[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Rules and Regulations]
[Pages 29633-29640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12485]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 99 / Monday, May 23, 2011 / Rules and 
Regulations  

[[Page 29633]]



FEDERAL HOUSING FINANCE AGENCY

12 CFR Part 1202

RIN 2590-AA44


Freedom of Information Act Implementation

AGENCY: Federal Housing Finance Agency.

ACTION: Interim Final Regulation with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Federal Housing Finance Agency (FHFA) is issuing this 
interim final regulation with a request for comments on changes to its 
existing Freedom of Information Act (FOIA) regulation. The changes to 
the existing FOIA regulation provide the procedures and guidelines 
under which FHFA and FHFA Office of Inspector General (FHFA-OIG) will 
implement FOIA. The interim final regulation describes the policies and 
procedures for public disclosure of information required to be 
disclosed under FOIA, and procedures to protect from disclosure 
business confidential and trade secret information, as appropriate.

DATES: The interim final regulation is effective May 23, 2011. FHFA 
will accept written comments on the interim final regulation on or 
before July 22, 2011. For additional information, see SUPPLEMENTARY 
INFORMATION.

ADDRESSES: You may submit your comments on the interim final 
regulation, identified by ``RIN 2590-AA44,'' by any of the following 
methods:
     E-mail: Comments to Alfred M. Pollard, General Counsel, 
may be sent by e-mail to [email protected]. Please include ``RIN 
2590-AA44'' in the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. If you submit your 
comment to the Federal eRulemaking Portal, please also sent it by e-
mail to FHFA at [email protected] to ensure timely receipt by FHFA. 
Include the following information in the subject line of your 
submission: ``Comments/RIN 2590-AA44.''
     U.S. Mail Service, United Parcel Service, Federal Express, 
or other commercial delivery service to: Alfred M. Pollard, General 
Counsel, Attention: Comments/RIN 2590-AA44, Federal Housing Finance 
Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. Please 
note that all mail sent to FHFA via the U.S. Mail service is routed 
through a national irradiation facility, a process that may delay 
delivery by approximately two weeks. For any time-sensitive 
correspondence, please plan accordingly.
     Hand Delivery/Courier to: Alfred M. Pollard, General 
Counsel, Attention: Comments/RIN 2590-AA44, Federal Housing Finance 
Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. The 
package must be logged at the Guard Desk, First Floor, on business days 
between 9 a.m. and 3 p.m.

FOR FURTHER INFORMATION CONTACT: David A. Lee, Chief FOIA Officer, 
telephone (202) 414-3804 (not a toll free number), Federal Housing 
Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. 
The telephone number for the Telecommunications Device for the Deaf is 
(800) 877-8339.

SUPPLEMENTARY INFORMATION: 

I. Comments

    FHFA is issuing a revision to 12 CFR part 1202 to include language 
concerning FOIA requests as they relate to FHFA-OIG, as well as to 
clarify and update the existing regulation. FHFA invites comments on 
all aspects of the interim final regulation and will take all relevant 
comments into consideration before issuing the final regulation. All 
submissions received must include the agency name or Regulatory 
Information Number (RIN) for this rulemaking. Copies of all comments 
received will be posted without change on the FHFA Internet Web site, 
http://www.fhfa.gov, and will include any personal information 
provided. In addition, copies of all comments received will be 
available for examination by the public on business days between the 
hours of 10 a.m. and 3 p.m. at the Federal Housing Finance Agency, 
Fourth Floor, 1700 G Street, NW., Washington, DC 20552. To make an 
appointment to inspect comments, please call the Office of General 
Counsel at (202) 414-3751.

II. Effective Date and Request for Comments

    FHFA has concluded that good cause exists, under 5 U.S.C. 553(b)(B) 
and (d)(3), to waive the notice-and-comment and delayed effective date 
requirements of the Administrative Procedure Act and to proceed with 
this interim final regulation. The changes to part 1202 primarily cover 
how FHFA-OIG will implement FOIA and make clarifying and general 
updates to the existing regulation, but do not fundamentally change the 
regulation's nature or scope. Further, in light of the significant need 
for immediate guidance regarding FHFA-OIG's role in the FOIA process, 
FHFA has determined that notice-and-comment rulemaking is impracticable 
and contrary to public policy. Nevertheless, FHFA is providing the 
public with a 60-day period following publication of the interim final 
regulation to submit comments. Any comments received will be considered 
prior to issuing a final regulation.

III. Background

A. Establishment of the Federal Housing Finance Agency

    The Housing and Economic Recovery Act of 2008 (HERA), Public Law 
110-289, 122 Stat. 2654, amended the Federal Housing Enterprises 
Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) 
(12 U.S.C. 4501 et seq.) and the Federal Home Loan Bank Act (12 U.S.C. 
1421-1449) to establish FHFA as an independent agency of the Federal 
Government to ensure that the Federal National Mortgage Association, 
the Federal Home Loan Mortgage Corporation, and the Federal Home Loan 
Banks (collectively, the regulated entities) are capitalized 
adequately; foster liquid, efficient, competitive and resilient 
national housing finance markets; operate in a safe and sound manner; 
comply with the Safety and Soundness Act and all rules, regulations, 
guidelines and orders issued under the Safety and Soundness Act, and 
the regulated entities' respective authorizing statutes; carry out 
their missions through activities consistent with the aforementioned

[[Page 29634]]

authorities; and the activities and operations of the regulated 
entities are consistent with the public interest.
    In 2009 FHFA issued a final regulation on FOIA at 12 CFR part 1202 
(74 FR 2342 (January 15, 2009)). This final regulation provided the 
procedures and guidelines under which FHFA would implement FOIA. FHFA-
OIG did not exist when it was issued, but came into existence the 
following year (2010). This interim final regulation updates FHFA's 
2009 FOIA regulation to provide how FHFA-OIG will implement FOIA as 
well as to clarify and update the existing regulation.

