[Federal Register Volume 65, Number 102 (Thursday, May 25, 2000)]
[Proposed Rules]
[Pages 33790-33796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13194]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of Federal Housing Enterprise Oversight
12 CFR Part 1710
RIN 2550-AA09
Releasing Information; Electronic Freedom of Information
Amendment
AGENCY: Office of Federal Housing Enterprise Oversight, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is
proposing to amend its regulations to reflect the changes to the
Freedom of Information Act (FOIA) made by the Electronic Freedom of
Information Act Amendments Act of 1996 (1996 Act) and to revise the
method of computing fees. The proposal provides for: electronic FOIA
requests; access to records published or released under FOIA in
electronic format; expedited processing of FOIA requests upon a showing
of compelling need; publication of responses to FOIA requests that are
likely to become repeat requests; aggregation of clearly related
requests by a single requester or group of requesters acting in
concert; informing the requester of the volume of requested material
withheld and the extent of deletions both in publicly available records
and records released in response to a FOIA request; and a method for
computing fees that is based upon the classification of the employee
performing the work as executive, professional, or clerical.
DATES: Written comments regarding the proposed rulemaking must be
received by July 24, 2000.
ADDRESSES: All comments concerning the proposed rule should be
addressed to Alfred M. Pollard, General Counsel, Office of Federal
Housing Enterprise Oversight, 1700 G Street NW, Fourth Floor,
Washington, DC 20552. Alternatively, comments may be submitted via
electronic mail to: RegComments@ofheo.gov. Copies of all communications
received will be available for public inspection and copying at the
address above.
FOR FURTHER INFORMATION CONTACT: Dorothy J. Acosta, Associate General
Counsel, 1700 G Street NW, Fourth Floor, Washington, DC 20552,
telephone (202) 414-6924 (not a toll-free number). The telephone number
for the Telecommunications Device for the Deaf is (800) 877-8339.
SUPPLEMENTARY INFORMATION: On December 23, 1998, OFHEO issued a final
rule governing the release of information to the public, which, among
other things, implemented the requirements of the Freedom of
Information Act (FOIA). 63 FR 70998, Dec. 23, 1998. At the time of the
publication of the final regulation, OFHEO noted that Congress had
enacted the Electronic Freedom of Information Act Amendments of 1996
(1996 Act) \1\ to provide for public access to information in an
electronic format and for other purposes and announced that these
amendments would be implemented by a separate rulemaking. Although
certain of the 1996 Act's amendments that did not involve access to
records in an electronic format were included in the final regulation,
such as the extension of the time limit for the initial agency response
from ten (10) to 20 days, this proposed regulation implements the
remainder of the amendments and proposes a new method for computing
fees. The 1996 Act amendments that are reflected in this proposal are:
(1) The requirement to make requested documents available in the form
or format specified by the requester, provided the document is readily
reproducible in that form or format; (2) the requirement to make
publicly available copies of records released in response to FOIA
requests that are likely to become the subject of subsequent requests
for substantially the same records; (3) the requirement for electronic
access to records required to be made public by 5 U.S.C. 552(a)(2) that
were created after November 1, 1996; (4) the requirement to provide
expedited processing of FOIA requests upon a showing of compelling need
by the requester and in such other cases as the agency may determine;
(5) the requirement to indicate the extent of any deletion made in
released records and publicly available records; (6) the requirement to
inform the requester of the estimated volume of material withheld; and
(7) the provision for aggregating clearly related requests as a single
request when such a request would constitute an ``unusual
circumstance'' justifying an extension of the response time. Although
the 1996 Act authorized agencies to promulgate regulations providing
for multi-tracking of FOIA requests based on the amount of time or work
(or both) involved in processing requests, OFHEO has elected not to
propose such regulations at this time. Thus far, the volume of FOIA
requests has not been so great that a multi-tracking system is needed.
[[Page 33791]]
Although not required by the 1996 Act, the proposed regulation would
allow requests to be made electronically.
---------------------------------------------------------------------------
\1\ Pub. L. 104-231, 110 Stat. 3048.
