d) Affirmative steps for workforce diversity. FHFA shall take
affirmative steps to seek diversity in its workforce, at all levels of
the agency, in a manner consistent with applicable law. Such steps shall
include:
(1) Recruiting at historically Black colleges and universities,
Hispanic-serving institutions, women's colleges, and colleges that
typically serve the individuals with disabilities and majority minority
populations;
(2) Sponsoring and recruiting at job fairs in urban communities;
(3) Placing employment advertisements in media oriented toward
minorities and women;
(4) Partnering with organizations that are focused on developing
opportunities for minorities and women to place talented minorities and
women in industry internships, summer employment, and full-time
positions; and
(5) Where feasible, partnering with inner-city high schools, girls'
high schools, and high schools with majority minority populations, to
establish or enhance financial literacy and provide mentoring.
Sec. 1207.3 FHFA contracting and diversity and inclusion.
(a) Responsibilities. FHFA's Office of Minority and Women Inclusion
(OMWI) shall have responsibility for diversity and inclusion in FHFA's
contracting practices.
(b) Outreach. FHFA's policy is to promote diversity in its
contracting process. FHFA shall establish a contractor outreach program
intended to ensure that minority- and women-owned businesses are made
aware of and given the opportunity to compete for contracts with FHFA.
FHFA shall conduct outreach activities that may include, but are not
limited to:
(1) Identifying contractors that are minority- and women-owned by
obtaining lists and directories maintained by government agencies, trade
groups, and other organizations;
(2) Advertising contract opportunities through media targeted to
reach potential contractors that are minority- and women-owned; and
(3) Participating in events such as conventions, trade shows,
seminars, professional meetings, and other gatherings intended to
promote business opportunities for minority- and women-owned businesses.
(c) Technical assistance. FHFA shall provide technical assistance
and guidance to facilitate the identification and solicitation of
minority and women-owned businesses.
(d) Monitoring. FHFA's OMWI shall monitor that FHFA staff
interfacing with the contracting community are knowledgeable about, and
actively promoting, FHFA's Outreach program.
Sec. 1207.4 Limitations.
The regulations in this part do not, are not intended to, and should
not be construed to create any right or benefit, substantive or
procedural, enforceable at law, in equity, or through administrative
proceeding, by any party against FHFA, the United States, its other
departments, agencies, or entities, its officers, employees, or agents.
PART 1208_DEBT COLLECTION--Table of Contents
Subpart A_General
Sec.
1208.1 Authority and scope.
1208.2 Definitions.
1208.3 Referrals to the Department of the Treasury, collection services,
and use of credit bureaus.
1208.4 Reporting delinquent debts to credit bureaus.
1208.5-1208.19 [Reserved]
Subpart B_Salary Offset
1208.20 Authority and scope.
[[Page 85]]
1208.21 Notice requirements before salary offset where FHFA is the
creditor agency.
1208.22 Review of FHFA records related to the debt.
1208.23 Opportunity for a hearing where FHFA is the creditor agency.
1208.24 Certification where FHFA is the creditor agency.
1208.25 Voluntary repayment agreements as alternative to salary offset
where FHFA is the creditor agency.
1208.26 Special review where FHFA is the creditor agency.
1208.27 Notice of salary offset where FHFA is the paying agency.
1208.28 Procedures for salary offset where FHFA is the paying agency.
1208.29 Coordinating salary offset with other agencies.
1208.30 Interest, penalties, and administrative costs.
1208.31 Refunds.
1208.32 Request from a creditor agency for the services of a hearing
official.
1208.33 Non-waiver of rights by payments.
Subpart C_Administrative Offset
1208.40 Authority and scope.
1208.41 Collection.
1208.42 Administrative offset prior to completion of procedures.
1208.43 Procedures.
1208.44 Interest, penalties, and administrative costs.
1208.45 Refunds.
1208.46 No requirement for duplicate notice.
1208.47 Requests for administrative offset to other Federal agencies.
1208.48 Requests for administrative offset from other Federal agencies.
1208.49 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund.
Subpart D_Tax Refund Offset
1208.50 Authority and scope.
1208.51 Definitions.
1208.52 Procedures.
1208.53 No requirement for duplicate notice.
1208.54-1208.59 [Reserved]
Subpart E_Administrative Wage Garnishment
1208.60 Scope and purpose.
1208.61 Notice.
1208.62 Debtor's rights.
1208.63 Form of hearing.
1208.64 Effect of timely request.
1208.65 Failure to timely request a hearing.
1208.66 Hearing official.
1208.67 Procedure.
1208.68 Format of hearing.
1208.69 Date of decision.
1208.70 Content of decision.
1208.71 Finality of agency action.
1208.72 Failure to appear.
1208.73 Wage garnishment order.
1208.74 Certification by employer.
1208.75 Amounts withheld.
1208.76 Exclusions from garnishment.
1208.77 Financial hardship.
1208.78 Ending garnishment.
1208.79 Prohibited actions by employer.
1208.80 Refunds.
1208.81 Right of action.
Authority: 5 U.S.C. 5514; 12 U.S.C. 4526; 26 U.S.C. 6402(d); 31
U.S.C. 3701-3720D; 31 CFR 285.2; 31 CFR Chapter IX.
Subpart A_General
Source: 75 FR 68958, Nov. 10, 2010, unless otherwise noted.
Sec. 1208.1 Authority and scope.
(a) Authority. FHFA issues this part 1208 under the authority of 5
U.S.C. 5514 and 31 U.S.C. 3701-3720D, and in conformity with the Federal
Claims Collection Standards (FCCS) at 31 CFR chapter IX; the regulations
on salary offset issued by the Office of Personnel Management (OPM) at 5
CFR part 550, subpart K; the regulations on tax refund offset issued by
the United States Department of the Treasury (Treasury) at 31 CFR 285.2;
and the regulations on administrative wage garnishment issued by
Treasury at 31 CFR 285.11.
(b) Scope--(1) This part applies to debts that are owed to the
Federal Government by Federal employees; other persons, organizations,
or entities that are indebted to FHFA; and by Federal employees of FHFA
who are indebted to other agencies, except for those debts listed in
paragraph (b)(2) of this section.
(2) Subparts B and C of this part 1208 do not apply to--
(i) Debts or claims arising under the Internal Revenue Code (26
U.S.C. 1 et seq.), the Social Security Act (42 U.S.C. 301 et seq.) or
the tariff laws of the United States;
(ii) Any case to which the Contract Disputes Act (41 U.S.C. 601 et
seq.) applies;
(iii) Any case where collection of a debt is explicitly provided for
or provided by another statute, e.g. travel advances under 5 U.S.C. 5705
and employee training expenses under 5 U.S.C.
[[Page 86]]
4108, or, as provided for by title 11 of the United States Code, when
the claims involve bankruptcy;
(iv) Any debt based in whole or in part on conduct in violation of
the antitrust laws or involving fraud, the presentation of a false
claim, or misrepresentation on the part of the debtor or any party
having an interest in the claim, unless the Department of Justice
authorizes FHFA to handle the collection; or
(v) Claims between agencies.
(3) Nothing in this part precludes the compromise, suspension, or
termination of collection actions, where appropriate, under standards
implementing the Debt Collection Improvement Act (DCIA) (31 U.S.C. 3701
et seq.), the FCCS (31 CFR chapter IX) or the use of alternative dispute
resolution methods if they are not inconsistent with applicable law and
regulations.
(4) Nothing in this part precludes an employee from requesting
waiver of an erroneous payment under 5 U.S.C. 5584, 10 U.S.C. 2774, or
32 U.S.C. 716, or from questioning the amount or validity of a debt, in
the manner set forth in this part.
Sec. 1208.2 Definitions.
The following terms apply to this part, unless defined otherwise
elsewhere-
Administrative offset means an action, pursuant to 31 U.S.C. 3716,
in which the Federal Government withholds funds payable to, or held by
the Federal Government for a person, organization, or other entity in
order to collect a debt from that person, organization, or other entity.
Such funds include funds payable by the Federal Government on behalf of
a State Government.
Agency means an executive department or agency; a military
department; the United States Postal Service; the Postal Regulatory
Commission; any nonappropriated fund instrumentality described in 5
U.S.C. 2105(c); the United States Senate; the United States House of
Representatives; any court, court administrative office, or
instrumentality in the judicial or legislative branches of the
Government; or a Government corporation. If an agency under this
definition is a component of an agency, the broader definition of agency
may be used in applying the provisions of 5 U.S.C. 5514(b) (concerning
the authority to prescribe regulations).
Centralized administrative offset means the mandatory referral to
the Secretary of the Treasury by a creditor agency of a past due debt
which is more than 180 days delinquent, for the purpose of collection
under the Treasury's centralized offset program.
Certification means a written statement received by a paying agency
from a creditor agency that requests the paying agency to institute
salary offset of an employee, to the Financial Management Service (FMS)
for offset or to the Secretary of the Treasury for centralized
administrative offset, and specifies that required procedural
protections have been afforded the debtor. Where the debtor requests a
hearing on a claimed debt, the decision by a hearing official or
administrative law judge constitutes a certification.
Claim or debt (used interchangeably in this part) means any amount
of funds or property that has been determined by an agency official to
be due the Federal Government by a person, organization, or entity,
except another agency. It also means any amount of money, funds, or
property owed by a person to a State, the District of Columbia, American
Samoa, Guam, the United States Virgin Islands, the Commonwealth of the
Northern Mariana Islands, or the Commonwealth of Puerto Rico. For
purposes of this part, a debt owed to FHFA constitutes a debt owed to
the Federal Government. A claim or debt includes:
(1) Funds owed on account of loans made, insured, or guaranteed by
the Federal Government, including any deficiency or any difference
between the price obtained by the Federal Government in the sale of a
property and the amount owed to the Federal Government on a mortgage on
the property;
(2) Unauthorized expenditures of agency funds;
(3) Overpayments, including payments disallowed by audits performed
by the Inspector General of the agency administering the program;
(4) Any amount the Federal Government is authorized by statute to
collect for the benefit of any person;
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(5) The unpaid share of any non-Federal partner in a program
involving a Federal payment, and a matching or cost-sharing payment by
the non-Federal partner;
(6) Any fine or penalty assessed by an agency; and
(7) Other amounts of money or property owed to the Federal
Government.
Compromise means the settlement or forgiveness of a debt under 31
U.S.C. 3711, in accordance with standards set forth in the FCCS and
applicable Federal law.
Creditor agency means the agency to which the debt is owed,
including a debt collection center when acting on behalf of a creditor
agency in matters pertaining to the collection of a debt.
Debt See the definition of the terms ``Claim or debt'' of this
section.
Debt collection center means the Department of the Treasury or any
other agency or division designated by the Secretary of the Treasury
with authority to collect debts on behalf of creditor agencies in
accordance with 31 U.S.C. 3711(g).
Debtor means the person, organization, or entity owing money to the
Federal Government.
Delinquent debt means a debt that has not been paid by the date
specified in the agency's initial written demand for payment or
applicable agreement or instrument (including a post-delinquency payment
agreement) unless other satisfactory payment arrangements have been
made.
Director means the Director of FHFA or Director's designee.
Disposable pay means that part of current basic pay, special pay,
incentive pay, retired pay, or retainer pay (or in the case of an
employee not entitled to basic pay, other authorized pay) remaining
after the deduction of any amount required by law to be withheld (other
than deductions to execute garnishment orders in accordance with 5 CFR
parts 581 and 582). FHFA will apply the order of precedence contained in
OPM guidance (PPM-2008-01; Order Of Precedence When Gross Pay Is Not
Sufficient To Permit All Deductions), as follows--
(1) Retirement deductions for defined benefit plan (including Civil
Service Retirement System, Federal Employees Retirement System, or other
similar defined benefit plan);
(2) Social security (OASDI) tax;
(3) Medicare tax;
(4) Federal income tax;
(5) Basic health insurance premium (including Federal Employees
Health Benefits premium, pre-tax or post-tax, or premium for similar
benefit under another authority but not including amounts deducted for
supplementary coverage);
(6) Basic life insurance premium (including Federal Employees' Group
Life Insurance--FEGLI--Basic premium or premium for similar benefit
under another authority);
(7) State income tax;
(8) Local income tax;
(9) Collection of debts owed to the U.S. Government (e.g., tax debt,
salary overpayment, failure to withhold proper amount of deductions,
advance of salary or travel expenses, etc.; debts which may or may not
be delinquent; debts which may be collected through the Treasury's
Financial Management Services Treasury Offset Program, an automated
centralized debt collection program for collecting Federal debt from
Federal payments):
(i) Continuous levy under the Federal Payment Levy Program (tax
debt); and
(ii) Salary offsets (whether involuntary under 5 U.S.C. 5514 or
similar authority or required by a voluntarily signed written agreement;
if multiple debts are subject to salary offset, the order is based on
when each offset commenced--with earliest commencing offset at the top
of the order--unless there are special circumstances, as determined by
the paying agency).
(10) Court-Ordered collection/debt:
(i) Child support (may include attorney and other fees as provided
for in 5 CFR 581.102(d)). If there are multiple child support orders,
the priority of orders is governed by 42 U.S.C. 666(b) and implementing
regulations, as required by 42 U.S.C. 659(d)(2);
(ii) Alimony (may include attorney and other fees as provided for in
5 CFR 581.102(d)). If there are multiple alimony orders, they are
prioritized on a first-come, first-served basis, as required by 42
U.S.C. 659(d)(3);
(iii) Bankruptcy; and
(iv) Commercial garnishments.
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(11) Optional benefits:
(i) Health care/limited-expense health care flexible spending
accounts (pre-tax benefit under FedFlex or equivalent cafeteria plan);
(ii) Dental (pre-tax benefit under FedFlex or equivalent cafeteria
plan);
(iii) Vision (pre-tax benefit under FedFlex or equivalent cafeteria
plan);
(iv) Health Savings Account (pre-tax benefit under FedFlex or
equivalent cafeteria plan);
(v) Optional life insurance premiums (FEGLI optional benefits or
similar benefits under other authority);
(vi) Long-term care insurance premiums;
(vii) Dependent-care flexible spending accounts (pre-tax benefit
under FedFlex or equivalent cafeteria plan);
(viii) Thrift Savings Plan (TSP):
(A) Loan payments;
(B) Basic contributions; and
(C) Catch-up contributions; and
(ix) Other optional benefits.
(12) Other voluntary deductions/allotments:
(i) Military service deposits;
(ii) Professional associations;
(iii) Union dues;
(iv) Charities;
(v) Bonds;
(vi) Personal account allotments (e.g., to savings or checking
account); and
(vii) Additional voluntary deductions (on first-come, first-served
basis); and
(13) IRS paper levies.
Employee means a current employee of FHFA or other agency, including
a current member of the Armed Forces or a Reserve of the Armed Forces of
the United States.
Federal Claims Collection Standards (FCCS) means standards published
at 31 CFR chapter IX.
FHFA means the Federal Housing Finance Agency.
Garnishment means the process of withholding amounts from the
disposable pay of a person employed outside the Federal Government, and
the paying of those amounts to a creditor in satisfaction of a
withholding order.
Hearing official means an individual who is responsible for
conducting any hearing with respect to the existence or amount of a debt
claimed and for rendering a final decision on the basis of such hearing.
A hearing official may not be under the supervision or control of the
Director of FHFA when FHFA is the creditor agency but may be an
administrative law judge.
Notice of intent means a written notice of a creditor agency to a
debtor that states that the debtor owes a debt to the creditor agency
and apprises the debtor of the applicable procedural rights.
Notice of salary offset means a written notice from the paying
agency to an employee after a certification has been issued by a
creditor agency that informs the employee that salary offset will begin
at the next officially established pay interval.
Paying agency means an agency of the Federal Government that employs
the individual who owes a debt to an agency of the Federal Government
and transmits payment requests in the form of certified payment
vouchers, or other similar forms, to a disbursing official for
disbursement. The same agency may be both the creditor agency and the
paying agency.
Salary offset means an administrative offset to collect a debt under
5 U.S.C. 5514 by deductions at one or more officially established pay
intervals from the current pay account of an employee without his or her
consent.
Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to FHFA or another
agency as permitted or required by 5 U.S.C. 5584 or 8346(b), 10 U.S.C.
2774, 32 U.S.C. 716, or any other law.
Withholding order means any order for withholding or garnishment of
pay issued by an agency, or judicial, or administrative body. For
purposes of administrative wage garnishment, the terms ``wage
garnishment order'' and ``garnishment order'' have the same meaning as
``withholding order.''
Sec. 1208.3 Referrals to the Department of the Treasury, collection
services, and use of credit bureaus.
(a) Referral of delinquent debts. (1) FHFA shall transfer to the
Secretary of the Department of the Treasury any past due, legally
enforceable nontax debt that has been delinquent for a period of 180
days or more so that the
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Secretary may take appropriate action to collect the debt or terminate
collection action in accordance with 31 U.S.C. 3716, 5 U.S.C. 5514, 5
CFR 550.1108, 31 CFR part 285, and the FCCS.
(2) FHFA may transfer any past due, legally enforceable nontax debt
that has been delinquent for less than a period of 180 days to a debt
collection center for collection in accordance with 31 U.S.C. 3716, 5
U.S.C. 5514, 5 CFR 550.1108, 31 CFR part 285, and the FCCS.
