[Federal Register Volume 63, Number 246 (Wednesday, December 23, 1998)]
[Rules and Regulations]
[Pages 70998-71014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33943]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of Federal Housing Enterprise Oversight

12 CFR Part 1710

RIN 2550-AA01


Releasing Information

AGENCY: Office of Federal Housing Enterprise Oversight, HUD.

ACTION: Final rule.

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SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is 
issuing a final rule which sets forth the basic policies of OFHEO 
regarding disclosure of information it maintains and the procedures for 
obtaining access to such information by the public. The rule implements 
the Freedom of Information Act (FOIA) and establishes a schedule of 
fees, which will be charged for the processing of record requests under 
the FOIA. In addition, the rule sets forth procedures to be followed to 
request testimony or the production of documents in legal proceedings 
in which OFHEO is not a named party as

[[Page 70999]]

well as procedures for service of process upon OFHEO in any legal 
proceeding.

EFFECTIVE DATE: January 22, 1999.

FOR FURTHER INFORMATION CONTACT: Gary L. Norton, Deputy General 
Counsel, Christine C. Dion, Associate General Counsel, 1700 G Street 
NW., Fourth Floor, Washington, DC 20552, telephone (202) 414-3829 (not 
a toll-free number). The telephone number for the Telecommunications 
Device for the Deaf is (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    Title XIII of the Housing and Community Development Act of 1992, 
Pub. L. No. 102-550, known as the Federal Housing Enterprises Financial 
Safety and Soundness Act of 1992 (1992 Act), established OFHEO as an 
independent office within the Department of Housing and Urban 
Development (HUD). OFHEO is responsible for ensuring the financial 
safety and soundness and the capital adequacy of the Federal National 
Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage 
Corporation (Freddie Mac) (collectively, the Enterprises).
    In order to carry out its regulatory responsibilities, OFHEO is 
issuing this final rule governing the release of information to the 
public. The rule implements the FOIA by establishing procedures by 
which the public may inspect OFHEO records, request and obtain copies 
of materials, and appeal denials of such requests under the FOIA. This 
rule also includes a schedule of fees and procedures for determining 
when fees should be waived or reduced for FOIA requests in conformance 
with applicable guidelines of the Department of Justice (DOJ) and the 
Office of Management and Budget (OMB). The final rule also implements 
Executive Order 12600 by providing predisclosure notification 
procedures for confidential commercial or financial information. In 
addition, this final rule prescribes procedures for requesting access 
to records or testimony in legal proceedings in which OFHEO is not a 
named party. Also set forth in the final rule are procedures for 
effecting service upon OFHEO in any legal process, including service of 
process by litigants seeking access to OFHEO records.
    OFHEO is aware of recent amendments to the FOIA resulting from the 
Electronic Freedom of Information Act Amendments of 1996 (1996 Act),\1\ 
which was enacted to provide for public access to information in an 
electronic format and for other purposes. OFHEO will implement the 1996 
Act's amendments under separate rulemaking.
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    \1\ Pub. L. No. 104-231, 110 Stat. 3048.
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    Comments on the proposed rule \2\ were received from Fannie Mae and 
Freddie Mac. Those comments were carefully considered in developing 
this final rule and a discussion of the Enterprises' comments and 
OFHEO's response to those comments follows.
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    \2\ 60 FR 25162, May 11, 1995.
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II. Comments on the Proposed Releasing Information Rule

General Comments

    Most of the Enterprises' comments related to their request that the 
proposed rule be expanded to include provisions specifying how the 
agency will process a request for information which is not required to 
be disclosed under the FOIA because it is covered by an FOIA exemption. 
The Enterprises commented that the absence of such provisions would 
result in unnecessary burdens on OFHEO's staff by necessitating a case-
by-case review of requests for nonpublic information, and would lead to 
uncertainty and unpredictability in the disclosure policy of future 
OFHEO administrations. The Enterprises also noted that regulations 
governing access to records subject to discretionary disclosure have 
been adopted by the other financial institution regulatory agencies \3\ 
and that Congress intended OFHEO to act in a manner similar to those 
agencies.
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    \3\ See, e.g., 12 CFR part 261 Secs. 261.1-261.17 (Board of 
Governors of the Federal Reserve System).
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    OFHEO agrees with the Enterprises' comments that OFHEO's enabling 
statute contains several provisions demonstrating congressional intent 
that OFHEO consider the policies, rules, and procedures of the bank 
regulatory agencies in implementing its operational and regulatory 
authorities. In fact, it is the practice of OFHEO to carefully monitor 
the law applicable to the bank regulatory agencies as well as the rules 
and guidance of those agencies in order to more effectively carry out 
OFHEO's role as the Enterprises' safety and soundness regulator.
    For instance, the proposed regulation included provisions governing 
requests for information in litigation in which OFHEO is not a party 
which are similar to regulations adopted by the bank regulators. These 
regulations are designed to ensure that appropriate limits are placed 
on examination and other confidential information that may be sought as 
evidence in such litigation. This final regulation contains the same 
provisions. However, OFHEO has determined that, at this time, it is not 
appropriate or necessary to adopt regulations governing how the agency 
exercises its discretion in connection with other requests for 
information that are not subject to mandatory release under the FOIA.
    The other regulators have adopted those regulations primarily 
because they receive numerous requests for certain categories of 
information, which they regularly disclose under their discretionary 
authority. Unlike the bank regulatory agencies, which have been in 
existence for many years, OFHEO has not experienced a large volume of 
requests by the public for nonpublic information. To date, each request 
that has been received has been reviewed and processed on a case-by-
case basis under the FOIA. OFHEO believes that the existing procedures 
are appropriate and effective and do not pose an undue burden on the 
agency. OFHEO will, of course, monitor the volume and nature of 
information requests on an ongoing basis and propose appropriate 
amendments to the regulation if they are deemed necessary.
    Fannie Mae expressed concern that a ``gap'' in the disclosure 
coverage in OFHEO's final rule could result in FOIA requesters 
asserting that HUD's rules, not OFHEO's, apply to such requests. Fannie 
Mae further commented that HUD's existing and future disclosure rules 
and policies may be inconsistent or conflict with OFHEO's disclosure 
policies and with the appropriate treatment of sensitive OFHEO 
supervisory records. Fannie Mae expressed concerns that the application 
of HUD's disclosure rules could result in the release of highly 
sensitive Enterprise information by HUD.
    There is no ``gap'' in coverage. These regulations govern all OFHEO 
records and requests for those records. The 1992 Act established OFHEO 
as an independent office within HUD and expressly divided the 
regulatory responsibilities over the Enterprises--HUD was assigned 
programmatic oversight over the Enterprises' housing programs; \4\ 
OFHEO was assigned supervision and enforcement of the financial safety 
and soundness of the Enterprises.\5\ Congress granted the Director 
independent authority with respect to the capital adequacy and safety 
and soundness regulation of the Enterprises.\6\ In addition, Congress 
granted the OFHEO Director broad

[[Page 71000]]

authority to make such determinations, take such actions, and perform 
such functions as the Director determines are necessary regarding the 
management of OFHEO.\7\ The Director's independent management authority 
is reinforced by the statutory provision prohibiting the Secretary of 
HUD from merging or consolidating OFHEO or any of its functions or 
responsibilities with any function or program administered by the 
Secretary.\8\
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    \4\ Sections 1321-1349 (12 U.S.C. 4541-4589).
    \5\ Sections 1311-1319G (12 U.S.C. 4511-4526); sections 1361-
1379B (12 U.S.C. 4611-4641).
    \6\ 1992 Act, section 1313(b)(1)-(8)(12 U.S.C. 4513(b)(1)-(8)).
    \7\ 1992 Act, section 1313(b)(9) (12 U.S.C. 4513(b)(9)).
    \8\ 42 U.S.C. 3534.
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    This final rule governing the release of OFHEO information is being 
promulgated under the Director's exclusive rulemaking authority. It 
affects the management of OFHEO, i.e., OFHEO's disclosure policy, the 
testimony of employees, and access to OFHEO records. For this reason, 
OFHEO, not HUD, would decide whether or not to release OFHEO records. 
Records under OFHEO's control are not covered by HUD's general rules on 
information disclosure.
    To date, FOIA requests involving OFHEO information or records, 
which have been received by HUD, are referred to OFHEO's FOIA Officer 
for response under OFHEO's disclosure rule and processing procedures. 
Conversely, OFHEO's FOIA Officer ensures that FOIA requests for HUD 
information or records are forwarded to HUD's FOIA Officer for response 
under HUD's disclosure rules.
    Freddie Mac commented that the 1992 Act did not specifically 
delegate to OFHEO the function of public dissemination of information 
about the Enterprises. Accordingly, Freddie Mac stated that OFHEO 
generally should exercise its discretion concerning the release of 
information about the Enterprises in a manner whereby the Enterprises, 
not OFHEO, decide whether to release such information. Freddie Mac 
commented that, to the extent that such nonpublic information 
originates with the Enterprises, it is the Enterprise's property, not 
OFHEO's. Therefore, Freddie Mac believes that OFHEO's determination to 
release information should only be made after the Enterprises have had 
the opportunity to comment on the effect of any disclosure of such 
information to the public.
    In response to this comment, OFHEO notes that OFHEO is subject to 
the legal requirements of the FOIA. Under the FOIA, all responsive 
records possessed by and within the control of OFHEO at the time such 
requests are made must be released, unless OFHEO determines not to 
release them under an applicable exemption or the records are 
specifically excluded from FOIA's coverage. The nine exemptions of the 
FOIA ordinarily provide the only bases for nondisclosure and generally 
are discretionary in nature. Under the FOIA, discretion to exercise any 
of the nine exemptions is confined to OFHEO, as the statute's 
implementing agency. Submitters of information are not authorized under 
the FOIA to invoke an exemption. However, under certain circumstances, 
OFHEO must notify and consider input from submitters prior to releasing 
records. As discussed below, exemption (b)(4) requires OFHEO to give 
submitters of confidential commercial or financial information an 
opportunity to object to the release of such information. However, even 
in those instances and subject to certain notice requirements, the FOIA 
requires OFHEO to make the final decision as to whether any information 
will be released.
    Below is OFHEO's response to the Enterprises' comments on the 
specific sections as they appear in the proposed rule.