B. Establishment of the Office of Inspector General for the Federal 
Housing Finance Agency

    Section 1105 of HERA amended the Safety and Soundness Act and the 
Inspector General Act of 1978, as amended, by specifying that there 
shall be established an Inspector General within FHFA. See 12 U.S.C. 
4517(d). Among other duties, FHFA-OIG is responsible for conducting 
audits, evaluations, and investigations of FHFA's programs and 
operations; recommending policies that promote economy and efficiency 
in the administration of FHFA's programs and operations; and preventing 
and detecting fraud, waste, and abuse in FHFA's programs and 
operations.

IV. Section-by-Section Analysis

Section 1202.1 Why did FHFA issue this regulation?

    This section describes the purposes of the regulation, which are to 
implement FOIA and explain general policies and procedures for 
disclosing information under FOIA. In addition, there are minor 
editorial changes to the existing regulation for clarity and 
consistency purposes, as well as notification to the public that this 
regulation applies to FHFA-OIG.

Section 1202.2 What do the terms in this regulation mean?

    This section sets forth definitions of many terms relevant to the 
regulation and includes new definitions as well as definitions related 
to FHFA-OIG.

Section 1202.3 What information can I obtain through FOIA?

    This section is updated to explain the type of information that may 
be obtained under FOIA.

Section 1202.4 What information is exempt from disclosure?

    This section describes records that FHFA and FHFA-OIG do not have 
to disclose, even if requested.

Section 1202.5 How do I request information from FHFA or FHFA-OIG under 
FOIA?

    This section explains what a person must do to submit a valid 
request to FHFA or FHFA-OIG to disclose records. It describes the 
information to provide, to enable FHFA or FHFA-OIG to identify the 
records sought and determine whether they can be disclosed.

Section 1202.6 What if my request does not have all the information 
FHFA or FHFA-OIG requires?

    This section explains that FHFA or FHFA-OIG will give requesters an 
opportunity to modify or amend a request that is incomplete or 
insufficient. It also explains how FHFA or FHFA-OIG will treat such 
requests until adequate information is received.

Section 1202.7 How will FHFA or FHFA-OIG respond to my FOIA request?

    This section describes a multi-track method of processing requests 
and the times within which FHFA or FHFA-OIG will respond to requests. 
It also explains that FHFA or FHFA-OIG will grant or deny requests in 
writing, provide reasons if a request is denied in whole or in part, 
refer the request to another agency if it is appropriate to do so, and 
explain the right of appeal.

Section 1202.8 If the requested records contain confidential commercial 
information, what procedures will FHFA or FHFA-OIG follow?

    This section explains how FHFA and FHFA-OIG comply with Executive 
Order No. 12600 and describes special procedures required before FHFA 
or FHFA-OIG disclose confidential commercial information in response to 
a FOIA request.

Section 1202.9 How do I appeal a response denying my FOIA request?

    This section describes the process by which a requester whose 
request is denied in whole or in part may appeal. It explains when and 
how to appeal and how and within what time limits FHFA or FHFA-OIG will 
respond to appeals.

Section 1202.10 Will FHFA or FHFA-OIG expedite my request or appeal?

    This section explains how a person can ask FHFA or FHFA-OIG to 
expedite a request or appeal. It describes the reasons that justify 
expediting a request or an appeal and the time within which FHFA or 
FHFA-OIG will notify the person that the request or appeal will or will 
not be expedited.

Section 1202.11 What will it cost to get the records I requested?

    This section explains when FHFA or FHFA-OIG will charge for 
searching for and providing copies of records and how to identify the 
costs FHFA or FHFA-OIG will charge. In addition, language is being 
added regarding fee waivers.

Section 1202.12 Is there anything else I need to know about FOIA 
procedures?

    This section explains that this regulation does not create any 
independent rights, but provides procedures for exercising rights 
granted by FOIA.

Regulatory Impacts

Paperwork Reduction Act

    The regulations in this part do not contain any information 
collection requirement that requires the approval of OMB under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a regulation that has a significant economic impact on a substantial 
number of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on small entities. Such an analysis need not be 
undertaken if the agency has certified that the regulation does not 
have a significant economic impact on a substantial number of small 
entities (5 U.S.C. 605(b)). FHFA has considered the impact of the 
regulation under the Regulatory Flexibility Act. FHFA certifies that 
the regulation is not likely to have a significant economic impact on a 
substantial number of small business entities because the regulation is 
applicable only to the internal operations and legal obligations of 
FHFA and FHFA-OIG.

List of Subjects in 12 CFR Part 1202

    Appeals, Confidential commercial information, Disclosure, 
Exemptions, Fees, Final action, Freedom of Information Act, Judicial 
review, Records, Requests.

Authority and Issuance

    Accordingly, for the reasons stated in the preamble, FHFA is 
revising part 1202 of Chapter XII of title 12 of the Code of Federal 
Regulations as follows:

[[Page 29635]]

PART 1202--FREEDOM OF INFORMATION ACT

Sec.
1202.1 Why did FHFA issue this regulation?
1202.2 What do the terms in this regulation mean?
1202.3 What information can I obtain through FOIA?
1202.4 What information is exempt from disclosure?
1202.5 How do I request information from FHFA or FHFA-OIG under 
FOIA?
1202.6 What if my request does not have all the information FHFA or 
FHFA-OIG requires?
1202.7 How will FHFA or FHFA-OIG respond to my FOIA request?
1202.8 If the requested records contain confidential commercial 
information, what procedures will FHFA or FHFA-OIG follow?
1202.9 How do I appeal a response denying my FOIA request?
1202.10 Will FHFA or FHFA-OIG expedite my request or appeal?
1202.11 What will it cost to get the records I requested?
1202.12 Is there anything else I need to know about FOIA procedures?

