Releasing Information

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: Proposed rule.

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SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is

issuing a proposed rule to set forth the basic policies of OFHEO

regarding information it maintains and the procedures for obtaining

access to such information. The rule contains regulations of OFHEO

implementing the Freedom of Information Act (FOIA) and establishes a

schedule of fees which will be charged for the processing of document

requests under the FOIA. In addition, the proposed rule sets forth

procedures to be followed with respect to testimony and the production

of documents in legal proceedings in which OFHEO is not a named party

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

proceeding.

DATES: Written comments on the proposed rule must be received by July

10, 1995.

ADDRESSES: All comments concerning the proposed rule should be

addressed to Anne E. Dewey, General Counsel, Office of Federal Housing

Enterprise Oversight, 1700 G Street NW., Fourth Floor, Washington, DC

20552. Copies of all communications received will be available for

public inspection and copying at the same location.

FOR FURTHER INFORMATION CONTACT: Christine C. Dion, Associate General

Counsel, 1700 G Street NW., Fourth Floor, Washington, DC 20552 (202/

414-3800) (not a toll-free number).

SUPPLEMENTARY INFORMATION: 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, 12

U.S.C. 4501 et seq., established OFHEO as an independent office within

the Department of Housing and Urban Development. The primary function

of OFHEO is to ensure the financial safety and soundness and the

capital adequacy of the nation's two largest housing finance

institutions--the Federal National Mortgage Association (Fannie Mae)

and the Federal Home Loan Mortgage Corporation (Freddie Mac)

(collectively, the Enterprises). OFHEO proposes to adopt this rule to

explain matters relating to the availability of information generated

and maintained by OFHEO and to set forth procedures for accessing such

information. The proposed rule, among other things, implements the

Freedom of Information Act. The rule establishes procedures by which

the public may inspect OFHEO records, request and obtain copies of

materials, and appeal denials of such requests. This rule includes a

schedule of fees and procedures for determining when fees should be

waived or reduced. The fee schedule conforms to guidelines published in

the Federal Register by the Office of Management and Budget on March

27, 1987 (52 FR 10012). The proposed rule also implements Executive

Order 12600 by providing predisclosure notification procedures for

confidential commercial or financial information.

In addition, the proposed rule 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. The proposed rule establishes the

procedures for effecting service upon OFHEO in any legal process,

including service of process by litigants seeking access to OFHEO

records.

SECTION-BY-SECTION ANALYSIS

I. Information and Records Generally

Subpart A of the proposed rule contains general provisions relating

to disclosure of information and records in the possession of OFHEO.

Section 1710.1 sets forth procedures for disclosure of such materials

by OFHEO employees. Section 1710.2 provides that the disclosure

requirements of the FOIA and the proposed rule apply to all OFHEO

records. It also provides that if another statute sets forth procedures

for the disclosure of specific types of records, OFHEO will process a

request for those records in accordance with the procedures that apply

to those specific records. However, in cases where the record is not

required to be released under the specific procedures set forth in

another statute, OFHEO will consider the request under the FOIA. In

addition, section 1710.2 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 1710.3 of subpart A 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 this section or with

the prior written consent of the Director of OFHEO. The section further

provides that any unauthorized use or disclosure of such reports may be

subject to penalties under federal law. Section 1710.3 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

governmental [[Page 25163]] agencies responsible for investigating and

enforcing applicable laws.

II. Availability of OFHEO Records

Subpart B implements the FOIA, 5 U.S.C. 552, and describes (1) The

types of OFHEO records available to the public upon request, (2) the

kinds of information exempt from disclosure, (3) the indexing

procedures for OFHEO records that are available to the public, (4) the

format for requesting records under the FOIA, (5) the procedures for

responding to FOIA requests, (6) the format of the responses, (7) the

procedures for appealing denials of requests, and (8) the time limits

to which OFHEO will adhere in processing FOIA requests and appeals.