Section Comments

Subpart A--Information and Records Generally

Section 1710.1 General Rule

    Stating that the lack of a definition for the term ``information'' 
may result in the disclosure of certain confidential information, 
Fannie Mae requested that the term be defined in the final rule.
    Section 1710.1 restricts the disclosure of ``any information in the 
possession of OFHEO that is confidential or otherwise of a nonpublic 
nature'' including information of the Enterprises. The term 
``information'' is not defined in the section or elsewhere in the 
proposed rule because OFHEO intended that the term be given its common 
meaning, i.e., any knowledge derived from experience with a particular 
event or situation.\9\ This meaning would impose a broad-based 
prohibition against the unauthorized disclosure of any nonpublic 
information that is obtained by, produced by, accessed by, or disclosed 
to an OFHEO employee in connection with his or her work experience with 
OFHEO. OFHEO believes that all information which has not become part of 
the body of public information, including, but not limited to, 
information regarding the Enterprises or OFHEO, should be afforded 
maximum safeguards and that the common, all-encompassing meaning of 
``information'' provides such safeguards. Accordingly, it has been 
determined that the final rule should not be revised to define the term 
``information.'' Rather, the term has been added to section 1710.7(a) 
in this final rule to make it clear that OFHEO intends that the 
prohibitions against unauthorized disclosure apply very broadly to all 
nonpublic OFHEO documents and information. Moreover, since Fannie Mae 
raised the issue of the use of the term ``information,'' OFHEO 
carefully reviewed the proposed rule regarding other informational-type 
terms. For consistency, changes were made in the final rule to ensure 
that the term ``record'' is contained in provisions relating to FOIA 
requests. The term ``document'' is used in place of the terms 
``record'' and ``material'' in all other provisions of the final rule 
relating to requests for OFHEO nonpublic information.
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    \9\ See Webster's II New Riverside University Dictionary (1994). 
See e.g., Addison v. Holly Hill Fruit Products, 322 U.S. 607, 618 
(1994) (when common words are not defined, they should be given 
common meaning).
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    OFHEO agrees with the Enterprises' comments that, for purposes of 
clarification, the term ``employee'' should be defined in the final 
rule. To that end, OFHEO has defined the term.
    Consistent with that definitional recommendation, OFHEO determined 
that it also would be beneficial to define certain other terms for 
purposes of the entire part 1710. The final rule contains a new 
subpart, which consolidates in one place various terms used throughout 
part 1710. Those general definitions are contained in subpart A of the 
final rule. Subparts A through E of the proposed rule are redesignated 
in the final rule as subparts B through F, respectively, and, sections 
1710.1-.3 are renumbered as 1710.6-.8, respectively. Definitions that 
are specific to a particular subpart continue to be defined within that 
subpart in the final rule.
    Additionally, to effect a more appropriate placement of its 
content, section 1710.41 of the proposed rule is renumbered as 1710.9 
and is moved to subpart B in the final rule. The section enumerates 
final orders and agreements that OFHEO shall make available to the 
public.

Subpart B--Availability of Records of OFHEO

Section 1710.11 Official Records of OFHEO

    Fannie Mae commented that section 1710.11(d) provides that certain 
records exempt from FOIA disclosure may be released if ``specifically 
authorized by the Director,'' without a requirement

[[Page 71001]]

that such authority be in writing. Fannie Mae noted that the proposed 
rule requires written authorization for release of examination reports, 
and official documents or information disclosure in third-party legal 
proceedings. Fannie Mae requested that section 1710.11(d) be revised to 
require specific Director authorization ``in writing.''
    OFHEO has determined not to change section 1710.11(d) in the final 
rule. The requested change would require the Director to approve in 
writing any decision to disclose a document that is subject to 
discretionary release under the FOIA. While the FOIA Officer may 
consult generally with the Director, authority to approve in writing 
any decision to disclose such documents has been delegated by the 
Director to the FOIA Officer in accordance with the procedural 
requirements of the FOIA, Executive Order 12600, and OFHEO's internal 
information disclosure policy.

Section 1710.18 Special Procedures for Business Information

    With respect to section 1710.18, addressing business information, 
Freddie Mac commented that OFHEO should adopt the simple rule that any 
submissions designated as confidential by a submitter, unless 
frivolous, should be covered by the notice and other protections of the 
rule. Freddie Mac stated that this simple rule is consistent with 
FOIA's Exemption 4. Freddie Mac objected to the ``good faith'' 
requirement found in sections 1710.18(c) and 1710.18(e)(1) of the 
proposed rule and requested that the requirement be deleted from the 
final rule. Freddie Mac argued that the undefined ``good faith'' 
requirement is in contravention of Executive Order 12600. Freddie Mac 
stated that, under the Executive order, notice and an opportunity to 
object to disclosure of information is required and an agency's opinion 
of a submitter's ``good faith'' is irrelevant. It further stated that 
the ``good faith'' standard is inconsistent with the definition of 
business information found at section 1710.18(b)(1) of the proposed 
regulation. Freddie Mac expressed concerns that the ``good faith'' 
requirement at section 1710.18(e)(1) would make the process by which 
OFHEO judges a submitter's designation as confidential business 
information too subjective. Moreover, it alleged that to allow OFHEO 
staff to make determination on the notice requirement would give it 
``dangerous power'' and would not reflect respect for the fact that 
business information submitted to OFHEO is the property of the 
Enterprise and, therefore, any decision to disclose such information 
should not be made without the views of the submitting Enterprise. 
Freddie Mac further commented that the provision found at section 
1710.18(i)(4), which allows OFHEO to dispense with notice procedures if 
a designation is ``obviously frivolous,'' makes the ``good faith'' 
requirement unnecessary since it gives OFHEO the ability to disclose 
when a confidential designation is unwarranted.
    The ``good faith'' requirements for submitters of business 
information under section 1710.18, as proposed, simply reiterate the 
policy underlying Executive Order 12600 that submitters should not 
frivolously designate submissions as being protected from disclosure 
under Exemption 4. The good faith language conforms to that contained 
in the FOIA regulations of DOJ, which is the lead agency responsible 
for implementation of the FOIA. Moreover, it is consistent with FOIA 
regulations of other Federal agencies, such as the Office of the 
Comptroller of the Currency, the Office of Thrift Supervision, and the 
Office of Personnel Management. OFHEO believes that the ``good faith'' 
requirement provides a workable standard and will not give rise to the 
concerns raised by Freddie Mac. Accordingly, OFHEO has retained the 
section's good faith requirements in the final rule.
    Freddie Mac also commented that reports of examination and related 
materials should be treated the same way as business information. It 
requested that the same protections afforded to business information 
under Executive Order 12600 and proposed that section 1710.18 be 
extended to examination reports and related materials.
    It is clear from the plain language of Executive Order 12600 that 
examination reports are not the type of ``confidential commercial 
information'' intended to be subject to its prenotification procedures. 
OFHEO is not aware of, and Freddie Mac did not identify, any problems 
that warrant extending the predisclosure notice requirements of this 
section beyond the scope of Executive Order 12600. Additionally, OFHEO 
notes that, while examination reports may contain confidential 
commercial information, the reports are OFHEO-produced and OFHEO-owned 
documents. OFHEO examination reports are exempt from disclosure under 
the FOIA by a specific exemption (5 U.S.C. 552(b)(8)). For these 
reasons, the prenotification requirements of section 1710.18 have not 
been revised in the final rule to include examination reports.
    With respect to the prenotification requirements for business 
information, Fannie Mae requested that sections 1710.18(f) and (g)(2) 
of the proposed rule be revised to provide a submitter with a minimum 
period of 10 days in which to object to a request to disclose and to be 
advised of an agency's intent to disclose.
    In drafting sections 1710.18(f) and (g), OFHEO sought to be 
consistent with the prenotification requirements applicable to FOIA 
requests for business information set forth in Executive Order 12600. 
Among other things, the Order provides a submitter of such information 
a ``reasonable period of time'' in which to object to disclosure of the 
information. The Order also requires that an agency give submitters 
notice of agency intent to disclose within a ``reasonable number of 
days'' prior to the specified disclosure date.
    In order to codify OFHEO's prenotification practice, OFHEO 
specified in section 1710.18(g)(1) that it would provide notice to a 
submitter of its intent to disclose 10 business days before the 
specified disclosure date. To fulfill its obligation under the Order to 
also notify the requester, OFHEO stated in section 1710.18(g)(2) that 
OFHEO would forward to the requester of business information a copy of 
the notice to disclose at the same time that OFHEO forwards such notice 
to the business submitter.
    For purposes of consistency, OFHEO has determined to revise section 
1710.18 in the final rule to include the 10-day notice provision in 
subsection (f) relating to a submitter's opportunity to object to 
disclosure. For purposes of clarification, OFHEO has further determined 
to delete reference to submitters in section 1710.18(g)(2), as their 
inclusion would be redundant to coverage provided under subsection 
(g)(1). Subsection (e) has been modified to more fully correspond to 
the language of Executive Order 12600.
    The title of section 1710.18 has been changed in this final rule 
from ``Business Information'' to ``Special Procedures for Business 
Information'' to more fully highlight the unique treatment afforded to 
such information under Executive Order 12600.

Subpart C--Fees for Provision of Information

Section 1710.23 Fees To Be Charged--Categories of Requesters

    Commenting on section 1710.23(a) relating to fees charged FOIA 
requesters, Fannie Mae noted that the proposal states that OFHEO ``will 
seek clarification'' before assigning a fee

[[Page 71002]]

category if it reasonably doubts a use classification for purposes of 
charging a fee for record copying, or if the purpose is not clear from 
the request. Fannie Mae stated that this would obligate OFHEO to engage 
in inquiries that may be administratively burdensome; that requesters 
are in the best position to provide adequate information to avoid such 
expense. Fannie Mae requested that the section be revised to state that 
OFHEO ``may place the requester in the commercial use category or may 
seek additional clarification.''
    The Freedom of Information Reform Act of 1986 \10\ specifically 
required OMB to promulgate guidelines containing a uniform schedule of 
FOIA fees applicable to all agencies that are subject to the FOIA. The 
uniform guidelines issued by OMB advise agencies to resolve doubtful or 
unclear requests to ensure that the appropriate use category is 
assigned to a requester for purposes of charging fees. Among other 
things, the guidelines note the need to distinguish between requesters 
whose use of information is for a use that furthers their business 
interests, as opposed to a use that in some way benefits the public. 
Section 1710.23(a), as proposed, follows OMB's guidelines. Accordingly, 
OFHEO has determined to adopt this section as proposed.
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    \10\ Pub. L. No. 99-570, 100 Stat. 3207.
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Subpart D--Testimony and Production of Documents in Legal Proceedings 
in Which OFHEO Is Not a Named Party

    Stating that any harm to the Enterprises is the same whether 
sensitive information is made public under the FOIA or pursuant to 
legal process, Freddie Mac requested that the prenotification 
requirements for business information should also apply to any request 
for information under subpart D of the proposed rule. For the reasons 
noted earlier, OFHEO has determined not to extend its prenotification 
procedures beyond the scope of Executive Order 12600 in this final 
rule.
    Freddie Mac stated that, prior to the production of the 
information, OFHEO should provide the Enterprises with the opportunity 
to comment on the scope of any protective order governing the release 
of sensitive, nonpublic commercial or examination materials directly 
relating to them. As noted earlier, OFHEO believes that the provisions 
of the proposed rule, including those contained in subpart D, 
adequately safeguard the confidentiality of OFHEO documents and 
information. However, OFHEO may solicit input from the Enterprises 
whenever it is determined that such consultation would further 
complement those safeguards. Accordingly, the provisions of subpart D 
are being adopted as proposed.