    Authority: Pub. L. 110-289, 122 Stat. 2654; 5 U.S.C. 301, 552; 
12 U.S.C. 4526; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235; 
E.O. 13392, 70 FR 75373-75377, 3 CFR, 2006 Comp., p. 216-200.


Sec.  1202.1  Why did FHFA issue this regulation?

    (a) The Freedom of Information Act (FOIA) (5 U.S.C. 552), is a 
federal law that requires FHFA and other Federal Government agencies to 
disclose certain Federal Government records to the public.
    (b) This regulation explains the rules that FHFA and the FHFA 
Office of Inspector General (FHFA-OIG) both follow when processing and 
responding to requests for records under FOIA. It also explains what 
you must do to request records from FHFA or FHFA-OIG under FOIA. You 
should read this regulation together with FOIA, which explains in more 
detail your rights and the records FHFA or FHFA-OIG may release to you.
    (c) If you want to request information about yourself under the 
Privacy Act (5 U.S.C. 552a), you should file your request using FHFA's 
Privacy Act regulations at part 1204 of this title. If you file a FOIA 
request for information about yourself, FHFA or FHFA-OIG will process 
it as a request under the Privacy Act regulation.
    (d) FHFA and FHFA-OIG may make public information that they 
routinely publish or disclose when performing their activities without 
following these procedures.
    (e) This regulation applies to both FHFA and FHFA-OIG.


Sec.  1202.2  What do the terms in this regulation mean?

    Some of the terms you need to understand while reading this 
regulation are--
    Appeals Officer or FOIA Appeals Officer means a person designated 
by the FHFA Director to process appeals of denials of requests for FHFA 
records under FOIA. For appeals pertaining to FHFA-OIG records, Appeals 
Officer or FOIA Appeals Officer means a person designated by the FHFA 
Inspector General to process appeals of denials of requests for FHFA-
OIG records under FOIA.
    Confidential commercial information means records provided to the 
Federal Government by a submitter that contain material exempt from 
release under Exemption 4 of FOIA, 5 U.S.C. 552(b)(4), because 
disclosure could reasonably be expected to cause substantial 
competitive harm.
    Days, unless stated as ``calendar days,'' are working days and do 
not include Saturdays, Sundays, and federal holidays. If the last day 
of any period prescribed herein falls on a Saturday, Sunday, or federal 
holiday, the last day of the period will be the next working day that 
is not a Saturday, Sunday, or federal holiday.
    Direct costs means the expenses, including contract services, 
incurred by FHFA or FHFA-OIG, in searching for, reviewing and/or 
duplicating records to respond to a request for information. In the 
case of a commercial use request, the term also means those 
expenditures FHFA or FHFA-OIG actually incurs in reviewing records to 
respond to the request. Direct costs include the cost of the time of 
the employee performing the work, the cost of any computer searches, 
and the cost of operating duplication equipment. Direct costs do not 
include overhead expenses such as costs of space, and heating or 
lighting the facility in which the records are stored.
    Employee, for the purposes of this regulation, means any person 
holding an appointment to a position of employment with FHFA or FHFA-
OIG, or any person who formerly held such an appointment; any 
conservator appointed by FHFA; or any agent or independent contractor 
acting on behalf of FHFA or FHFA-OIG, even though the appointment or 
contract has terminated.
    FHFA means the Federal Housing Finance Agency and includes its 
predecessor agencies, the Office of Federal Housing Enterprise 
Oversight (OFHEO) and the Federal Housing Finance Board (FHFB).
    FHFA-OIG means the Office of Inspector General for FHFA.
    FOIA Officer and Chief FOIA Officer are persons designated by the 
FHFA Director to process and respond to requests for FHFA records under 
FOIA.
    FOIA Official is a person designated by the FHFA Inspector General 
to process requests for FHFA-OIG records under FOIA.
    Office of Finance means the Office of Finance of the Federal Home 
Loan Bank System or any successor thereto.
    Readily reproducible means that the requested record or records 
exist in electronic format and can be downloaded or transferred intact 
to a computer disk, tape, or another electronic medium with equipment 
and software currently in use by FHFA or FHFA-OIG.
    Record means information or documentary material FHFA or FHFA-OIG 
maintains in any form or format, including electronic, which FHFA or 
FHFA-OIG--
    (1) Created or received under federal law or in connection with the 
transaction of public business;
    (2) Preserved or determined is appropriate for preservation as 
evidence of operations or activities of FHFA or FHFA-OIG, or because of 
the value of the information it contains; and
    (3) Controls at the time it receives a request for disclosure.
    Regulated entities means the Federal Home Loan Mortgage Corporation 
and any affiliate thereof, the Federal National Mortgage Association 
and any affiliate thereof, and the Federal Home Loan Banks.
    Requester means any person seeking access to FHFA or FHFA-OIG 
records under FOIA.
    Search time means the amount of time spent by or on behalf of FHFA 
or FHFA-OIG in attempting to locate records responsive to a request, 
whether manually or by electronic means, including but not limited to 
page-by-page or line-by-line identification of responsive material 
within a record or extraction of electronic information from electronic 
storage media.
    Submitter means any person or entity providing confidential 
information to the Federal Government. The term ``submitter'' includes, 
but is not limited to corporations, state governments, and foreign 
governments.
    Unusual circumstances means the need to--
    (1) Search for and/or collect records from agencies, offices, 
facilities, or locations that are separate from the office processing 
the request;
    (2) Search, review, and/or duplicate a voluminous amount of 
separate and

[[Page 29636]]

distinct records in order to process a single request; or
    (3) Consult with another agency or among two or more components of 
FHFA or FHFA-OIG that have a substantial interest in the determination 
of a request.