(b) Collection Services. Section 13 of the Debt Collection Act (31
U.S.C. 3718) authorizes agencies to enter into contracts for collection
services to recover debts owed the Federal Government. The Debt
Collection Act requires that certain provisions be contained in such
contracts, including:
(1) The agency retains the authority to resolve a dispute, including
the authority to terminate a collection action or refer the matter to
the Attorney General for civil remedies; and
(2) The contractor is subject to the Privacy Act of 1974, as it
applies to private contractors, as well as subject to State and Federal
laws governing debt collection practices.
(c) Referrals to collection agencies. (1) FHFA has authority to
contract for collection services to recover delinquent debts in
accordance with 31 U.S.C. 3718(a) and the FCCS (31 CFR 901.5).
(2) FHFA may use private collection agencies where it determines
that their use is in the best interest of the Federal Government. Where
FHFA determines that there is a need to contract for collection
services, the contract will provide that:
(i) The authority to resolve disputes, compromise claims, suspend or
terminate collection action, or refer the matter to the Department of
Justice for litigation or to take any other action under this part will
be retained by FHFA;
(ii) Contractors are subject to the Privacy Act of 1974, as amended,
to the extent specified in 5 U.S.C. 552a(m) and to applicable Federal
and State laws and regulations pertaining to debt collection practices,
such as the Fair Debt Collection Practices Act, 15 U.S.C. 1692;
(iii) The contractor is required to strictly account for all amounts
collected;
(iv) The contractor must agree that uncollectible accounts shall be
returned with appropriate documentation to enable FHFA to determine
whether to pursue collection through litigation or to terminate
collection; and
(v) The contractor must agree to provide any data in its files
requested by FHFA upon returning the account to FHFA for subsequent
referral to the Department of Justice for litigation.
Sec. 1208.4 Reporting delinquent debts to credit bureaus.
(a) FHFA may report delinquent debts to consumer reporting agencies
(31 U.S.C. 3701(a)(3), 3711). Sixty calendar days prior to release of
information to a consumer reporting agency, the debtor shall be
notified, in writing, of the intent to disclose the existence of the
debt to a consumer reporting agency. Such notice of intent may be a
separate correspondence or included in correspondence demanding direct
payment. The notice shall be in conformance with 31 U.S.C. 3711(e) and
the FCCS. In the notice, FHFA shall provide the debtor with:
(1) An opportunity to inspect and copy agency records pertaining to
the debt;
(2) An opportunity for an administrative review of the legal
enforceability or past due status of the debt;
(3) An opportunity to enter into a repayment agreement on terms
satisfactory to FHFA to prevent FHFA from reporting the debt as overdue
to consumer reporting agencies, and provide deadlines and method for
requesting this relief;
(4) An explanation of the rate of interest that will accrue on the
debt, that all costs incurred to collect the debt will be charged to the
debtor, the authority for assessing these costs, and the manner in which
FHFA will calculate the amount of these costs;
(5) An explanation that FHFA will report the debt to the consumer
reporting agencies to the detriment of the debtor's credit rating; and
(6) A description of the collection actions that the agency may take
in the
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future if those presently proposed actions do not result in repayment of
the debt, including the filing of a lawsuit against the borrower by the
agency and assignment of the debt for collection by offset against
Federal income tax refunds or the filing of a lawsuit against the debtor
by the Federal Government.
(b) The information that may be disclosed to the consumer reporting
agency is limited to:
(1) The debtor's name, address, social security number or taxpayer
identification number, and any other information necessary to establish
the identity of the individual;
(2) The amount, status, and history of the claim; and
(3) FHFA program or activity under which the claim arose.
(c) Subsequent reports. FHFA may update its report to the credit
bureau whenever it has knowledge of events that substantially change the
status of the amount of liability.
(d) Subsequent reports of delinquent debts. Pursuant to 31 CFR
901.4, FHFA will report delinquent debt to the Department of Housing and
Urban Development's Credit Alert Interactive Voice Response System
(CAIVRS).
(e) Privacy Act considerations. A delinquent debt may not be
reported under this section unless a notice issued pursuant to the
Privacy Act, 5 U.S.C. 552a(e)(4), authorizes the disclosure of
information about the debtor to a credit bureau or CAIVRS.
Sec. Sec. 1208.5-1208.19 [Reserved]
Subpart B_Salary Offset
Sec. 1208.20 Authority and scope.
(a) Authority. FHFA may collect debts owed by employees to the
Federal Government by means of salary offset under the authority of 5
U.S.C. 5514; 5 CFR part 550, subpart K; and this subpart B.
(b) Scope. (1) The procedures set forth in this subpart B apply to
situations where FHFA is attempting to collect a debt by salary offset
that is owed to it by an individual employed by FHFA or by another
agency; or where FHFA employs an individual who owes a debt to another
agency.
(2) The procedures set forth in this subpart B do not apply to:
(i) Any routine intra-agency adjustment of pay that is attributable
to clerical or administrative error or delay in processing pay documents
that have occurred within the four pay periods preceding the adjustment,
or any adjustment to collect a debt amounting to $50 or less. However,
at the time of any such adjustment, or as soon thereafter as possible,
FHFA or its designated payroll agent shall provide the employee with a
written notice of the nature and the amount of the adjustment and a
point of contact for contesting such adjustment.
(ii) Any negative adjustment to pay that arises from an employee's
election of coverage or a change in coverage under a Federal benefits
program that requires periodic deductions from pay, if the amount to be
recovered was accumulated over four pay periods or less. However, at the
time such adjustment is made, FHFA or its payroll agent shall provide in
the employee's earnings statement a clear and concise statement that
informs the employee of the previous overpayment.
Sec. 1208.21 Notice requirements before salary offset where FHFA is
the creditor agency.
(a) Notice of Intent. Deductions from an employee's salary may not
be made unless FHFA provides the employee with a Notice of Intent at
least 30 calendar days before the salary offset is initiated.
(b) Contents of Notice of Intent. The Notice of Intent shall advise
the employee of the following:
(1) That FHFA has reviewed the records relating to the claim and has
determined that the employee owes the debt;
(2) That FHFA intends to collect the debt by deductions from the
employee's current disposable pay account;
(3) The amount of the debt and the facts giving rise to the debt;
(4) The frequency and amount of the intended deduction (stated as a
fixed dollar amount or as a percentage of pay not to exceed 15 percent
of disposable pay), and the intention to continue the deductions until
the debt and
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all accumulated interest are paid in full or otherwise resolved;
(5) The name, address, and telephone number of the person to whom
the employee may propose a written alternative schedule for voluntary
repayment, in lieu of salary offset. The employee shall include a
justification for the alternative schedule in his or her proposal. If
the terms of the alternative schedule are agreed upon by the employee
and FHFA, the alternative written schedule shall be signed by both the
employee and FHFA;
(6) An explanation of FHFA's policy concerning interest, penalties,
and administrative costs, the date by which payment should be made to
avoid such costs, and a statement that such assessments must be made
unless excused in accordance with the FCCS;
(7) The employee's right to inspect and copy all records of FHFA
pertaining to his or her debt that are not exempt from disclosure or to
receive copies of such records if he or she is unable personally to
inspect the records as the result of geographical or other constraints;
(8) The name, address, and telephone number of the FHFA employee to
whom requests for access to records relating to the debt must be sent;
(9) The employee's right to a hearing conducted by an impartial
hearing official with respect to the existence and amount of the debt
claimed or the repayment schedule i.e., the percentage of disposable pay
to be deducted each pay period, so long as a request is filed by the
employee as prescribed in Sec. 1208.23; the name and address of the
office to which the request for a hearing should be sent; and the name,
address, and telephone number of a person whom the employee may contact
concerning procedures for requesting a hearing;
(10) The filing of a request for a hearing on or before the 30th
calendar day following receipt of the Notice of Intent will stay the
commencement of collection proceedings and a final decision on whether a
hearing will be held (if a hearing is requested) or will be issued at
the earliest practical date, but not later than 60 calendar days after
the request for the hearing;
(11) FHFA shall initiate certification procedures to implement a
salary offset unless the employee files a request for a hearing on or
before the 30th calendar day following receipt of the Notice of Intent;
(12) Any knowingly false or frivolous statement, representations, or
evidence may subject the employee to:
(i) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5
CFR part 752, or any other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, 31 U.S.C. 3729 through
3731, or under any other applicable statutory authority; or
(iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002,
or under any other applicable statutory authority;
(13) That the employee also has the right to request waiver of
overpayment pursuant to 5 U.S.C. 5584 and may exercise any other rights
and remedies available to the employee under statutes or regulations
governing the program for which the collection is being made;
(14) Unless there are applicable contractual or statutory provisions
to the contrary, amounts paid on or deducted from debts that are later
waived or found not to be owed to the Federal Government shall be
promptly refunded to the employee; and
(15) Proceedings with respect to the debt are governed by 5 U.S.C.
5514.
Sec. 1208.22 Review of FHFA records related to the debt.
(a) Request for review. An employee who desires to inspect or copy
FHFA records related to a debt owed by the employee to FHFA must send a
letter to the individual designated in the Notice of Intent requesting
access to the relevant records. The letter must be received in the
office of that individual within 15 calendar days after the employee's
receipt of the Notice of Intent.
(b) Review location and time. In response to a timely request
submitted by the employee, the employee shall be notified of the
location and time when the employee may inspect and copy records related
to his or her debt that are not exempt from disclosure. If the
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employee is unable personally to inspect such records as the result of
geographical or other constraints, FHFA shall arrange to send copies of
such records to the employee. The debtor shall pay copying costs unless
they are waived by FHFA. Copying costs shall be assessed pursuant to
FHFA's Freedom of Information Act Regulation, 12 CFR part 1202.
Sec. 1208.23 Opportunity for a hearing where FHFA is the creditor
agency.
(a) Request for a hearing. (1) Time-period for submission. An
employee who requests a hearing on the existence or amount of the debt
held by FHFA or on the salary-offset schedule proposed by FHFA, must
send a written request to FHFA. The request for a hearing must be
received by FHFA on or before the 30th calendar day following receipt by
the employee of the Notice of Intent.
(2) Failure to submit timely. If the employee files a request for a
hearing after the expiration of the 30th calendar day, the employee
shall not be entitled to a hearing. However, FHFA may accept the request
if the employee can show that the delay was the result of circumstances
beyond his or her control or that he or she failed to receive actual
notice of the filing deadline.
(3) Contents of request. The request for a hearing must be signed by
the employee and must fully identify and explain with reasonable
specificity all the facts, evidence, and witnesses, if any, that the
employee believes support his or her position. The employee must also
specify whether he or she requests an oral hearing. If an oral hearing
is requested, the employee should explain why a hearing by examination
of the documents without an oral hearing would not resolve the matter.
(4) Failure to request a hearing. The failure of an employee to
request a hearing will be considered an admission by the employee that
the debt exists in the amount specified in the Notice of Intent that was
provided to the employee under Sec. 1208.21(b).
(b) Obtaining the services of a hearing official--(1) Debtor is not
an FHFA employee. When the debtor is not an FHFA employee and FHFA
cannot provide a prompt and appropriate hearing before an administrative
law judge or other hearing official, FHFA may request a hearing official
from an agent of the paying agency, as designated in 5 CFR part 581,
appendix A, or as otherwise designated by the paying agency. The paying
agency must cooperate with FHFA to provide a hearing official, as
required by the FCCS.
(2) Debtor is an FHFA employee. When the debtor is an FHFA employee,
FHFA may contact any agent of another agency, as designated in 5 CFR
part 581, appendix A, or as otherwise designated by the agency, to
request a hearing official.
(c) Procedure--(1) Notice of hearing. After the employee requests a
hearing, the hearing official shall notify the employee of the form of
the hearing to be provided. If the hearing will be oral, the notice
shall set forth the date, time, and location of the hearing, which must
occur no more than 30 calendar days after the request is received,
unless the employee requests that the hearing be delayed. If the hearing
will be conducted by an examination of documents, the employee shall be
notified within 30 calendar days that he or she should submit evidence
and arguments in writing to the hearing official within 30 calendar
days.
(2) Oral hearing. (i) An employee who requests an oral hearing shall
be provided an oral hearing if the hearing official determines that the
matter cannot be resolved by an examination of the documents alone, as
for example, when an issue of credibility or veracity is involved. The
oral hearing need not be an adversarial adjudication; and rules of
evidence need not apply. Witnesses who testify in an oral hearing shall
do so under oath or affirmation.
(ii) Oral hearings may take the form of, but are not limited to:
(A) Informal conferences with the hearing official in which the
employee and agency representative are given full opportunity to present
evidence, witnesses, and argument;
(B) Informal meetings in which the hearing examiner interviews the
employee; or
(C) Formal written submissions followed by an opportunity for oral
presentation.
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(3) Hearing by examination of documents. If the hearing official
determines that an oral hearing is not necessary, he or she shall make
the determination based upon an examination of the documents.
(d) Record. The hearing official shall maintain a summary record of
any hearing conducted under this section.
(e) Decision. (1) The hearing official shall issue a written opinion
stating his or her decision, based upon all evidence and information
developed during the hearing, as soon as practicable after the hearing,
but not later than 60 calendar days after the date on which the request
was received by FHFA, unless the hearing was delayed at the request of
the employee, in which case the 60-day decision period shall be extended
by the number of days by which the hearing was postponed.
(2) The decision of the hearing official shall be final and is
considered to be an official certification regarding the existence and
the amount of the debt for purposes of executing salary offset under 5
U.S.C. 5514. If the hearing official determines that a debt may not be
collected by salary offset, but FHFA finds that the debt is still valid,
FHFA may seek collection of the debt through other means in accordance
with applicable law and regulations.
(f) Content of decision. The written decision shall include:
(1) A summary of the facts concerning the origin, nature, and amount
of the debt;
(2) The hearing official's findings, analysis, and conclusions; and
(3) The terms of any repayment schedules, if applicable.
(g) Failure to appear. If, in the absence of good cause shown, such
as illness, the employee or the representative of FHFA fails to appear,
the hearing official shall proceed with the hearing as scheduled, and
make his or her decision based upon the oral testimony presented and the
documentation submitted by both parties. At the request of both parties,
the hearing official may schedule a new hearing date. Both parties shall
be given reasonable notice of the time and place of the new hearing.
Sec. 1208.24 Certification where FHFA is the creditor agency.
(a) Issuance. FHFA shall issue a certification in all cases where
the hearing official determines that a debt exists or the employee
admits the existence and amount of the debt, as for example, by failing
to request a hearing.
(b) Contents. The certification must be in writing and state:
(1) That the employee owes the debt;
(2) The amount and basis of the debt;
(3) The date the Federal Government's right to collect the debt
first accrued;
(4) The date the employee was notified of the debt, the action(s)
taken pursuant to FHFA's regulations, and the dates such actions were
taken;
(5) If the collection is to be made by lump-sum payment, the amount
and date such payment will be collected;
(6) If the collection is to be made in installments through salary
offset, the amount or percentage of disposable pay to be collected in
each installment and, if FHFA wishes, the desired commencing date of the
first installment, if a date other than the next officially established
pay period; and
(7) A statement that FHFA's regulation on salary offset has been
approved by OPM pursuant to 5 CFR part 550, subpart K.
Sec. 1208.25 Voluntary repayment agreements as alternative to salary
offset where FHFA is the creditor agency.
(a) Proposed repayment schedule. In response to a Notice of Intent,
an employee may propose to repay the debt voluntarily in lieu of salary
offset by submitting a written proposed repayment schedule to FHFA. Any
proposal under this section must be received by FHFA within 30 calendar
days after receipt of the Notice of Intent.
(b) Notification of decision. In response to a timely proposal by
the employee, FHFA shall notify the employee whether the employee's
proposed repayment schedule is acceptable. FHFA has the discretion to
accept, reject, or propose to the employee a modification of the
proposed repayment schedule.
(1) If FHFA decides that the proposed repayment schedule is
unacceptable, the employee shall have 30 calendar days from the date he
or she received
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notice of the decision in which to file a request for a hearing.
(2) If FHFA decides that the proposed repayment schedule is
acceptable or the employee agrees to a modification proposed by FHFA, an
agreement shall be put in writing and signed by both the employee and
FHFA.
Sec. 1208.26 Special review where FHFA is the creditor agency.
(a) Request for review. (1) An employee subject to salary offset or
a voluntary repayment agreement may, at any time, request a special
review by FHFA of the amount of the salary offset or voluntary
repayment, based on materially changed circumstances, including, but not
limited to, catastrophic illness, divorce, death, or disability.
(2) The request for special review must include an alternative
proposed offset or payment schedule and a detailed statement, with
supporting documents, that shows why the current salary offset or
payments result in extreme financial hardship to the employee and his or
her spouse and dependents. The detailed statement must indicate:
(i) Income from all sources;
(ii) Assets;
(iii) Liabilities;
(iv) Number of dependents;
(v) Expenses for food, housing, clothing, and transportation;
(vi) Medical expenses; and
(vii) Exceptional expenses, if any.