SECTION-BY-SECTION ANALYSIS

I. General Definitions

    Subpart A of the final rule provides definitions of terms used 
throughout part 1710. Section 1710.1 explains the scope of subpart A. 
Section 1710.2 defines the common terms used throughout part 1710.

II. Documents and Information Generally

    Subpart B of the final rule contains general provisions relating to 
disclosure of documents and information in the possession of OFHEO. 
Section 1710.6 sets forth procedures for disclosure of such materials. 
Section 1710.7 provides that the disclosure requirements of the FOIA 
and the final rule apply to all OFHEO documents and information. It 
also provides that if another statute sets specific procedure for 
disclosure, OFHEO will process a request in accordance with the 
procedures that apply to those specific documents. If a request is 
received for disclosure of a document to the public which is not 
required to be released under those provisions, OFHEO will consider the 
request under the FOIA and the provisions of this final rule.
    Section 1710.7 describes the relationship between the FOIA and the 
Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, and explains that 
records that are available through an established distribution system 
should preferably be obtained through that system, rather than pursuant 
to the provisions of the FOIA.
    Section 1710.8 of subpart B contains a general provision providing 
that reports of examinations prepared by OFHEO are the property of 
OFHEO and may only be disclosed in accordance with part 1710 or with 
the prior written consent of the Director. The section further provides 
that any unauthorized use or disclosure of such documents may be 
subject to penalties under Federal law. Section 1710.8 explains that 
the Director will make available to each Enterprise a copy of the 
examination report of that Enterprise and that the Enterprise may not 
disclose or use such reports except as expressly permitted by the 
Director. The section also explains that the Director has discretion to 
make the examination reports available for the confidential use of 
Government agencies responsible for investigating and enforcing 
applicable laws.
    As noted earlier, section 1710.41 of the proposed rule is 
renumbered as section 1710.9 in subpart B of this final rule. Section 
1710.9 enumerates final orders and agreements that the Director is 
required to make available to the public. The section also has been 
modified to mirror those statutory requirements.

III. Availability of OFHEO Records

    Subpart C implements the FOIA, 5 U.S.C. 552, and describes (1) 
OFHEO records available to the public, (2) OFHEO information exempt 
from disclosure, (3) OFHEO's record index, (4) request requirements, 
(5) response requirements, (6) response content, (7) appeal procedures, 
and (8) time limits for processing requests and appeals. Subpart C also 
contains OFHEO's procedures for responding to FOIA requests for 
confidential, commercial and financial information, i.e., business 
information, provided to OFHEO.
    Section 1710.11 describes OFHEO records that are available pursuant 
to 5 U.S.C. 552(a) for public inspection and copying at the offices of 
OFHEO. These records include any final orders and agreements made in 
adjudication of cases, which are enumerated in section 1710.9 of the 
final rule. Section 1710.11 also describes the categories of OFHEO 
records that are exempt from disclosure. These exemptions follow the 
exemptions provided in the FOIA.
    Section 1710.12 sets forth the indexing requirements for records 
OFHEO maintains which are required to be indexed under 5 U.S.C. 
552(a)(2). The section contains the Director's determination that, 
because of the lack of requests to date for records required to be 
indexed, such indexes do not need to be published quarterly.
    Section 1710.13 contains rules of procedure for requesting records 
under the FOIA. Requests for OFHEO records should be in writing and 
addressed to the FOIA Officer. Each request should contain sufficient 
detail to allow the FOIA Officer to locate the record with a reasonable 
amount of effort. If a request is too broad or too vague to allow the 
record to be located with a reasonable amount of effort, OFHEO will 
assist the requester in revising the request as appropriate.
    Procedures for OFHEO's response to FOIA requests are explained in 
sections 1710.14 and 1710.15. The FOIA Officer has been delegated the 
responsibility in section 1710.14 to grant or deny such requests and to 
determine fees. Paragraph (b) of section 1710.14 also provides that 
OFHEO will refer FOIA

[[Page 71003]]

requests for records that originated in another Government agency to 
that agency for response. In such cases, the requester will be notified 
of the referral. Paragraph (c) of section 1710.14 states that OFHEO 
will provide whatever records respond to a request, but will not create 
a new record in order to respond. Moreover, to mirror the FOIA's 
requirements, language has been added to the section in the final rule 
noting that OFHEO will make reasonable efforts to provide information 
in the format requested. Also, OFHEO will notify the requester if, 
regardless of format, no records are responsive to the request.
    Section 1710.15 requires the FOIA Officer to notify a requester in 
writing of the determination to grant a request in whole or in part. 
The response must describe the manner in which the record will be 
disclosed and inform the requester of any fees that will be charged. 
Similarly, the FOIA Officer's determination to deny a request in whole 
or in part must be made in writing and signed by the FOIA Officer. 
Consistent with section 1710.15(b), any denial is to contain a brief 
statement describing the basis of the denial, including the FOIA 
exemption(s) that is relied upon. Moreover, the denial must state that 
the requester has a right to appeal and must explain OFHEO's appeal 
procedures.
    OFHEO's appeal procedures are set forth in section 1710.16 of the 
final rule. Denials may be appealed to OFHEO's FOIA Appeals Officer 
within 30 days after receipt of a denial letter. Appeals must be in 
writing and must contain reasons for, or arguments in support of, 
disclosure. OFHEO will respond to appeals in writing and will specify 
the reason(s) for affirming any original denial. When a denial is 
reversed in whole or in part, the request for disclosure will be 
processed promptly. The decision on appeal is OFHEO's final action on a 
request. Requesters have a right to seek judicial review of the final 
action under 5 U.S.C. 552(a)(4).
    Section 1710.17 of the final rule describes the time limits to 
which OFHEO will adhere in responding to initial requests and appeals 
of denials of requests. The response period for an initial request has 
been revised from 10 days to 20 days in this final rule to reflect 
statutory changes made by the 1996 Act. The section states that the 
time limits applicable to either initial requests or appeals of denials 
of requests may be extended up to a total of 10 days (excluding 
weekends and legal holidays) in unusual circumstances, i.e., when the 
records are in a location other than the main office of OFHEO, the 
request is for a large number of records, or OFHEO must consult with 
another agency or with various offices within OFHEO.
    Section 1710.18 of the final rule contains OFHEO's procedures for 
disclosure of sensitive, business information provided to OFHEO. 
Generally, the section requires submitters of business information to 
designate those portions of their submissions they believe may be 
exempt from disclosure under Exemption 4 of the FOIA. If records so 
designated are subsequently requested under the FOIA, in most cases the 
submitter will have an opportunity to provide a written objection to 
disclosure. The written objection must demonstrate why the information 
is contended to be a trade secret or commercial or financial 
information that is privileged or confidential and why disclosure would 
cause competitive harm. Whenever possible, the submitter's claim of 
confidentiality should be supported by a statement or certification by 
an officer or authorized representative of the submitter. Information 
that is provided by a submitter for the purpose of objecting to 
disclosure may itself be subject to disclosure under the FOIA.

IV. Fees for Provision of Information

    Subpart D of the final rule contains provisions relating to the 
fees which will be assessed for services rendered in responding to and 
processing requests for records under the FOIA. Fees are to be based on 
the type of service provided, e.g., search, review, and duplication, as 
well as the category of person making the request, e.g., commercial 
user, educational institution, and news media. Generally, commercial 
requesters will pay the full amount of permissible fees relating to 
record search, review, and duplication. Educational and noncommercial 
scientific institutions and the news media will pay only duplication 
costs, excluding charges for the first 100 pages. All other requesters 
will be assessed fees for search and duplication, except that the first 
100 pages of duplication and the first 2 hours of search time will be 
furnished without charge. As a matter of policy, OFHEO will not charge 
fees for any individual request if the cost of collecting a fee would 
equal or exceed the fee itself.
    Additionally, under the final rule, OFHEO may furnish records 
without charge or at a reduced charge where disclosure of the requested 
information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the Federal Government and is not primarily in the 
commercial interest of the requester. In making this determination, 
OFHEO will apply the six analytical factors set out by DOJ in its 
advisory memorandum on making FOIA fee waiver determinations. The 
memorandum, titled ``New FOIA Fee Waiver Policy Guidance,'' was issued 
by the Assistant Attorney General for Legal Policy to the heads of all 
Federal agencies on April 2, 1987. The factors enumerated in the 
memorandum have been incorporated in section 1710.24.
    Section 1710.25 contains a number of miscellaneous provisions 
concerning fees, including a requirement that requesters pay in advance 
fees likely to exceed $250.00. However, advance payment may not be 
required in the case of a requester who has a history of prompt 
payment. This section also includes a provision permitting interest to 
be charged on fees over 30 days past due at the rate prescribed in 31 
U.S.C. 3717 for an outstanding debt on a U.S. Government claim.

V. Testimony and Production of Documents in Legal Proceedings in 
Which OFHEO Is Not a Named Party

    Subpart E prescribes the policies and procedures of OFHEO with 
respect to the testimony of official matters and production of official 
documents of OFHEO in legal proceedings in which OFHEO is not a named 
party. The subpart does not affect the rights and procedures governing 
public access to OFHEO documents pursuant to the FOIA or the Privacy 
Act.
    Section 1710.31 sets forth the purpose of subpart E which is to (1) 
ensure the confidentiality of OFHEO documents and information, (2) 
maintain the impartial position of OFHEO in litigation in which OFHEO 
is not a named party, (3) conserve the time of employees for their 
official duties, and (4) enable the Director to determine when to 
authorize testimony and the release of documents in legal proceedings 
in which OFHEO is not a named party.
    Section 1710.32 contains the definitions applicable to the subpart 
E. Section 1710.33 provides the general policy of OFHEO with respect to 
testimony and production of documents in any legal proceeding in which 
OFHEO is not a named party, i.e., employees, including former 
employees, are prohibited from disclosing any information obtained in 
or resulting from their official capacities unless the Director 
determines in writing that disclosure would be in the best interest of 
OFHEO or in the public interest. Section 1710.33 further provides that,