Subpart B also contains OFHEO's procedures for disclosure of 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 1710.41 of the

proposed rule. Section 1710.11 also describes the classes of OFHEO

records that are exempt from disclosure. These exemptions follow the

exemptions provided in the FOIA. These exemptions permit OFHEO's

Freedom of Information Officer to withhold a requested record in

certain circumstances. In deciding whether to withhold material,

consideration will be given as to whether another statute, Executive

order, or regulation prohibits release or, if not, whether it would be

in the public interest to withhold it.

Section 1710.12 sets forth the indexing requirements as to any

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 OFHEO's Freedom of Information Officer. Each request

should contain sufficient detail to allow the Freedom of Information

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. OFHEO's Freedom of Information Officer

has been designated responsibility in proposed section 1710.14 to grant

or deny such requests and to determine fees. Paragraph (b) of the

section also provides that OFHEO will ordinarily refer FOIA 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. As specified in paragraph (c) of section 1710.14, in cases

where a requester asks for a record in a format that does not currently

exist, OFHEO will provide whatever records reasonably respond to the

request, but will not create a new record in order to respond.

Moreover, under paragraph (d) of section 1710.14, if a record cannot be

located from the information supplied, the Freedom of Information

Officer will so inform the requester.

Proposed section 1710.15 requires the Freedom of Information

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 Freedom of Information Officer's

determination to deny a request in whole or in part must be made in

writing and signed by OFHEO's Freedom of Information Officer.

Consistent with section 1710.15(b) as proposed, 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

proposed rule. Denials may be appealed to OFHEO's Freedom of

Information 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 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 proposed rule describes the time limits to

which OFHEO will adhere in responding to initial requests and appeals

of denials of requests. The time limits applicable to either may be

extended up to a total of ten 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.

Proposed section 1710.18 contains OFHEO's procedures for disclosure

of business information provided to OFHEO. Generally, the section would

require 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 provided by a submitter

for the purpose of objecting to disclosure may itself be subject to

disclosure under the FOIA.

III. Fees for Provision of Information

Subpart C of the proposed 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 two 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 proposal, 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 [[Page 25164]] 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

the Department of Justice 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 proposed

section 1710.24.

Section 1710.25 as proposed 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.

IV. Testimony and Production of Documents in Legal Proceedings in Which

OFHEO Is Not a Named Party

Subpart D 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 D 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 OFHEO 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.

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., OFHEO employees, including former

OFHEO 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, 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 OFHEO employee is limited to that set forth in the

written authorization granted that employee by the Director. The

section also prohibits OFHEO employees from giving opinion testimony in

any legal proceeding to which OFHEO is not a party. OFHEO believes that

the use of OFHEO employees to give opinion testimony would hamper

OFHEO's ability to carry out its statutory responsibilities and would

impose an administrative burden on OFHEO's staff.

Section 1710.36 describes the manner in which authorized testimony

of OFHEO employees will be made available. The section provides that

the testimony will be available only through depositions or written

interrogatories. A party requesting authorized testimony must serve a

subpoena on the OFHEO employee in accordance with applicable federal or

state rules of procedure, with a copy of the subpoena sent by

registered mail to OFHEO's 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

OFHEO's 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 D will be provided upon request.

Section 1710.38 describes the fees charged for documents produced

by OFHEO in connection with requests under subpart D. 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 OFHEO employee served with a

demand in a legal proceeding, which requires his or her attendance as a

witness concerning OFHEO or the production of official documents or

information, must notify OFHEO's General Counsel of such service. The

notification would assist the General Counsel in determining 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, OFHEO's General

Counsel shall provide the party issuing the demand or the court with a

copy of the regulations contained in subpart D and also shall advise

the party or the court that the OFHEO employee upon whom the demand has

been made is prohibited from testifying or producing the documents

without the Director's prior approval.

Proposed section 1710.39 also provides that any OFHEO 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 D of the proposed rule. If a court orders

disclosure contrary to the Director's instructions, the OFHEO employee

shall continue to decline to disclose the information and shall advise

OFHEO of the order for such action as OFHEO may deem appropriate.