(b) Evaluation of request. FHFA shall evaluate the statement and
supporting documents and determine whether the original offset or
repayment schedule imposes extreme financial hardship on the employee,
for example, by preventing the employee from meeting essential
subsistence expenses such as food, housing, clothing, transportation,
and medical care. FHFA shall notify the employee in writing within 30
calendar days of such determination, including, if appropriate, a
revised offset or payment schedule. If the special review results in a
revised offset or repayment schedule, FHFA shall provide a new
certification to the paying agency.
Sec. 1208.27 Notice of salary offset where FHFA is the paying agency.
(a) Notice. Upon issuance of a proper certification by FHFA (for
debts owed to FHFA) or upon receipt of a proper certification from
another creditor agency, FHFA shall send the employee a written notice
of salary offset.
(b) Content of notice. Such written notice of salary offset shall
advise the employee of the:
(1) Certification that has been issued by FHFA or received from
another creditor agency;
(2) Amount of the debt and of the deductions to be made; and
(3) Date and pay period when the salary offset will begin.
(c) If FHFA is not the creditor agency, FHFA shall provide a copy of
the notice of salary offset to the creditor agency and advise the
creditor agency of the dollar amount to be offset and the pay period
when the offset will begin.
Sec. 1208.28 Procedures for salary offset where FHFA is the paying
agency.
(a) Generally. FHFA shall coordinate salary deductions under this
section and shall determine the amount of an employee's disposable pay
and the amount of the salary offset subject to the requirements in this
section. Deductions shall begin the pay period following the issuance of
the certification by FHFA or the receipt by FHFA of the certification
from another agency, or as soon thereafter as possible.
(b) Upon issuance of a proper certification by FHFA for debts owed
to FHFA, or upon receipt of a proper certification from a creditor
agency, FHFA shall send the employee a written notice of salary offset.
Such notice shall advise the employee:
(1) That certification has been issued by FHFA or received from
another creditor agency;
(2) Of the amount of the debt and of the deductions to be made; and
provided for in the certification, and
(3) Of the initiation of salary offset at the next officially
established pay interval or as otherwise provided for in the
certification.
(c) Where appropriate, FHFA shall provide a copy of the notice to
the creditor agency and advise such agency
[[Page 95]]
of the dollar amount to be offset and the pay period when the offset
will begin.
(d) Types of collection--(1) Lump-sum payment. If the amount of the
debt is equal to or less than 15 percent of the employee's disposable
pay, such debt ordinarily will be collected in one lump-sum payment.
(2) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The size
and frequency of installment deductions will bear a reasonable relation
to the size of the debt and the employee's ability to pay. However, the
amount deducted for any pay period will not exceed 15 percent of the
disposable pay from which the deduction is made unless the employee has
agreed in writing to the deduction of a greater amount. The installment
payment should normally be sufficient in size and frequency to liquidate
the debt in no more than three years. Installment payments of less than
$50 should be accepted only in the most unusual circumstances.
(3) Lump-sum deductions from final check. In order to liquidate a
debt, a lump-sum deduction exceeding 15 percent of disposable pay may be
made pursuant to 31 U.S.C. 3716 from any final salary payment due a
former employee, whether the former employee was separated voluntarily
or involuntarily.
(4) Lump-sum deductions from other sources. Whenever an employee
subject to salary offset is separated from FHFA, and the balance of the
debt cannot be liquidated by offset of the final salary check, FHFA may
offset any later payments of any kind to the former employee to collect
the balance of the debt pursuant to 31 U.S.C. 3716.
(e) Multiple debts--(1) Where two or more creditor agencies are
seeking salary offset, or where two or more debts are owed to a single
creditor agency, FHFA may, at its discretion, determine whether one or
more debts should be offset simultaneously within the 15 percent
limitation.
(2) In the event that a debt owed FHFA is certified while an
employee is subject to salary offset to repay another agency, FHFA may,
at its discretion, determine whether the debt to FHFA should be repaid
before the debt to the other agency is repaid, repaid simultaneously
with the other debt, or repaid after the debt to the other agency.
(3) A levy pursuant to the Internal Revenue Code of 1986 shall take
precedence over other deductions under this section, as provided in 5
U.S.C. 5514(d).
Sec. 1208.29 Coordinating salary offset with other agencies.
(a) Responsibility of FHFA as the creditor agency. (1) FHFA shall be
responsible for:
(i) Arranging for a hearing upon proper request by a Federal
employee;
(ii) Preparing the Notice of Intent consistent with the requirements
of Sec. 1208.21;
(iii) Obtaining hearing officials from other agencies pursuant to
Sec. 1208.23(b); and
(iv) Ensuring that each certification of debt pursuant to Sec.
1208.24(b) is sent to a paying agency.
(2) Upon completion of the procedures set forth in Sec. Sec.
1208.24 through 1208.26, FHFA shall submit to the employee's paying
agency, if applicable, a certified debt claim and an installment
agreement or other instruction on the payment schedule.
(i) If the employee is in the process of separating from the Federal
Government, FHFA shall submit its debt claim to the employee's paying
agency for collection by lump-sum deduction from the employee's final
check. The paying agency shall certify the total amount of its
collection and furnish a copy of the certification to FHFA and to the
employee.
(ii) If the employee is already separated and all payments due from
his or her former paying agency have been paid, FHFA may, unless
otherwise prohibited, request that money due and payable to the employee
from the Federal Government, including payments from the Civil Service
Retirement and Disability Fund (5 CFR 831.1801) or other similar funds,
be administratively offset to collect the debt.
(iii) When an employee transfers to another paying agency, FHFA
shall not repeat the procedures described in Sec. Sec. 1208.24 through
1208.26. Upon receiving notice of the employee's transfer,
[[Page 96]]
FHFA shall review the debt to ensure that collection is resumed by the
new paying agency.
(b) Responsibility of FHFA as the paying agency--(1) Complete claim.
When FHFA receives a certified claim from a creditor agency, the
employee shall be given written notice of the certification, the date
salary offset will begin, and the amount of the periodic deductions.
Deductions shall be scheduled to begin at the next officially
established pay interval or as otherwise provided for in the
certification.
(2) Incomplete claim. When FHFA receives an incomplete certification
of debt from a creditor agency, FHFA shall return the claim with notice
that procedures under 5 U.S.C. 5514 and 5 CFR 550.1104 must be followed,
and that a properly certified claim must be received before FHFA will
take action to collect the debt from the employee's current pay account.
(3) Review. FHFA is not authorized to review the merits of the
creditor agency's determination with respect to the amount or validity
of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to another agency.
If, after the creditor agency has submitted the debt claim to FHFA, the
employee transfers to another agency before the debt is collected in
full, FHFA must certify the total amount collected on the debt as
required by 5 CFR 550.1109. One copy of the certification shall be
furnished to the employee and one copy shall be sent to the creditor
agency along with notice of the employee's transfer. If FHFA is aware
that the employee is entitled to payments from the Civil Service
Retirement and Disability Fund or other similar payments, it must
provide written notification to the agency responsible for making such
payments that the debtor owes a debt (including the amount) and that the
requirements set forth herein and in 5 CFR part 550, subpart K, have
been met. FHFA must submit a properly certified claim to the new payment
agency before a collection can be made.
Sec. 1208.30 Interest, penalties, and administrative costs.
Where FHFA is the creditor agency, FHFA shall assess interest,
penalties, and administrative costs pursuant to 31 U.S.C. 3717 and the
FCCS, 31 CFR chapter IX.
Sec. 1208.31 Refunds.
(a) Where FHFA is the creditor agency, FHFA shall promptly refund
any amount deducted under the authority of 5 U.S.C. 5514 when:
(1) FHFA receives notice that the debt has been waived or otherwise
found not to be owing to the Federal Government; or
(2) An administrative or judicial order directs FHFA to make a
refund.
(b) Unless required by law or contract, refunds under this section
shall not bear interest.
Sec. 1208.32 Request from a creditor agency for the services of a
hearing official.
(a) FHFA may provide qualified personnel to serve as hearing
officials upon request of a creditor agency when:
(1) The debtor is employed by FHFA and the creditor agency cannot
provide a prompt and appropriate hearing before a hearing official
furnished pursuant to another lawful arrangement; or
(2) The debtor is employed by the creditor agency and that agency
cannot arrange for a hearing official.
(b) Services provided by FHFA to creditor agencies under this
section shall be provided on a fully reimbursable basis pursuant to 31
U.S.C. 1535, or other applicable authority.
Sec. 1208.33 Non-waiver of rights by payments.
A debtor's payment, whether voluntary or involuntary, of all or any
portion of a debt being collected pursuant to this subpart B shall not
be construed as a waiver of any rights that the debtor may have under
any statute, regulation, or contract, except as otherwise provided by
law or contract.
[[Page 97]]
Subpart C_Administrative Offset
Sec. 1208.40 Authority and scope.
(a) The provisions of this subpart C apply to the collection of
debts owed to the Federal Government arising from transactions with
FHFA. Administrative offset is authorized under the Debt Collection
Improvement Act of 1996 (DCIA). This subpart C is consistent with the
Federal Claims Collection Standards (FCCS) on administrative offset
issued by the Department of Justice.
(b) FHFA may collect a debt owed to the Federal Government from a
person, organization, or other entity by administrative offset, pursuant
to 31 U.S.C. 3716, where:
(1) The debt is certain in amount;
(2) Administrative offset is feasible, desirable, and not otherwise
prohibited;
(3) The applicable statute of limitations has not expired; and
(4) Administrative offset is in the best interest of the Federal
Government.
Sec. 1208.41 Collection.
(a) FHFA may collect a claim from a person, organization, or other
entity by administrative offset of monies payable by the Federal
Government only after:
(1) Providing the debtor with due process required under this part;
and
(2) Providing the paying agency with written certification that the
debtor owes the debt in the amount stated and that FHFA, as creditor
agency, has complied with this part.
(b) Prior to initiating collection by administrative offset, FHFA
should determine that the proposed offset is within the scope of this
remedy, as set forth in 31 CFR 901.3(a). Administrative offset under 31
U.S.C. 3716 may not be used to collect debts more than 10 years after
the Federal Government's right to collect the debt first accrued, except
as otherwise provided by law. In addition, administrative offset may not
be used when a statute explicitly prohibits its use to collect the claim
or type of claim involved.
(c) Unless otherwise provided, debts or payments not subject to
administrative offset under 31 U.S.C. 3716 may be collected by
administrative offset under common law, or any other applicable
statutory authority.
Sec. 1208.42 Administrative offset prior to completion of procedures.
FHFA shall not be required to follow the procedures described in
Sec. 1208.43 where:
(a) Prior to the completion of the procedures described in Sec.
1208.43, FHFA may effect administrative offset if failure to offset
would substantially prejudice its ability to collect the debt, and if
the time before the payment is to be made does not reasonably permit
completion of the procedures described in Sec. 1208.43. Such prior
administrative offset shall be followed promptly by the completion of
the procedures described in Sec. 1208.43. Amounts recovered by
administrative offset but later found not to be owed to FHFA shall be
promptly refunded. This section applies only to administrative offset
pursuant to 31 CFR 901.3(c), and does not apply when debts are referred
to the Department of the Treasury for mandatory centralized
administrative offset under 31 CFR 901.3(b)(1).
(b) The administrative offset is in the nature of a recoupment
(i.e., FHFA may offset a payment due to the debtor when both the payment
due to the debtor and the debt owed to FHFA arose from the same
transaction); or
(c) In the case of non-centralized administrative offsets, FHFA
first learns of the existence of a debt due when there would be
insufficient time to afford the debtor due process under these
procedures before the paying agency makes payment to the debtor; in such
cases, the Director shall give the debtor notice and an opportunity for
review as soon as practical and shall refund any money ultimately found
not to be due to the Federal Government.
Sec. 1208.43 Procedures.
Unless the procedures described in Sec. 1208.42 are used, prior to
collecting any debt by administrative offset or referring such claim to
another agency for collection through administrative offset, FHFA shall
provide the debtor with the following:
(a) Written notification of the nature and amount of the debt, the
intention
[[Page 98]]
of FHFA to collect the debt through administrative offset, and a
statement of the rights of the debtor under this section;
(b) An opportunity to inspect and copy the records of FHFA related
to the debt that are not exempt from disclosure;
(c) An opportunity for review within FHFA of the determination of
indebtedness. Any request for review by the debtor shall be in writing
and shall be submitted to FHFA within 30 calendar days of the date of
the notice of the offset. FHFA may waive the time limits for requesting
review for good cause shown by the debtor. FHFA shall provide the debtor
with a reasonable opportunity for an oral hearing when:
(1) An applicable statute authorizes or requires FHFA to consider
waiver of the indebtedness involved, the debtor requests waiver of the
indebtedness, and the waiver determination turns on an issue of
credibility or veracity; or
(2) The debtor requests reconsideration of the debt and FHFA
determines that the question of the indebtedness cannot be resolved by
review of the documentary evidence, as for example, when the validity of
the debt turns on an issue of credibility or veracity. Unless otherwise
required by law, an oral hearing under this subpart C is not required to
be a formal evidentiary hearing, although FHFA shall document all
significant matters discussed at the hearing. In those cases where an
oral hearing is not required by this subpart C, FHFA shall make its
determination on the request for waiver or reconsideration based upon a
review of the written record; and
(d) An opportunity to enter into a written agreement for the
voluntary repayment of the amount of the claim at the discretion of
FHFA.
Sec. 1208.44 Interest, penalties, and administrative costs.
FHFA shall assess interest, penalties, and administrative costs on
debts owed to the Federal Government, in accordance with 31 U.S.C. 3717
and the FCCS. FHFA may also assess interest and related charges on debts
that are not subject to 31 U.S.C. 3717 and the FCCS to the extent
authorized under the common law or other applicable statutory authority.
Sec. 1208.45 Refunds.
FHFA shall refund promptly those amounts recovered by administrative
offset but later found not to be owed to the Federal Government. Unless
required by law or contract, such refunds shall not bear interest.
Sec. 1208.46 No requirement for duplicate notice.
Where FHFA has previously given a debtor any of the required notice
and review opportunities with respect to a particular debt, FHFA is not
required to duplicate such notice and review opportunities prior to
initiating administrative offset.
Sec. 1208.47 Requests for administrative offset to other Federal
agencies.
(a) FHFA may request that a debt owed to FHFA be collected by
administrative offset against funds due and payable to a debtor by
another agency.
(b) In requesting administrative offset, FHFA, as creditor, shall
certify in writing to the agency holding funds of the debtor:
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That FHFA has complied with the requirements of its own
administrative offset regulations and the applicable provisions of the
FCCS with respect to providing the debtor with due process, unless
otherwise provided.
Sec. 1208.48 Requests for administrative offset from other Federal
agencies.
(a) Any agency may request that funds due and payable to a debtor by
FHFA be administratively offset in order to collect a debt owed to such
agency by the debtor.
(b) FHFA shall initiate the requested administrative offset only
upon:
(1) Receipt of written certification from the creditor agency that:
(i) The debtor owes the debt, including the amount and basis of the
debt;
(ii) The agency has prescribed regulations for the exercise of
administrative offset; and
[[Page 99]]
(iii) The agency has complied with its own administrative offset
regulations and with the applicable provisions of the FCCS, including
providing any required hearing or review.
(2) A determination by FHFA that collection by administrative offset
against funds payable by FHFA would be in the best interest of the
Federal Government as determined by the facts and circumstances of the
particular case and that such administrative offset would not otherwise
be contrary to law.
Sec. 1208.49 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.
(a) Request for administrative offset. Unless otherwise prohibited
by law, FHFA may request that monies that are due and payable to a
debtor from the Civil Service Retirement and Disability Fund (Fund) be
offset administratively in reasonable amounts in order to collect in one
full payment or in a minimal number of payments debt owed to FHFA by the
debtor. Such requests shall be made to the appropriate officials of OPM
in accordance with such regulations as may be prescribed by FHFA or OPM.
(b) Contents of certification. When making a request for
administrative offset under paragraph (a) of this section, FHFA shall
provide OPM with a written certification that:
(1) The debtor owes FHFA a debt, including the amount of the debt;
(2) FHFA has complied with the applicable statutes, regulations, and
procedures of OPM; and
(3) FHFA has complied with the requirements of the FCCS, including
any required hearing or review.
(c) If FHFA decides to request administrative offset under paragraph
(a) of this section, it shall make the request as soon as practicable
after completion of the applicable procedures. This will satisfy any
requirement that administrative offset be initiated prior to the
expiration of the applicable statute of limitations. At such time as the
debtor makes a claim for payments from the Fund, if at least one year
has elapsed since the administrative offset request was originally made,
the debtor shall be permitted to offer a satisfactory repayment plan in
lieu of administrative offset if he or she establishes that changed
financial circumstances would render the administrative offset unjust.
(d) If FHFA collects part or all of the debt by other means before
deductions are made or completed pursuant to paragraph (a) of this
section, FHFA shall act promptly to modify or terminate its request for
administrative offset under paragraph (a) of this section.
Subpart D_Tax Refund Offset
Sec. 1208.50 Authority and scope.
The provisions of 26 U.S.C. 6402(d) and 31 U.S.C. 3720A authorize
the Secretary of the Treasury to offset a delinquent debt owed the
Federal Government from the tax refund due a taxpayer when other
collection efforts have failed to recover the amount due. In addition,
FHFA is authorized to collect debts by means of administrative offset
under 31 U.S.C. 3716 and, as part of the debt collection process, to
notify the United States Department of Treasury's Financial Management
Service of the amount of such debt for collection by tax refund offset.