Sec.  1202.3  What information can I obtain through FOIA?

    (a) General. FHFA and FHFA-OIG prohibit employees from releasing or 
disclosing confidential or otherwise non-public information that FHFA 
or FHFA-OIG possesses, except as authorized by this regulation, by the 
Director of FHFA for FHFA records, or by the FHFA Inspector General for 
FHFA-OIG records, when the disclosure is necessary for the performance 
of official duties.
    (b) Records. You may request that FHFA or FHFA-OIG disclose to you 
its records on a subject of interest to you. FOIA only requires the 
disclosure of records. It does not require FHFA or FHFA-OIG to create 
compilations of information or to provide narrative responses to 
questions or queries. Some information is exempt from disclosure.
    (c) Reading rooms.--(1) FHFA maintains electronic and physical 
reading rooms. FHFA's physical reading room is located at 1700 G 
Street, NW., Fourth Floor, Washington, DC 20552, and is open to the 
public by appointment from 9 a.m. to 3 p.m. each business day. For an 
appointment, contact the FOIA Officer by calling (202) 414-6425 or by 
e-mail at [email protected]. The electronic reading room is part of the 
FHFA Web site at http://www.fhfa.gov. FHFA-OIG also maintains 
electronic and physical reading rooms. FHFA-OIG's physical reading room 
is located at 1625 Eye Street, NW., Washington, DC 20006, and is open 
to the public by appointment from 9 a.m. to 3 p.m. each business day. 
For an appointment, contact FHFA-OIG by calling (202) 408-2577 or by e-
mail at [email protected]. The electronic reading room is part of 
the FHFA-OIG Web site at http://www.fhfaoig.gov.
    (2) Each reading room has the following records created after 
November 1, 1996, by FHFA or its predecessor agencies, or by FHFA-OIG, 
and current indices to the following records created by FHFA or its 
predecessor agencies or FHFA-OIG before or after November 1, 1996:
    (i) Final opinions or orders issued in adjudication;
    (ii) Statements of policy and interpretation that are not published 
in the Federal Register;
    (iii) Administrative staff manuals and instructions to staff that 
affect a member of the public and are not exempt from disclosure under 
FOIA; and
    (iv) Copies of records released under FOIA that FHFA or FHFA-OIG 
determines have become or are likely to become the subject of 
subsequent requests for substantially similar records.


Sec.  1202.4  What information is exempt from disclosure?

    (a) General. Unless the Director of FHFA or his or her designee for 
FHFA records, the FHFA Inspector General or his or her designee for 
FHFA-OIG records, or any regulation or statute specifically authorizes 
disclosure, neither FHFA nor FHFA-OIG will release records that are--
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy, and in fact is properly classified pursuant to such 
Executive Order;
    (2) Related solely to FHFA's or FHFA-OIG's internal personnel rules 
and practices;
    (3) Specifically exempted from disclosure by statute (other than 5 
U.S.C. 552a), provided that such statute--
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Contained in inter-agency or intra-agency memoranda or letters 
that would not be available by law to a private party in litigation 
with FHFA or FHFA-OIG;
    (6) Contained in personnel, medical or similar files (including 
financial files) the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy;
    (7) Compiled for law enforcement purposes, but only to the extent 
that the production of such law enforcement records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a state, local, or foreign agency or 
authority or any private institution or an entity that is regulated and 
examined by FHFA that furnished information on a confidential basis, 
and, in the case of a record compiled by FHFA-OIG or a criminal law 
enforcement authority in the course of a criminal investigation or by 
an agency conducting a lawful national security intelligence 
investigation, information furnished by a confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Contained in or related to examination, operating, or condition 
reports that are prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial 
institutions; or
    (9) Geological and geophysical information and data, including 
maps, concerning wells.
    (b) Discretion to apply exemptions. Although records or parts of 
them may be exempt from disclosure, FHFA or FHFA-OIG may elect under 
the circumstances of any particular request not to apply an exemption. 
This election does not generally waive the exemption and it does not 
have precedential effect. FHFA or FHFA-OIG may still apply an exemption 
to any other records or portions of records, regardless of when the 
request is received.
    (c) Redacted portion. If a requested record contains exempt 
information and information that can be disclosed and the portions can 
reasonably be segregated from each other, the disclosable portion of 
the record will be released to the requester after FHFA or FHFA-OIG 
deletes the exempt portions. If it is technically feasible, FHFA or 
FHFA-OIG will indicate the amount of the information deleted at the 
place in the record where the deletion is made and include a notation 
identifying the exemption that was applied, unless including that 
indication would harm an interest protected by an exemption.
    (d) Exempt and redacted material. FHFA and FHFA-OIG are not 
required to provide an itemized index correlating each withheld 
document (or redacted portion) with a specific exemption justification.
    (e) Disclosure to Congress. This section does not allow FHFA or 
FHFA-OIG to withhold any information from, or to prohibit the 
disclosure of any information to, Congress or any

[[Page 29637]]

Congressional committee or subcommittee.


Sec.  1202.5  How do I request information from FHFA or FHFA-OIG under 
FOIA?

