Revisions to the Freedom of Information Act Regulation

FEDERAL HOUSING FINANCE BOARD

12 CFR Part 904

[No. 98-26]

RIN 3069-AA71

Revisions to the Freedom of Information Act Regulation

AGENCY: Federal Housing Finance Board.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Federal Housing Finance Board (Finance Board) is revising

its Freedom of Information Act (FOIA) regulation to comply with new

statutory requirements. The Finance Board is also reorganizing and

streamlining the FOIA regulation to clarify the Finance Board's

practices and procedures in responding to requests for information.

DATES: The interim final rule will become effective on July 13, 1998.

The Finance Board will accept comments on the interim final rule in

writing on or before September 11, 1998.

ADDRESSES: Mail comments to Elaine L. Baker, Secretary to the Board,

Federal Housing Finance Board, 1777 F Street, NW, Washington, DC 20006.

Comments will be available for public inspection at this address.

FOR FURTHER INFORMATION CONTACT: Elaine L. Baker, Secretary to the

Board and Associate Director, Executive Secretariat, Office of the

Managing Director, 202/408-2837, or Janice A. Kaye, Attorney-Advisor,

Office of General Counsel, 202/408-2505, Federal Housing Finance Board,

1777 F Street, NW, Washington, DC 20006.

SUPPLEMENTARY INFORMATION:

I. Statutory and Regulatory Background

Congress amended FOIA by enacting the Electronic Freedom of

Information Act Amendments of 1996 (EFOIA). See 5 U.S.C. 552, as

amended by Pub. L. 104-231, 110 Stat. 3048 (Oct. 2, 1996). Among other

procedural changes, EFOIA increases the time for responding to a FOIA

request from 10 to 20 days, specifically applies FOIA disclosure

requirements to electronic records, and adds frequently requested

records as a category of reading room records. EFOIA also requires an

agency to promulgate regulations that provide for the expedited

processing of FOIA requests.

In addition to amending its FOIA regulation, codified at 12 CFR

part 904, to comply with these statutory changes, the Finance Board is

reorganizing and streamlining the regulation to clarify its practices

and procedures in responding

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to requests for information. The reorganization is technical and

procedural in nature and will have no substantive effect on the

operation of the Finance Board's FOIA process.

II. Analysis of the Interim Final Rule

A. Elimination of Obsolete Provisions

In order to streamline the FOIA regulation, the Finance Board is

removing two provisions that restate statutory requirements,

Sec. 904.1, purpose and scope, and Sec. 904.3(a), published

information. See 12 CFR 904.1, 904.3(a); 5 U.S.C. 552(a). The Finance

Board is also eliminating Sec. 904.10 in its entirety. 12 CFR 904.10.

Section 904.10(a), which concerns service of process under FOIA, is

unnecessary because service of process under FOIA is governed by the

Federal Rules of Civil Procedure. Id. Sec. 904.10(a); Fed. R. Civ. P.

4(i). Section 904.10 (b) and (c), which concerns disclosure of Finance

Board records by persons other than Finance Board employees, is being

deleted because the Finance Board does not have the authority to

enforce the stated restrictions. 12 CFR 904.10(b)-(c).

B. Implementation of New Statutory Requirements and Clarification of

the Current Regulation

1. Definitions

The interim final rule restates the definitions of the terms

``Finance Board,'' ``FOIA,'' ``requester,'' and ``search'' without

substantive change. To reflect an internal agency reorganization, the

term ``Secretary to the Board'' replaces the term ``Executive

Secretary.'' The address for the Secretary to the Board is now included

in the definition of that term. The definitions of the terms that

relate to the assessment and collection of FOIA fees, i.e.,

``commercial use request,'' ``direct costs,'' ``educational

institution,'' and ``representative of the news media,'' are relocated

without substantive change to Sec. 904.8, the fees section of the

interim final rule.

To include changes made by EFOIA, the Finance Board has amended the

definition of the term ``unusual circumstances'' and added specific

references to records maintained in an electronic format in the

definitions of the terms ``duplication'' and ``record.'' See 5 U.S.C.

