[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Rules and Regulations]
[Pages 4643-4645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1967]



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  Federal Register / Vol. 77, No. 20 / Tuesday, January 31, 2012 / 
Rules and Regulations  

[[Page 4643]]



FEDERAL HOUSING FINANCE AGENCY

12 CFR Part 1202

RIN 2590-AA44


Freedom of Information Act Implementation

AGENCY: Federal Housing Finance Agency.

ACTION: Final rule.

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

SUMMARY: The Federal Housing Finance Agency (FHFA) issues this final 
regulation revising its existing Freedom of Information Act (FOIA) 
regulation. This final regulation provides procedures and guidelines 
under which FHFA and the FHFA Office of Inspector General (FHFA-OIG) 
will implement FOIA.

DATES: The final regulation is effective January 31, 2012.

FOR FURTHER INFORMATION CONTACT: David A. Lee, FHFA Chief FOIA Officer, 
(202) 649-3058, [email protected] (not a toll-free number), Federal 
Housing Finance Agency, 400 Seventh Street SW., Eighth Floor, 
Washington, DC 20024. Please note that all mail sent to FHFA via the 
United States Postal 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. The 
telephone number for the Telecommunications Device for the Hearing 
Impaired (TDD) is (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Interim Final Regulation

    FHFA issued an interim final regulation on May 23, 2011 at 76 FR 
29633 revising its 2009 FOIA regulation in various aspects. These 
revisions were necessary to provide procedures and guidelines under 
which FHFA and FHFA-OIG would implement FOIA, as well as to implement 
certain necessary updates and revisions to the 2009 regulation. FHFA 
solicited public comments on the interim final regulation for a 60-day 
period that ended on July 22, 2011.

II. Analysis of Comment Received and Final Regulation

    FHFA received one comment letter in response to the interim final 
regulation from the National Archives and Records Administration's 
Office of Government Information Services (NARA). NARA recommended 
several changes to the interim final regulation. These changes are 
discussed below. Additionally, since the publication of the interim 
final regulation, FHFA has relocated its headquarters and its mailing 
address and contact information for the FOIA program has changed. As a 
result, FHFA will also be making technical changes to the regulation to 
include the new mailing address and telephone, and facsimile numbers 
for the FOIA program.

Section 1202.1--Why did FHFA issue this regulation?

    NARA suggested revising Sec.  1202.1(c) to clarify how FHFA and 
FHFA-OIG will handle first-party access requests--i.e., a request for 
information about yourself--which are commonly submitted pursuant to 
the Privacy Act. FHFA and FHFA-OIG agree with this recommendation and 
have revised the final regulation to clarify how first-party access 
requests will be handled.

Section 1202.2--What do the terms in this regulation mean?

    NARA suggested adding definitions for the terms ``FOIA Liaison,'' 
``Fee Waiver,'' and ``Requester Category.'' FHFA has revised the 
regulation to include definitions for the terms ``FOIA Liaison'' and 
``Fee Waiver.'' As for NARA's recommendation regarding the term 
``Requester Category,'' FHFA and FHFA-OIG have incorporated three 
different categories into the definition of ``Requester in the final 
regulation.'' Therefore, a separate, stand-alone definition of 
``Requester Category'' is unnecessary and has not been adopted in the 
final regulation.
    NARA also suggested that clarifying language be added to the 
definition of ``Direct Costs,'' at least to the extent that such costs 
may relate to contract services costs. Since neither FHFA nor FHFA-OIG 
uses or contemplates using contract services to fulfill FOIA 
responsibilities, the term's current definition is sufficiently 
descriptive and no further clarification is necessary, and none has 
been adopted in the final regulation.
    NARA further suggested that the definition of ``Unusual 
Circumstances'' be revised to ``differentiate between FHFA's 12 Federal 
Home Loan Banks (FHLBanks) located across the country and an office 
that is on another floor or a few blocks away.'' This comment suggests 
that the FHLBanks are units of FHFA. FHLBanks are not units of FHFA. 
FHFA regulates the FHLBanks, which are wholly private entities and 
therefore not subject to FOIA. Any reference in this final regulation 
to ``other components'' of FHFA or FHFA-OIG refers to offices within 
FHFA or FHFA-OIG, not to the FHLBanks. As a result, such a revision is 
unnecessary and has not been adopted in the final regulation.

Section 1202.3--What information can I obtain through FOIA?

    NARA recommended that Sec.  1202.3(b) be revised to expand the 
universe of information a requester may obtain to include compilations 
of information contained in databases, ``especially if a compilation 
can be produced through a few keystrokes.'' FHFA and FHFA-OIG decline 
to make this change. NARA's recommendation would require proactive 
disclosure of anything that might be produced electronically while 
imposing an undue burden, regardless of whether the requester sought 
it. However, if a requester seeks a compilation of information 
contained in databases, he or she may ask for it. This position is 
consistent with FOIA and with applicable case precedent. Therefore, 
FHFA and FHFA-OIG decline to adopt NARA's suggested modification. FHFA, 
however, will be making technical changes to this section to update the 
contact information of the FOIA program to that of FHFA's new 
headquarters.