    (a) Where to send your request. FOIA requests must be in writing. 
You may make a request for FHFA or FHFA-OIG records by writing directly 
to FHFA's FOIA Office through electronic mail, mail, delivery service, 
or facsimile. The electronic mail address is: [email protected]. For mail 
or delivery service, the mailing address is: FOIA Officer, Federal 
Housing Finance Agency, 1700 G Street, NW., Washington, DC 20552. The 
facsimile number is: (202) 414-8917. Requests for FHFA-OIG records will 
be forwarded to FHFA-OIG for processing and direct response. You can 
help FHFA and FHFA-OIG process your request by marking electronic mail, 
letters, or facsimiles and the subject line, envelope, or facsimile 
cover sheet with ``FOIA Request.'' FHFA's ``Freedom of Information Act 
Reference Guide,'' which is available on FHFA's Web site, http://www.fhfa.gov, provides additional information to assist you in making 
your request.
    (b) Provide your name and address. Your request must include your 
full name, your address and, if different, the address at which FHFA or 
FHFA-OIG is to notify you about your request, a telephone number at 
which you can be reached during normal business hours, and an 
electronic mail address, if any.
    (c) Request is under FOIA. Your request must have a statement 
identifying it as being made under FOIA.
    (d) Your FOIA status. If you are submitting your request as a 
``commercial use'' requester, an ``educational institution'' requester, 
a ``non-commercial scientific institution'' requester, or a 
``representative of the news media'' for the purposes of the fee 
provisions of FOIA, your request must include a statement specifically 
identifying your status.
    (e) Describing the records you request. You must describe the 
records that you seek in enough detail to enable FHFA or FHFA-OIG 
personnel to locate them with a reasonable amount of effort. Your 
request should include as much specific information as possible that 
you know about each record you request, such as the date, title, name, 
author, recipient, subject matter, or file designations, or the 
description of the record.
    (f) How you want the records produced to you. Your request must 
tell FHFA or FHFA-OIG whether you will inspect the records before 
duplication or want them duplicated and furnished without inspection.
    (g) Agreement to pay fees. In your FOIA request you must agree to 
pay all applicable fees charged under Sec.  1202.11, up to $100.00, 
unless you seek a fee waiver. When making a request, you may specify a 
higher or lower amount you will pay without consultation. Your 
inability to pay a fee does not justify granting a fee waiver.
    (h) Valid requests. FHFA and FHFA-OIG will only process valid 
requests. A valid request must meet all the requirements of this part.


Sec.  1202.6  What if my request does not have all the information FHFA 
or FHFA-OIG requires?

    If FHFA or FHFA-OIG determines that your request does not 
reasonably describe the records you seek, is overly broad, cannot yet 
be processed for reasons related to fees, or lacks required 
information, you will be informed in writing why your request cannot be 
processed. You will be given 15 calendar days to modify your request to 
meet all requirements. This request for additional information tolls 
the time period for FHFA or FHFA-OIG to respond to your request under 
Sec.  1202.7.
    (a) If you respond with the necessary information, FHFA or FHFA-OIG 
will process that response as a new request and the time period for 
FHFA or FHFA-OIG to respond to your request will start from the date 
the additional information is actually received by FHFA or FHFA-OIG.
    (b) If you do not respond or provide additional information within 
the time allowed, or if the additional information you provide is still 
incomplete or insufficient, FHFA and FHFA-OIG will consider your 
request withdrawn and will notify you that it will not be processed.


Sec.  1202.7  How will FHFA and FHFA-OIG respond to my FOIA request?

    (a) Authority to grant or deny requests. The FOIA Officer and the 
Chief FOIA Officer are authorized to grant or deny any request for FHFA 
records. For FHFA-OIG records, the designated FHFA-OIG FOIA Official is 
authorized to grant or deny any request for FHFA-OIG records.
    (b) Multi-Track request processing. FHFA and FHFA-OIG use a multi-
track system to process FOIA requests. This means that a FOIA request 
is processed based on its complexity. When FHFA or FHFA-OIG receives 
your request, it is assigned to a Standard Track or Complex Track. FHFA 
or FHFA-OIG will notify you if your request is assigned to the Complex 
Track as described in paragraph (f) of this section.
    (1) Standard Track. FHFA and FHFA-OIG assign FOIA requests that are 
routine and require little or no search time, review, or analysis to 
the Standard Track. FHFA and FHFA-OIG respond to these requests within 
20 days after receipt, in the order in which they are received. If FHFA 
or FHFA-OIG determines while processing your Standard Track request, 
that it is more appropriately a Complex Track request, it will be 
reassigned to the Complex Track and you will be notified as described 
in paragraph (f) of this section.
    (2) Complex Track.--(i) FHFA and FHFA-OIG assign requests that are 
non-routine to the Complex Track. Complex Track requests are those to 
which FHFA or FHFA-OIG determines that the request and/or response 
may--
    (A) Be voluminous;
    (B) Involve two or more FHFA or FHFA-OIG units;
    (C) Require consultation with other agencies or entities;
    (D) Require searches of archived documents;
    (E) Seek confidential commercial information as described in Sec.  
1202.8;
    (F) Require an unusually high level of effort to search for, review 
and/or duplicate records;
    (G) Cause undue disruption to the day-to-day activities of FHFA in 
regulating and supervising the regulated entities; or
    (H) Cause undue disruption to the day-to-day activities of FHFA-OIG 
in carrying out its statutory responsibilities.
    (ii) FHFA or FHFA-OIG will respond to Complex Track requests as 
soon as reasonably possible, regardless of the date of receipt.
    (c) Referrals to other agencies. When FHFA or FHFA-OIG receives a 
request seeking records that originated in another Federal Government 
agency, FHFA or FHFA-OIG will refer the request to the other agency for 
response. You will be notified if your request is referred to another 
agency.
    (d) Responses to FOIA requests. FHFA or FHFA-OIG will respond to 
your request by granting or denying it in full, or by granting and 
denying it in part. The response will be in writing. In determining 
which records are responsive to your request, FHFA and FHFA-OIG will 
conduct searches for records FHFA or FHFA-OIG possesses as of the date 
of your request.
    (1) Requests that FHFA or FHFA-OIG grants. If FHFA or FHFA-OIG 
grants your request, the response will include the requested records or 
details about