Sec. 1208.51 Definitions.
The following terms apply to this subpart D--
Debt or claim means an amount of money, funds or property which has
been determined by FHFA to be due to the Federal Government from any
person, organization, or entity, except another Federal agency.
(1) A debt becomes eligible for tax refund offset procedures if:
(i) It cannot currently be collected pursuant to the salary offset
procedures of 5 U.S.C. 5514(a)(1);
(ii) The debt is ineligible for administrative offset or cannot be
collected currently by administrative offset; and
(iii) The requirements of this section are otherwise satisfied.
(2) All judgment debts are past due for purposes of this subpart D.
Judgment debts remain past due until paid in full.
Debtor means a person who owes a debt or a claim. The term
``person'' includes any individual, organization or entity, except
another Federal agency.
[[Page 100]]
Dispute means a written statement supported by documentation or
other evidence that all or part of an alleged debt is not past due or
legally enforceable, that the amount is not the amount currently owed,
that the outstanding debt has been satisfied, or in the case of a debt
reduced to judgment, that the judgment has been satisfied or stayed.
Notice means the information sent to the debtor pursuant to Sec.
1208.53. The date of the notice is that date shown on the notice letter
as its date of issuance.
Tax refund offset means withholding or reducing a tax refund payment
by an amount necessary to satisfy a debt owed by the payee(s) of a tax
refund payment.
Tax refund payment means any overpayment of Federal taxes to be
refunded to the person making the overpayment after the Internal Revenue
Service (IRS) makes the appropriate credits.
Sec. 1208.52 Procedures.
(a) Referral to the Department of the Treasury. (1) FHFA may refer
any past due, legally enforceable nonjudgment debt of an individual,
organization, or entity to the Department of the Treasury for tax refund
offset if FHFA's or the referring agency's rights of action accrued more
than three months but less than 10 years before the offset is made.
(2) Debts reduced to judgment may be referred at any time.
(3) Debts in amounts lower than $25 are not subject to referral.
(4) In the event that more than one debt is owed, the tax refund
offset procedures shall be applied in the order in which the debts
became past due.
(5) FHFA shall notify the Department of the Treasury of any change
in the amount due promptly after receipt of payment or notice of other
reductions.
(b) Notice. FHFA shall provide the debtor with written notice of its
intent to offset before initiating the offset. Notice shall be mailed to
the debtor at the current address of the debtor, as determined from
information obtained from the Internal Revenue Service pursuant to 26
U.S.C. 6103(m)(2), (4), (5) or maintained by FHFA. The notice sent to
the debtor shall state the amount of the debt and inform the debtor
that:
(1) The debt is past due;
(2) FHFA intends to refer the debt to the Department of the Treasury
for offset from tax refunds that may be due to the taxpayer;
(3) FHFA intends to provide information concerning the delinquent
debt exceeding $100 to a consumer reporting bureau unless such debt has
already been disclosed; and
(4) Before the debt is reported to a consumer reporting agency, if
applicable, and referred to the Department of the Treasury for offset
from tax refunds, the debtor has 65 calendar days from the date of
notice to request a review under paragraph (d) of this section.
(c) Report to consumer reporting agency. If the debtor neither pays
the amount due nor presents evidence that the amount is not past due or
is satisfied or stayed, FHFA will report the debt to a consumer
reporting agency at the end of the notice period, if applicable, and
refer the debt to the Department of the Treasury for offset from the
taxpayer's Federal tax refund. FHFA shall certify to the Department of
the Treasury that reasonable efforts have been made by FHFA to obtain
payment of such debt.
(d) Request for review. A debtor may request a review by FHFA if he
or she believes that all or part of the debt is not past due or is not
legally enforceable, or in the case of a judgment debt, that the debt
has been stayed or the amount satisfied, as follows:
(1) The debtor must send a written request for review to FHFA at the
address provided in the notice.
(2) The request must state the amount disputed and reasons why the
debtor believes that the debt is not past due, is not legally
enforceable, has been satisfied, or if a judgment debt, has been
satisfied or stayed.
(3) The request must include any documents that the debtor wishes to
be considered or state that additional information will be submitted
within the time permitted.
(4) If the debtor wishes to inspect records establishing the nature
and amount of the debt, the debtor must
[[Page 101]]
make a written request to FHFA for an opportunity for such an
inspection. The office holding the relevant records not exempt from
disclosure shall make them available for inspection during normal
business hours within one week from the date of receipt of the request.
(5) The request for review and any additional information submitted
pursuant to the request must be received by FHFA at the address stated
in the notice within 65 calendar days of the date of issuance of the
notice.
(6) In reaching its decision, FHFA shall review the dispute and
shall consider its records and any documentation and arguments submitted
by the debtor. FHFA shall send a written notice of its decision to the
debtor. There is no administrative appeal of this decision.
(7) If the evidence presented by the debtor is considered by a non-
FHFA agent or other entities or persons acting on behalf of FHFA, the
debtor shall be accorded at least 30 calendar days from the date the
agent or other entity or person determines that all or part of the debt
is past due and legally enforceable to request review by FHFA of any
unresolved dispute.
(8) Any debt that previously has been reviewed pursuant to this
section or any other section of this part, or that has been reduced to a
judgment, may not be disputed except on the grounds of payments made or
events occurring subsequent to the previous review or judgment.
(9) To the extent that a debt owed has not been established by
judicial or administrative order, a debtor may dispute the existence or
amount of the debt or the terms of repayment. With respect to debts
established by a judicial or administrative order, FHFA review will be
limited to issues concerning the payment or other discharge of the debt.
Sec. 1208.53 No requirement for duplicate notice.
Where FHFA has previously given a debtor any of the required notice
and review opportunities with respect to a particular debt, FHFA is not
required to duplicate such notice and review opportunities prior to
initiating tax refund offset.
Sec. Sec. 1208.54-1208.59 [Reserved]
Subpart E_Administrative Wage Garnishment
Sec. 1208.60 Scope and purpose.
These administrative wage garnishment procedures are issued in
compliance with 31 U.S.C. 3720D and 31 CFR 285.11(f). This subpart E
provides procedures for FHFA to collect money from a debtor's disposable
pay by means of administrative wage garnishment. The receipt of payments
pursuant to this subpart E does not preclude FHFA from pursuing other
debt collection remedies, including the offset of Federal payments. FHFA
may pursue such debt collection remedies separately or in conjunction
with administrative wage garnishment. This subpart E does not apply to
the collection of delinquent debts from the wages of Federal employees
from their Federal employment. Federal pay is subject to the Federal
salary offset procedures set forth in 5 U.S.C. 5514 and other applicable
laws.
Sec. 1208.61 Notice.
At least 30 days before the initiation of garnishment proceedings,
FHFA will send, by first class mail to the debtor's last known address,
a written notice informing the debtor of:
(a) The nature and amount of the debt;
(b) FHFA's intention to initiate proceedings to collect the debt
through deductions from the debtor's pay until the debt and all
accumulated interest penalties and administrative costs are paid in
full;
(c) An explanation of the debtor's rights as set forth in Sec.
1208.62(c); and
(d) The time frame within which the debtor may exercise these
rights. FHFA shall retain a stamped copy of the notice indicating the
date the notice was mailed.
Sec. 1208.62 Debtor's rights.
FHFA shall afford the debtor the opportunity:
(a) To inspect and copy records related to the debt;
[[Page 102]]
(b) To enter into a written repayment agreement with FHFA, under
terms agreeable to FHFA; and
(c) To the extent that a debt owed has not been established by
judicial or administrative order, to request a hearing concerning the
existence or amount of the debt or the terms of the repayment schedule.
With respect to debts established by a judicial or administrative order,
a debtor may request a hearing concerning the payment or other discharge
of the debt. The debtor is not entitled to a hearing concerning the
terms of the proposed repayment schedule if these terms have been
established by written agreement.
Sec. 1208.63 Form of hearing.
(a) If the debtor submits a timely written request for a hearing as
provided in Sec. 1208.62(c), FHFA will afford the debtor a hearing,
which at FHFA's option may be oral or written. FHFA will provide the
debtor with a reasonable opportunity for an oral hearing when FHFA
determines that the issues in dispute cannot be resolved by review of
the documentary evidence, for example, when the validity of the claim
turns on the issue of credibility or veracity.
(b) If FHFA determines that an oral hearing is appropriate, the time
and location of the hearing shall be established by FHFA. An oral
hearing may, at the debtor's option, be conducted either in person or by
telephone conference. All travel expenses incurred by the debtor in
connection with an in-person hearing will be borne by the debtor. All
telephonic charges incurred during the hearing will be the
responsibility of the agency.
(c) In cases when it is determined that an oral hearing is not
required by this section, FHFA will accord the debtor a ``paper
hearing,'' that is, FHFA will decide the issues in dispute based upon a
review of the written record.
Sec. 1208.64 Effect of timely request.
If FHFA receives a debtor's written request for a hearing within 15
business days of the date FHFA mailed its notice of intent to seek
garnishment, FHFA shall not issue a withholding order until the debtor
has been provided the requested hearing, and a decision in accordance
with Sec. 1208.68 and Sec. 1208.69 has been rendered.
Sec. 1208.65 Failure to timely request a hearing.
If FHFA receives a debtor's written request for a hearing after 15
business days of the date FHFA mailed its notice of intent to seek
garnishment, FHFA shall provide a hearing to the debtor. However, FHFA
will not delay issuance of a withholding order unless it determines that
the untimely filing of the request was caused by factors over which the
debtor had no control, or FHFA receives information that FHFA believes
justifies a delay or cancellation of the withholding order.
Sec. 1208.66 Hearing official.
A hearing official may be any qualified individual, as determined by
FHFA, including an administrative law judge.
Sec. 1208.67 Procedure.
After the debtor requests a hearing, the hearing official shall
notify the debtor of:
(a) The date and time of a telephonic hearing;
(b) The date, time, and location of an in-person oral hearing; or
(c) The deadline for the submission of evidence for a written
hearing.
Sec. 1208.68 Format of hearing.
FHFA will have the burden of proof to establish the existence or
amount of the debt. Thereafter, if the debtor disputes the existence or
amount of the debt, the debtor must prove by a preponderance of the
evidence that no debt exists, or that the amount of the debt is
incorrect. In addition, the debtor may present evidence that the terms
of the repayment schedule are unlawful, would cause a financial hardship
to the debtor, or that collection of the debt may not be pursued due to
operation of law. The hearing official shall maintain a record of any
hearing held under this section. Hearings are not required to be formal,
and evidence may be offered without regard to formal rules of evidence.
Witnesses who testify in oral hearings shall do so under oath or
affirmation.
[[Page 103]]
Sec. 1208.69 Date of decision.
The hearing official shall issue a written opinion stating his or
her decision as soon as practicable, but not later than 60 days after
the date on which the request for such hearing was received by FHFA. If
FHFA is unable to provide the debtor with a hearing and decision within
60 days after the receipt of the request for such hearing:
(a) FHFA may not issue a withholding order until the hearing is held
and a decision rendered; or
(b) If FHFA had previously issued a withholding order to the
debtor's employer, the withholding order will be suspended beginning on
the 61st day after the date FHFA received the hearing request and
continuing until a hearing is held and a decision is rendered.
Sec. 1208.70 Content of decision.
The written decision shall include:
(a) A summary of the facts presented;
(b) The hearing official's findings, analysis and conclusions; and
(c) The terms of any repayment schedule, if applicable.
Sec. 1208.71 Finality of agency action.
A decision by a hearing official shall become the final decision of
FHFA for the purpose of judicial review under the Administrative
Procedure Act.
Sec. 1208.72 Failure to appear.
In the absence of good cause shown, a debtor who fails to appear at
a scheduled hearing will be deemed as not having timely filed a request
for a hearing.
Sec. 1208.73 Wage garnishment order.
(a) Unless FHFA receives information that it believes justifies a
delay or cancellation of the withholding order, FHFA will send by first
class mail a withholding order to the debtor's employer within 30
calendar days after the debtor fails to make a timely request for a
hearing (i.e., within 15 business days after the mailing of the notice
of FHFA's intent to seek garnishment) or, if a timely request for a
hearing is made by the debtor, within 30 calendar days after a decision
to issue a withholding order becomes final.
(b) The withholding order sent to the employer will be in the form
prescribed by the Secretary of the Treasury, on FHFA's letterhead, and
signed by the head of the agency or delegate. The order will contain all
information necessary for the employer to comply with the withholding
order, including the debtor's name, address, and social security number,
as well as instructions for withholding and information as to where
payments should be sent.
(c) FHFA will keep a stamped copy of the order indicating the date
it was mailed.
Sec. 1208.74 Certification by employer.
Along with the withholding order, FHFA will send to the employer a
certification in a form prescribed by the Secretary of the Treasury. The
employer shall complete and return the certification to FHFA within the
time frame prescribed in the instructions to the form. The certification
will address matters such as information about the debtor's employment
status and disposable pay available for withholding.
Sec. 1208.75 Amounts withheld.
(a) Upon receipt of the garnishment order issued under this section,
the employer shall deduct from all disposable pay paid to the debtor
during each pay period the amount of garnishment described in paragraphs
(b) through (d) of this section.
(b) Subject to the provisions of paragraphs (c) and (d) of this
section, the amount of garnishment shall be the lesser of:
(1) The amount indicated on the garnishment order up to 15 percent
of the debtor's disposable pay; or
(2) The amount set forth in 15 U.S.C. 1673(a)(2). The amount set
forth at 15 U.S.C. 1673(a)(2) is the amount by which the debtor's
disposable pay exceeds an amount equivalent to thirty times the minimum
wage.
(c) When a debtor's pay is subject to withholding orders with
priority, the following shall apply:
(1) Unless otherwise provided by Federal law, withholding orders
issued under this section shall be paid in the amounts set forth under
paragraph (b) of this section and shall have priority over other
withholding orders which
[[Page 104]]
are served later in time. However, withholding orders for family support
shall have priority over withholding orders issued under this section.
(2) If amounts are being withheld from a debtor's pay pursuant to a
withholding order served on an employer before a withholding order
issued pursuant to this section, or if a withholding order for family
support is served on an employer at any time, the amounts withheld
pursuant to the withholding order issued under this section shall be the
lesser of:
(i) The amount calculated under paragraph (b) of this section; or
(ii) An amount equal to 25 percent of the debtor's disposable pay
less the amount(s) withheld under the withholding order(s) with
priority.
(3) If a debtor owes more than one debt to FHFA, FHFA may issue
multiple withholding orders. The total amount garnished from the
debtor's pay for such orders will not exceed the amount set forth in
paragraph (b) of this section.
(d) An amount greater than that set forth in paragraphs (b) and (c)
of this section may be withheld upon the written consent of the debtor.
(e) The employer shall promptly pay to FHFA all amounts withheld in
accordance with the withholding order issued pursuant to this section.
(f) An employer shall not be required to vary its normal pay and
disbursement cycles in order to comply with the withholding order.
(g) Any assignment or allotment by the employee of the employee's
earnings shall be void to the extent it interferes with or prohibits
execution of the withholding order under this section, except for any
assignment or allotment made pursuant to a family support judgment or
order.
(h) The employer shall withhold the appropriate amount from the
debtor's wages for each pay period until the employer receives
notification from FHFA to discontinue wage withholding. The garnishment
order shall indicate a reasonable period of time within which the
employer is required to commence wage withholding.
Sec. 1208.76 Exclusions from garnishment.
FHFA will not garnish the wages of a debtor it knows has been
involuntarily separated from employment until the debtor has been re-
employed continuously for at least 12 months. The debtor has the burden
of informing FHFA of the circumstances surrounding an involuntary
separation from employment.
Sec. 1208.77 Financial hardship.
(a) A debtor whose wages are subject to a wage withholding order
under this section, may, at any time, request a review by FHFA of the
amount garnished, based on materially changed circumstances such as
disability, divorce, or catastrophic illness which result in financial
hardship.
(b) A debtor requesting a review under this section shall submit the
basis for claiming that the current amount of garnishment results in a
financial hardship to the debtor, along with supporting documentation.
(c) If a financial hardship is found, FHFA will downwardly adjust,
by an amount and for a period of time agreeable to FHFA, the amount
garnished to reflect the debtor's financial condition. FHFA will notify
the employer of any adjustments to the amounts to be withheld.
Sec. 1208.78 Ending garnishment.
(a) Once FHFA has fully recovered the amounts owed by the debtor,
including interest, penalties, and administrative costs consistent with
the Federal Claims Collection Standards, FHFA will send the debtor's
employer notification to discontinue wage withholding.
(b) At least annually, FHFA will review its debtors' accounts to
ensure that garnishment has been terminated for accounts that have been
paid in full.
Sec. 1208.79 Prohibited actions by employer.
The Debt Collection Improvement Act of 1996 prohibits an employer
from discharging, refusing to employ, or taking disciplinary action
against the debtor due to the issuance of a withholding order under this
subpart E.
[[Page 105]]
Sec. 1208.80 Refunds.
(a) If a hearing official determines that a debt is not legally due
and owing to the United States, FHFA shall promptly refund any amount
collected by means of administrative wage garnishment.