[[Page 71004]]

prior to any authorized testimony or release of official documents, the 
requesting party must obtain a protective order from the court before 
which the action is pending to preserve the confidentiality of the 
testimony or documents subsequently produced.
    Section 1710.34 describes the procedures to which OFHEO will adhere 
to enable the Director to determine whether to grant requests for 
testimony concerning official matters or disclosure of official 
documents. Section 1710.35 provides that the scope of permissible 
testimony by an employee is limited to that set forth in the written 
authorization granted that employee by the Director. The section 
addresses OFHEO employees' authority to give opinion testimony in any 
legal proceeding to which OFHEO is not a party. The section has been 
modified in this final rule to clarify that generally OFHEO employees 
do not give such testimony, but may do so if authorized by the 
Director.
    Section 1710.36 describes the manner in which authorized testimony 
of employees will be made available. This section has been amended in 
this final rule to clarify that testimony will ordinarily be made 
available only through depositions or written interrogatories. A party 
requesting authorized testimony must serve a subpoena on the employee 
in accordance with applicable Federal or State rules of procedure, with 
a copy of the subpoena sent by registered mail to the General Counsel. 
Upon completion of an authorized deposition at OFHEO's office, a copy 
of the transcript of the testimony shall be furnished at the requesting 
party's expense to the General Counsel.
    Section 1710.37 describes the manner in which official documents 
authorized for release by the Director will be produced. Certified or 
authenticated copies of OFHEO documents authorized by the Director to 
be released under subpart E will be provided upon request.
    Section 1710.38 describes the fees charged for documents produced 
by OFHEO in connection with requests under subpart E. Unless waived or 
reduced, OFHEO will charge for searches for documents, duplication of 
documents, and certification or authentication of documents as detailed 
in the section.
    Section 1710.39 provides that an employee served with a demand in a 
legal proceeding concerning OFHEO or the production of official OFHEO 
documents or information, must notify the General Counsel of such 
service. This notification will assist the General Counsel in advising 
the Director as to whether the individual should be authorized to 
testify or the material requested should be made available. When 
authorization to testify or produce documents is not granted by the 
Director, the General Counsel shall provide the party issuing the 
demand or the court with a copy of the regulations contained in subpart 
E, and also shall advise the party or the court that the employee upon 
whom the demand has been made is prohibited from testifying or 
producing the documents without the Director's prior approval.
    Section 1710.39 also provides that any employee who has official 
information that has not been approved for disclosure must respond to a 
legal process by attending at the time and place required. The 
individual shall respectfully decline to disclose the information on 
the basis of subpart E of the final rule. If a court orders disclosure 
contrary to the Director's instructions, the employee shall continue to 
decline to disclose the information and shall advise OFHEO of the order 
for such action as OFHEO may deem appropriate. Section 1710.39 advises 
that any determination under subpart E to comply or not to comply with 
any demand shall not constitute an assertion or waiver of privilege, 
lack of relevance, technical deficiencies, or any other ground for 
noncompliance. Moreover, it is noted that OFHEO reserves the right to 
oppose any demand on any legal ground independent of its determination 
under subpart E.
    Section 1710.40 pertains to any person who is served with a request 
to release OFHEO records who is not an OFHEO employee or former 
employee. Such person may not disclose OFHEO records to any person 
without the Director's prior written consent. Moreover, any person 
served with a demand in a legal proceeding requiring that person to 
produce OFHEO documents or to testify with respect thereto, must (1) 
notify the General Counsel regarding the service, (2) object to 
production of such documents or information contained therein on the 
basis that the documents are the property of OFHEO and cannot be 
released without OFHEO's consent, and (3) note that the documents' 
production must be sought from OFHEO following procedures set forth in 
final sections 1710.34(b) and (c) and 1710.37(b) of subpart E of the 
final rule.

VI. Rules and Procedures for Service Upon OFHEO

    Section 1710.51 of subpart F provides that, with limited 
exceptions, any legal process on OFHEO must be issued and served upon 
the General Counsel as well as any OFHEO personnel named in the caption 
of the documents. Service may be effected by either personal delivery 
or by registered or certified mail to the General Counsel at OFHEO's 
office.

Regulatory Impact

Executive Order 12612, Federalism

    Executive Order 12612 requires that Executive departments and 
agencies identify regulatory actions that have significant federalism 
implications. A regulation has federalism implications if it has 
substantial direct effects on the States, on the relationship or 
distribution of power between the Federal Government and the States, or 
on the distribution of power and responsibilities among various levels 
of Government. OFHEO has determined that this rule has no federalism 
implications that warrant the preparation of a Federalism Assessment in 
accordance with Executive Order 12612.

Executive Order 12866, Regulatory Planning and Review

    This final rule has been reviewed by OMB pursuant to Executive 
Order 12866.

Executive Order 12988, Civil Justice Reform

    Executive Order 12988 sets forth guidelines to promote the just and 
efficient resolution of civil claims and to reduce the risk of 
litigation to the Federal Government. This final rule meets the 
applicable standards of sections 3(a) and (b) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule does not include a Federal mandate that may result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100,000,000 or more (adjusted annually 
for inflation) in any one year. Consequently, the rule does not warrant 
the preparation of an assessment statement in accordance with the 
Unfunded Mandates Reform Act of 1995.

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires that 
a regulation that has a significant economic impact on a substantial 
number of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on small entities. Such an analysis need not be 
undertaken if the

[[Page 71005]]

agency has certified that the regulation will not have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 
605(b).
    OFHEO has considered the impact of the regulation under the 
Regulatory Flexibility Act. The General Counsel has certified that this 
final rule will not have significant economic impact on a substantial 
number of small entities.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, requires 
that regulations involving the collection of information receive 
clearance from OMB. This rule contains no such collection of 
information requiring OMB approval under the Paperwork Reduction Act. 
Consequently, no information has been submitted to OMB for review under 
the Paperwork Reduction Act.

List of Subjects in 12 CFR Part 1710

    Administrative practice and procedure, Confidential business 
information, Freedom of information.

    Accordingly, for the reasons set out in the preamble, part 1710 is 
added to chapter XVII of title 12 of the Code of Federal Regulations to 
read as follows:

PART 1710--RELEASING INFORMATION

Subpart A--General Definitions

Sec.
1710.1  Scope.
1710.2  General definitions.

Subpart B--Documents and Information Generally

1710.6  General rule.
1710.7  Applicability.
1710.8  OFHEO examination reports.
1710.9  Orders and agreements available to the public.

Subpart C--Availability of Records of OFHEO

1710.11  Official records of OFHEO.
1710.12  Index identifying information for the public.
1710.13  Requests for records.
1710.14  Response to requests.
1710.15  Form and content of responses.
1710.16  Appeals of denials.
1710.17  Time limits.
1710.18  Special procedures for business information.

Subpart D--Fees for Provision of Information

1710.21  Definitions.
1710.22  Fees to be charged--general.
1710.23  Fees to be charged--categories of requesters.
1710.24  Limitations on charging fees.
1710.25  Miscellaneous fee provisions.

Subpart E--Testimony and Production of Documents in Legal Proceedings 
in Which OFHEO Is Not a Named Party

1710.31  General purposes.
1710.32  Definitions.
1710.33  General policy.
1710.34  Request for testimony or production of documents.
1710.35  Scope of permissible testimony.
1710.36  Manner in which testimony is given.
1710.37  Manner in which documents will be produced.
1710.38  Fees.
1710.39  Responses to demands served on employees.
1710.40  Responses to demands served on nonemployees.

Subpart F--Rules and Procedures for Service Upon OFHEO

1710.51  Service of process.

    Authority: 5 U.S.C. 301, 552; 12 U.S.C. 4513, 4522, 4526, 4639; 
E.O. 12600, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Definitions


Sec. 1710.1  Scope.

    Definitions in Sec. 1710.2 relate to the meaning of terms used 
throughout part 1710.


Sec. 1710.2  General definitions.

    For the purpose of this part:
    (a) Appeals Officer means the person designated by the Director to 
process appeals of denials of requests for OFHEO records under the 
FOIA.
    (b) Director means the Director of OFHEO or his or her designee.
    (c) Document means any record or paper, including but not limited 
to a report, credit review, audit, examination, letter, telegram, 
memorandum, study, calendar and diary entry, log, graph, pamphlet, 
note, chart, tabulation, analysis, statistical or information 
accumulation, any record of meetings and conversations, film 
impression, magnetic tape, or any electronic media, disk, film, or 
mechanical reproduction that is generated, obtained, or adopted by 
OFHEO in connection with the conduct of its official business.
    (d) Employee means any officer, former officer, employee, or former 
employee of OFHEO; any conservator appointed by OFHEO; or any agent or 
independent contractor acting on behalf of OFHEO, even though the 
appointment or contract has terminated.
    (e) FOIA means the Freedom of Information Act.
    (f) FOIA Officer means the person designated to process requests 
for OFHEO records under the FOIA.
    (g) Official means concerning the authorized business of OFHEO.
    (h) OFHEO means the Office of Federal Housing Enterprise Oversight.
    (i) Person means any individual, or any agency, corporation, 
partnership, trust, association, joint venture, pool, syndicate, sole 
proprietorship, unincorporated organization, or any other form of 
entity not specifically listed herein, but does not include OFHEO or 
any employee.
    (j) Record means any document which is created or obtained by OFHEO 
and which is under OFHEO control at the time of an FOIA request.
    (k) Requester means any person seeking access to OFHEO records 
under the FOIA.

Subpart B--Documents and Information Generally


Sec. 1710.6  General rule.

    Except as authorized by this part or as otherwise necessary in 
performing official duties, no employee shall in any manner disclose or 
permit disclosure of any document or information in the possession of 
OFHEO that is confidential or otherwise of a nonpublic nature, 
including that regarding OFHEO or the Federal National Mortgage 
Association (Fannie Mae) or the Federal Home Loan Mortgage Corporation 
(Freddie Mac) (collectively, the Enterprises).


Sec. 1710.7  Applicability.

    (a) General. The FOIA and the regulations in this part apply to all 
OFHEO documents and information. However, if another law sets specific 
procedure for disclosure, OFHEO will process a request in accordance 
with the procedures that apply to those specific documents. If a 
request is received for disclosure of a document to the public which is 
not required to be released under those provisions, OFHEO will consider 
the request under the FOIA and the regulations in this part.
    (b) The relationship between the FOIA and the Privacy Act of 1974. 
The Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, applies to 
records that are about individuals, but only if the records are in a 
system of records as defined in the Privacy Act. Requests from 
individuals for records about themselves which are contained in an 
OFHEO system of records will be processed under the provisions of the 
Privacy Act as well as the FOIA. OFHEO will not deny access by a first 
party to a record under the FOIA or the Privacy Act unless the record 
is not available to that individual under both the Privacy Act and the 
FOIA.
    (c) Records available through routine distribution procedures. When 
the record requested includes material published and offered for sale, 
e.g., by

[[Page 71006]]

the Superintendent of Documents or the Government Printing Office, or 
which is available to the public through an established distribution 
system (such as that of the National Technical Information Service of 
the Department of Commerce), OFHEO will first refer the requester to 
those sources. Nevertheless, if the requester is not satisfied with the 
alternative sources, OFHEO will process the request under the FOIA.


Sec. 1710.8  OFHEO examination reports.

    (a) General. Reports of examinations prepared by OFHEO may be 
disclosed only in accordance with this part or with the prior written 
consent of the Director. No person, agency, or authority, or director, 
officer, employee, or agent thereof, shall disclose any such report or 
information contained therein in any manner except as authorized in 
accordance with this subpart. The report of examination is the property 
of OFHEO and any unauthorized use or disclosure of such report may be 
subject to the penalties provided in 18 U.S.C. 641.
    (b) Enterprises. The Director makes available to each Enterprise a 
copy of OFHEO's report of examination of such Enterprise. The report of 
examination is the property of OFHEO and is provided to the Enterprise 
for its confidential use only. Under no circumstance shall the 
Enterprise or any director, officer, employee, or agent thereof, make 
public or disclose in any manner the report of examination or any 
portion of the contents thereof to any person or organization not 
officially connected with the Enterprise as director, officer, 
employee, attorney, auditor, or independent auditor. Any other 
disclosure or use of this report except as expressly permitted by the 
Director may be subject to the penalties of 18 U.S.C. 641.
    (c) Government agencies. The Director may make available reports of 
examination for the confidential use of Federal agencies responsible 
for investigating or enforcing applicable Federal laws.