552(a)(3)(B)-(C), (6)(B)(iii), (f)(2). To ensure consistency with FOIA,

the interim final rule includes a definition of the term ``agency''

with the same meaning as under FOIA. Id. 552(f)(1).

To broaden the coverage of the regulatory provisions concerning

financial regulatory agency records, the definition of the term

``financial regulatory agency'' now includes the Farm Credit

Administration and any state officer, agency, supervisor, or other

entity that has regulatory authority over, or is empowered to institute

enforcement action against, a financial institution, including an

insurance company. To avoid repetition within the FOIA regulation, the

term ``working day'' is defined to exclude Saturdays, Sundays, and

legal public holidays.

2. Records Available to the Public

Section 904.2 of the interim final rule restates Sec. 904.3(b)-(d),

Sec. 904.4, and Sec. 904.7(c)(1) of the current rule with minor changes

required by EFOIA. See 12 CFR 904.3(b)-(d); 904.4; 904.7(c)(1). The

EFOIA changes include a separate paragraph, designated as

Sec. 904.2(b), which clarifies the types of records that are available

for public inspection in the Finance Board's reading room. In addition

to the records listed in Sec. 904.4(b) of the current rule, the Finance

Board considers the following records to be reading room records: (1)

records previously disclosed to any requester pursuant to FOIA which,

because of the nature of their subject matter, the Finance Board has

determined will likely be the subject of subsequent requests for

substantially the same records, and a general index thereof; (2)

current indices that provide identifying information about all matters

issued, adopted, or promulgated by the Finance Board; and (3) the FOIA

report the Finance Board submits to the Attorney General pursuant to 5

U.S.C. 552(e). See 5 U.S.C. 552(a)(2). As required by EFOIA, the

Finance Board is making each reading room record created on or after

November 1, 1996 available by computer telecommunications or other

electronic means, such as on computer diskettes or on the Finance

Board's Internet Web site, found at http://www.fhfb.gov. Id. To

maximize the availability of records to the public, the Finance Board

will provide copies of reading room records in response to a FOIA

request in accordance with the procedures and fee schedule in its FOIA

regulation.

3. Requests For Records

Section 904.3 of the interim final rule is a restatement of

Sec. 904.5(a) and (b)(1) and (2) of the current rule. See 12 CFR

904.5(a), (b)(1)-(2). Like the current rule, the interim final rule

describes the information a requester must provide in order for the

Finance Board to process a FOIA request and requires a requester to

submit the request in writing to the Secretary to the Board. Id.

Sec. 904.5(a), (b)(1). A new provision in the interim final rule

provides that if a request is incomplete, the Secretary to the Board

may advise the requester that additional information is needed. If the

requester submits a corrected request, the Finance Board will treat the

corrected request as a new request. Id. Sec. 904.5(b)(2). This

provision will allow the Secretary to the Board to close out its FOIA

files. If the Secretary to the Board notifies a requester that the

request is incomplete, the requester is free to initiate a new request

that includes the necessary information.

4. Responses to Requests for Records

Section 904.4 of the interim final rule, which concerns the Finance

Board's initial response to a FOIA request, restates Sec. 904.5(b)(4)-

(5) and (f) and Sec. 904.6(d), (k), and (m) of the current rule and

adds a new provision concerning expedited processing. See id.

Sec. 904.5(b)(4)-(5), (f); 904.6(d), (k), (m). EFOIA increases the time

limit for initial FOIA responses from 10 to 20 days. See 5 U.S.C.

552(a)(6)(A)(i). Accordingly, Sec. 904.4(a) of the interim final rule

requires the Secretary to the Board to grant or deny each complete

request within 20 working days of receipt.

Section 904.4(c), which concerns extensions of this 20-day time

limit, includes a revision required by EFOIA allowing a requester to

narrow a request so that it may be processed within the 20-day time

limit or arrange an alternative time frame for processing the request.

Id. 552(a)(6)(B)(i)-(ii).