Section 1202.4--What information is exempt from disclosure?

    NARA recommended that Sec.  1202.4(d), which specifically concerns 
``[e]xempt and redacted material,'' be revised to make plain that no 
itemized index of withheld materials needs to be provided to a 
requester ``at the administrative

[[Page 4644]]

stage of processing a request.'' The current language of paragraph (d) 
complies with applicable statutory and precedential requirements for 
FOIA. Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested 
modification.

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

    NARA suggested that Sec.  1202.5(c) through (g) be revised to 
indicate not that requesters ``must'' comply with the procedural 
requirements set forth therein, but that they merely ``should'' do so. 
FHFA and FHFA-OIG decline to adopt this recommendation. Establishing 
clear requirements minimizes ambiguity in processing and handling FOIA 
requests, and helps ensure that all requesters are treated equally. 
Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested 
modification.
    NARA also suggested that Sec.  1202.5(d) be revised to indicate 
that requesters should attempt to identify their fee status, but not 
absolutely require that they do so. FHFA and FHFA-OIG agree and have 
made the suggested modification.
    Additionally, FHFA will be making technical changes to this section 
to update the contact information of the FOIA program to that of FHFA's 
new headquarters.

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

    In the interim final regulation, Sec.  1202.7(c), Referrals to 
other agencies, provided that FHFA and FHFA-OIG refer requests that 
seek records originating in other agencies to that agency. It also 
provided that the requester be notified when such referrals occur. NARA 
recommended that Sec.  1202.7(c) be revised to provide that FHFA and 
FHFA-OIG also notify requesters of what part of the request was 
referred, the name of the agency to which the request was referred, as 
well as the name of a contact at that agency to whom the requester may 
speak about the referred request. As a matter of procedure, FHFA 
provides this information to requesters but will include that procedure 
expressly in Sec.  1202.7(c).
    NARA also recommended that Sec.  1202.7(d) be revised to designate 
the ``search cut-off date''--i.e., the date of the request--as the date 
of search, on the presumption that such a designation could ``result in 
a much fuller search.'' As a matter of policy, however, FHFA and FHFA-
OIG consistently use the date on which each request is received as the 
date of search. Further, it is not evident that the recommended change 
would necessarily result in a ``fuller'' search. FHFA and FHFA-OIG 
elect to use their discretion on this point, and thereby decline to 
adopt NARA's suggested modification.

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

    NARA suggested that Sec.  1202.9(b) be revised to extend a 
requester's deadline for appealing the agency response on a given 
request from 30 days to 45 or even 60 days. FOIA requires only a 30-day 
appeal window and FHFA and FHFA-OIG decline to extend it further.
    NARA also suggested that Sec.  1202.9 be amended by adding a new 
paragraph (g), which would require that requesters be advised of the 
services offered by NARA's Office of Government Information Services 
(OGIS) services, and further informing the requester that FHFA and 
FHFA-OIG will work with OGIS to resolve disputes concerning responses 
to FOIA requests. Section 1202.9 of the final regulation has been 
amended to include a new paragraph (g), which advises requesters that 
they may consult the OGIS regarding disputes. However, current law does 
not require that such disputes be referred to the OGIS, which offers 
mediation services, but possesses no binding authority over either FHFA 
or FHFA-OIG with regard to information production or any other matter. 
NARA's additional suggestions would commit FHFA and FHFA-OIG to take 
steps beyond those required by law that would unduly burden this 
process. Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested 
modification.
    Additionally, FHFA will be making technical changes to this section 
to update the contact information of the FOIA program to that of FHFA's 
new headquarters.

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

    NARA recommended that Sec.  1202.11(a) be revised to provide 
requesters with a breakdown of all fees applicable to the FOIA process. 
This change is unnecessary, because paragraph (c) of this section 
directs requesters to FHFA's Web site for the most current fee 
schedule, to which FHFA-OIG also abides. Referring requesters to the 
Web site eliminates the need to update formally the regulation every 
time a fee changes. Therefore, FHFA and FHFA-OIG decline to adopt 
NARA's suggested modification.
    NARA also recommended that Sec.  1202.11(b) be modified to provide 
information on how FHFA would determine the electronic equivalent of 
100 pages of duplication, for the purpose of assessing an applicable 
fee. FHFA and FHFA-OIG decline to confine themselves to any one method 
for making such a determination, since the nature and format of the 
responsive material will necessarily dictate how best to ascertain that 
material's relative ``page length.'' Further, methods for making this 
determination are likely to change as technology develops, making a 
regulatory commitment to follow one method over another inadvisable. 
Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested 
modification.
    NARA further recommended that Sec.  1202.11(h) be revised to permit 
fee waivers ``as a matter of administrative discretion.'' FHFA and 
FHFA-OIG decline to revise the existing language, which tracks the 
statutory and legal requirements of FOIA and provides for the even-
handed treatment of all requesters. Therefore, FHFA and FHFA-OIG 
decline to adopt NARA's suggested modification.