Notably, a determination by OFHEO to comply or not to comply with any

demand shall not constitute any ground for noncompliance and OFHEO may

oppose any demand on any legal basis independent of its determination

under subpart D of the proposed rule.

Section 1710.40 pertains to persons who are not employees or former

employees of OFHEO. Non-OFHEO persons may not disclose reports

generated by OFHEO, or any related documents, to any person without the

Director's prior written consent. Moreover, any non-OFHEO 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

OFHEO's 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 proposed sections

1710.34(b) and (c) [[Page 25165]] and 1710.37(b) of subpart D of the

proposed rule.

Section 1710.41 of the proposed rule enumerates documents that

OFHEO shall make available to the public. The records include any final

orders or agreements made in adjudication of cases and transcripts of

public hearings on the record with respect to any action of the

Director or notice of charges issued by the Director. The section does

not authorize the withholding of any information from, or prohibit the

disclosure of any information to, Congress.

V. Rules and Procedures for Service Upon OFHEO

Section 1710.51 provides that, with limited exceptions, any legal

process on OFHEO must be issued and served upon OFHEO's General Counsel

and 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 12606, The Family

The General Counsel, as the designated Official under Executive

Order 12606, The Family, has determined that this proposed rule does

not have potential for significant impact on family formation,

maintenance, and general well-being, and thus, is not subject to review

under Executive Order 12606.

Executive Order 12612, Federalism

The General Counsel, as Designated Official under section 6(a) of

Executive Order 12612, Federalism, has determined that the policies

contained in this proposed rule will not have substantial direct

effects on states or their political subdivisions, or the relationship

between the federal government and the states, or on the distribution

of power and responsibilities among the various levels of government.

As a result, the proposed rule does not warrant the preparation of a

Federalism Assessment in accordance with Executive Order 12612.

Executive Order 12866, Regulatory Planning and Review

In promulgating this proposed rule, the Office of Federal Housing

Enterprise Oversight has adhered to the regulatory philosophy and the

applicable principles of regulations set forth in section 1 of

Executive Order 12866, Regulatory Planning and Review. This proposed

rule has been reviewed by the Office of Management and Budget under

that Executive Order.

Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5

U.S.C. 601 et seq., the General Counsel has certified that this

proposed rule will not have significant economic impact on a

substantial number of small entities.

Paperwork Reduction Act

This proposed rule contains no information collection requirements

that require the approval of the Office of Management and Budget

pursuant to the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

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, the Office of

Federal Housing Enterprise Oversight proposes to amend Chapter XVII of

Title 12 of the Code of Federal Regulations by adding Part 1710 to read

as follows:

PART 1710--RELEASING INFORMATION

Subpart A--Information and Records Generally

Sec.

1710.1 General rule.

1710.2 Applicability.

1710.3 Office of Federal Housing Enterprise Oversight examination

reports.

Subpart B--Availability of Records of the Office of Federal Housing

Enterprise Oversight

1710.11 Official records of the Office of Federal Housing

Enterprise Oversight.

1710.12 Index identifying information for the public.

1710.13 Request for records.

1710.14 Response to requests.

1710.15 Form and content of responses.

1710.16 Appeal of denials.

1710.17 Time limits.

1710.18 Business information.

Subpart C--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 D--Testimony and Production of Documents in Legal Proceedings

in Which the Office of Federal Housing Enterprise Oversight 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 OFHEO employees.

1710.40 Responses to demands served on non-OFHEO employees or

entities.

1710.41 Orders and agreements available to the public.

Subpart E--Rules and Procedures for Service Upon the Office of Federal

Housing Enterprise Oversight

1710.51 Service of Process.

Authority: 5 U.S.C. 552; 12 U.S.C. 4513, 4526, 4639; E.O. 12600,

3 CFR, 1987 Comp., p. 235.

Subpart A--Information and Records Generally

Sec. 1710.1 General rule.

Except as necessary in performing official duties or as authorized

by Secs. 1710.11 through 1710.39 of this part, no employee of the

Office of Federal Housing Enterprise Oversight (OFHEO) shall in any

manner disclose or permit disclosure of any information in the

possession of OFHEO that is confidential or otherwise of a non-public

nature, including information regarding OFHEO or the Federal National

Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage

Corporation (Freddie Mac) (collectively, the Enterprises).