EFOIA also requires an agency to promulgate regulations providing

for expedited processing of FOIA requests. Id. 552(a)(6)(E). The

Finance Board has included an expedited processing provision that

conforms to the statutory requirements in Sec. 904.4(d) of the interim

final rule.

Section 904.4(e) of the interim final rule combines provisions

appearing in Sec. 904.6(d), (k), and (m) of the current rule. See 12

CFR 904.6(d), (k), (m). It provides that the Finance Board will furnish

one copy of a record to a requester in any form or format requested if

the record is readily reproducible by the Finance Board in that form or

format. The record will be provided by regular U.S. mail to the address

indicated in the request unless other arrangements are made, such as

taking delivery at the Finance Board or an agreement by the requester

to pay additional fees for transmission by facsimile or other express

delivery methods.

If the Finance Board denies a request in whole or in part, the

requester may appeal under Sec. 904.8 of the interim final

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rule. As under Sec. 904.5(c), (e), and (f) of the current rule,

Sec. 904.8(a) permits a requester to file an appeal within 30 days of

the initial determination and requires a response from the Finance

Board within 20 working days, or in unusual circumstances, within 30

working days, of receipt of an application for appeal. Id.

Sec. 904.5(c), (e), (f). Section 904.8(b), which concerns

administrative appeals during judicial review, is a restatement of

Sec. 904.5(d) of the current rule. Id. Sec. 904.5(d).

5. FOIA Exemptions

Section 904.5(a) of the interim final rule incorporates all of the

disclosure exemptions provided by FOIA. See 5 U.S.C. 552(b); 12 CFR

904.7(a). Consistent with Sec. 904.7(b) of the current rule, under

Sec. 904.5(b) of the interim final rule the Finance Board will provide

a requester with any reasonably segregable portion of a record after

redacting the portion that is exempt from disclosure. See 5 U.S.C.

552(b); 12 CFR 904.7(b). As required by EFOIA, the Finance Board will

make a reasonable effort to estimate the volume of redacted information

and provide that information to the requester unless providing the

estimate would harm an interest protected by the exemption under which

the redaction is made. See 5 U.S.C. 552(a)(6)(F). The Finance Board

also will indicate the estimated volume of redacted information on the

released portion of the record, and, if technically feasible, will make

the indication at the place in the record where the redaction is made

unless the indication would harm an interest protected by the exemption

under which the redaction is made. Id. 552(b).

Like Sec. 904.4(a) of the current rule, Sec. 904.5(c) permits the

Finance Board to disclose otherwise exempt records if disclosure is in

the public interest. See 12 CFR 904.4(a).

6. Disclosure of Examination Reports and Other Records of Financial

Regulatory Agencies

Section 904.6 of the interim final rule, which concerns disclosure

of Federal Home Loan Bank examination reports to financial regulatory

agencies, is a restatement of Sec. 904.8 of the current rule. Id.

Sec. 904.8. The only change other than reorganizing the provision, is

replacement of a reference to the Finance Board's former District Banks

Directorate with a reference to the Finance Board.

Section 904.7 of the interim final rule, which prohibits the

Finance Board from disclosing records of other financial regulatory

agencies, is a restatement of Sec. 904.9 of the current rule without

substantive change. Id. Sec. 904.9.

7. Fees

Section 904.9 of the interim final rule concerns the assessment and

collection of fees for providing FOIA services. Other than modestly

increasing the amount of the charges the Finance Board will assess for

certain services, this provision is not substantively different than

the current FOIA fee provision. Id. Sec. 904.6.

III. Notice and Public Participation

The Finance Board is promulgating these technical, procedural

changes as an interim final rule in order to conform its FOIA

regulation to the EFOIA amendments that have already taken effect.

However, because FOIA requires notice and receipt of public comment,

the Finance Board will accept written comments on the interim final

rule on or before September 11, 1998.

IV. Effective Date

For the reasons stated in part III above, the Finance Board for

good cause finds that the interim final rule should become effective on

July 13, 1998. See 5 U.S.C. 553(d)(3).