Sec. 1710.9  Orders and agreements available to the public.

    (a) General. OFHEO shall make the following documents available to 
the public:
    (1) Any written agreement or other written statement for which a 
violation may be redressed by the Director or any modification to or 
termination thereof, unless the Director, in the Director's discretion, 
determines that public disclosure would be contrary to the public 
interest.
    (2) Any order that is issued with respect to any administrative 
enforcement proceeding initiated by the Director under 12 U.S.C. 4631 
through 4641 that has become final in accordance with 12 U.S.C. 4633 
and 12 U.S.C. 4634.
    (3) Any modification to or termination of any final order made 
public pursuant to this section.
    (b) Delay of public disclosure under exceptional circumstances. If 
the Director makes a determination in writing that the public 
disclosure of any final order pursuant to paragraph (a) of this section 
would seriously threaten the financial health or security of the 
Enterprise, the Director may delay the public disclosure of such order 
for a reasonable time.
    (c) Documents filed under seal in public enforcement hearings. The 
Director may file any document or part thereof under seal in any 
hearing commenced by the Director if the Director determines in writing 
that disclosure thereof would be contrary to the public interest.
    (d) Retention of documents. The Director shall keep and maintain a 
record, for not less than 6 years, of all documents described in 
paragraph (a) of this section and all enforcement agreements and other 
supervisory actions and supporting documents issued with respect to or 
in connection with any enforcement proceedings initiated by the 
Director under 12 U.S.C. 4631 through 4641.
    (e) Disclosure to Congress. This section may not be construed to 
authorize the withholding of any information from, or to prohibit the 
disclosure of any information to, the Congress or any committee or 
subcommittee thereof.

Subpart C--Availability of Records of OFHEO


Sec. 1710.11  Official records of OFHEO.

    (a) OFHEO shall, upon a written request for records which 
reasonably describes the information or records and is made in 
accordance with the provisions of this subpart, make the records 
available as promptly as practicable to any person for inspection and/
or copying, except as provided in paragraph (d) of this section.
    (b) Records available. OFHEO records which are required by 5 U.S.C. 
552(a)(2) to be made available for public inspection and copying are 
maintained at OFHEO's offices located at 1700 G Street, NW., Fourth 
Floor, Washington, DC 20552. The records include--
    (1) Any final opinions, as well as orders made in adjudication of 
cases as set forth in Sec. 1710.9 of subpart B of this part;
    (2) Any statements of policy and interpretation that have been 
adopted by OFHEO and are not published in the Federal Register;
    (3) Any administrative staff manuals and instructions to staff that 
affect a member of the public, and which are not exempt from disclosure 
under 5 U.S.C. 552(b); and
    (4) Any current indexes providing identifying information for the 
public as to any matter which OFHEO has issued, OFHEO has adopted or 
promulgated, and is required by 5 U.S.C. 552(a)(2) to be made available 
or published.
    (c) Copying. The cost of copying information available in the 
offices of OFHEO shall be imposed on a requester in accordance with the 
provisions of subpart D of this part.
    (d) Records not available. Except as otherwise provided in this 
part, or as may be specifically authorized by the Director, the 
following information and records, or portions thereof, are not 
available to the public:
    (1) Any record, or portion thereof, which is--
    (i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense 
or foreign policy, and
    (ii) Is in fact properly classified pursuant to such Executive 
order.
    (2) Any record, or portion thereof, related solely to the internal 
personnel rules and practices of OFHEO.
    (3) Any record, or portion thereof, which is specifically exempted 
from disclosure by statute (other than 5 U.S.C. 552(b)), 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) Any matter that is a trade secret or that constitutes 
commercial or financial information obtained from a person and that is 
privileged or confidential.
    (5) Any matter contained in inter-agency or intra-agency memoranda 
or letters which would not be available by law to a private party in 
litigation with OFHEO.
    (6) Any information contained in personnel and medical files and 
similar files (including financial files) the disclosure of which would 
constitute a clearly unwarranted invasion of personal privacy.
    (7) Any records or information compiled for law enforcement 
purposes, but only to the extent that the

[[Page 71007]]

production of such law enforcement records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution or an Enterprise regulated and 
examined by OFHEO which furnished information on a confidential basis, 
and, in the case of a record of information 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) Any matter that is contained in or related to examination, 
operating, or condition reports that are prepared by, on behalf of, or 
for the use of OFHEO.
    (9) Any geological and geophysical information and data, including 
maps, concerning wells.
    (e) Even if an exemption described in paragraph (d) of this section 
may be reasonably applicable to a requested record, or portion thereof, 
OFHEO may elect under the circumstances of any particular request not 
to apply the exemption to such requested record, or portion thereof. 
The fact that the exemption is not applied by OFHEO to any requested 
record, or portion thereof, has no precedential significance as to the 
application or nonapplication of the exemption to any other requested 
record, or portion thereof, no matter when the request is received.
    (f) Any reasonably segregable portion of a record shall be provided 
to any person properly requesting such record after deletion of the 
portions which are exempt under this subpart.
    (g) To the extent necessary to prevent an invasion of personal 
privacy, the Director may delete identifying details from a record 
described in paragraph (b) of this section. In each case of such 
deletion, the justification will be clearly explained in writing.
    (h) This section does not authorize withholding of information or 
limit the availability of records to the public, except as specifically 
stated in this section. This section is not authority to withhold 
information from Congress.


Sec. 1710.12  Index identifying information for the public.

    (a) OFHEO will maintain and make available for public inspection 
and copying a current index of materials available at the office of 
OFHEO which are required to be indexed under 5 U.S.C 552(a)(2).
    (b) Because of the lack of requests to date for material required 
to be indexed, the Director has determined that it is unnecessary and 
impracticable to publish quarterly, or more frequently, and distribute 
(by sale or otherwise) copies of each index and supplements thereto, as 
provided in 5 U.S.C. 552(a)(2). However, OFHEO will provide a copy of 
such indexes to a member of the public upon request, at a cost not to 
exceed the direct cost of duplication and mailing, if sending records 
by other than ordinary mail.


Sec. 1710.13  Requests for records.

    (a) Addressing requests. Requests for records in the possession of 
OFHEO shall be made in writing. The envelope and the request both 
should be clearly marked ``FOIA Request'' and addressed to: FOIA 
Officer, Office of Federal Housing Enterprise Oversight, 1700 G Street 
NW., Fourth Floor, Washington, DC 20552. A request improperly addressed 
will be deemed not to have been received for purposes of the 20-day 
time period set forth in paragraph (a) of Sec. 1710.17 of this subpart 
until it is received, or would have been received with the exercise of 
due diligence, by the FOIA Officer. Records requested in conformance 
with this subpart and which are not exempt records may be obtained in 
person or by mail as specified in the request. Records to be obtained 
in person will be available for inspection or copying during business 
hours on a regular business day in the office of OFHEO.
    (b) Description of records. Each request must reasonably describe 
the desired records in sufficient detail to enable OFHEO personnel to 
locate the records with a reasonable amount of effort. A request for a 
specific category of records will be regarded as fulfilling this 
requirement if it enables responsive records to be identified by a 
technique or process that is not unreasonably burdensome or disruptive 
of OFHEO operations.
    (1) Whenever possible, a request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record.
    (2) If the FOIA Officer determines that a request does not 
reasonably describe the records sought, he or she will either advise 
the requester what additional information is needed to locate the 
record or otherwise state why the request is insufficient. The FOIA 
Officer will also extend to the requester an opportunity to confer with 
OFHEO personnel with the objective of reformulating the request in a 
manner which will meet the requirements of this section.


Sec. 1710.14  Responses to requests.

    (a) Response to initial request. The FOIA Officer of OFHEO is 
authorized to grant or deny any request for a record and to determine 
appropriate fees.
    (b) Referral to another agency. When a requester seeks records that 
originated in another Federal Government agency, OFHEO will refer the 
request to the other agency for response. If OFHEO refers the request 
to another agency, it will notify the requester of the referral. A 
request for any records classified by some other agency will be 
referred to that agency for response.
    (c) Creating records. If a person seeks information from OFHEO in a 
format that does not currently exist, OFHEO will make reasonable 
efforts to provide the information in the format requested. OFHEO will 
not create a new record of information to satisfy a request.
    (d) No responsive record. If no records are responsive to the 
request, the FOIA Officer will so notify the requester in writing.


Sec. 1710.15  Form and content of responses.

    (a) Form of notice granting a request. After the FOIA Officer has 
granted a request in whole or in part, the requester will be notified 
in writing. The notice shall describe the manner in which the record 
will be disclosed, whether by providing a copy of the record with the 
response or at a later date, or by making a copy of the record 
available to the requester for inspection at a reasonable time and 
place. The procedure for such an inspection may not unreasonably 
disrupt the operation of OFHEO. The response letter will also inform 
the requester of any fees to be charged in accordance with the 
provisions of subpart D of this part.
    (b) Form of notice denying a request. When the FOIA Officer denies 
a request in whole or in part, he or she will so notify the requester 
in writing. The response will be signed by the FOIA Officer and will 
include--

[[Page 71008]]

    (1) The name and title or position of the person making the denial;
    (2) A brief statement of the reason or reasons for the denial, 
including the FOIA exemption or exemptions which the FOIA Officer has 
relied upon in denying the request; and
    (3) A statement that the denial may be appealed under Sec. 1710.16 
of this subpart and a description of the requirements of that section.


Sec. 1710.16  Appeals of denials.

    (a) Right of appeal. If a request has been denied in whole or in 
part, the requester may appeal the denial to: FOIA Appeals Officer, 
Office of Federal Housing Enterprise Oversight, 1700 G Street, NW., 
Fourth Floor, Washington, DC 20552.
    (b) Letter of appeal. The appeal must be in writing and must be 
sent within 30 days of receipt of the denial letter. An appeal should 
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 advanced in support of disclosure of the 
requested record. Both the envelope and the letter of appeal must be 
clearly marked ``FOIA Appeal.'' An appeal improperly addressed shall be 
deemed not to have been received for purposes of the 20-day time period 
set forth in paragraph (b) of Sec. 1710.17 until it is received, or 
would have been received with the exercise of due diligence, by the 
Appeals Officer.
    (c) Action on appeal. The disposition of an appeal will be in 
writing and will constitute the final action of OFHEO on a request. A 
decision affirming in whole or in part the denial of a request will 
include a brief statement of the reason or reasons for affirmance, 
including each FOIA exemption relied on. If the denial of a request is 
reversed in whole or in part on appeal, the request will be processed 
promptly in accordance with the decision on appeal.
    (d) Judicial review. If the denial of the request for records is 
upheld in whole or in part, or, if a determination on the appeal has 
not been mailed at the end of the 20-day period or the last extension 
thereof, the requester is deemed to have exhausted his or her 
administrative remedies, giving rise to a right of judicial review 
under 5 U.S.C. 552(a)(4).