[[Page 29638]]

how FHFA or FHFA-OIG will provide them to you and the amount of any 
fees charged.
    (2) Requests that FHFA or FHFA-OIG denies, or grants and denies in 
part. If FHFA or FHFA-OIG denies your request in whole or in part 
because a requested record does not exist or cannot be located, is not 
readily reproducible in the form or format you sought, is not subject 
to FOIA, or is exempt from disclosure, the written response will 
include the requested releasable records, if any, the amount of any 
fees charged, the reasons for denial, and a notice and description of 
your right to file an administrative appeal under Sec.  1202.9.
    (e) Format and delivery of disclosed records. If FHFA or FHFA-OIG 
grants, in whole or in part, your request for disclosure of records 
under FOIA, the records may be made available to you in the form or 
format you requested, if they are readily reproducible in that form or 
format. The records will be sent to the address you provided by regular 
U.S. Mail or by electronic mail unless alternate arrangements are made 
by mutual agreement, such as your agreement to pay express or expedited 
delivery service fees or to pick up records at FHFA or FHFA-OIG 
offices.
    (f) Extensions of time.--(1) In unusual circumstances, FHFA or 
FHFA-OIG may extend the Standard Track time limit in paragraph (b)(1) 
of this section for no more than 10 days and notify you of--
    (i) The reason for the extension; and
    (ii) The date on which the determination is expected.
    (2) For requests in the Complex Track, FHFA or FHFA-OIG will 
provide you with an opportunity to modify or reformulate your request 
so that it may be processed on the Standard Track. If the request 
cannot be modified or reformulated to permit processing on the Standard 
Track, FHFA or FHFA-OIG will notify you regarding an alternative time 
period for processing the request.


Sec.  1202.8  If the requested records contain confidential commercial 
information, what procedures will FHFA or FHFA-OIG follow?

    (a) General. FHFA or FHFA-OIG will not disclose confidential 
commercial information in response to your FOIA request except as 
described in this section.
    (b) Designation of confidential commercial information. Submitters 
of commercial information must use good-faith efforts to designate, by 
appropriate markings, either at the time of submission or at a 
reasonable time thereafter, those portions of the information they deem 
to be protected under 5 U.S.C. 552(b)(4) and Sec.  1202.4(a)(4). Any 
such designation will expire 10 years after the records are submitted 
to the Federal Government, unless the submitter requests, and provides 
reasonable justification for, a designation period of longer duration.
    (c) Pre-disclosure notification. Except as provided in paragraph 
(e) of this section, if your FOIA request encompasses confidential 
commercial information, FHFA or FHFA-OIG will, prior to disclosure of 
the information and to the extent permitted by law, provide prompt 
written notice to a submitter that confidential commercial information 
was requested when--
    (1) The submitter has in good faith designated the information as 
confidential commercial information protected from disclosure under 5 
U.S.C. 552(b)(4) and Sec.  1202.4(a)(4); or
    (2) FHFA or FHFA-OIG has reason to believe that the request seeks 
confidential commercial information, the disclosure of which may result 
in substantial competitive harm to the submitter.
    (d) Content of pre-disclosure notification. When FHFA or FHFA-OIG 
sends a pre-disclosure notification to a submitter, it will contain--
    (1) A description of the confidential commercial information 
requested or copies of the records or portions thereof containing the 
confidential business information; and
    (2) An opportunity to object to disclosure within 10 days or such 
other time period that FHFA or FHFA-OIG may allow, by providing to FHFA 
or FHFA-OIG a detailed written statement demonstrating all reasons the 
submitter opposes disclosure.
    (e) Exceptions to pre-disclosure notification. FHFA or FHFA-OIG is 
not required to send a pre-disclosure notification if--
    (1) FHFA or FHFA-OIG determines that information should not be 
disclosed;
    (2) The information has been published lawfully or has been made 
officially available to the public;
    (3) Disclosure of the information is required by law, other than 
FOIA;
    (4) The information requested is not designated by the submitter as 
confidential commercial information pursuant to this section; or
    (5) The submitter's designation, under paragraph (b) of this 
section, appears on its face to be frivolous; except that FHFA or FHFA-
OIG will provide the submitter with written notice of any final 
decision to disclose the designated confidential commercial information 
within a reasonable number of days prior to a specified disclosure 
date.
    (f) Submitter's objection to disclosure. A submitter may object to 
disclosure within 10 days after date of the Pre-disclosure 
Notification, or such other time period that FHFA or FHFA-OIG may 
allow, by delivering to FHFA or FHFA-OIG a statement demonstrating all 
grounds on which it opposes disclosure, and all reasons supporting its 
contention that the information should not be disclosed. The 
submitter's objection must contain a certification by the submitter, or 
an officer or authorized representative of the submitter, that the 
grounds and reasons presented are true and correct to the best of the 
submitter's knowledge. The submitter's objection may itself be subject 
to disclosure under FOIA.
    (g) Notice of intent to disclose information. FHFA or FHFA-OIG will 
carefully consider all grounds and reasons provided by a submitter 
objecting to disclosure. If FHFA or FHFA-OIG decides to disclose the 
information over the submitter's objection, the submitter will be 
provided with a written notice of intent to disclose at least 10 days 
before the date of disclosure. The written notice will contain--
    (1) A statement of the reasons why the information will be 
disclosed;
    (2) A description of the information to be disclosed; and
    (3) A specific disclosure date.
    (h) Notice to requester. FHFA or FHFA-OIG will give a requester 
whose request encompasses confidential commercial information--
    (1) A written notice that the request encompasses confidential 
commercial information that may be exempt from disclosure under 5 
U.S.C. 552(b)(4) and Sec.  1202.4(a)(4) and that the submitter of the 
information has been given a pre-disclosure notification with the 
opportunity to comment on the proposed disclosure of the information; 
and
    (2) A written notice that a notice of intent to disclose has been 
provided to the submitter, and that the submitter has 10 days, or such 
other time period that FHFA or FHFA-OIG may allow, to respond.
    (i) Notice of FOIA lawsuit. FHFA or FHFA-OIG will promptly notify 
the submitter whenever a requester files suit seeking to compel 
disclosure of the submitter's confidential commercial information. FHFA 
or FHFA-OIG will promptly notify the requester whenever a submitter 
files suit seeking to prevent disclosure of information.