V. Regulatory Flexibility Act

The Finance Board is adopting the amendments to part 904 in the

form of an interim final rule and not as a proposed rule. Therefore,

the provisions of the Regulatory Flexibility Act do not apply. See 5

U.S.C. 601(2), 603(a).

VI. Paperwork Reduction Act

The interim final rule does not contain any collections of

information pursuant to the Paperwork Reduction Act of 1995. See 44

U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted

any information to the Office of Management and Budget for review.

List of Subjects in Part 904

Confidential business information, Federal home loan banks, Freedom

of information. For the reasons stated in the preamble, the Finance

Board hereby revises 12 CFR part 904 to read as follows:

PART 904--FREEDOM OF INFORMATION ACT REGULATION

Sec.

904.1 Definitions.

904.2 Records available to the public.

904.3 Requests for records.

904.4 Finance Board response to requests for records.

904.5 Records not disclosed.

904.6 Disclosure of Federal Home Loan Bank examination reports.

904.7 Records of financial regulatory agencies held by the

Finance Board.

904.8 Appeals.

904.9 Fees.

Authority: 5 U.S.C. 552; 52 FR 10012 (Mar. 27, 1987).

Sec. 904.1 Definitions.

For purposes of this part:

(a) Agency has the same meaning as in 5 U.S.C. 552(f)(1).

(b) Duplication means the process of making a copy of a record in

order to respond to a FOIA request, including paper copies, microfilm,

audio-video materials, and computer diskettes or other electronic

copies.

(c) Finance Board means the agency established as the Federal

Housing Finance Board.

(d) Financial regulatory agency means the Board of Governors of the

Federal Reserve System, Office of the Comptroller of the Currency,

Federal Deposit Insurance Corporation, Office of Thrift Supervision,

National Credit Union Administration, Farm Credit Administration, or a

state officer, agency, supervisor, or other entity that has regulatory

authority over, or is empowered to institute enforcement action

against, a financial institution, including an insurance company.

(e) FOIA means the Freedom of Information Act, as amended (5 U.S.C.

552).

(f) Record means information or documentary material the Finance

Board maintains in any form or format, including an electronic form or

format, which the Finance Board:

(1) Made or received under federal law or in connection with the

transaction of public business;

(2) Preserved or determined is appropriate for preservation as

evidence of Finance Board operations or activities or because of the

value the information it contains; and

(3) Controls at the time it receives a request.

(g) Requester means any person, including an individual,

corporation, firm, organization, or other entity, who makes a request

to the Finance Board under FOIA for records.

(h) Review means the process of examining a record to determine

whether all or part of the record may be withheld, and includes

redacting or otherwise processing the record for disclosure to a

requester. It does not include time spent:

(1) Resolving legal or policy issues regarding the application of

exemptions to a record; or

(2) At the administrative appeal level, unless the Finance Board

determines that the exemption under which it

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withheld records does not apply and the records are reviewed again to

determine whether a different exemption may apply.

(i) Search means the time spent locating records responsive to a

request, manually or by electronic means, including page-by-page or

line-by-line identification of responsive material within a record.

(j) Secretary to the Board means the Secretary to the Board of

Directors of the Finance Board. The address for the Secretary to the

Board is Executive Secretariat, Office of the Managing Director,

Federal Housing Finance Board, 1777 F Street NW, Washington, DC 20006.

(k) Unusual circumstances means the need to:

(1) Search for and collect records from establishments that are

separate from the office processing the request;

(2) Search, review, and duplicate a voluminous amount of separate

and distinct records in order to process a single request; or

(3) Consult with another agency or among two or more components of

the Finance Board that have a substantial interest in the determination

of a request.

(l) Working days do not include Saturdays, Sundays, and legal

public holidays.

Sec. 904.2 Records available to the public.

(a) General. (1) It is the policy of the Finance Board to respond

promptly to all FOIA requests.