Sec. 1710.17  Time limits.

    (a) Initial request. Following receipt of a request for records, 
the FOIA Officer will determine whether to comply with the request and 
will notify the requester in writing of his or her determination within 
20 days (excluding Saturdays, Sundays, and legal holidays) after 
receipt of the request.
    (b) Appeal. A written determination on an appeal submitted in 
accordance with Sec. 1710.16 of this subpart will be issued within 20 
days (excluding Saturdays, Sundays, and legal holidays) after receipt 
of the appeal. When a determination cannot be mailed within the 
applicable time limit, the appeal will nevertheless be processed. In 
such case, upon the expiration of the time limit, the requester will be 
informed of the reason for the delay, of the date on which a 
determination may be expected to be mailed, and of that person's right 
to seek judicial review. The requester may be asked to forego judicial 
review until determination of the appeal.
    (c) Extension of time limits. The time limits specified in either 
paragraph (a) or (b) of this section may be extended in unusual 
circumstances up to a total of 10 days (excluding Saturdays, Sundays, 
and legal holidays) after written notice to the requester setting forth 
the reasons for the extension and the date on which a determination is 
expected to be made. As used in this paragraph, unusual circumstances 
means that there is a need to--
    (1) Search for and collect the requested records from facilities 
that are separate from the office processing the request;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records which are demanded in a single 
request; or
    (3) Consult with another agency having a substantial interest in 
the determination of the request, or consult with various offices 
within OFHEO that have a substantial interest in the records requested.


Sec. 1710.18  Special procedures for business information.

    (a) In general. Business information provided to OFHEO by a 
business submitter shall not be disclosed pursuant to an FOIA request 
except in accordance with this section.
    (b) Definitions. For the purpose of this section, the following 
definitions shall apply:
    (1) Business information means trade secrets or other commercial or 
financial information, provided to OFHEO by a submitter, which arguably 
is protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4), because disclosure could reasonably be expected to cause 
substantial competitive harm.
    (2) Business submitter means any person or entity which provides 
business information, directly or indirectly, to OFHEO and who has a 
proprietary interest in the information.
    (c) Designation of business information. Submitters of business 
information should use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, those portions of their submissions which they deem to be 
protected under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such 
designation will expire 10 years after the records were submitted to 
the Government, unless the submitter requests, and provides reasonable 
justification for, a designation period of longer duration.
    (d) Predisclosure notification. (1) Except as is provided for in 
paragraph (i) of this section, the FOIA Officer shall, to the extent 
permitted by law, provide a submitter with prompt written notice of an 
FOIA request or administrative appeal encompassing its business 
information whenever required under paragraph (e) of this section. Such 
notice shall either describe the exact nature of the business 
information requested or provide copies of the records or portions 
thereof containing the business information.
    (2) Whenever the FOIA Officer provides a business submitter with 
the notice set forth in paragraph (e)(1) of this section, the FOIA 
Officer shall notify the requester that the request includes 
information that may arguably be exempt from disclosure under 5 U.S.C. 
552(b)(4) and that the person or entity who submitted the information 
to OFHEO has been given the opportunity to comment on the proposed 
disclosure of information.
    (e) When notice is required. OFHEO shall provide a business 
submitter with notice of a request whenever--
    (1) The business submitter has in good faith designated the 
information as business information deemed protected from disclosure 
under 5 U.S.C. 552(b)(4); or
    (2) OFHEO has reason to believe that the request seeks business 
information the disclosure of which may result in substantial 
commercial or financial injury to the business submitter.
    (f) Opportunity to object to disclosure. Through the notice 
described in paragraph (d) of this section, OFHEO shall, to the extent 
permitted by law, afford a business submitter at least 10 days 
(excluding Saturdays, Sundays, and legal holidays) within which it can 
provide OFHEO with a detailed written statement of any objection to 
disclosure. Such statement shall demonstrate why the information is 
contended to be a trade secret or commercial or financial

[[Page 71009]]

information that is privileged or confidential and why disclosure would 
cause competitive harm. Whenever possible, the business submitter's 
claim of confidentiality should be supported by a statement or 
certification by an officer or authorized representative of the 
business submitter. Information provided by a submitter pursuant to 
this paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. (1) The FOIA Officer shall 
consider carefully a business submitter's objections and specific 
grounds for nondisclosure prior to determining whether to disclose 
business information. Whenever the FOIA Officer decides to disclose 
business information over the objection of a business submitter, the 
FOIA Officer shall forward to the business submitter a written notice 
at least 10 days (excluding Saturdays, Sundays, and legal holidays) 
before the date of disclosure containing--
    (i) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained,
    (ii) A description of the business information to be disclosed, and
    (iii) A specified disclosure date.
    (2) Such notice of intent to disclose likewise shall be forwarded 
to the requester at least 10 days (excluding Saturdays, Sundays, and 
legal holidays) prior to the specified disclosure date.
    (h) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information, the FOIA Officer 
shall promptly notify the business submitter of such action.
    (i) Exceptions to predisclosure notification. The requirements of 
this section shall not apply if--
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such a case, the FOIA Officer will provide the submitter with 
written notice of any final decision to disclose business information 
within a reasonable number of days prior to a specified disclosure 
date.

Subpart D--Fees for Provision of Information


Sec. 1710.21  Definitions.

    For the purpose of this subpart, the following definitions shall 
apply:
    (a) Commercial use request means a request for information that is 
from, or on behalf of, a requester seeking 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 being made. To 
determine whether a request is properly classified as a commercial use 
request, OFHEO shall determine the purpose for which the requested 
records shall be used. If OFHEO has reasonable cause to doubt the 
purpose specified in the request for which a requester will use the 
records sought, or where the purpose is not clear from the request 
itself, OFHEO shall seek additional clarification before assigning the 
request to a specified category.
    (b) Direct costs means the expenditures actually incurred by OFHEO 
in searching for and reproducing records to respond to a request for 
information. In the case of a commercial use request, the term also 
means those expenditures OFHEO actually incurs in reviewing records to 
respond to the request. The direct cost shall include the salary of the 
employee performing work (the basic rate of pay for the employee plus 
16 percent of that rate to cover benefits) and the cost of operating 
duplication equipment. Not included in direct costs are overhead 
expenses such as costs of space, and heating or lighting the facility 
in which the records are stored.
    (c) Educational institution means a preschool, a public or private 
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.
    (d) Noncommercial scientific institution refers to an institution 
that is not operated on a commercial, trade, or profit basis 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.
    (e) Representative of the news media means any person actively 
gathering news for 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 public. Examples of news media entities include television or radio 
stations broadcasting to the public at large and publishers of 
periodicals (but only in those instances in which the periodicals can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not intended to be all-inclusive. As traditional methods of news 
delivery evolve, e.g., electronic dissemination of newspapers through 
telecommunication services, such alternative media, would be included 
in this category. ``Freelance'' journalists may be regarded as working 
for a news organization if they can demonstrate a solid basis for 
expecting publication through that organization even though they are 
not actually employed by the organization. A publication contract would 
be the clearest proof that a journalist is working for a news 
organization, but OFHEO may look to the requester's past publication 
record to determine whether a journalist is working for a news 
organization.
    (f) Reproduce and reproduction means the process of making a copy 
of a record necessary to respond to a request for information. Such 
copies take the form of paper copy, microfilm, audio-visual materials, 
or machine readable documentation, e.g., magnetic tape or disk. The 
copy provided shall be in a form that is reasonably usable by 
requesters.
    (g) Review means the process of examining records located in 
response to a request for information to determine whether any portion 
of any record located is permitted to be withheld. It also includes 
processing any records for disclosure, e.g., doing all that is 
necessary to prepare the records for release. The term ``review'' does 
not include the time spent resolving general legal or policy issues 
regarding the application of exemptions. OFHEO shall only charge fees 
for reviewing records in response to a commercial use request.
    (h) The term search includes all time spent looking for material 
that is responsive to a request for information, including page-by-page 
or line-by-line identification of material within records. The term 
``search'' includes the extraction of information from a computer using 
existing programming. Searching for materials shall be done in the most 
efficient and least expensive manner so as to minimize the costs of 
OFHEO and the requester. For example, a line-by-line search for 
responsive material should not be performed when merely reproducing an 
entire document would be less expensive and the faster method of 
complying with the request for information. A ``search'' for material 
that is responsive to a request should be distinguished from a 
``review'' of material to determine whether the material is exempt from 
disclosure.

[[Page 71010]]

Sec. 1710.22  Fees to be charged--general.

    (a) Policy. Generally, the fees charged for requests for records 
pursuant to 5 U.S.C. 552 shall cover the full allowable direct costs of 
searching for, reproducing, and reviewing records that are responsive 
to a request for information. Fees shall be assessed according to the 
schedule contained in paragraph (b) of this section and the category of 
requesters described in Sec. 1710.23 of this subpart for services 
rendered by OFHEO staff in responding to, and processing requests for, 
records under this part. Fees assessed will be paid by check or money 
order payable to the Office of Federal Housing Enterprise Oversight.
    (b) Types of charges. The types of charges that may be assessed in 
connection with the production of records in response to an FOIA 
request are as follows:
    (1) Searches. (i) Manual searches for records. Whenever feasible, 
OFHEO will charge at the salary rate(s), i.e., basic pay plus 16 
percent, of the employee(s) making the search. Charges for search time 
will be billed by 15-minute segments.
    (ii) Computer searches for records. Requesters will be charged at 
the actual direct costs of conducting a search using existing 
programming. These direct costs will include the cost of operating the 
central processing unit for that portion of operating time that is 
directly attributable to searching for records and the operator/
programmer salary, i.e., basic pay plus 16 percent, apportionable to 
the search. A charge shall also be made for any substantial amounts of 
special supplies or materials used to contain, present, or make 
available the output of computers, based upon the prevailing levels of 
costs to OFHEO for the type and amount of such supplies of materials 
that are used. Nothing in this paragraph shall be construed to entitle 
any person or entity, as of right, to any services in connection with 
computerized records, other than services to which such person or 
entity may be entitled under the provisions of this subpart. OFHEO will 
not alter or develop programming to conduct a search.
    (iii) Unproductive searches. OFHEO will charge search fees even if 
no records are found which are responsive to the request or if the 
records found are exempt from disclosure.
    (2) Duplication. Records will be reproduced at a rate of $.15 per 
page. For copies prepared by computer, such as tapes or printouts, the 
requester shall be charged the actual cost, including operator time, of 
production of the tape or printout. For other methods of reproduction, 
the actual direct costs of reproducing the record(s) shall be charged.
    (3) Review. Only requesters who are seeking records for commercial 
use may be charged for time spent reviewing records to determine 
whether they are exempt from mandatory disclosure. Charges may be 
assessed only for initial review, i.e., the review undertaken the first 
time OFHEO analyzes the applicability of a specific exemption to a 
particular record or portion of a record. Records or portions of 
records withheld in full under an exemption that is subsequently 
determined not to apply may be reviewed again to determine the 
applicability of other exemptions not previously considered. The costs 
for such a subsequent review are properly assessable.
    (4) Other services and materials. Where OFHEO elects, as a matter 
of administrative discretion, to comply with a request for a special 
service or materials, such as certifying that records are true copies 
or sending records by special methods, the actual direct costs of 
providing the service or materials will be charged.