(b) Unless required by Federal law or contract, refunds under this
section shall not bear interest.
Sec. 1208.81 Right of action.
FHFA may sue any employer for any amount that the employer fails to
withhold from wages owed and payable to its employee in accordance with
this subpart E. However, a suit will not be filed before the termination
of the collection action involving a particular debtor, unless earlier
filing is necessary to avoid expiration of any applicable statute of
limitations. For purposes of this subpart E, ``termination of the
collection action'' occurs when the agency has terminated collection
action in accordance with the FCCS or other applicable standards. In any
event, termination of the collection action will have been deemed to
occur if FHFA has not received any payments to satisfy the debt from the
particular debtor whose wages were subject to garnishment, in whole or
in part, for a period of one (1) year.
PART 1209_RULES OF PRACTICE AND PROCEDURE--Table of Contents
Subpart A_Scope and Authority
Sec.
1209.1 Scope.
1209.2 Rules of construction.
1209.3 Definitions.
Subpart B_Enforcement Proceedings Under Sections 1371 Through 1379D of
the Safety and Soundness Act
1209.4 Scope and authority.
1209.5 Cease and desist proceedings.
1209.6 Temporary cease and desist orders.
1209.7 Civil money penalties.
1209.8 Removal and prohibition proceedings.
1209.9 Supervisory actions not affected.
Subpart C_Rules of Practice and Procedure
1209.10 Authority of the Director.
1209.11 Authority of the Presiding Officer.
1209.12 Public hearings; closed hearings.
1209.13 Good faith certification.
1209.14 Ex parte communications.
1209.15 Filing of papers.
1209.16 Service of papers.
1209.17 Time computations.
1209.18 Change of time limits.
1209.19 Witness fees and expenses.
1209.20 Opportunity for informal settlement.
1209.21 Conduct of examination.
1209.22 Collateral attacks on adjudicatory proceeding.
1209.23 Commencement of proceeding and contents of notice of charges.
1209.24 Answer.
1209.25 Amended pleadings.
1209.26 Failure to appear.
1209.27 Consolidation and severance of actions.
1209.28 Motions.
1209.29 Discovery.
1209.30 Request for document discovery from parties.
1209.31 Document discovery subpoenas to non-parties.
1209.32 Deposition of witness unavailable for hearing.
1209.33 Interlocutory review.
1209.34 Summary disposition.
1209.35 Partial summary disposition.
1209.36 Scheduling and pre-hearing conferences.
1209.37 Pre-hearing submissions.
1209.38 Hearing subpoenas.
1209.39-1209.49 [Reserved]
1209.50 Conduct of hearings.
1209.51 Evidence.
1209.52 Post-hearing filings.
1209.53 Recommended decision and filing of record.
1209.54 Exceptions to recommended decision.
1209.55 Review by Director.
1209.56 Exhaustion of administrative remedies.
1209.57 Judicial review; no automatic stay.
1209.58-1209.69 [Reserved]
Subpart D_Parties and Representational Practice Before the Federal
Housing Finance Agency; Standards of Conduct
1209.70 Scope.
1209.71 Definitions.
1209.72 Appearance and practice in adjudicatory proceedings.
1209.73 Conflicts of interest.
1209.74 Sanctions.
1209.75 Censure, suspension, disbarment, and reinstatement.
1209.76-1209.79 [Reserved]
Subpart E_Civil Money Penalty Inflation Adjustments
1209.80 Inflation adjustments.
[[Page 106]]
1209.81 Applicability.
1209.82-1209.99 [Reserved]
Subpart F_Suspension or Removal of an Entity-Affiliated Party Charged
With Felony
1209.100 Scope.
1209.101 Suspension, removal, or prohibition.
1209.102 Hearing on removal or suspension.
1209.103 Recommended and final decisions.
Authority: 5 U.S.C. 554, 556, 557, and 701 et seq.; 12 U.S.C.
1430c(d); 12 U.S.C. 4501, 4502, 4503, 4511, 4513, 4513b, 4517, 4526,
4566(c)(1) and (c)(7), 4581-4588, 4631-4641; and 28 U.S.C. 2461 note.
Source: 76 FR 53607, Aug. 26, 2011, unless otherwise noted.
Subpart A_Scope and Authority
Sec. 1209.1 Scope.
(a) Authority. This part sets forth the Rules of Practice and
Procedure for hearings on the record in administrative enforcement
proceedings in accordance with the Federal Housing Enterprises Financial
Safety and Soundness Act of 1992, title XIII of the Housing and
Community Development Act of 1992, Public Law 102-550, sections 1301 et
seq., codified at 12 U.S.C. 4501 et seq., as amended (the ``Safety and
Soundness Act''), as stated in Sec. 1209.4 of this part.\1\
---------------------------------------------------------------------------
\1\ As used in this part, the ``Safety and Soundness Act'' means the
Federal Housing Enterprise Financial Safety and Soundness Act of 1992,
as amended. See Sec. 1209.3. The Safety and Soundness Act was amended
by the Housing and Economic Recovery Act of 2008, Public Law No. 110-
289, sections 1101 et seq., 122 Stat. 2654 (July 30, 2008) (HERA).
Specifically, sections 1151 through 1158 of HERA amended sections 1371
through 1379D of the Safety and Soundness Act, (codified at 12 U.S.C.
4631 through 4641) (hereafter, ``Enforcement Proceedings'').
---------------------------------------------------------------------------
(b) Enforcement Proceedings. Subpart B of this part (Enforcement
Proceedings Under sections 1371 through 1379D of the Safety and
Soundness Act) sets forth the statutory authority for enforcement
proceedings under sections 1371 through 1379D of the Safety and
Soundness Act (12 U.S.C. 4631 through 4641) (Enforcement Proceedings).
(c) Rules of Practice and Procedure. Subpart C of this part (Rules
of Practice and Procedure) prescribes the general rules of practice and
procedure applicable to adjudicatory proceedings that the Director is
required by statute to conduct on the record after opportunity for a
hearing under the Administrative Procedure Act, 5 U.S.C. 554, 556, and
557, under the following statutory provisions:
(1) Enforcement proceedings under sections 1371 through 1379D of the
Safety and Soundness Act, as amended (12 U.S.C. 4631 through 4641);
(2) Removal, prohibition, and civil money penalty proceedings for
violations of post-employment restrictions imposed by applicable law;
(3) Proceedings under section 102 of the Flood Disaster Protection
Act of 1973, as amended (42 U.S.C. 4012a) to assess civil money
penalties; and
(4) Enforcement proceedings under sections 1341 through 1348 of the
Safety and Soundness Act, as amended (12 U.S.C. 4581 through 4588), and
section 10C of the Federal Home Loan Bank Act, as amended (12 U.S.C.
1430c), except where the Rules of Practice and Procedure in Subpart C
are inconsistent with such statutory provisions, in which case the
statutory provisions shall apply.
(d) Representation and conduct. Subpart D of this part (Parties and
Representational Practice before the Federal Housing Finance Agency;
Standards of Conduct) sets out the rules of representation and conduct
that shall govern any appearance by any person, party, or representative
of any person or party, before a presiding officer, the Director of
FHFA, or a designated representative of the Director or FHFA staff, in
any proceeding or matter pending before the Director.
(e) Civil money penalty inflation adjustments. Subpart E of this
part (Civil Money Penalty Inflation Adjustments) sets out the
requirements for the periodic adjustment of maximum civil money penalty
amounts under the Federal Civil Penalties Inflation Adjustment Act of
1990, as amended (Inflation Adjustment Act) on a recurring four-year
cycle.\2\
---------------------------------------------------------------------------
\2\ Public Law 101-410, 104 Stat. 890, as amended by the Debt
Collection Improvement Act of 1996, Public Law 104-134, title III, sec.
31001(s)(1), Apr. 26, 1996, 110 Stat. 1321-373; Public Law 105-362,
title XIII, sec. 1301(a), Nov. 10, 1998, 112 Stat. 3293 (28 U.S.C. 2461
note).
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[[Page 107]]
(f) Informal proceedings. Subpart F of this part (Suspension or
Removal of an Entity-Affiliated Party Charged with Felony) sets out the
scope and procedures for the suspension or removal of an entity-
affiliated party charged with a felony under section 1377(h) of the
Safety and Soundness Act (12 U.S.C. 4636a(h)), which provides for an
---------------------------------------------------------------------------
informal hearing before the Director.
[76 FR 53607, Aug. 26, 2011, as amended at 78 FR 37103, June 20, 2013]
Sec. 1209.2 Rules of construction.
For purposes of this part:
(a) Any term in the singular includes the plural and the plural
includes the singular, if such use would be appropriate;
(b) Any use of a masculine, feminine, or neuter gender encompasses
all three, if such use would be appropriate; and
(c) Unless the context requires otherwise, a party's representative
of record, if any, on behalf of that party, may take any action required
to be taken by the party.
Sec. 1209.3 Definitions.
For purposes of this part, unless explicitly stated to the contrary:
Adjudicatory proceeding means a proceeding conducted pursuant to
these rules, on the record, and leading to the formulation of a final
order other than a regulation.
Agency has the meaning defined in section 1303(2) of the Safety and
Soundness Act (12 U.S.C. 4502(2)).
Associated with the regulated entity means, for purposes of section
1379 of the Safety and Soundness Act (12 U.S.C. 4637), any direct or
indirect involvement or participation in the conduct of operations or
business affairs of a regulated entity, including engaging in activities
related to the operations or management of, providing advice or services
to, consulting or contracting with, serving as agent for, or in any
other way affecting the operations or business affairs of a regulated
entity--with or without regard to--any direct or indirect payment,
promise to make payment, or receipt of any compensation or thing of
value, such as money, notes, stock, stock options, or other securities,
or other benefit or remuneration of any kind, by or on behalf of the
regulated entity, except any payment made pursuant to a retirement plan
or deferred compensation plan, which is determined by the Director to be
permissible under section 1318(e) of the Safety and Soundness Act (12
U.S.C. 4518(e)), or by reason of the death or disability of the party,
in the form and manner commonly paid or provided to retirees of the
regulated entity, unless such payment, compensation, or such benefit is
promised or provided to or for the benefit of said party for the
provision of services or other benefit to the regulated entity.
Authorizing statutes has the meaning defined in section 1303(3) of
the Safety and Soundness Act (12 U.S.C. 4502(3)).
Bank Act means the Federal Home Loan Bank Act, as amended (12 U.S.C.
1421 et seq.).
Board or Board of Directors means the board of directors of any
Enterprise or Federal Home Loan Bank (Bank), as provided for in the
respective authorizing statutes.
Decisional employee means any member of the Director's or the
presiding officer's staff who has not engaged in an investigative or
prosecutorial role in a proceeding and who may assist the Director or
the presiding officer, respectively, in preparing orders, recommended
decisions, decisions, and other documents under subpart C of this part.
Director has the meaning defined in section 1303(9) of the Safety
and Soundness Act (12 U.S.C. 4502(9)); except, as the context requires
in this part, ``director'' may refer to a member of the Board of
Directors or any Board committee of an Enterprise, a Federal Home Loan
Bank, or the Office of Finance.
Enterprise has the meaning defined in section 1303(10) of the Safety
and Soundness Act (12 U.S.C. 4502(10)).
Entity-affiliated party has the meaning defined in section 1303(11)
of the Safety and Soundness Act (12 U.S.C. 4502(11)), and may include an
executive officer, any director, or management of the Office of Finance,
as applicable
[[Page 108]]
under relevant provisions of the Safety and Soundness Act or FHFA
regulations.
Executive officer has the meaning defined in section 1303(12) of the
Safety and Soundness Act (12 U.S.C. 4502(12)), and may include an
executive officer of the Office of Finance, as applicable under relevant
provisions of the Safety and Soundness Act or FHFA regulations.
FHFA means the Federal Housing Finance Agency as defined in section
1303(2) of the Safety and Soundness Act (12 U.S.C. 4502(2)).
Notice of charges means the charging document served by FHFA to
commence an enforcement proceeding under this part for the issuance of a
cease and desist order; removal, suspension, or prohibition order; or an
order to assess a civil money penalty, under 12 U.S.C. 4631 through 4641
and Sec. 1209.23. A ``notice of charges,'' as used or referred to as
such in this part, is not an ``effective notice'' under section 1375(a)
of the Safety and Soundness Act (12 U.S.C. 4635(a)).
Office of Finance has the meaning defined in section 1303(19) of the
Safety and Soundness Act (12 U.S.C. 4502(19)).
Party means any person named as a respondent in any notice of
charges, or FHFA, as the context requires in this part.
Person means an individual, sole proprietor, partnership,
corporation, unincorporated association, trust, joint venture, pool,
syndicate, organization, regulated entity, entity-affiliated party, or
other entity.
Presiding officer means an administrative law judge or any other
person appointed by or at the request of the Director under applicable
law to conduct an adjudicatory proceeding under this part.
Regulated entity has the meaning defined in section 1303(20) of the
Safety and Soundness Act (12 U.S.C. 4502(20)).
Representative of record means an individual who is authorized to
represent a person or is representing himself and who has filed a notice
of appearance and otherwise has complied with the requirements under
Sec. 1209.72. FHFA's representative of record may be referred to as
FHFA counsel of record, agency counsel or enforcement counsel.
Respondent means any party that is the subject of a notice of
charges under this part.
Safety and Soundness Act means title XIII of the Housing and
Community Development Act of 1992, Public Law 102-550, known as the
Federal Housing Enterprises Financial Safety and Soundness Act of 1992,
as amended (12 U.S.C. 4501 et seq.)
Violation has the meaning defined in section 1303(25) of the Safety
and Soundness Act (12 U.S.C. 4502(25)).
Subpart B_Enforcement Proceedings Under Sections 1371 Through 1379D of
the Safety and Soundness Act
Sec. 1209.4 Scope and authority.
The rules of practice and procedure set forth in Subpart C (Rules of
Practice and Procedure) of this part shall be applicable to any hearing
on the record conducted by FHFA in accordance with sections 1371 through
1379D of the Safety and Soundness Act (12 U.S.C. 4631 through 4641), as
follows:
(a) Cease-and-desist proceedings under sections 1371 and 1373 of the
Safety and Soundness Act, (12 U.S.C. 4631, 4633);
(b) Civil money penalty assessment proceedings under sections 1373
and 1376 of the Safety and Soundness Act, (12 U.S.C. 4633, 4636); and
(c) Removal and prohibition proceedings under sections 1373 and 1377
of the Safety and Soundness Act, (12 U.S.C. 4633, 4636a), except removal
proceedings under section 1377(h) of the Safety and Soundness Act, (12
U.S.C. 4636a(h)).
Sec. 1209.5 Cease and desist proceedings.
(a) Cease and desist proceedings--(1) Authority--(i) In general. As
prescribed by section 1371(a) of the Safety and Soundness Act (12 U.S.C.
4631(a)), if in the opinion of the Director, a regulated entity or any
entity-affiliated party is engaging or has engaged, or the Director has
reasonable cause to believe that the regulated entity or any entity-
affiliated party is about to engage, in an unsafe or unsound practice in
[[Page 109]]
conducting the business of the regulated entity or the Office of
Finance, or is violating or has violated, or the Director has reasonable
cause to believe is about to violate, a law, rule, regulation, or order,
or any condition imposed in writing by the Director in connection with
the granting of any application or other request by the regulated entity
or the Office of Finance or any written agreement entered into with the
Director, the Director may issue and serve upon the regulated entity or
entity-affiliated party a notice of charges (as described in Sec.
1209.23) to institute cease and desist proceedings, except with regard
to the enforcement of any housing goal that must be addressed under
sections 1341 and 1345 of the Safety and Soundness Act (12 U.S.C. 4581,
4585).
(ii) Hearing on the record. In accordance with section 1373 of the
Safety and Soundness Act (12 U.S.C. 4633), a hearing on the record shall
be held in the District of Columbia. Subpart C of this part shall govern
the hearing procedures.
(iii) Consent to order. Unless the party served with a notice of
charges shall appear at the hearing personally or through an authorized
representative of record, the party shall be deemed to have consented to
the issuance of the cease and desist order.
(2) Unsatisfactory rating. In accordance with section 1371(b) of the
Safety and Soundness Act (12 U.S.C. 4631(b)), if a regulated entity
receives, in its most recent report of examination, a less-than-
satisfactory rating for asset quality, management, earnings, or
liquidity, the Director may deem the regulated entity to be engaging in
an unsafe or unsound practice within the meaning of section 1371(a) of
the Safety and Soundness Act (12 U.S.C. 4631(a)), if any such deficiency
has not been corrected.
(3) Order. As provided by section 1371(c)(2) of the Safety and
Soundness Act (12 U.S.C. 4631(c)(2)), if the Director finds on the
record made at a hearing in accordance with section 1373 of the Safety
and Soundness Act (12 U.S.C. 4633) that any practice or violation
specified in the notice of charges has been established (or the
regulated entity or entity-affiliated party consents pursuant to section
1373(a)(4) of the Safety and Soundness Act (12 U.S.C. 4633(a)(4)), the
Director may issue and serve upon the regulated entity, executive
officer, director, or entity-affiliated party, an order (as set forth in
Sec. 1209.55) requiring such party to cease and desist from any such
practice or violation and to take affirmative action to correct or
remedy the conditions resulting from any such practice or violation.