(2) The Finance Board may disclose records that were previously

published or disclosed or are customarily furnished to the public in

the course of the performance of official duties without complying with

this part. These records include, but are not limited to, the annual

report the Finance Board submits to Congress pursuant to section 2B(d)

of the Federal Home Loan Bank Act (12 U.S.C. 1422b(d)), press releases,

Finance Board forms, and materials published in the Federal Register.

(3) Except as provided in the Privacy Act (5 U.S.C. 552a), the

Finance Board's Privacy Act regulation (12 CFR part 909), or paragraph

(a)(2) of this section, the Finance Board shall not disclose records

except in accordance with the requirements of this part.

(b) Reading room. (1) Subject to Secs. 904.5 through 904.7, the

following records shall be available for public inspection and copying

in the Finance Board reading room from 9:00 a.m. to 4:00 p.m. each

working day:

(i) Final opinions or orders of the Finance Board in the

adjudication of cases.

(ii) A record of the final votes of each member of the Board of

Directors in every Finance Board proceeding.

(iii) Statements of policy and interpretations adopted by the

Finance Board that are not published in the Federal Register.

(iv) Administrative staff manuals and instructions to staff that

affect a member of the public.

(v) Records previously disclosed to any requester pursuant to this

part which, because of the nature of their subject matter, the Finance

Board has determined will likely be the subject of subsequent requests

for substantially the same records, and a general index thereof.

(vi) Current indices that provide identifying information about all

matters issued, adopted, or promulgated by the Finance Board.

(vii) The report the Finance Board submits to the Attorney General

pursuant to 5 U.S.C. 552(e).

(2) The Finance Board shall make each reading room record created

on or after November 1, 1996 available by computer telecommunications

or other electronic means, such as on computer diskettes or on the

Finance Board's Internet Web site, found at http://www.fhfb.gov.

(3) The Finance Board shall assess fees for searching, reviewing,

or duplicating reading room records in accordance with Sec. 904.9.

Sec. 904.3 Requests for records.

(a) Request requirements. Requests for access to, or copies of,

Finance Board records shall be in writing and addressed to the

Secretary to the Board. Each request shall include the following:

(1) A description of the requested record that provides sufficient

detail to enable the Finance Board to locate the record with a

reasonable amount of effort;

(2) The requester's full name, mailing address, and a telephone

number where the requester can be reached during normal business hours;

(3) A statement that the request is made pursuant to FOIA; and

(4) At the discretion of the requester, a dollar limit on the fees

the Finance Board may incur to respond to the request for records. The

Finance Board shall not exceed such limit.

(b) Incomplete requests. If a request does not meet all of the

requirements of paragraph (a) of this section, the Secretary to the

Board may advise the requester that additional information is needed.

If the requester submits a corrected request, the Finance Board shall

treat the corrected request as a new request.

Sec. 904.4 Finance Board response to requests for records.

(a) Response deadline. Subject to Sec. 904.9(f), within 20 working

days of receipt of a request meeting the requirements of Sec. 904.3(a)

and any extensions of time under paragraph (c) of this section, the

Secretary to the Board shall:

(1) Determine whether to grant or deny the request in whole or in

part;

(2) Notify the requester in writing of the determination and the

reasons therefor; and

(3) Make the records, if any, available to the requester.

(b) Denials. If the Secretary to the Board denies the request in

whole or in part, the notice required under paragraph (a)(2) of this

section shall state that the Secretary to the Board is the person

responsible for the denial, the denial is not a final agency action,

and the requester may appeal the denial under Sec. 904.8.

(c) Extensions of time. In unusual circumstances, the Secretary to

the Board may extend the time limit in paragraph (a) of this section

for a period not to exceed 10 working days by notifying the requester

in writing of:

(1) The reasons for the extension;

(2) The date on which a determination is expected; and

(3) The opportunity for the requester to either limit the scope of

the request so that the Finance Board may process it in accordance with

paragraph (a) of this section, or arrange an alternative time frame for

processing the request or a modified request.