---------------------------------------------------------------------------
The proposal would also revise the way fees are determined for
personnel costs involved in processing a request. Currently, an hourly
rate for actual time spent searching, reviewing, and duplicating is
determined by the salary of the particular employee performing the work
plus 16% of that amount to reflect the cost of benefits. In order to
simplify the calculation of fees and provide a more transparent and
predictable fee schedule for requesters, OFHEO proposes a method for
computing fees that would charge one of three hourly rates for
personnel costs associated with responding to a request, depending on
whether the employee performing the work is classified as executive,
professional, or clerical. An average of the actual compensation
(salary and benefits) of all employees of OFHEO in a particular
classification would determine the actual hourly fee for that
classification. These fees would be adjusted periodically to reflect
significant changes in average compensation. The current fee schedule
would be available on OFHEO's website (http://www.ofheo.gov/docs/) and
by mail.
Section-by-Section Analysis
Subpart A--General Definitions
The definition of ``record'' in Sec. 1710.2(j) would be amended by
inserting the phrase ``regardless of form or format,'' to clarify that
a record may be electronic in form.
Subpart B--Documents and Information Generally
Subpart B contains general provisions relating to disclosure of
documents and information in the possession of OFHEO. Section 1710.7(c)
provides that if a requested record is available through routine
distribution procedures, OFHEO will first refer the requester to those
sources, and only if the requester is not satisfied will OFHEO treat
the request as a FOIA request. The proposed regulation adds the OFHEO
website, (http://www.ofheo.gov) to the list of routine distribution
procedures.
Subpart C--Availability of Records of OFHEO
Section 1710.11 of subpart C provides, generally, for the release
of OFHEO records. Paragraph (a) of this section addresses the release
of records in response to requests and paragraph (b) addresses records
required to be made publicly available, including current indexes to
such records. The proposed regulation separates the provisions of
existing Sec. 1710.11 that relate to records required to be made
publicly available pursuant to 5 U.S.C. 552(a)(2) from those that
relate to the release of records upon request and relocates provisions
related to records required to be made publicly available to
Sec. 1710.12. The existing provisions of Sec. 1710.12 would be deleted,
because they are made unnecessary by other amendments to the
regulation. Specific changes to the existing text of Secs. 1710.11 and
1710.12 are explained more fully below.
Section 1710.11(a) would be amended to incorporate the substance of
Sec. 1710.11(c), which addresses copying costs, and to state that
records will be made available in the form or format requested provided
they are readily reproducible in that form or format with reasonable
effort. ``Readily reproducible'' is defined to mean, with respect to
electronic format, that the requested record or records can be
downloaded or transferred intact to a computer disk, or other
electronic medium using equipment currently in use by OFHEO.
Section 1710.11(b), which addresses records required to be made
publicly available under 5 U.S.C. 552(a)(2), would be redesignated as
Sec. 1710.12(a) and amended to: (1) Incorporate the substance of
Sec. 1710.11(c) addressing copying costs; (2) state that all publicly
available documents are available by mail; (3) state that records
created after November 1, 1996, including current indexes to all
publicly available records regardless of when created, will be
available on OFHEO's website; and (4) add to the list of records
publicly available, copies of records that have been released under the
FOIA that OFHEO believes are likely to become the subject of subsequent
requests for substantially the same records.
Section 1710.11(c), which relates to copying charges, would be
deleted and its substance incorporated in Secs. 1710.11(a) and
1710.12(a).
Section 1710.11(d), which sets forth FOIA exemptions, would then be
redesignated as Sec. 1710.11(b). This allows the regulatory designation
for exemptions to be consistent with the statutory designation (i.e.,
(b)(1), (b)(2), (b)(3), etc. instead of (d)(1), (d)(2), (d)(3), etc.)
and avoids potential confusion arising from different statutory and
regulatory designations.
Section 1710.11(e) would be redesignated as Sec. 1710.1(c).
Section 1710.11(f) would be redesignated as Sec. 1710.11(d) and
would be amended to require that the amount of any information deleted
from a record released under FOIA be indicated on the released portion
of the record (at the place the deletion is made, if technically
feasible).