Sec. 1710.23  Fees to be charged--categories of requesters.

    (a) Fees for various requester categories. Paragraphs (b) through 
(e) of this section state, for each category of requester, the types of 
fees generally charged by OFHEO. However, for each of these categories, 
the fees may be limited, waived or reduced in accordance with the 
provisions set forth in paragraph (c) of Sec. 1710.24. If OFHEO has 
reasonable cause to doubt the purpose specified in the request for 
which a requester will use the records sought, or where the purpose is 
not clear from the request itself, OFHEO will seek clarification before 
assigning the request a specific category.
    (b) Commercial use requester. OFHEO shall charge fees for records 
requested by persons or entities making a commercial use request in an 
amount that equals the full direct costs for searching for, reviewing 
for release, and reproducing the records sought. Commercial use 
requesters are not entitled to 2 hours of free search time nor 100 free 
pages of reproduction of records. In accordance with Sec. 1710.22, 
commercial use requesters may be charged the costs of searching for and 
reviewing records even if there is ultimately no disclosure of records.
    (c) Educational and noncommercial scientific institutions. OFHEO 
shall charge fees for records requested by, or on behalf of, 
educational institutions and noncommercial scientific institutions in 
an amount which equals the cost of reproducing the records responsive 
to the request, excluding the cost of reproducing the first 100 pages. 
No search fee shall be charged with respect to requests by educational 
and noncommercial scientific institutions. For a request to be included 
in this category, requesters must show that the request being made is 
authorized by and under the auspices of a qualifying institution, and 
that the records are not sought for commercial use but are sought in 
furtherance of scholarly research (if the request is from an 
educational institution) or scientific research (if the request is from 
a noncommercial scientific institution).
    (d) News media. OFHEO shall charge fees for records requested by 
representatives of the news media in an amount which equals the cost of 
reproducing the records responsive to the request, excluding the costs 
of reproducing the first 100 pages. No search fee shall be charged with 
respect to requests by representatives of the news media. For a request 
to be included in this category, the requester must qualify as a 
representative of the news media and the request must not be made for a 
commercial use. A request for records supporting the news dissemination 
function of the requester shall not be considered to be a request that 
is for commercial use.
    (e) All other requesters. OFHEO shall charge fees for records 
requested by persons or entities that are not classified in any of the 
categories listed in paragraphs (b), (c), or (d) of this section in an 
amount that equals the full reasonable direct cost of searching for and 
reproducing records that are responsive to the request, excluding the 
first 2 hours of search time and the cost of reproducing the first 100 
pages of records. In accordance with Sec. 1710.22, requesters in this 
category may be charged the cost of searching for records even if there 
is ultimately no disclosure of records, excluding the first 2 hours of 
search time.
    (f) For purposes of the exceptions contained in this section on 
assessment of fees, the word ``pages'' refers to paper copies of 8\1/2\ 
 x  11 or 11  x  14. Thus, requesters are not entitled to 100 
microfiche or 100 computer disks, for example. A microfiche containing 
the equivalent of 100 pages or a computer disk containing the 
equivalent of 100 pages of computer printout meets the terms of the 
exception.
    (g) For purposes of paragraph (e) of this section, the term 
``search time'' has as its basis, manual search. To apply this term to 
searches made by computer, OFHEO will determine the hourly cost

[[Page 71011]]

of operating the central processing unit and the operator's hourly 
salary plus 16 percent. When the cost of the search (including the 
operator time and the cost of operating the computer to process a 
request) equals the equivalent dollar amount of 2 hours of the salary 
plus 16 percent of the person performing the search, i.e., the 
operator, OFHEO will begin assessing charges for the computer.


Sec. 1710.24  Limitations on charging fees.

    (a) In general. Except for requesters seeking records for a 
commercial use as described in paragraph (b) of Sec. 1710.23, OFHEO 
will provide, without charge, the first 100 pages of duplication and 
the first 2 hours of search time, or their cost equivalent.
    (b) No fee charged. OFHEO 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. The elements to be 
considered in determining the ``cost of collecting a fee'' are the 
administrative costs of receiving and recording a requester's 
remittance and of processing the fee.
    (c) Waiver or reduction of fees. OFHEO may grant a waiver or 
reduction of fees if OFHEO determines that the 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 the disclosure of the 
information is not primarily in the commercial interest of the 
requester. Requests for a waiver or reduction of fees will be 
considered on a case-by-case basis.
    (1) The following factors will be considered by OFHEO in 
determining whether a waiver or reduction of fees is in the public 
interest:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
Government.'' The subject matter of the requested records, in the 
context of the request, must specifically concern identifiable 
operations or activities of the Federal Government with a connection 
that is direct and clear, not remote or attenuated. Furthermore, the 
records must be sought for their informative value with respect to 
those Government operations or activities; a request for access to 
records for their intrinsic informational content alone will not 
satisfy this threshold consideration.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of Government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative on specific 
Government operations or activities in order to hold potential for 
contributing to increased public understanding of those operations and 
activities. The disclosure of information that is already in the public 
domain, in either a duplicative or substantially identical form, would 
not be likely to contribute to such understanding, as nothing new would 
be added to the public record.
    (iii) The contribution to an understanding of the subject by the 
general public: Whether disclosure of the requested information will 
contribute to the ``public understanding.'' The disclosure must 
contribute to the understanding of the public at large, as opposed to 
the individual understanding of the requester or a narrow segment of 
interested persons. A requester's identity and qualifications, e.g., 
expertise in the subject area and ability and intention to convey 
information to the general public, will be considered.
    (iv) The significance of the contribution in public understanding: 
Whether the disclosure is likely to ``significantly enhance'' the 
public understanding of Government operations or activities. The 
public's understanding of the subject matter in question, as compared 
to the level of public understanding existing prior to the disclosure, 
must be likely to be enhanced by the disclosure to a significant 
extent. The FOIA Officer shall not make a separate value judgment as to 
whether information, even though it in fact would contribute 
significantly to public understanding of the operations or activities 
of the Government, is ``important'' enough to be made public.
    (2) In order to determine whether the second fee waiver requirement 
is met, i.e., that disclosure of the requested information is not 
primarily in the commercial interest of the requester, OFHEO shall 
consider the following two factors in sequence:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester, or any person on whose behalf the requester may be 
acting, has a commercial interest that would be furthered by the 
requested disclosure. In assessing the magnitude of identified 
commercial interests, consideration will be given to the effect that 
the information disclosed would have on those commercial interests, as 
well as to the extent to which FOIA disclosures serve those interests 
overall. Requesters shall be given a reasonable opportunity in the 
administrative process to provide information bearing upon this 
consideration.
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the 
requester.'' A fee waiver or reduction is warranted only where, once 
the ``public interest'' standard set out in paragraph (c)(1) of this 
section is satisfied, that public interest can fairly be regarded as 
greater in magnitude than that of the requester's commercial interest 
in disclosure. OFHEO will ordinarily presume that, where a news media 
requester has satisfied the public interest standard, the public 
interest will be serviced primarily by disclosure to that requester. 
Disclosure to requesters who compile and market Federal Government 
information for direct economic return will not be presumed to 
primarily serve the ``public interest.''
    (3) Where only a portion of the requested record satisfies the 
requirements for a waiver or reduction of fees under this paragraph, a 
waiver or reduction shall be granted only as to that portion.
    (4) A request for a waiver or reduction of fees must accompany the 
request for disclosure of records and should include--
    (i) A clear statement of the requester's interest in the records;
    (ii) The proposed use of the records and whether the requester will 
derive income or other benefit from such use;
    (iii) A statement of how the public will benefit from release of 
the requested records; and
    (iv) If specialized use of the documents is contemplated, a 
statement of the requester's qualifications that are relevant to the 
specialized use.
    (5) A requester may appeal the denial of a request for a waiver or 
reduction of fees in accordance with the provisions of Sec. 1710.16.


Sec. 1710.25  Miscellaneous fee provisions.

    (a) Notice of anticipated fees in excess of $25.00. Where OFHEO 
determines or estimates that the fees chargeable will amount to more 
than $25.00, OFHEO shall promptly notify the requester of the actual or 
estimated amount of fees or such portion thereof that can be readily 
estimated, unless the requester has indicated his or her willingness to 
pay fees as high as those anticipated. Where a requester has been 
notified that the actual or estimated fees may exceed $25.00, the 
request will be deemed not to have been received until the requester 
has agreed to pay the anticipated total

[[Page 71012]]

fee. A notice to the requester pursuant to this paragraph will include 
the opportunity to confer with OFHEO personnel in order to reformulate 
the request to meet the requester's needs at a lower cost.
    (b) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a record or 
records, solely in order to avoid the payment of fees. When OFHEO 
reasonably believes that a requester, or a group of requesters acting 
in concert, is attempting to break a request into a series of requests 
for the purpose of evading the assessment of fees, OFHEO may aggregate 
such requests and charge accordingly. One element to be considered in 
determining whether a belief would be reasonable is the time period 
over which the requests have occurred. OFHEO will presume that multiple 
requests of this type made within a 30-day period have been made in 
order to evade fees. Where requests are separated by a longer period, 
OFHEO shall aggregate them only where there exists a solid basis for 
determining that such aggregation is warranted, e.g., where the 
requests involve clearly related matters. Multiple requests regarding 
unrelated matters will not be aggregated.
    (c) Advance payment of fees. (1) OFHEO does not require an advance 
payment before work is commenced or continued, unless--
    (i) OFHEO estimates or determines that the fees are likely to 
exceed $250.00. If it appears that the fees will exceed $250.00, OFHEO 
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. In the case of requesters with no history of 
payment, OFHEO may require an advance payment of fees in an amount up 
to the full estimated charge that will be incurred; or
    (ii) The requester has previously failed to pay a fee in a timely 
fashion, i.e., within 30 days of the date of a billing. In such cases, 
OFHEO may require the requester to pay the full amount owed plus any 
applicable interest, as provided in paragraph (d) of this section, or 
demonstrate that the fee owed has been paid, prior to processing any 
further record request. Under these circumstances, OFHEO may require 
the requester to make an advance payment of the full amount of the fees 
anticipated before processing a new request or finishing processing of 
a pending request from that requester.
    (2) A request for an advance deposit shall include an offer to the 
requester to confer with identified OFHEO personnel to attempt to 
reformulate the request in a manner which will meet the needs of the 
requester at a lower cost.
    (3) When OFHEO requests an advance payment of fees, the 
administrative time limits described in 5 U.S.C. 552(a)(6) begin only 
after OFHEO has received the advance payment.
    (d) Interest. OFHEO may assess interest charges on an unpaid bill 
starting on the 31st day following the day on which the bill was sent. 
Once a fee payment has been received by OFHEO, even if not processed, 
the accrual of interest shall be stayed. Interest charges shall be 
assessed at the rate prescribed in 31 U.S.C. 3717 and shall accrue from 
the date of the billing.