(d) Expedited processing. (1) The Finance Board shall process a

request for records as soon as practicable if it determines that

expedited processing is appropriate or the requester demonstrates a

compelling need. To demonstrate a compelling need, a requester shall

submit a written application certified to be true and correct to the

best of the requester's knowledge and belief to the Secretary to the

Board. The application shall state that:

(i) The failure to obtain the records on an expedited basis could

reasonably be expected to pose an imminent threat to the life or

physical safety of an individual; or

(ii) With respect to a requester who is primarily engaged in

disseminating information, such as a representative of the news media

as defined in Sec. 904.9(a)(4)(iv), there is urgency to inform the

public concerning actual or alleged Finance Board activity.

(2) Within 10 working days of receipt of an application for

expedited processing that meets the requirements

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of paragraph (c)(1) of this section, the Secretary to the Board shall

determine whether to grant or deny the application and notify the

requester in writing of the determination.

(3) A requester may appeal the denial of an application for

expedited processing by submitting a written application stating the

grounds for the appeal to the Secretary to the Board. The Finance Board

shall expeditiously determine whether to grant or deny the appeal and

shall notify the requester in writing of the determination, the name

and title or position of the person responsible for the determination,

and of the provisions for judicial review of this final action under 5

U.S.C. 552(a) (4) and (6).

(e) Providing responsive records. The Finance Board shall provide

one copy of a record to a requester in any form or format requested if

the record is readily reproducible by the Finance Board in that form or

format by regular U.S. mail to the address indicated in the request

unless other arrangements are made, such as taking delivery of the

document at the Finance Board. At the option of the requester and upon

the requester's agreement to pay fees in accordance with Sec. 904.9,

the Finance Board shall provide copies by facsimile transmission or

other express delivery methods.

Sec. 904.5 Records not disclosed.

(a) Records exempt from disclosure. Except as otherwise provided in

this part, the Finance Board shall not disclose records that are:

(1) Specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national defense

or foreign policy and are in fact properly classified pursuant to such

Executive order.

(2) Related solely to the Finance Board's internal personnel rules

and practices.

(3) Specifically exempted from disclosure by a statute other than

FOIA if such statute requires the record to be withheld from the public

in such a manner as to leave no discretion on the issue, establishes

particular criteria for withholding, or refers to particular types of

records to be withheld.

(4) Trade secrets and commercial or financial information obtained

from a person and privileged or confidential.

(5) Inter- or intra-agency memorandums or letters that would not be

available by law to a party other than an agency in litigation with the

Finance Board.

(6) Personnel, medical, or similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal privacy.

(7) Compiled for law enforcement purposes, but only to the extent

that the production of such law enforcement records or information:

(i) Could reasonably be expected to interfere with enforcement

proceedings;

(ii) Would deprive a person of a right to a 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, any private institution, or a Federal Home Loan Bank, which

furnished information on a confidential basis, and, in the case of a

record compiled by criminal law enforcement authority in the course of

a criminal investigation or by an agency conducting a lawful national

security investigation, information furnished by a confidential source;

(v) Would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical

safety of any individual.

(8) Contained in or related to examination, operating, or condition

reports prepared by, on behalf of, or for the use of the Finance Board,

a Federal Home Loan Bank, or a financial regulatory agency.

(9) Geological and geophysical information and data, including

maps, concerning wells.

(b) Reasonably segregable portions. (1) The Finance Board shall

provide a requester with any reasonably segregable portion of a record

after redacting the portion that is exempt from disclosure under

paragraph (a) of this section.

(2) The Finance Board shall make a reasonable effort to estimate

the volume of redacted information and provide that information to the

requester unless providing the estimate would harm an interest

protected by the exemption under which the redaction is made.

(3) The Finance Board shall indicate the estimated volume of

redacted information on the released portion of the record unless

providing the estimate would harm an interest protected by the

exemption under which the redaction is made. If technically feasible,

the Finance Board shall make the indication at the place in the record

where the redaction is made.

(c) Public interest. The Finance Board may disclose records it has

authority to withhold under paragraph (a) of this section upon a

determination that disclosure would be in the public interest.

Sec. 904.6 Disclosure of Federal Home Loan Bank examination reports.