[[Page 29639]]

Sec.  1202.9  How do I appeal a response denying my FOIA request?

    (a) Right of appeal. If FHFA or FHFA-OIG denied your request in 
whole or in part, you may appeal the denial by writing directly to the 
FOIA Appeals Officer through electronic mail, mail, delivery service, 
or facsimile. The electronic mail address is: [email protected]. For mail 
or delivery service, the mailing address is: FOIA Appeals Officer, 
Federal Housing Finance Agency, 1700 G Street, NW., Washington, DC 
20552. The facsimile number is: (202) 414-8917. You can help FHFA and 
FHFA-OIG process your appeal by marking electronic mail, letters, or 
facsimiles and the subject line, envelope, or facsimile cover sheet 
with ``FOIA Appeal.'' For appeals of denials, whether in whole or in 
part, made by FHFA-OIG, the appeal must be clearly marked by adding 
``FHFA-OIG'' after ``FOIA Appeal.'' All appeals from denials, in whole 
or in part, made by FHFA-OIG will be forwarded to the FHFA-OIG FOIA 
Appeals Officer for processing and direct response. FHFA's ``Freedom of 
Information Act Reference Guide,'' which is available on FHFA's Web 
site, http://www.fhfa.gov, provides additional information to assist 
you in making your appeal.
    (b) Timing, form, content, and receipt of an appeal. Your appeal 
must be written and submitted within 30 calendar days of the date of 
the decision by FHFA or FHFA-OIG denying, in whole or in part, your 
request. Your appeal must include a copy of the initial request, a copy 
of the letter denying the request in whole or in part, and a statement 
of the circumstances, reasons, or arguments you believe support 
disclosure of the requested record(s). FHFA and FHFA-OIG will not 
consider an improperly addressed appeal to have been received for the 
purposes of the 20-day time period of paragraph (d) of this section 
until it is actually received by FHFA.
    (c) Extensions of time to appeal. If you need more time to file 
your appeal, you may request, in writing, an extension of time of no 
more than 10 calendar days in which to file your appeal, but only if 
your request is made within the original 30-calendar day time period 
for filing the appeal. Granting such an extension is in the sole 
discretion of the FHFA or FHFA-OIG FOIA Appeals Officer.
    (d) Final action on appeal. FHFA's or FHFA-OIG's determination on 
your appeal will be in writing, signed by the FHFA or FHFA-OIG FOIA 
Appeals Officer, and sent to you within 20 days after the appeal is 
received, or by the last day of the last extension under paragraph (e) 
of this section. The determination of an appeal is the final action of 
FHFA or FHFA-OIG on a FOIA request. A determination may--
    (1) Affirm, in whole or in part, the initial denial of the request 
and may include a brief statement of the reason or reasons for the 
decision, including each FOIA exemption relied upon;
    (2) Reverse, in whole or in part, the denial of a request in whole 
or in part, and require the request to be processed promptly in 
accordance with the decision; or
    (3) Remand a request to FHFA or FHFA-OIG, as appropriate, for re-
processing, stating the time limits for responding to the remanded 
request.
    (e) Notice of delayed determinations on appeal. If FHFA or FHFA-OIG 
cannot send a determination on your appeal within the 20-day time 
limit, the designated Appeals Officer will continue to process the 
appeal and upon expiration of the time limit, will inform you of the 
reason(s) for the delay and the date on which a determination may be 
expected. In this notice of delay, the FHFA or FHFA-OIG FOIA Appeals 
Officer may request that you forebear seeking judicial review until a 
final determination is made.
    (f) Judicial review. If the denial of your request for records is 
upheld in whole or in part, or if a determination on your appeal has 
not been sent at the end of the 20-day period in paragraph (d) of this 
section, or the last extension thereof, you may seek judicial review 
under 5 U.S.C. 552(a)(4).


Sec.  1202.10  Will FHFA or FHFA-OIG expedite my request or appeal?

    (a) Request for expedited processing. You may request, in writing, 
expedited processing of an initial request or of an appeal. FHFA or 
FHFA-OIG may grant expedited processing, and give your request or 
appeal priority if your request for expedited processing demonstrates a 
compelling need by establishing one or more of the following--
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (2) An urgency to inform the public about an actual or alleged 
Federal Government activity if you are a person primarily engaged in 
disseminating information;
    (3) The loss of substantial due process or rights;
    (4) A matter of widespread and exceptional media interest in which 
there exists possible questions about the Federal Government's 
integrity, affecting public confidence; or
    (5) Humanitarian need.
    (b) Certification of compelling need. Your request for expedited 
processing must include a statement certifying that the reason(s) you 
present demonstrate a compelling need are true and correct to the best 
of your knowledge.
    (c) Determination on request. FHFA or FHFA-OIG will notify you 
within 10 days of receipt of your request whether expedited processing 
has been granted. If a request for expedited treatment is granted, the 
request will be given priority and will be processed as soon as 
practicable. If a request for expedited processing is denied, any 
appeal under Sec.  1202.9 of that decision will be acted on 
expeditiously.