Sec. 1710.2 Applicability.

(a) General. The Freedom of Information Act (FOIA) and the

regulations in this part apply to all OFHEO records. However, if

another law sets forth procedures for the disclosure of specific types

of records, OFHEO will process a request for those records in

accordance with the procedures that apply to those specific records. If

there is any record 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 [[Page 25166]] 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 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. 1710.3 Office of Federal Housing Enterprise Oversight 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 of OFHEO. 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 loaned 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 of OFHEO may make available

reports of examination for the confidential use of federal agencies

responsible for investigating or enforcing applicable federal laws.

Subpart B--Availability of Records of the Office of Federal Housing

Enterprise Oversight

Sec. 1710.11 Official records of the Office of Federal Housing

Enterprise Oversight.

(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. 1710.41 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, 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 C of this part.

(d) Records not available. Except as otherwise provided in this

part, or as may be specifically authorized by the Director of OFHEO,

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 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; or

(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 [[Page 25167]] 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 document

described in paragraph (b) of this section. In each case of such

deletion, the justification therefore 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 of OFHEO 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: Freedom of

Information 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 ten-day time period set forth in Sec. 1710.17(a) of

this subpart until it is received, or would have been received with the

exercise of due diligence by OFHEO personnel, by the Freedom of

Information Officer. Records requested in conformance with this subpart

and which are not exempt records may be received in person or by mail

as specified in the request. Records to be received 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 Freedom of Information 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

Freedom of Information 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 Freedom of Information 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 normally

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 not ordinarily

reformat the information for the purpose of responding to the request.

OFHEO's Freedom of Information Officer will advise the requester that

OFHEO does not have the record in the format sought, but will provide

records in existing formats that would reasonably respond to the

request. Additionally, OFHEO will not develop a new record of

information to satisfy a request.

(d) Record cannot be located. If a requested record cannot be

located from the information supplied, the Freedom of Information

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 Freedom of

Information Officer has made a determination to grant 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 C of this

part.

(b) Form of notice denying a request. When the Freedom of

Information 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 Freedom of Information Officer and will include:

(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 Freedom of

Information 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: Freedom of Information

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 [[Page 25168]] 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 OFHEO personnel, by the Freedom of Information 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 Freedom of Information Officer will determine whether to comply

with the request and will notify the requester in writing of his or her

determination within ten 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 ten 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 Business Information.

(a) In general. Business information provided to OFHEO by a

business submitter shall not be disclosed pursuant to a 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 Freedom of

Information Act, 5 U.S.C. 552(b)(4).

(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.

(3) Freedom of Information Officer means the Freedom of Information

Officer of OFHEO.

(4) Freedom of Information Appeals Officer means the Freedom of

Information Appeals Officer of OFHEO.

(5) Requester means the person or entity making the FOIA request.

(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 ten 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 Freedom of Information Officer

shall, to the extent permitted by law, provide a submitter with prompt

written notice of a 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. The requester

also shall be notified that notice and an opportunity to object are

being provided to the submitter.

(2) Whenever the Freedom of Information Officer provides a business

submitter with the notice set forth in paragraph (e)(1) of this

section, the Freedom of Information 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 commercially or financially sensitive information deemed

protected from disclosure under 5 U.S.C. 552(b)(4); or

(2) OFHEO has reason to believe that disclosure of the information

may result in 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 a reasonable period

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 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 Freedom of Information

Officer shall consider carefully a business submitter's objections and

specific grounds for nondisclosure prior to determining whether to

disclose business information. Whenever the Freedom of Information

Officer decides to disclose business information over the objection of

a business submitter, the Freedom of Information Officer shall forward

to the business submitter a written notice at least ten days (excluding

Saturdays, [[Page 25169]] 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 shall be forwarded to the

submitter a reasonable number of days prior to the specified disclosure

date and the requester shall be notified likewise.