The Finance Board may disclose an examination, operating, or

condition report of a Federal Home Loan Bank or a related record to a

financial regulatory agency upon a determination that:

(a) The person requesting the record on behalf of the financial

regulatory agency has the authority to make such request;

(b) The financial regulatory agency is requesting the record for a

legitimate regulatory purpose; and

(c) The financial regulatory agency making the request agrees that

it shall not disclose the record pursuant to FOIA, the agency's

regulations, or any other authority.

Sec. 904.7 Records of financial regulatory agencies held by the

Finance Board.

The Finance Board shall not disclose an examination, operating, or

condition report, or other record prepared by, on behalf of, or for the

use of a financial regulatory agency. Upon a receipt of a request for

such records, the Finance Board shall promptly refer the request to the

appropriate agency and notify the requester of the referral.

Sec. 904.8 Appeals.

(a) Procedure. (1) If the Secretary to the Board has denied a

request in whole or in part, the requester may appeal the denial by

submitting a written application to the Secretary to the Board stating

the grounds for the appeal within 30 working days of the date of the

Finance Board's determination under Sec. 904.4.

(2) Subject to Sec. 904.9(f), within 20 working days of receipt of

an application for appeal meeting the requirements of paragraph (a)(1)

of this section and any extensions of time under paragraph (a)(3) of

this section, the Finance Board shall determine whether to grant or

deny the appeal and notify the requester in writing of the

determination, the name and title or position of the person responsible

for the determination, and the provisions for judicial review of this

final action under 5 U.S.C. 552(a)(4).

(3) In unusual circumstances, the Secretary to the Board may extend

the time limit in paragraph (a)(2) of this section for a period not to

exceed 10

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working days by notifying the requester in writing of the reasons for

the extension and the date on which a determination is expected.

(b) Appeal during pendency of judicial review. If a requester files

an action in a United States district court under 5 U.S.C. 552(a)(4)

concerning a request for Finance Board records before exhausting the

administrative appeals process for that request under paragraph (a) of

this section, the Finance Board may:

(1) Initiate and process an administrative appeal; or

(2) Continue to process an administrative appeal previously filed

under paragraph (a) of this section.

Sec. 904.9 Fees.

(a) Fees. Except as otherwise provided in a statute specifically

providing for setting fees for particular types of records or in this

section, the Finance Board shall assess against each requester the

direct costs of responding to a request for records.

(1) If the records are requested for a commercial use, the direct

costs are limited to the reasonable operating costs the Finance Board

incurs to search, review, and duplicate records.

(2) If the records are not requested for a commercial use and the

requester is an educational institution, non-commercial scientific

institution, or representative of the news media, the direct costs are

limited to the reasonable operating costs the Finance Board incurs to

duplicate records in excess of 100 pages.

(3) If neither the request nor the requester is described in

paragraphs (a) (1) or (2) of this section, the direct costs are limited

to the reasonable operating costs the Finance Board incurs to search in

excess of two hours and duplicate records in excess of 100 pages.

(4) For purposes of this section, the term:

(i) Commercial use request means a request from, or on behalf of, a

person who seeks records for a use or purpose that furthers the

commercial, trade, or profit interests of the requester or the person

on whose behalf the request is made.

(ii) Educational institution means a preschool, public or private

elementary or secondary school, or institution of undergraduate,

graduate, professional, or vocational higher education that operates a

program of scholarly research.

(iii) Non-commercial scientific institution means a nonprofit

institution operated solely for the purpose of conducting scientific

research the results of which are not intended to promote any

particular product or industry.

(iv) Representative of the news media means a requester who is

actively gathering information that is about current events or would be

of current interest to the public for an entity that is organized and

operated to publish or broadcast news to the public.

(b) Fees when no records are provided. The Finance Board may assess

a fee for the direct costs of searching for a requested record the

Finance Board cannot locate or if located, determines to be exempt from

disclosure under Sec. 904.5.

(c) Interest. The Finance Board may assess interest at the rate

prescribed in 31 U.S.C. 3717 on any unpaid fees beginning 31 days after

the earlier of the date of the Finance Board's determination under

Sec. 904.4 or the date a fee statement is mailed to a requester.