(b) Affirmative action to correct conditions resulting from
violations or activities. The authority to issue a cease and desist
order or a temporary cease and desist order requiring a regulated
entity, executive officer, director, or entity-affiliated party to take
affirmative action to correct or remedy any condition resulting from any
practice or violation with respect to which such cease and desist order
or temporary cease and desist order is set forth in section 1371(a),
(c)(2), and (d) of the Safety and Soundness Act (12 U.S.C. 4631(a),
(c)(2), and (d)), and includes the authority to:
(1) Require the regulated entity or entity-affiliated party to make
restitution, or to provide reimbursement, indemnification, or guarantee
against loss, if--
(i) Such entity or party or finance facility was unjustly enriched
in connection with such practice or violation, or
(ii) The violation or practice involved a reckless disregard for the
law or any applicable regulations, or prior order of the Director;
(2) Require the regulated entity to seek restitution, or to obtain
reimbursement, indemnification, or guarantee against loss; as
(3) Restrict asset or liability growth of the regulated entity;
(4) Require the regulated entity to obtain new capital;
(5) Require the regulated entity to dispose of any loan or asset
involved;
(6) Require the regulated entity to rescind agreements or contracts;
(7) Require the regulated entity to employ qualified officers or
employees (who may be subject to approval by the Director at the
direction of the Director); and
(8) Require the regulated entity to take such other action, as the
Director
[[Page 110]]
determines appropriate, including limiting activities.
(c) Authority to limit activities. As provided by section 1371(e) of
the Safety and Soundness Act (12 U.S.C. 4631(e)), the authority of the
Director to issue a cease and desist order under section 1371 of the
Safety and Soundness Act (12 U.S.C. 4631) or a temporary cease and
desist order under section 1372 of the Safety and Soundness Act (12
U.S.C. 4632), includes the authority to place limitations on the
activities or functions of the regulated entity or entity-affiliated
party or any executive officer or director of the regulated entity or
entity-affiliated party.
(d) Effective date of order; judicial review--(1) Effective date.
The effective date of an order is as set forth in section 1371(f) of the
Safety and Soundness Act (12 U.S.C. 4631(f)).
(2) Judicial review. Judicial review is governed by section 1374 of
the Safety and Soundness Act (12 U.S.C. 4634).
Sec. 1209.6 Temporary cease and desist orders.
(a) Temporary cease and desist orders--(1) Grounds for issuance. The
grounds for issuance of a temporary cease and desist order are set forth
in section 1372(a) of the Safety and Soundness Act (12 U.S.C. 4632(a)).
In accordance with section 1372(a) of the Safety and Soundness Act (12
U.S.C. 4632(a)), the Director may:
(i) Issue a temporary order requiring that regulated entity or
entity-affiliated party to cease and desist from any violation or
practice specified in the notice of charges; and
(ii) Require that regulated entity or entity-affiliated party to
take affirmative action to prevent or remedy any insolvency,
dissipation, condition, or prejudice, pending completion of the
proceedings.
(2) Additional requirements. As provided by section 1372(a)(2) of
the Safety and Soundness Act (12 U.S.C. 4632(a)(2)), an order issued
under section 1372(a)(1) of the Safety and Soundness Act (12 U.S.C.
4632(a)(1)) may include any requirement authorized under section 1371(d)
of the Safety and Soundness Act (12 U.S.C. 4631(d)).
(b) Effective date of temporary order. The effective date of a
temporary order is as provided by section 1372(b) of the Safety and
Soundness Act (12 U.S.C. 4632(b)). And, unless set aside, limited, or
suspended by a court in proceedings pursuant to the judicial review
provisions of section 1372(d) of the Safety and Soundness Act (12 U.S.C.
4632(d)), shall remain in effect and enforceable pending the completion
of the proceedings pursuant to such notice of charges, and shall remain
effective until the Director dismisses the charges specified in the
notice or until superseded by a cease-and-desist order issued pursuant
to section 1371 of the Safety and Soundness Act (12 U.S.C. 4631).
(c) Incomplete or inaccurate records--(1) Temporary order. As
provided by section 1372(c) of the Safety and Soundness Act (12 U.S.C.
4632(c)), if a notice of charges served under section 1371(a) or (b) of
the Safety and Soundness Act (12 U.S.C. 4631(a), (b)), specifies on the
basis of particular facts and circumstances that the books and records
of the regulated entity served are so incomplete or inaccurate that the
Director is unable, through the normal supervisory process, to determine
the financial condition of the regulated entity or the details or the
purpose of any transaction or transactions that may have a material
effect on the financial condition of that regulated entity, the Director
may issue a temporary order requiring:
(i) The cessation of any activity or practice that gave rise,
whether in whole or in part, to the incomplete or inaccurate state of
the books or records; or
(ii) Affirmative action to restore the books or records to a
complete and accurate state.
(2) Effective period. Any temporary order issued under section
1372(c)(1) of the Safety and Soundness Act (12 U.S.C. 4632(c)(1)) shall
become effective upon service, and remain in effect and enforceable
unless set aside, limited, or suspended in accordance with section
1372(d) of the Safety and Soundness Act (12 U.S.C. 4632(d)), as provided
by section 1372(c)(2) of the Safety and Soundness Act (12 U.S.C.
4632(c)(2)).
(d) Judicial review. Section 1372(d) of the Safety and Soundness Act
(12 U.S.C. 4632(d)), authorizes a regulated
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entity, executive officer, director, or entity-affiliated party that has
been served with a temporary order pursuant to section 1372(a) or (b) of
the Safety and Soundness Act (12 U.S.C. 4632(a), (b)) to apply to the
United States District Court for the District of Columbia within 10 days
after service of the temporary order for an injunction setting aside,
limiting, or suspending the enforcement, operation, or effectiveness of
the temporary order, pending the completion of the administrative
enforcement proceeding. The district court has jurisdiction to issue
such injunction.
(e) Enforcement of temporary order. As provided by section 1372(e)
of the Safety and Soundness Act (12 U.S.C. 4632(e)), in the case of any
violation, threatened violation, or failure to obey a temporary order
issued pursuant to this section, the Director may bring an action in the
United States District Court for the District of Columbia for an
injunction to enforce a temporary order, and the district court is to
issue such injunction upon a finding made in accordance with section
1372(e) of the Safety and Soundness Act (12 U.S.C. 4632(e)).
Sec. 1209.7 Civil money penalties.
(a) Civil money penalty proceedings--(1) In general. Section 1376 of
the Safety and Soundness Act (12 U.S.C. 4636) governs the imposition of
civil money penalties. Upon written notice, which shall conform to the
requirements of Sec. 1209.23 of this part, and a hearing on the record
to be conducted in accordance with subpart C of this part, the Director
may impose a civil money penalty on any regulated entity or any entity-
affiliated party as provided by section 1376 of the Safety and Soundness
Act for any violation, practice, or breach addressed under sections
1371, 1372, or 1376 of the Safety and Soundness Act (12 U.S.C. 4631,
4632, 4636), except with regard to the enforcement of housing goals that
are addressed separately under sections 1341 and 1345 of the Safety and
Soundness Act (12 U.S.C. 4581, 4585).
(2) Amount of penalty--(i) First Tier. Section 1376(b)(1) of the
Safety and Soundness Act (12 U.S.C. 4636(b)(1)) prescribes the civil
penalty for violations as stated therein, in the amount of $10,000 for
each day during which a violation continues.
(ii) Second Tier. Section 1376(b)(2) of the Safety and Soundness Act
(12 U.S.C. 4636(b)(2)) provides that notwithstanding paragraph (b)(1)
thereof, a regulated entity or entity-affiliated party shall forfeit and
pay a civil penalty of not more than $50,000 for each day during which a
violation, practice, or breach continues, if the regulated entity or
entity-affiliated party commits any violation described in (b)(1)
thereof, recklessly engages in an unsafe or unsound practice, or
breaches any fiduciary duty, and the violation, practice, or breach is
part of a pattern of misconduct; causes or is likely to cause more than
a minimal loss to the regulated entity; or results in pecuniary gain or
other benefit to such party.
(iii) Third Tier. Section 1376(b)(3) of the Safety and Soundness Act
(12 U.S.C. 4636(b)(3)) provides that, notwithstanding paragraphs (b)(1)
and (b)(2) thereof, any regulated entity or entity-affiliated party
shall forfeit and pay a civil penalty, in accordance with section
1376(b)(4) of the Safety and Soundness Act (12 U.S.C. 4636(b)(4)), for
each day during which such violation, practice, or breach continues, if
such regulated entity or entity-affiliated party:
(A) Knowingly--
(1) Commits any violation described in any subparagraph of section
1376(b)(1) of the Safety and Soundness Act;
(2) Engages in any unsafe or unsound practice in conducting the
affairs of the regulated entity; or
(3) Breaches any fiduciary duty; and
(B) Knowingly or recklessly causes a substantial loss to the
regulated entity or a substantial pecuniary gain or other benefit to
such party by reason of such violation, practice, or breach.
(b) Maximum amounts--(1) Maximum daily penalty. Section 1376(b)(4)
of the Safety and Soundness Act (12 U.S.C. 4636(b)(4)), prescribes the
maximum daily amount of a civil penalty that may be assessed for any
violation, practice, or breach pursuant to section 1376(b)(3) of the
Safety and Soundness Act (12 U.S.C. 4636(b)(3)), in the case of
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any entity-affiliated party (not to exceed $2,000,000.00), and in the
case of any regulated entity ($2,000,000.00).
(2) Inflation Adjustment Act. The maximum civil penalty amounts are
subject to periodic adjustment under the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461 note), as
provided in subpart E of this part.
(c) Factors in determining amount of penalty. In accordance with
section 1376(c)(2) of the Safety and Soundness Act (12 U.S.C.
4636(c)(2)), in assessing civil money penalties on a regulated entity or
an entity-affiliated party in amounts as provided in section 1376(b) of
the Safety and Soundness Act (12 U.S.C. 4636(b)), the Director shall
give consideration to such factors as:
(1) The gravity of the violation, practice, or breach;
(2) Any history of prior violations or supervisory actions, or any
attempts at concealment;
(3) The effect of the penalty on the safety and soundness of the
regulated entity or the Office of Finance;
(4) Any loss or risk of loss to the regulated entity or to the
Office of Finance;
(5) Any benefits received or derived, whether directly or
indirectly, by the respondent(s);
(6) Any injury to the public;
(7) Any deterrent effect on future violations, practices, or
breaches;
(8) The financial capacity of the respondent(s), or any unusual
circumstance(s) of hardship upon an executive officer, director, or
other individual;
(9) The promptness, cost, and effectiveness of any effort to remedy
or ameliorate the consequences of the violation, practice, or breach;
(10) The candor and cooperation, if any, of the respondent(s); and
(11) Any other factors the Director may determine by regulation to
be appropriate.
(d) Review of imposition of penalty. Section 1376(c)(3) of the
Safety and Soundness Act (12 U.S.C. 4636(c)(3)) governs judicial review
of a penalty order under section 1374 of the Safety and Soundness Act
(12 U.S.C. 4634).
Sec. 1209.8 Removal and prohibition proceedings.
(a) Removal and prohibition proceedings--(1) Authority to issue
order. As provided by section 1377(a)(1) of the Safety and Soundness Act
(12 U.S.C. 4636a(a)(1)), the Director may serve upon a party described
in paragraph (a)(2) of this section, or any officer, director, or
management of the Office of Finance, a notice of the intention of the
Director to suspend or remove such party from office, or to prohibit any
further participation by such party in any manner in the conduct of the
affairs of the regulated entity or the Office of Finance.
(2) Applicability. As provided by section 1377(a)(2) of the Safety
and Soundness Act (12 U.S.C. 4636a(a)(2)), a party described in this
paragraph is an entity-affiliated party or any officer, director, or
management of the Office of Finance, if the Director determines that:
(i) That party, officer, or director has, directly or indirectly--
(A) Violated--
(1) Any law or regulation;
(2) Any cease and desist order that has become final;
(3) Any condition imposed in writing by the Director in connection
with an application, notice, or other request by a regulated entity; or
(4) Any written agreement between such regulated entity and the
Director;
(B) Engaged or participated in any unsafe or unsound practice in
connection with any regulated entity or business institution; or
(C) Committed or engaged in any act, omission, or practice which
constitutes a breach of such party's fiduciary duty;
(ii) By reason of such violation, practice, or breach--
(A) Such regulated entity or business institution has suffered or
likely will suffer financial loss or other damage; or
(B) Such party directly or indirectly received financial gain or
other benefit; and
(iii) The violation, practice, or breach described in subparagraph
(i) of this section--
(A) Involves personal dishonesty on the part of such party; or
(B) Demonstrates willful or continuing disregard by such party for
the
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safety or soundness of such regulated entity or business institution.
(3) Applicability to business entities. Under section 1377(f) of the
Safety and Soundness Act (12 U.S.C. 4636a(f)), this remedy applies only
to a person who is an individual, unless the Director specifically finds
that it should apply to a corporation, firm, or other business entity.
(b) Suspension order--(1) Suspension or prohibition authorized. If
the Director serves written notice under section 1377(a) of the Safety
and Soundness Act (12 U.S.C. 4636a(a)) upon a party subject to that
section, the Director may, by order, suspend or remove such party from
office, or prohibit such party from further participation in any manner
in the conduct of the affairs of the regulated entity or the Office of
Finance, if the Director:
(i) Determines that such action is necessary for the protection of
the regulated entity or the Office of Finance; and
(ii) Serves such party with written notice of the order.
(2) Effective period. The effective period of any order under
section 1377(b)(1) of the Safety and Soundness Act (12 U.S.C.
4636a(b)(1)) is specified in section 1377(b)(2) of the Safety and
Soundness Act (12 U.S.C. 4636a(b)(2)). An order of suspension shall
become effective upon service and, absent a court-ordered stay, remains
effective and enforceable until the date the Director dismisses the
charges or the effective date of an order issued by the Director under
section 1377(c)(4) of the Safety and Soundness Act (12 U.S.C.
4636a(c)(4),(5)).
(3) Copy of order to be served on regulated entity. In accordance
with section 1377(b)(3) of the Safety and Soundness Act (12 U.S.C.
4636a(b)(3)), the Director will serve a copy of any order to suspend,
remove, or prohibit participation in the conduct of the affairs on the
Office of Finance or any regulated entity with which such party is
affiliated at the time such order is issued.
(c) Notice; hearing and order--(1) Written notice. A notice of the
intention of the Director to issue an order under sections 1377(a) and
(c) of the Safety and Soundness Act, (12 U.S.C. 4636a(a), (c)), shall
conform with Sec. 1209.23, and may include any such additional
information as the Director may require.
(2) Hearing. A hearing on the record shall be held in the District
of Columbia in accordance with sections 1373(a)(1) and 1377(c)(2) of the
Safety and Soundness Act. See 12 U.S.C. 4633(a)(1), 4636a(c)(2).
(3) Consent. As provided by section 1377(c)(3) of the Safety and
Soundness Act (12 U.S.C. 4636a(c)(3)), unless the party that is the
subject of a notice delivered under paragraph (a) of this section
appears in person or by a duly authorized representative of record, in
the adjudicatory proceeding, such party shall be deemed to have
consented to the issuance of an order under this section.
(4) Issuance of order of suspension or removal. As provided by
section 1377(c)(4) of the Safety and Soundness Act (12 U.S.C.
4636a(c)(4)), the Director may issue an order under this part, as the
Director may deem appropriate, if:
(i) A party is deemed to have consented to the issuance of an order
under paragraph (d); or
(ii) Upon the record made at the hearing, the Director finds that
any of the grounds specified in the notice have been established.
(5) Effectiveness of order. As provided by section 1377(c)(5) of the
Safety and Soundness Act (12 U.S.C. 4636a(c)(5)), any order issued and
served upon a party in accordance with this section shall become
effective at the expiration of 30 days after the date of service upon
such party and any regulated entity or entity-affiliated party. An order
issued upon consent under paragraph (c)(3) of this section, however,
shall become effective at the time specified therein. Any such order
shall remain effective and enforceable except to such extent as it is
stayed, modified, terminated, or set aside by action of the Director or
a reviewing court.
(d) Prohibition of certain activities and industry-wide
prohibition--(1) Prohibition of certain activities. As provided by
section 1377(d) of the Safety and Soundness Act (12 U.S.C. 4636a(d)),
any person subject to an order issued under subpart B of this part shall
not--
(i) Participate in any manner in the conduct of the affairs of any
regulated entity or the Office of Finance;
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(ii) Solicit, procure, transfer, attempt to transfer, vote, or
attempt to vote any proxy, consent, or authorization with respect to any
voting rights in any regulated entity;
(iii) Violate any voting agreement previously approved by the
Director; or
(iv) Vote for a director, or serve or act as an entity-affiliated
party of a regulated entity or as an officer or director of the Office
of Finance.
(2) Industry-wide prohibition. As provided by section 1377(e)(1) of
the Safety and Soundness Act (12 U.S.C. 4636a(e)(1)), except as provided
in section 1377(e)(2) of the Safety and Soundness Act (12 U.S.C.