Section 1710.11(g), which relates to permissible deletions in
publicly available records, would be redesignated as Sec. 1710.12(b)
and amended to state that the extent of any deletions necessary to
protect personal privacy will be indicated on the records that are
publicly available under redesignated Sec. 1710.12(a), at the place
where the deletion is made if technically feasible, unless including
the indication would harm an interest protected by the exemption on
which the deletion is based.
Section (h) would be redesignated as Sec. 1710.11(e).
Section 1710.12(a) currently states that the indexes that are
required to be made available for public inspection and copying under 5
U.S.C. 552(a)(2) are available for inspection and copying at OFHEO's
offices during regular business hours. This existing provision would be
deleted because it is duplicative of the introductory language of
existing Sec. 1710.11(b), which would be redesignated as
Sec. 1710.12(a) and amended as described above. The heading of
Sec. 1710.12 would be revised to read ``Publicly Available Records.''
Section 1710.12(b) currently 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. It
states, however, that the indexes will be provided by mail upon
request. Because OFHEO proposes to publish current indexes on its
website, this finding is unnecessary and would be deleted. The
statement that current indexes are available by mail would be relocated
to Sec. 1710.12(a).
Section 1710.13 would be amended to permit requests to be made by
facsimile or electronic mail and to require that the request include
the submitter's name, address and telephone number, to enable the FOIA
Officer to contact the requester about the request in the event that
clarification is needed.
Section 1710.14(c) would be amended to state that OFHEO is not
required to create a record to respond to a request, replacing a
statement that OFHEO will not create a record. While normally OFHEO
will not create a record to respond to a request, there may be some
circumstances in which it is easier to create a record than to redact a
record or records in which the requested information is contained.
Section 1710.15, which prescribes the form and content of FOIA
responses, would be amended by adding a
[[Page 33792]]
requirement that a notice of denial of a FOIA request (in whole or in
part) include an estimate of the volume of requested material withheld,
unless providing it would harm an interest protected by the exemption
on which the denial is based.
Section 1710.16 sets forth the process for appeal of denials.
Paragraph (a) would be amended to clarify that the appeal procedures
also apply to denials of requests for expedited processing. Paragraph
(b) would be amended to permit appeals to be submitted electronically
or by facsimile. Paragraph (g), which sets forth the right to judicial
review, currently states that a requester will be deemed to have
exhausted his or her administrative remedies if an administrative
appeal has been denied or has not been acted on within 20 days of
receipt. This paragraph would be amended to state that if OFHEO
provides the requester an opportunity to limit the scope of the request
or arrange an alternate time for processing the request, the
requester's refusal to do either will be considered a factor in
determining whether ``exceptional circumstances'' exist. A showing of
exceptional circumstances and due diligence on the part of the agency
allows a court in which judicial review is sought to grant a stay to
allow the agency additional time to complete its review of the records.
Section 1710.17 of the existing rule describes the time limits
within which OFHEO will respond to initial requests and appeals of
denials of requests. Paragraph (b) would be amended to state that
appeals of denials of expedited processing will be acted on as
expeditiously as practicable. Paragraph (c) would be amended by
providing that if OFHEO extends the time limit stated in that paragraph
and is unable to process the request by the date specified in the
notice, OFHEO will offer the requester an opportunity to limit the
scope of the request or arrange an alternate time frame for processing
the request or a modified request. A new paragraph (d) would be added
that provides for aggregating multiple requests involving clearly
related matters made by a single requester, or group of requesters
acting in concert, when such requests would, if considered as a single
request, constitute an ``unusual circumstance'' justifying an extension
of the response time. A new paragraph (e) would be added that provides
for expedited processing upon a showing of compelling need by the
requester and in such other cases as OFHEO may determine. A request for
expedited processing must be accompanied by a statement, certified to
be true and correct by the requester, that demonstrates compelling
need. To show compelling need, the requester's statement must
demonstrate that failure to obtain the requested records could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual, or, in the case of a requester whose
main professional occupation or activity is the dissemination of
information, that there is urgency to inform the public of the
government activity involved in the request beyond the public's right
to know of government activity generally. The requester must be
notified within 10 working days of the disposition of the request, and
any appeal of the denial must be acted on expeditiously.