Interest shall accrue from such date.

(d) Exceptions. Notwithstanding paragraphs (a) or (b) of this

section, the Finance Board may determine not to assess a fee or to

reduce a fee if:

(1) The routine cost of collecting and processing the fee is likely

to equal or exceed the amount of the fee.

(2) The fee is equal to or less than 10 dollars.

(3) Disclosure of the record is in the public interest because it

is likely to contribute significantly to public understanding of the

operations or activities of the government and is not primarily in the

commercial interest of the requester.

(i) A requester may apply in writing to the Secretary to the Board

for a waiver of fees under this paragraph (b)(3). A fee waiver request

shall include the following:

(A) The requester's interest in and proposed use of the record;

(B) Whether the requester will derive income or other benefit from

the record;

(C) An explanation of how the public will benefit from disclosure,

including the requester's ability and intention to disseminate the

information to the public; and

(D) The requester's expertise in the subject area of the record.

(ii) In determining whether disclosure of a record is in the public

interest, the Finance Board shall consider whether the record:

(A) Concerns identifiable operations or activities of the Finance

Board;

(B) Is meaningfully informative in relation to the subject matter

of the request;

(C) Contributes to an understanding of the subject matter by the

public at large, and the significance of that contribution; and

(D) Furthers, or is primarily in, the requester's commercial

interest.

(e) Aggregating requests. If the Finance Board reasonably believes

that a requester or a group of requesters acting in concert is

attempting to break a request down into a series of requests for the

purpose of evading the assessment of fees, it may aggregate such

requests and assess fees in accordance with this section.

(f) Collecting fees. (1) The Finance Board shall deem any request

for Finance Board records as an agreement by the requester to pay fees

and interest assessed in accordance with this section.

(2) To pay fees and interest assessed under this section, a

requester shall deliver to the Secretary to the Board a check or money

order made payable to the ``Federal Housing Finance Board.''

(3) Prior to disclosing any record, the Finance Board may require a

requester to agree in writing to pay actual fees and interest incurred

in accordance with this section if the estimated fee will likely exceed

$25 but not $250.

(4) The Finance Board may require a requester to pay an estimated

fee in advance if:

(i) The Secretary to the Board determines that the fee will likely

exceed $250; or

(ii) The requester has previously failed to pay a fee assessed

under this section within 30 days of the earlier of the date of the

Finance Board's determination under Sec. 904.4 or the date a fee

statement was mailed to a requester.

(5) The Finance Board shall promptly refund to a requester any

estimated advance fee paid under paragraph (f)(4) of this section that

exceeds the actual fee. The Finance Board shall assess the requester

for the amount by which the actual fee exceeds the estimated advance

fee payment.

(g) Fee schedule. The Finance Board shall assess fees in accordance

with the following schedule:

Search:

Manual: Supervisory/Professional Staff..... $34.00 per hour.

Manual: Clerical Staff..................... $17.00 per hour.

Computer: Operator......................... $34.00 per hour.

Computer output (PC)....................... actual cost.

[[Page 37489]]

Diskettes (3\1/2\ x 5\1/4\).............. $5.00 per diskette.

Review..................................... $34.00 per hour.

Duplication:

Photocopy.................................. $.10 per page.

Computer generated......................... $.76 per 1000 lines.

Copy of microfiche......................... $.30 per page.

Transcription of audio tape................ $4.50 per page.

Certification, seal and attestation by the $5.00 per document.

Secretary to the Board.

Delivery:

Facsimile transmission (long distance)..... Long distance charges plus $.25 per page.

Facsimile transmission (local)............. $.25 per call plus $.25 per page.

Express delivery service................... Actual cost.

Dated: May 29, 1998.

By the Board of Directors of the Federal Housing Finance Board.

Bruce A. Morrison,

Chairperson.

[FR Doc. 98-18468 Filed 7-10-98; 8:45 am]

BILLING CODE 6725-01-P