Subpart E--Testimony and Production of Documents in Legal 
Proceedings in Which OFHEO Is Not a Named Party


Sec. 1710.31  General purposes.

    The purposes of this subpart are to maintain the confidentiality of 
official documents and information of OFHEO, conserve the time of 
employees for their official duties, maintain the impartial position of 
OFHEO in litigation in which OFHEO is not a named party, and enable the 
Director to determine when to authorize testimony and to produce 
documents in legal proceedings in which OFHEO is not a named party. 
This subpart sets forth the procedures to be followed with respect to 
testimony concerning official matters and production of official 
documents of OFHEO in legal proceedings in which OFHEO is not a named 
party. This subpart in no way affects the rights and procedures 
governing public access to official documents pursuant to the FOIA or 
the Privacy Act.


Sec. 1710.32  Definitions.

    For the purpose of this subpart:
    (a) Court means any entity conducting a legal proceeding.
    (b) Demand means any order, subpoena, or other legal process for 
testimony or documents.
    (c) Legal proceeding means any administrative, civil, or criminal 
proceeding, including a discovery proceeding therein, before a court of 
law, administrative board or commission, hearing officer, or other body 
in which OFHEO is not a named party or in which OFHEO has not 
instituted the administrative investigation or administrative hearing.
    (d) OFHEO Counsel means the General Counsel or his or her designee, 
a Department of Justice attorney, or counsel authorized by OFHEO to act 
on behalf of OFHEO or an employee.


Sec. 1710.33  General policy.

    It is the policy of OFHEO that in any legal proceeding in which 
OFHEO is not a named party, no employee shall, in response to a demand, 
produce any documents contained in the files of OFHEO, or disclose any 
information relating to, or based upon, documents contained in the 
files of OFHEO, or disclose or produce any documents acquired as part 
of the performance of that employee's official duties or because of 
that employee's official status. Under appropriate circumstances, the 
Director may grant exceptions in writing to this policy when the 
Director determines that the testimony of employees or disclosure of 
official documents would be in the best interest of OFHEO or in the 
public interest. Prior to any authorized testimony or release of 
official documents, the requesting party shall obtain a protective 
order from the court before which the action is pending to preserve the 
confidentiality of the testimony or documents subsequently produced. 
The protective order shall be in a form satisfactory to OFHEO.


Sec. 1710.34  Request for testimony or production of documents.

    (a) No employee shall give testimony concerning official matters or 
produce any official documents in any legal proceeding to which OFHEO 
is not a named party without the prior written authorization of the 
Director.
    (b) If testimony by an employee concerning official matters or the 
production of official documents is desired, the requesting party, or 
his or her attorney, shall submit a letter to the Director setting 
forth the title of the case, the forum, the requesting party's interest 
in the case, a summary of the issues in the litigation, the reasons for 
the request, and a showing that the desired testimony, documents, or 
information are not reasonably available from any other source. If an 
appearance or testimony is requested, the letter shall also set forth 
the intended use of the testimony, a general summary of the scope of 
the testimony requested, and a showing that no document could be 
provided and used in lieu of the testimony or other appearance 
requested.
    (c) The General Counsel is authorized to consult with the 
requesting party or his or her attorney to refine and limit the request 
so that compliance is less burdensome, or obtain information necessary 
to make the determination described in Sec. 1710.33 of this subpart. 
Failure of the requesting party, or his or her attorney, to cooperate 
in good faith with the General Counsel to enable the

[[Page 71013]]

Director to make an informed determination under this subpart may serve 
as the basis for a determination not to comply with the request.


Sec. 1710.35  Scope of permissible testimony.

    (a) The scope of permissible testimony by an employee is limited to 
that set forth in the written authorization granted that employee by 
the Director.
    (b) Employees are not authorized to give opinion testimony, except 
as authorized by the Director. OFHEO, as the regulatory agency charged 
with the responsibility of examining, supervising, and regulating the 
financial safety and soundness and capital adequacy of the Enterprises 
under the Federal Housing Enterprises Financial Safety and Soundness 
Act of 1992, 12 U.S.C. 4501 et seq., relies on the ability of its 
employees to gather full and complete information in order to carry out 
its statutory responsibilities. The use of employees to give opinion 
testimony would hamper OFHEO's ability to carry out its statutory 
responsibilities and would cause a serious administrative burden on 
OFHEO's staff.


Sec. 1710.36  Manner in which testimony is given.

    (a) Authorized testimony of employees ordinarily will be made 
available only through depositions or written interrogatories.
    (b) Where, in response to a request, the Director determines that 
circumstances warrant authorizing testimony by an employee, the 
requesting party shall cause a subpoena to be served on the employee in 
accordance with applicable Federal or State rules of procedure, with a 
copy of the subpoena sent by registered or certified mail to the 
General Counsel.
    (c) Normally, authorized depositions will be taken at OFHEO's 
office, at a time arranged with the employee that is reasonably fixed 
to avoid substantial interference with the performance of the 
employee's duties.
    (d) Upon completion of the deposition of an employee, a copy of the 
transcript of the testimony shall be furnished, at the expense of the 
party requesting the deposition, to the General Counsel for OFHEO's 
files.


Sec. 1710.37  Manner in which documents will be produced.

    (a) An employee's authorization to produce official documents is 
limited to the authority granted that employee by the Director.
    (b) Certified or authenticated copies of official OFHEO documents 
authorized by the Director to be released under this subpart will be 
provided upon request.


Sec. 1710.38  Fees.

    Unless waived or reduced, the following fees shall be charged for 
documents produced by OFHEO in connection with requests subject to this 
subpart:
    (a) Searches for documents. OFHEO will charge at the salary 
rates(s), i.e., basic pay plus 16 percent, of the employee(s) making 
the search. Charges for search time will be billed by 15 minute 
segments.
    (b) Copying of documents. The standard copying charge for documents 
in paper copy is $.15 per page. When responsive information is provided 
in a format other than paper copy, such as in the form of computer 
tapes and disks, OFHEO will assess the direct costs of the tape, disk, 
or whatever medium is used to produce the information, as well as any 
related reproduction costs. Normally, only one copy will be provided. 
Additional copies will be provided only upon a showing of demonstrated 
need.
    (c) Certification or authentication of documents. OFHEO will charge 
$3.00 for each certification or authentication of documents.
    (d) Computer searches. Services of personnel in the nature of a 
computer search shall be charged at rates prescribed in paragraph (a) 
of this section. A charge shall be made for the computer time involved, 
based upon the prevailing level of costs to OFHEO and upon the 
particular types of computer and associated equipment and the amount of 
time that such equipment is utilized. A charge shall also be made for 
any substantial amount of special supplies or documents used to 
contain, present, or make available the output of computers, based upon 
prevailing levels of costs to OFHEO and upon the type and amount of 
such supplies or documents that are used.
    (e) Other costs. When other services and documents not specifically 
identified in this section are requested and provided, their actual 
cost to OFHEO shall be charged.
    (f) Payments of fees. A bill will be forwarded to the requesting 
party upon completion of the production. Payment shall be made by check 
or money order payable to the Office of Federal Housing Enterprise 
Oversight.


Sec. 1710.39  Responses to demands served on employees.

    (a) Advice by employee served. Any employee who is served with a 
demand in a legal proceeding requiring his or her personal attendance 
as a witness or requiring the production of documents or information in 
any proceeding, shall immediately notify the General Counsel of such 
service, of the testimony and documents described in the demand, and of 
all relevant facts which may be of assistance to the General Counsel in 
determining whether the individual in question should be authorized to 
testify or the documents requested should be made available.
    (b) When authorization to testify or to produce documents has not 
been granted by the Director, OFHEO Counsel shall provide the party 
issuing the demand or the court with a copy of the regulations 
contained in this subpart and shall inform the party issuing the demand 
or the court that the employee upon whom the demand has been made is 
prohibited from testifying or producing documents without the prior 
approval of the Director.
    (c) Appearance by employee served. Unless OFHEO has authorized 
disclosure of the information requested, any employee who has OFHEO 
information that may not be disclosed and who is required to respond to 
a subpoena or other legal process, shall attend at the time and place 
required and respectfully decline to disclose or to give any testimony 
with respect to the information, basing such refusal upon the 
provisions of this subpart. If the court nevertheless orders the 
disclosure of the information or the giving of testimony irrespective 
of instructions from the Director not to produce the documents or 
disclose the information sought, the employee upon whom the demand has 
been made shall continue to decline respectfully to disclose the 
information and shall report promptly the facts to OFHEO for such 
action as OFHEO may deem appropriate.
    (d) A determination under this subpart to comply or not to comply 
with any demand shall not constitute an assertion or waiver of 
privilege, lack of relevance, technical deficiencies, or any other 
ground for noncompliance. OFHEO reserves the right to oppose any demand 
on any legal ground independent of its determination under this 
subpart.


Sec. 1710.40  Responses to demands served on nonemployees.

    (a) OFHEO reports of examinations, or any documents related 
thereto, are the property of OFHEO and are not to be disclosed to any 
person without the Director's prior written consent.
    (b) If any person who has possession of an OFHEO report of 
examination, or any documents related thereto, is served with a demand 
in a legal proceeding directing that person to produce such

[[Page 71014]]

OFHEO documents or to testify with respect thereto, such person shall 
immediately notify the General Counsel of such service, of the 
testimony and described documents in the demand, and of all relevant 
facts. Such person shall also object to the production of such 
documents or information contained therein on the basis that the 
documents are the property of OFHEO and cannot be released without 
OFHEO's consent and that their production must be sought from OFHEO 
following the procedures set forth in Sec. 1710.33, paragraphs (b) and 
(c) of Sec. 1710.34, and paragraph (b) of Sec. 1710.37 of this subpart.

Subpart F--Rules and Procedures for Service Upon OFHEO


Sec. 1710.51  Service of process.

    (a) Except as otherwise provided by OFHEO regulations, the Federal 
Rules of Civil Procedure, or order of a court with jurisdiction over 
OFHEO, any legal process upon OFHEO, including a legal process served 
on OFHEO demanding access to its records under the FOIA, shall be duly 
issued and served upon the General Counsel and any OFHEO personnel 
named in the caption of the documents.
    (b) Service of process upon the General Counsel may be effected by 
personally delivering a copy of the documents to the General Counsel or 
by sending a copy of the documents to the General Counsel by registered 
or certified mail, postage prepaid, to the Office of Federal Housing 
Enterprise Oversight, 1700 G Street, NW., Fourth Floor, Washington, DC 
20552.

    Dated: December 17, 1998.
Mark Kinsey,
Acting Director, Office of Federal Housing Enterprise Oversight.
[FR Doc. 98-33943 Filed 12-22-98; 8:45 am]
BILLING CODE 4220-01-U