Sec.  1202.11  What will it cost to get the records I requested?

    (a) Assessment of fees, generally. FHFA or FHFA-OIG will assess you 
for fees covering the direct costs of responding to your request and 
costs for duplicating records, except as otherwise provided in a 
statute with respect to the determination of fees that may be assessed 
for disclosure, search time, or review of particular records.
    (b) Assessment of fees, categories of requesters. The fees that 
FHFA or FHFA-OIG may assess vary depending on the type of request or 
the type of requester you are--
    (1) Commercial use. If you request records for a commercial use, 
the fees that FHFA or FHFA-OIG may assess are limited to FHFA's or 
FHFA-OIG's operating costs incurred for document search, review, and 
duplication.
    (2) Educational institution, noncommercial scientific institution, 
or representative of the news media. If you are not requesting records 
for commercial use and you are an educational institution or a 
noncommercial scientific institution, whose purpose is scholarly or 
scientific research, or a representative of the news media, the fees 
that may be assessed are limited to standard reasonable charges for 
duplication in excess of 100 pages or an electronic equivalent of 100 
pages.
    (3) Other. If neither paragraph (b)(1) nor paragraph (b)(2) of this 
section applies, the fees assessed are limited to the costs for 
document searching in excess of two hours and duplication in excess of 
100 pages, or an electronic equivalent of 100 pages.
    (c) Fee schedule. The current schedule of fees is maintained on 
FHFA's Web site at: http://www.fhfa.gov.
    (d) Notice of anticipated fees in excess of $100.00. When FHFA or 
FHFA-OIG determines or estimates that the fees chargeable to you will 
exceed $100.00,

[[Page 29640]]

you will be notified of the actual or estimated amount of fees you will 
incur, unless you earlier indicated your willingness to pay fees as 
high as those anticipated. When you are notified that the actual or 
estimated fees exceed $100.00, your FOIA request will not be considered 
received by FHFA or FHFA-OIG until you agree to pay the anticipated 
total fee.
    (e) Advance payment of fees. FHFA or FHFA-OIG may request that you 
pay estimated fees or a deposit in advance of responding to your 
request. If FHFA or FHFA-OIG requests advance payment or a deposit, 
your request will not be considered received by FHFA or FHFA-OIG until 
the advance payment or deposit is received. FHFA or FHFA-OIG will 
request advance payment or a deposit if--
    (1) The fees are likely to exceed $500.00. FHFA or FHFA-OIG will 
notify you of the likely cost and obtain from you satisfactory 
assurance of full payment if you have a history of prompt payment of 
FOIA fees to FHFA or FHFA-OIG;
    (2) You do not have a history of payment, or if the estimate of 
fees exceeds $1,000.00, FHFA or FHFA-OIG may require an advance payment 
of fees in an amount up to the full estimated charge that will be 
incurred;
    (3) You previously failed to pay a fee to FHFA or FHFA-OIG in a 
timely fashion, i.e., within 30 calendar days of the date of a billing, 
FHFA or FHFA-OIG may require you to make advance payment of the full 
amount of the fees anticipated before processing a new request or 
finishing processing of a pending request; or
    (4) You have an outstanding balance due from a prior request. FHFA 
or FHFA-OIG may require you to pay the full amount owed plus any 
applicable interest, as provided in paragraph (f) of this section, or 
demonstrate that the fee owed has been paid, as well as payment of the 
full amount of anticipated fees before processing your request.
    (f) Interest. FHFA or FHFA-OIG may charge you interest on an unpaid 
bill starting on the 31st calendar day following the day on which the 
bill was sent. Once a fee payment has been received by FHFA or FHFA-
OIG, even if not processed, FHFA or FHFA-OIG will stay the accrual of 
interest. Interest charges will be assessed at the rate prescribed by 
31 U.S.C. 3717 and will accrue from the date of the billing.
    (g) FHFA or FHFA-OIG assistance to reduce costs. If FHFA or FHFA-
OIG notifies you of estimated fees exceeding $100.00 or requests 
advance payment or a deposit, you will have an opportunity to consult 
with FHFA or FHFA-OIG FOIA staff to modify or reformulate your request 
to meet your needs at a lower cost.
    (h) Fee waiver requests. You may request a fee waiver in accordance 
with FOIA and this regulation. FHFA or FHFA-OIG may grant your fee 
waiver request if disclosure of the information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the Federal Government 
and is not primarily in the commercial interest of the requester. In 
submitting a fee waiver request, you must address the following six 
factors--
    (1) Whether the subject of the requested records concerns the 
operations or activities of the Federal Government;
    (2) Whether the disclosure is likely to contribute to an 
understanding of Federal Government operations or activities;
    (3) Whether disclosure of the requested information will contribute 
to public understanding;
    (4) Whether the disclosure is likely to contribute significantly to 
public understanding of Federal Government operations or activities;
    (5) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and
    (6) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is primarily in the commercial 
interest of the requester.
    (i) Determination on request. FHFA or FHFA-OIG will notify you 
within 20 days of receipt of your request whether the fee waiver has 
been granted. A request for fee waiver that is denied may only be 
appealed when a final decision has been made on the initial FOIA 
request.


Sec.  1202.12  Is there anything else I need to know about FOIA 
procedures?

    This FOIA regulation does not and shall not be construed to create 
any right or to entitle any person, as of right, to any service or to 
the disclosure of any record to which such person is not entitled under 
FOIA. This regulation only provides procedures for requesting records 
under FOIA.

    Dated: May 12, 2011.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2011-12485 Filed 5-20-11; 8:45 am]
BILLING CODE 8070-01-P