4636a(e)(2)), any person who, pursuant to an order issued under section
1377 of the Safety and Soundness Act (12 U.S.C. 4636a), has been removed
or suspended from office in a regulated entity or the Office of Finance,
or prohibited from participating in the conduct of the affairs of a
regulated entity or the Office of Finance, may not, while such order is
in effect, continue or commence to hold any office in, or participate in
any manner in the conduct of the affairs of, any regulated entity or the
Office of Finance.
(3) Relief from industry-wide prohibition at the discretion of the
Director--(i) Relief from order. As provided by section 1377(e)(2) of
the Safety and Soundness Act (12 U.S.C. 4636a(e)(2)), if, on or after
the date on which an order has been issued under section 1377 of the
Safety and Soundness Act (12 U.S.C. 4636a) that removes or suspends from
office any party, or prohibits such party from participating in the
conduct of the affairs of a regulated entity or the Office of Finance,
such party receives the written consent of the Director, the order shall
cease to apply to such party with respect to the regulated entity or the
Office of Finance to the extent described in the written consent. Such
written consent shall be on such terms and conditions as the Director
therein may specify in his discretion. Any such consent shall be
publicly disclosed.
(ii) No private right of action; no final agency action. Nothing in
this paragraph shall be construed to require the Director to entertain
or to provide such written consent, or to confer any rights to such
consideration or consent upon any party, regulated entity, entity-
affiliated party, or the Office of Finance. Additionally, whether the
Director consents to relief from an outstanding order under this part is
committed wholly to the discretion of the Director, and such
determination shall not be a final agency action for purposes of seeking
judicial review.
(4) Violation of industry-wide prohibition. As provided by section
1377(e)(3) of the Safety and Soundness Act (12 U.S.C. 4636a(e)(3)), any
violation of section 1377(e)(1) of the Safety and Soundness Act (12
U.S.C. 4636a(e)(1)) by any person who is subject to an order issued
under section 1377(h) of the Safety and Soundness Act (12 U.S.C.
4636a(h)) (suspension or removal of entity-affiliated party charged with
felony) shall be treated as a violation of the order.
(e) Stay of suspension or prohibition of entity-affiliated party. As
provided by section 1377(g) of the Safety and Soundness Act (12 U.S.C.
4636a(g)), not later than 10 days after the date on which any entity-
affiliated party has been suspended from office or prohibited from
participation in the conduct of the affairs of a regulated entity, such
party may apply to the United States District Court for the District of
Columbia, or the United States district court for the judicial district
in which the headquarters of the regulated entity is located, for a stay
of such suspension or prohibition pending the completion of the
administrative enforcement proceeding pursuant to section 1377(c) of the
Safety and Soundness Act (12 U.S.C. 4636a(c)). The court shall have
jurisdiction to stay such suspension or prohibition, but such
jurisdiction does not extend to the administrative enforcement
proceeding.
Sec. 1209.9 Supervisory actions not affected.
As provided by section 1311(c) of the Safety and Soundness Act (12
U.S.C. 4511(c)), the authority of the Director to take action under
subtitle A of the Safety and Soundness Act (12 U.S.C. 4611 et seq.)
(e.g., the appointment of a conservator or receiver for a regulated
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entity; entering into a written agreement or pursuing an informal
agreement with a regulated entity as the Director deems appropriate; and
undertaking other such actions as may be applicable to undercapitalized,
significantly undercapitalized or critically undercapitalized regulated
entities), or to initiate enforcement proceedings under subtitle C of
the Safety and Soundness Act (12 U.S.C. 4631 et seq.), shall not in any
way limit the general supervisory or regulatory authority granted the
Director under section 1311(b) of the Safety and Soundness Act (12
U.S.C. 4511(b)). The selection and form of regulatory or supervisory
action under the Safety and Soundness Act is committed to the discretion
of the Director, and the selection of one form of action or a
combination of actions does not foreclose the Director from pursuing any
other supervisory action authorized by law.
Subpart C_Rules of Practice and Procedure
Sec. 1209.10 Authority of the Director.
The Director may, at any time during the pendency of a proceeding,
perform, direct the performance of, or waive performance of any act that
could be done or ordered by the presiding officer.
Sec. 1209.11 Authority of the Presiding Officer.
(a) General rule. All proceedings governed by subpart C of this part
shall be conducted consistent with the provisions of chapter 5 of title
5 of the United States Code. The presiding officer shall have complete
charge of the adjudicative proceeding, conduct a fair and impartial
hearing, avoid unnecessary delay, and assure that a complete record of
the proceeding is made.
(b) Powers. The presiding officer shall have all powers necessary to
conduct the proceeding in accordance with paragraph (a) of this section
and 5 U.S.C. 556(c). The presiding officer is authorized to:
(1) Control the proceedings. (i) Upon reasonable notice to the
parties, not earlier than 30 days or later than 60 days after service of
a notice of charges under the Safety and Soundness Act, set a date,
time, and place for an evidentiary hearing on the record, within the
District of Columbia, as provided in section 1373 of the Safety and
Soundness Act (12 U.S.C. 4633), in a scheduling order that may be issued
in conjunction with the initial scheduling conference set under Sec.
1209.36, or otherwise as the presiding officer finds in the best
interest of justice, in accordance with this part; and
(ii) Upon reasonable notice to the parties, reset or change the
date, time, or place (within the District of Columbia) of an evidentiary
hearing;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to address legal or factual issues, or
evidentiary matters materially relevant to the charges or allowable
defenses; to regulate the timing and scope of discovery and rule on
discovery plans; or otherwise to consider matters that may facilitate an
effective, fair, and expeditious disposition of the proceeding;
(4) Administer oaths and affirmations;
(5) Issue and enforce subpoenas, subpoenas duces tecum, discovery
and protective orders, as authorized by this part, and to revoke, quash,
or modify such subpoenas issued by the presiding officer;
(6) Take and preserve testimony under oath;
(7) Rule on motions and other procedural matters appropriate in an
adjudicatory proceeding, except that only the Director shall have the
power to grant summary disposition or any motion to dismiss the
proceeding or to make a final determination of the merits of the
proceeding;
(8) Take all actions authorized under this part to regulate the
scope, timing, and completion of discovery of any non-privileged
documents that are materially relevant to the charges or allowable
defenses;
(9) Regulate the course of the hearing and the conduct of
representatives and parties;
(10) Examine witnesses;
(11) Receive materially relevant evidence, and rule upon the
admissibility of evidence or exclude, limit, or otherwise rule on offers
of proof;
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(12) Upon motion of a party, take official notice of facts;
(13) Recuse himself upon his own motion or upon motion made by a
party;
(14) Prepare and present to the Director a recommended decision as
provided in this part;
(15) Establish time, place, and manner limitations on the attendance
of the public and the media for any public hearing; and
(16) Do all other things necessary or appropriate to discharge the
duties of a presiding officer.
Sec. 1209.12 Public hearings; closed hearings.
(a) General rule. As provided in section 1379B(b) of the Safety and
Soundness Act (12 U.S.C. 4639(b)), all hearings shall be open to the
public, except that the Director, in his discretion, may determine that
holding an open hearing would be contrary to the public interest. The
Director may make such determination sua sponte at any time by written
notice to all parties, or as provided in paragraphs (b) and (c) of this
section.
(b) Motion for closed hearing. Within 20 days of service of the
notice of charges, any party may file with the presiding officer a
motion for a private hearing and any party may file a pleading in reply
to the motion. The presiding officer shall forward the motion and any
reply, together with a recommended decision on the motion, to the
Director, who shall make a final determination. Such motions and replies
are governed by Sec. 1209.28 of this part. A determination under this
section is committed to the discretion of the Director and is not a
reviewable final agency action.
(c) Filing documents under seal. FHFA counsel of record, in his
discretion, may file or require the filing of any document or part of a
document under seal, if such counsel makes a written determination that
disclosure of the document would be contrary to the public interest. The
presiding officer shall issue an order to govern confidential
information, and take all appropriate steps to preserve the
confidentiality of such documents in whole or in part, including closing
any portion of a hearing to the public or issuing a protective order
under such terms as may be acceptable to FHFA counsel of record.
(d) Procedures for closed hearing. An evidentiary hearing, or any
part thereof, that is closed for the purpose of offering into evidence
testimony or documents filed under seal as provided in paragraph (c) of
this section shall be conducted under procedures that may include: prior
notification to the submitter of confidential information; provisions
for sealing portions of the record, briefs, and decisions; in camera
arguments, offers of proof, and testimony; and limitations on
representatives of record or other participants, as the presiding
officer may designate. Additionally, at such proceedings the presiding
officer may make an opening statement as to the confidentiality and
limitations and deliver an oath to the parties, representatives of
record, or other approved participants as to the confidentiality of the
proceedings.
Sec. 1209.13 Good faith certification.
(a) General requirement. Every filing or submission of record
following the issuance of a notice of charges by the Director shall be
signed by at least one representative of record in his individual name
and shall state that representative's business contact information,
which shall include his address, electronic mail address, and telephone
number; and the names, addresses and telephone numbers of all other
representatives of record for the person making the filing or
submission.
(b) Effect of signature. (1) By signing a document, a representative
of record or party appearing pro se certifies that:
(i) The representative of record or party has read the filing or
submission of record;
(ii) To the best of his knowledge, information and belief formed
after reasonable inquiry, the filing or submission of record is well-
grounded in fact and is warranted by existing law or a good faith, non-
frivolous argument for the extension, modification, or reversal of
existing law, regulation, or FHFA order or policy; and
(iii) The filing or submission of record is not made for any
improper purpose, such as to harass or to cause
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unnecessary delay or needless increase in the cost of litigation.
(2) If a filing or submission of record is not signed, the presiding
officer shall strike the filing or submission of record, unless it is
signed promptly after the omission is called to the attention of the
pleader or movant.
(c) Effect of making oral motion or argument. The act of making any
oral motion or oral argument by any representative or party shall
constitute a certification that to the best of his knowledge,
information, and belief, formed after reasonable inquiry, his statements
are well-grounded in fact and are warranted by existing law or a good
faith, non-frivolous argument for the extension, modification, or
reversal of existing law, regulation, or FHFA order or policy, and are
not made for any improper purpose, such as to harass or to cause
unnecessary delay or to needlessly increase litigation-related costs.
Sec. 1209.14 Ex parte communications.
(a) Definition--(1) Ex parte communication means any material oral
or written communication relevant to an adjudication of the merits of
any proceeding under this subpart that was neither on the record nor on
reasonable prior notice to all parties that takes place between:
(i) An interested person outside FHFA (including the person's
representative of record); and
(ii) The presiding officer handling that proceeding, the Director, a
decisional employee assigned to that proceeding, or any other person who
is or may be reasonably expected to be involved in the decisional
process.
(2) A communication that is procedural in that it does not concern
the merits of an adjudicatory proceeding, such as a request for status
of the proceeding, does not constitute an ex parte communication.
(b) Prohibition of ex parte communications. From the time a notice
of charges commencing a proceeding under this part is issued by the
Director until the date that the Director issues his final decision
pursuant to Sec. 1209.55 of this part, no person referred to in
paragraph (a)(1)(i) of this section shall knowingly make or cause to be
made an ex parte communication with the Director or the presiding
officer. The Director, presiding officer, or a decisional employee shall
not knowingly make or cause to be made an ex parte communication.
(c) Procedure upon occurrence of ex parte communication. If an ex
parte communication is received by any person identified in paragraph
(a) of this section, that person shall cause all such written
communications (or, if the communication is oral, a memorandum stating
the substance of the communication) to be placed on the record of the
proceeding and served on all parties. All parties to the proceeding
shall have an opportunity within 10 days of receipt of service of the ex
parte communication to file responses thereto, and to recommend
sanctions that they believe to be appropriate under the circumstances,
in accordance with paragraph (d) of this section.
(d) Sanctions. Any party or representative for a party who makes an
ex parte communication, or who encourages or solicits another to make an
ex parte communication, may be subject to any appropriate sanction or
sanctions imposed by the Director or the presiding officer, including,
but not limited to, exclusion from the proceedings, an adverse ruling on
the issue that is the subject of the prohibited communication, or other
appropriate and commensurate action(s).
(e) Consultations by presiding officer. Except to the extent
required for the disposition of ex parte matters as authorized by law,
the presiding officer may not consult a person or party on any matter
relevant to the merits of the adjudication, unless upon notice to and
opportunity for all parties to participate.
(f) Separation of functions. An employee or agent engaged in the
performance of any investigative or prosecuting function for FHFA in a
case may not, in that or in a factually related case, participate or
advise in the recommended decision, the Director's review under Sec.
1209.55 of the recommended decision, or the Director's final
determination on the merits
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based upon his review of the recommended decision, except as a witness
or counsel in the adjudicatory proceedings. This section shall not
prohibit FHFA counsel of record from providing necessary and appropriate
legal advice to the Director on supervisory (including information or
legal advice as to settlement issues) or regulatory matters.
Sec. 1209.15 Filing of papers.
(a) Filing. All pleadings, motions, memoranda, and any other
submissions or papers required to be filed in the proceeding shall be
addressed to the presiding officer and filed with FHFA, 400 7th Street
SW., Eighth Floor, Washington, DC 20219, in accordance with paragraphs
(b) and (c) of this section.
(b) Manner of filing. Unless otherwise specified by the Director or
the presiding officer, filing shall be accomplished by:
(1) Overnight delivery. Overnight U.S. Postal Service delivery or
delivery by a reliable commercial delivery service for same day or
overnight delivery to the address stated above; or
(2) U.S. Mail. First class, registered, or certified mail via the
U.S. Postal Service; and
(3) Electronic media. Transmission by electronic media shall be
required by and upon any conditions specified by the Director or the
presiding officer. FHFA shall provide a designated site for the
electronic filing of all papers in a proceeding in accordance with any
conditions specified by the presiding officer. All papers filed by
electronic media shall be filed concurrently in a manner set out above
and in accordance with paragraph (c) of this section.
(c) Formal requirements as to papers filed--(1) Form. To be filed,
all papers must set forth the name, address, telephone number, and
electronic mail address of the representative or party seeking to make
the filing. Additionally, all such papers must be accompanied by a
certification setting forth when and how service has been made on all
other parties. All papers filed must be double-spaced on 8\1/2\ x 11-
inch paper and must be clear, legible, and formatted as required by
paragraph (c)(5) of this section.
(2) Signature. All papers filed must be dated and signed as provided
in Sec. 1209.13.
(3) Caption. All papers filed must include at the head thereof, or
on a title page, the FHFA caption, title and docket number of the
proceeding, the name of the filing party, and the subject of the
particular paper.
(4) Number of copies. Unless otherwise specified by the Director or
the presiding officer, an original and one copy of all pleadings,
motions and memoranda, or other such papers shall be filed, except that
only one copy of transcripts of testimony and exhibits shall be filed.
(5) Content format. All papers filed shall be formatted in such
program(s) (e.g., MS WORD (copyright), MS Excel
(copyright), or WordPerfect (copyright)) as the
presiding officer or Director shall specify.
[76 FR 53607, Aug. 26, 2011, as amended at 80 FR 80233, Dec. 24, 2015]
Sec. 1209.16 Service of papers.
(a) Except as otherwise provided, a party filing papers or serving a
subpoena shall serve a copy upon the representative of record for each
party to the proceeding so represented, and upon any party who is not so
represented, in accordance with the requirements of this section.
(b) Except as provided in paragraphs (c)(2) and (d) of this section,
a serving party shall use one or more of the following methods of
service:
(1) Personal service;
(2) Overnight U.S. Postal Service delivery or delivery by a reliable
commercial delivery service for same day or overnight delivery to the
parties' respective street addresses; or
(3) First class, registered, or certified mail via the U.S. Postal
Service; and
(4) For transmission by electronic media, each party shall promptly
provide the presiding officer and all parties, in writing, an active
electronic mail address where service will be accepted on behalf of such
party. Any document transmitted via electronic mail for service on a
party shall comply in all respects with the requirements of Sec.
1209.15(c).
(5) Service of pleadings or other papers made by facsimile may not
exceed a total page count of 30 pages. Any
[[Page 119]]
paper served by facsimile transmission shall meet the requirements of
Sec. 1209.15(c).
(6) Any party serving a pleading or other paper by electronic media
under paragraph (4) of this section also shall concurrently serve that
pleading or paper by one of the methods specified in paragraphs (1)
through (5) of this section.
(c) By the Director or the presiding officer. (1) All papers
required to be served by the Director or the presiding officer upon a
party who has appeared in the proceeding in accordance with Sec.
1209.72 shall be served by the means specified in paragraph (b) of this
section.
(2) If a notice of appearance has not been filed in the proceeding
for a party in accordance with Sec. 1209.72, the Director or the
presiding officer shall make service upon the party by any of the
following methods:
(i) By personal service;
(ii) If the person to be served is an individual, by delivery to a
person of suitable age and discretion at the physical location where the
individual resides or works;
(iii) If the person to be served is a corporation or other
association, by delivery to an officer, managing or general agent, or to
any other agent authorized by appointment or by law to receive service
and, if the agent is one authorized by statute to receive service and
the statute so requires, by also mailing a copy to the party;
(iv) By registered or certified mail addressed to the person's last
known address; or
(v) By any other method reasonably calculated to give actual notice.