(h) Notice of FOIA lawsuit. Whenever a requester brings suit

seeking to compel disclosure of business information, the Freedom of

Information 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 Freedom of Information 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 Freedom of Information Officer will provide the

submitter with written notice of any final administrative decision to

disclose business information within a reasonable number of days prior

to a specified disclosure date.

Subpart C--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

documents 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 documents 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 documents

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) Non-commercial 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 mean the process of making a copy of

a document 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 documents located in

response to a request for information to determine whether any portion

of any document located is permitted to be withheld. It also includes

processing any documents for disclosure, e.g., doing all that is

necessary to prepare the documents 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 documents 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 documents. 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.

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 documents 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.

[[Page 25170]]

(b) Types of charges. The types of charges that may be assessed in

connection with the production of records in response to a 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 document(s) shall be

charged.

(3) Review. Only requesters who are seeking documents 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 two hours of free search time nor 100

free pages of reproduction of documents. 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 non-commercial scientific institutions in

an amount which equals the cost of reproducing the documents 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 non-commercial 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 documents 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 two 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 two

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 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 two 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 Sec. 1710.23(b), OFHEO will provide,

without charge, the first 100 pages of duplication and the first two

[[Page 25171]] 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 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 Freedom of Information 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 documents;

(ii) The proposed use of the documents 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 documents; 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 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 document or

documents, 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 [[Page 25172]] 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. OFHEO does not require an advance

payment before work is commenced or continued, unless:

(1) 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

(2) 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.

(3) 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.

(4) 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 D--Testimony and Production of Documents in Legal

Proceedings in Which the Office of Federal Housing Enterprise

Oversight 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 OFHEO

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 Freedom

of Information Act 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) Director means the Director of OFHEO or his or her designee.

(d) 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 kind of 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.

(e) 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.

(f) General Counsel means the General Counsel of OFHEO or his or

her designee.

(g) 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.

(h) Official means concerning the authorized business of OFHEO.

(i) 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.

(j) OFHEO means the Office of Federal Housing Enterprise Oversight.

(k) 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

OFHEO 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 of OFHEO shall, in response to

a demand, produce any material contained in the files of OFHEO, or

disclose any information relating to, or based upon, material contained

in the files of OFHEO, or disclose or produce any material 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 OFHEO 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 OFHEO 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 OFHEO 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 [[Page 25173]] 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 part.

Failure of the requesting party, or his or her attorney, to cooperate

in good faith with the General Counsel to enable the 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 OFHEO employee is

limited to that set forth in the written authorization granted that

employee by the Director.

(b) OFHEO employees are not authorized to give opinion testimony.

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 OFHEO 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 OFHEO employees 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 OFHEO 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, and 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 OFHEO 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 OFHEO 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

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.

(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 materials 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 materials that are used.

(e) Other costs. When other services and materials 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 Response to demands served on OFHEO employees.

(a) Advice by person served. Any OFHEO 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 OFHEO's 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 material 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 person served. Unless OFHEO has authorized

disclosure of the information requested, any OFHEO 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 OFHEO 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

[[Page 25174]] 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 non-OFHEO employees or

entities for OFHEO documents.

(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 OFHEO

documents or to testify with respect thereto, such person shall

immediately notify OFHEO's 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, Sec. 1710.34 (b)

and (c), and Sec. 1710.37(b) of this part.

Sec. 1710.41 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 that has become final

in accordance with 12 U.S.C. 4633 and 4634; and

(3) Any modification to or termination of any final order made

public pursuant to this section.

(4) Transcripts of any public enforcement hearing on the record

with respect to any action of the Director or notice of charges issued

by the Director shall be available to the public.

(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 six 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. 4631-4641.

(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 E--Rules and Procedures for Service Upon the Office of

Federal Housing Enterprise Oversight

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 to OFHEO 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: May 5, 1995.

Aida Alvarez,

Director, Office of Federal Housing Enterprise Oversight.

[FR Doc. 95-11546 Filed 5-10-95; 8:45 am]

BILLING CODE 4220-01-P