Regulatory Impacts

Paperwork Reduction Act

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

Regulatory Flexibility Act

    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.

[[Page 4645]]

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, the interim 
final regulation amending 12 CFR part 1202 that was published in the 
Federal Register at 76 FR 29633 on May 23, 2011 is adopted as a final 
regulation with the following changes:

PART 1202--FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 1202 continues to read as follows:

    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.


0
2. Amend Sec.  1202.1 by revising paragraph (c) to read as follows:


Sec.  1202.1  Why did FHFA issue this regulation?

* * * * *
    (c) If you want to request information about yourself, this is 
considered a first-party or Privacy Act request under the Privacy Act 
(5 U.S.C. 552a), and therefore you should file your request using 
FHFA's Privacy Act regulations at part 1204 of this title. If you file 
a request for information about yourself, FHFA or FHFA-OIG will process 
this request under both FOIA and Privacy Act in order to give you the 
greatest degree of access to any responsive material.
* * * * *


0
3. Amend Sec.  1202.2 as follows:
0
a. Add definitions for the terms ``Fee Waiver'' and ``FOIA Public 
Liaison'' in alphabetical order; and
0
b. Revise the definition for the term ``Requester''.
    The additions and revisions read as follows:


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

* * * * *
    Fee Waiver means the waiver or reduction of fees if the requester 
can demonstrate that certain statutory standards are met.
* * * * *
    FOIA Public Liaison is a person who is responsible for assisting 
requesters with their requests.
* * * * *
    Requester means any person seeking access to FHFA or FHFA-OIG 
records under FOIA. A requester falls into one of three categories for 
the purpose of determining what fees may be charged. The three 
categories are--
    (1) Commercial;
    (2) News media, scientific institution or educational; and
    (3) Other.
* * * * *


Sec.  1202.3--[Amended]  

0
4. Amend Sec.  1202.3(c)(1) as follows:
0
a. Remove the words ``1700 G Street, NW., Fourth Floor, Washington, DC 
20552'' and add in their place the words ``400 Seventh Street, SW., 
Eighth Floor, Washington, DC 20024''.
0
b. Remove the words ``1625 Eye Street, NW., Washington, DC 20006'' and 
add in their place the words ``400 Seventh Street, SW., Third Floor, 
Washington, DC 20024''.
0
c. Remove the telephone number ``(202) 414-6425'' and add in its place 
the telephone number ``(202) 649-3803''.
0
d. Remove the telephone number ``(202) 408-2577'' and remove the email 
address ``[email protected]'' and add in their place the telephone 
number ``(202) 730-2824'' and the email address 
``[email protected]''.

0
5. Amend Sec.  1202.5 as follows:
0
a. In paragraph (a) remove the words ``1700 G Street, NW., Washington, 
DC 20552'' and remove the facsimile number ``(202) 414-8917'' and add 
in their place the words ``400 Seventh Street, SW., Eighth Floor, 
Washington, DC 20024'' and the facsimile number ``(202) 649-1073''.
0
b. Revise paragraph (d) to read as follows:


Sec.  1202.5  How do I request information from FHFA or FHFA-OIG 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 should include a statement 
specifically identifying your status.
* * * * *

0
6. Amend Sec.  1202.7 by revising paragraph (c) to read as follows:


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

* * * * *
    (c) Referrals to other agencies. If you submit a FOIA request that 
seeks records originating in another Federal Government agency, FHFA or 
FHFA-OIG will refer your request or a portion of your request, as 
applicable, to the other agency for response. FHFA or FHFA-OIG will 
provide you notice of the referral, what portion of the request was 
referred, and the name of the other agency and contact information.
* * * * *

0
7. Amend Sec.  1202.9 as follows:
0
a. In paragraph (a) remove the words ``1700 G Street, NW., Washington, 
DC 20552'' and remove the facsimile number ``(202) 414-8917'' and add 
in their place the words ``400 Seventh Street, SW., Eighth Floor, 
Washington, DC 20024'' and the facsimile number ``(202) 649-1073''.
0
b. Add paragraph (g) to read as follows:


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

* * * * *
    (g) Additional Resource. The National Archives and Records 
Administration (NARA), Office of Government Information Services (OGIS) 
offers non-compulsory, non-binding mediation services to resolve FOIA 
disputes. If you seek information regarding the OGIS and/or the 
services it offers, please contact the OGIS directly at Office of 
Government Information Services, National Archives and Records 
Administration, Room 2510, 8601 Adelphi Road, College Park, MD 20740-
6001, Email: [email protected], Phone: (301) 837-1996, Fax: (301) 837-0348, 
Toll-free: 1-(877) 684-6448. This information is provided as a public 
service only. By providing this information, FHFA and FHFA-OIG do not 
commit to refer disputes to OGIS, or to defer to OGIS' mediation 
decisions in particular cases.

    Dated: January 24, 2012.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2012-1967 Filed 1-30-12; 8:45 am]
BILLING CODE 8070-01-P