(d) Subpoenas. Service of a subpoena may be made:
(1) By personal service;
(2) If the person to be served is an individual, by delivery to a
person of suitable age and discretion at the physical location where the
individual resides or works;
(3) If the person to be served is a corporation or other
association, by delivery to an officer, managing or general agent, or to
any other agent authorized by appointment or by law to receive service
and, if the agent is one authorized by statute to receive service and
the statute so requires, by also mailing a copy to the party;
(4) By registered or certified mail addressed to the person's last
known address; or
(5) By any other method reasonably calculated to give actual notice.
(e) Area of service. Service in any State or the District of
Columbia, or any commonwealth, possession, territory or other place
subject to the jurisdiction of the United States, or on any person doing
business in any State or the District of Columbia, or any commonwealth,
possession, territory or other place subject to the jurisdiction of the
United States, or on any person as otherwise permitted by law, is
effective without regard to the place where the hearing is held.
(f) Proof of service. Proof of service of papers filed by a party
shall be filed before action is taken thereon. The proof of service,
which shall serve as prima facie evidence of the fact and date of
service, shall show the date and manner of service and may be by written
acknowledgment of service, by declaration of the person making service,
or by certificate of a representative of record. However, failure to
file proof of service contemporaneously with the papers shall not affect
the validity of actual service. The presiding officer may allow the
proof to be amended or supplied, unless to do so would result in
material prejudice to a party.
Sec. 1209.17 Time computations.
(a) General rule. In computing any period of time prescribed or
allowed under this part, the date of the act or event that commences the
designated period of time is not included. Computations shall include
the last day of the time period, unless the day falls on a Saturday,
Sunday, or Federal holiday. When the last day is a Saturday, Sunday or
Federal holiday, the period of time shall run until the end of the next
day that is not a Saturday, Sunday, or Federal holiday. Intermediate
Saturdays, Sundays and Federal holidays are included in the computation
of time. However, when the time period within which an act is to be
performed is 10 days or less, not including any additional time allowed
for in paragraph
[[Page 120]]
(c) of this section, intermediate Saturdays, Sundays and Federal
holidays are not included.
(b) When papers are deemed to be filed or served. (1) Filing or
service are deemed to be effective:
(i) In the case of personal service or same day reliable commercial
delivery service, upon actual service;
(ii) In the case of U.S. Postal Service or reliable commercial
overnight delivery service, or first class, registered, or certified
mail, upon deposit in or delivery to an appropriate point of collection;
(iii) In the case of transmission by electronic media, as specified
by the authority receiving the filing, in the case of filing; or
(iv) In the case of transmission by electronic media or facsimile,
when the device through which the document was sent provides a reliable
indicator that the document has been received by the opposing party, in
the case of service.
(2) The effective filing and service dates specified in paragraph
(b)(1) of this section may be modified by the Director or the presiding
officer, or by agreement of the parties in the case of service.
(c) Calculation of time for service and filing of responsive papers.
Whenever a time limit is measured by a prescribed period from the
service of any notice, pleading or paper, the applicable time limits
shall be calculated as follows:
(1) If service was made by delivery to the U.S. Postal Service for
longer than overnight delivery service by first class, registered, or
certified mail, add three calendar days to the prescribed period for the
responsive pleading or other filing.
(2) If service was personal, or was made by delivery to the U.S.
Postal Service or any reliable commercial delivery service for overnight
delivery, add one calendar-day to the prescribed period for the
responsive pleading or other filing.
(3) If service was made by electronic media transmission or
facsimile, add one calendar-day to the prescribed period for the
responsive pleading or other filing--unless otherwise determined by the
Director or the presiding officer sua sponte, or upon motion of a party
in the case of filing or by prior agreement among the parties in the
case of service.
Sec. 1209.18 Change of time limits.
Except as otherwise by law required, the presiding officer may
extend any time limit that is prescribed above or in any notice or order
issued in the proceedings. After the referral of the case to the
Director pursuant to Sec. 1209.53, the Director may grant extensions of
the time limits for good cause shown. Extensions may be granted on the
motion of a party after notice and opportunity to respond is afforded
all nonmoving parties, or on the Director's or the presiding officer's
own motion.
Sec. 1209.19 Witness fees and expenses.
Witnesses (other than parties) subpoenaed for testimony (or for a
deposition in lieu of personal appearance at a hearing) shall be paid
the same fees for attendance and mileage as are paid in the United
States district courts in proceedings in which the United States is a
party, provided that, in the case of a discovery subpoena addressed to a
party, no witness fees or mileage shall be paid. Fees for witnesses
shall be tendered in advance by the party requesting the subpoena,
except that fees and mileage need not be tendered in advance where FHFA
is the party requesting the subpoena. FHFA shall not be required to pay
any fees to or expenses of any witness who was not subpoenaed by FHFA.
Sec. 1209.20 Opportunity for informal settlement.
Any respondent may, at any time in the proceeding, unilaterally
submit to FHFA's counsel of record written offers or proposals for
settlement of a proceeding without prejudice to the rights of any of the
parties. No such offer or proposal shall be made to any FHFA
representative other than FHFA counsel of record. Submission of a
written settlement offer does not provide a basis for adjourning,
deferring or otherwise delaying all or any portion of a proceeding under
this part. No settlement offer or proposal, or any subsequent
negotiation or resolution, is admissible as evidence in any proceeding.
[[Page 121]]
Sec. 1209.21 Conduct of examination.
Nothing in this part limits or constrains in any manner any duty,
authority, or right of FHFA to conduct or to continue any examination,
investigation, inspection, or visitation of any regulated entity or
entity-affiliated party.
Sec. 1209.22 Collateral attacks on adjudicatory proceeding.
If an interlocutory appeal or collateral attack is brought in any
court concerning all or any part of an adjudicatory proceeding, the
challenged adjudicatory proceeding shall continue without regard to the
pendency of that court proceeding. No default or other failure to act as
directed in the adjudicatory proceeding within the times prescribed in
subpart C of this part shall be excused based on the pendency before any
court of any interlocutory appeal or collateral attack.
Sec. 1209.23 Commencement of proceeding and contents of notice of charges.
Proceedings under subpart C of this part are commenced by the
Director by the issuance of a notice of charges, as defined in Sec.
1209.3(p), that must be served upon a respondent. A notice of charges
shall state all of the following:
(a) The legal authority for the proceeding and for FHFA's
jurisdiction over the proceeding;
(b) A statement of the matters of fact or law showing that FHFA is
entitled to relief;
(c) A proposed order or prayer for an order granting the requested
relief;
(d) Information concerning the nature of the proceeding and
pertinent procedural matters, including: the requirement that the
hearing shall be held in the District of Columbia; the presiding officer
will set the date and location for an evidentiary hearing in a
scheduling order to be issued not less than 30 days or more than 60 days
after service of the notice of charges; contact information for FHFA
enforcement counsel and the presiding officer, if known; submission
information for filings and appearances, the time within which to
request a hearing, and citation to FHFA Rules of Practice and Procedure;
and
(e) Information concerning proper filing of the answer, including
the time within which to file the answer as required by law or
regulation, a statement that the answer shall be filed with the
presiding officer or with FHFA as specified therein, and the address for
filing the answer (and request for a hearing, if applicable).
Sec. 1209.24 Answer.
(a) Filing deadline. Unless otherwise specified by the Director in
the notice, respondent shall file an answer within 20 days of service of
the notice of charges initiating the enforcement action.
(b) Content of answer. An answer must respond specifically to each
paragraph or allegation of fact contained in the notice of charges and
must admit, deny, or state that the party lacks sufficient information
to admit or deny each allegation of fact. A statement of lack of
information has the effect of a denial. Denials must fairly meet the
substance of each allegation of fact denied; general denials are not
permitted. When a respondent denies part of an allegation, that part
must be denied and the remainder specifically admitted. Any allegation
of fact in the notice that is not denied in the answer is deemed
admitted for purposes of the proceeding. A respondent is not required to
respond to the portion of a notice that constitutes the prayer for
relief or proposed order. The answer must set forth affirmative
defenses, if any, asserted by the respondent.
(c) Default. Failure of a respondent to file an answer required by
this section within the time provided constitutes a waiver of such
respondent's right to appear and contest the allegations in the notice.
If no timely answer is filed, FHFA counsel of record may file a motion
for entry of an order of default. Upon a finding that no good cause has
been shown for the failure to file a timely answer, the presiding
officer shall file with the Director a recommended decision containing
the findings and the relief sought in the notice. Any final order issued
by the Director based upon a respondent's failure to answer is deemed to
be an order issued upon consent.
[[Page 122]]
Sec. 1209.25 Amended pleadings.
(a) Amendments. The notice or answer may be amended or supplemented
at any stage of the proceeding. The respondent must answer an amended
notice within the time remaining for the respondent's answer to the
original notice, or within 10 days after service of the amended notice,
whichever period is longer, unless the Director or presiding officer
orders otherwise for good cause shown.
(b) Amendments to conform to the evidence. When issues not raised in
the notice or answer are tried at the hearing by express or implied
consent of the parties, or as the presiding officer may allow for good
cause shown, such issues will be treated in all respects as if they had
been raised in the notice or answer, and no formal amendments are
required. If evidence is objected to at the hearing on the ground that
it is not within the issues raised by the notice or answer, the
presiding officer may admit the evidence when admission is likely to
assist in adjudicating the merits of the action. The presiding officer
will do so freely when the determination of the merits of the action is
served thereby and the objecting party fails to satisfy the presiding
officer that the admission of such evidence would unfairly prejudice
that party's action or defense upon the merits. The presiding officer
may grant a continuance to enable the objecting party to meet such
evidence.
Sec. 1209.26 Failure to appear.
Failure of a respondent to appear in person at the hearing or by a
duly authorized representative of record constitutes a waiver of
respondent's right to a hearing and is deemed an admission of the facts
as alleged and consent to the relief sought in the notice. Without
further proceedings or notice to the respondent, the presiding officer
shall file with the Director a recommended decision containing the
Agency's findings and the relief sought in the notice.
Sec. 1209.27 Consolidation and severance of actions.
(a) Consolidation. On the motion of any party, or on the presiding
officer's own motion, the presiding officer may consolidate, for some or
all purposes, any two or more proceedings, if each such proceeding
involves or arises out of the same transaction, occurrence or series of
transactions or occurrences, or involves at least one common respondent
or a material common question of law or fact, unless such consolidation
would cause unreasonable delay or injustice. In the event of
consolidation under this section, appropriate adjustment to the pre-
hearing schedule must be made to avoid unnecessary expense,
inconvenience, or delay.
(b) Severance. The presiding officer may, upon the motion of any
party, sever the proceeding for separate resolution of the matter as to
any respondent only if the presiding officer finds that undue prejudice
or injustice to the moving party would result from not severing the
proceeding and such undue prejudice or injustice would outweigh the
interests of judicial economy and expedition in the complete and final
resolution of the proceeding.
Sec. 1209.28 Motions.
(a) In writing. (1) Except as otherwise provided herein, an
application or request for an order or ruling must be made by written
motion.
(2) All written motions must state with particularity the relief
sought and must be accompanied by a proposed order.
(3) No oral argument may be held on written motions except as
otherwise directed by the presiding officer. Written memoranda, briefs,
affidavits, or other relevant material or documents may be filed in
support of or in opposition to a motion.
(b) Oral motions. A motion may be made orally on the record, unless
the presiding officer directs that such motion be reduced to writing, in
which case the motion will be subject to the requirements of this
section.
(c) Filing of motions. Motions must be filed with the presiding
officer and served on all parties; except that following the filing of a
recommended decision, motions must be filed with the Director. Motions
for pre-trial relief such as motions in limine or objections to offers
of proof or experts shall be filed not less than 10 days prior to the
date of the evidentiary hearing, except
[[Page 123]]
as provided with the consent of the presiding officer for good cause
shown.
(d) Responses and replies. (1) Except as otherwise provided herein,
any party may file a written response to a non-dispositive motion within
10 days after service of any written motion, or within such other period
of time as may be established by the presiding officer or the Director;
and the moving party may file a written reply to a written response to a
non-dispositive motion within five days after the service of the
response, unless some other period is ordered by the presiding officer
or the Director. The presiding officer shall not rule on any oral or
written motion before each party with an interest in the motion has had
an opportunity to respond as provided in this section.
(2) The failure of a party to oppose a written motion or an oral
motion made on the record is deemed as consent by that party to the
entry of an order substantially in the form of the order accompanying
the motion.
(e) Dilatory motions. Frivolous, dilatory, or substantively
repetitive motions are prohibited. The filing of such motions may form
the basis for sanctions.
(f) Dispositive motions. Dispositive motions are governed by
Sec. Sec. 1209.34 and 1209.35 of this part.
Sec. 1209.29 Discovery.
(a) General rule. (1) Limits on discovery. Subject to the
limitations set out in paragraphs (a)(2), (b), (d), and (e) of this
section, a party to a proceeding under this part may obtain document
discovery by serving upon any other party in the proceeding a written
request to produce documents. For purposes of such requests, the term
``documents'' may be defined to include records, drawings, graphs,
charts, photographs, recordings, or data stored in electronic form or
other data compilations from which information can be obtained or
translated, if necessary, by the parties through detection devices into
reasonably usable form (e.g., electronically stored information), as
well as written material of all kinds.
(2) Discovery plan. (i) In the initial scheduling conference held in
accordance with Sec. 1209.36, or otherwise at the earliest practicable
time, the presiding officer shall require the parties to confer in good
faith to develop and submit a joint discovery plan for the timely, cost-
effective management of document discovery (including, if applicable,
electronically stored information). The discovery plan should provide
for the coordination of similar discovery requests by multiple parties,
if any, and specify how costs are to be apportioned among those parties.
The discovery plan shall specify the form of electronic productions, if
any. Documents are to be produced in accordance with the technical
specifications described in the discovery plan.
(ii) Discovery in the proceeding may commence upon the approval of
the discovery plan by the presiding officer. Thereafter, the presiding
officer may interpret or modify the discovery plan for good cause shown
or in his or her discretion due to changed circumstances.
(iii) Nothing in paragraph (a)(2) of this section shall be
interpreted or deemed to require the production of documents that are
privileged or not reasonably accessible because of undue burden or cost,
or to require any document production otherwise inconsistent with the
limitations on discovery set forth in this part.
(b) Relevance and scope. (1) A party may obtain document discovery
regarding any matter not privileged that is materially relevant to the
charges or allowable defenses raised in the pending proceeding.
(2) The scope of available discovery shall be limited in accordance
with subpart C of this part. Any request for the production of documents
that seeks to obtain privileged information or documents not materially
relevant under paragraph (b)(1) of this section, or that is
unreasonable, oppressive, excessive in scope, unduly burdensome,
cumulative, or repetitive of any prior discovery requests, shall be
denied or modified.
(3) A request for document discovery is unreasonable, oppressive,
excessive in scope, or unduly burdensome--and shall be denied or
modified--if, among other things, the request:
(i) Fails to specify justifiable limitations on the relevant subject
matter,
[[Page 124]]
time period covered, search parameters, or the geographic location(s) or
data repositories to be searched;
(ii) Fails to identify documents with sufficient specificity;
(iii) Seeks material that is duplicative, cumulative, or obtainable
from another source that is more accessible, cost-effective, or less
burdensome;
(iv) Calls for the production of documents to be delivered to the
requesting party or his or her designee and fails to provide a written
agreement by the requestor to pay in advance for the costs of production
in accordance with Sec. 1209.30, or otherwise fails to take into
account costs associated with processing electronically stored
information or any cost-sharing agreements between the parties;
(v) Fails to afford the responding party adequate time to respond;
or
(vi) Fails to take into account retention policies or security
protocols with respect to Federal information systems.
(c) Forms of discovery. Discovery shall be limited to requests for
production of documents for inspection and copying. No other form of
discovery shall be allowed. Discovery by use of interrogatories is not
permitted. This paragraph shall not be interpreted to require the
creation of a document.
(d) Privileged matter. (1) Privileged documents are not
discoverable. (i) Privileges include the attorney-client privilege,
work-product privilege, any government's or government agency's
deliberative process privilege, and any other privileges provided by the
Constitution, any applicable act of Congress, or the principles of
common law.
(ii) The parties may enter into a written agreement to permit a
producing party to assert applicable privileges of a document even after
its production and to request the return or destruction of privileged
matter (claw back agreement). The parties shall file the claw back
agreement with the presiding officer. To ensure the enforceability of
the terms of any such claw back agreement, the presiding officer shall
enter an order. Any party may petition the presiding officer for an
order specifying claw back procedures for good cause shown.
(2) No effect on examination authority. The limitations on
discoverable matter provided for in this part are not intended and shall
not be construed to limit or otherwise affect the examination,
regulatory or supervisory authority of FHFA.
(e) Time limits. All discovery matters, including all responses to
discovery requests, shall be completed at least 20 days prior to the
date scheduled for the commencement of the testimonial phase of the
hearing. No exception to this discovery time limit shall be permitted,
unless the presiding officer finds on the record that good cause exists
for waiving the 20-day requirement of this paragraph.
(f) Production. Documents must be produced as they are kept in the
usual course of business, or labeled and organized to correspond with
the categories in the request, or otherwise produced in a manner
determined by mutual agreement between the requesting party and the
party or non-party to whom the request is directed in accordance with
this part.