Subpart D--Fees for Provision of Information
Subpart D sets forth the fees that will be assessed for services
rendered in responding to and processing requests for records under the
FOIA. The definition of ``direct costs'' in Sec. 1710.21(b) would be
amended to include the costs of any automated searches and the cost of
securing any contract services that may be necessary to respond to a
FOIA request. To reflect the revised fee schedule set forth in the
amended section 1710.22(b), a reference to that section is substituted
for the reference to the actual salary of the person performing the
work as a basis for the fees charged.
Section 1710.21(f) would be amended by adding a requirement that
the copy of the requested record be provided in the form or format
requested, provided it is readily reproducible in that form or format
with reasonable effort.
Section 1710.22 would be revised to reflect a new method for
computing fees and to make minor technical changes to better
accommodate the changes made in response to the 1996 Act. Instead of
basing the fee on the actual salary rate of the employee performing the
work plus 16% for benefits, OFHEO proposes to charge one of three
hourly fees determined by whether the employee performing the work is
classified as executive, professional, or clerical. The fee for each
category would be determined by the average of the actual salaries and
benefits of the employees in that category and would be adjusted
periodically to reflect significant changes in average compensation of
the class. The ``executive'' category refers to the senior management
of the agency (i.e. Director, Deputy Director, Associate Directors, and
Deputy Associate Directors). The ``clerical'' category includes
employees performing primarily secretarial, clerical or ministerial
tasks. The ``professional'' category includes all other employees. A
current fee schedule would be available on OFHEO's website or by mail.
Conforming changes are made in paragraph (b)(1)(ii) of this section,
Sec. 1710.23(g), and Sec. 1710.38(a) of this part.
Technical changes to Sec. 1710.22 include substituting ``computer
equipment'' for ``central processing unit'' and changing the heading in
Sec. 1710.22(b)(2) from ``Duplication'' to ``Reproduction'' to clarify
that the paragraph applies both to duplicating a record in the same
format and to reproducing a record in a different format, and by
changing the word ``reproduction'' to ``photocopied'' in the first
sentence to clarify that the per page charge applies only to
photocopies of records. Conforming changes are made in Sec. 1710.23.
Throughout the regulation, minor, nonsubstantive syntactical
changes are made in the revised sections and citations to sections of
the Freedom of Information Act are replaced with citations to the
sections of the regulation containing the relevant statutory
provisions. Citations to 5 U.S.C. 552 are replaced with ``the Freedom
of Information Act.'' These changes will allow the reader to understand
the regulatory provisions without referring to the statute.
Regulatory Impact
Executive Order 13132, Federalism
Executive Order 13132 requires that Executive departments and
agencies identify regulatory actions that have significant federalism
implications. A regulation has federalism implications if it has
substantial direct effects on the States, on the relationship or
distribution of power between the Federal Government and the States, or
on the distribution of power and responsibilities among various levels
of Government. OFHEO has determined that this rule has no federalism
implications that warrant the preparation of a Federalism Assessment in
accordance with Executive Order 13132.
Executive Order 12866, Regulatory Planning and Review
OMB has determined that rulemakings that amend FOIA regulations to
implement the requirements of the Electronic Freedom of Information Act
Amendments of l996 are not ``significant'' regulations for the purposes
of Executive Order 12866.
[[Page 33793]]
Executive Order 12988, Civil Justice Reform
Executive Order 12988 sets forth guidelines to promote the just and
efficient resolution of civil claims and to reduce the risk of
litigation to the Federal Government. This final rule meets the
applicable standards of sections 3(a) and (b) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule does not include a Federal mandate that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more (adjusted annually
for inflation) in any one year. Consequently, the rule does not warrant
the preparation of an assessment statement in accordance with the
Unfunded Mandates Reform Act of 1995.
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires that
a regulation that has a significant economic impact on a substantial
number of small entities, small businesses, or small organizations must
include an initial regulatory flexibility analysis describing the
regulation's impact on small entities. Such an analysis need not be
undertaken if the agency has certified that the regulation will not
have a significant economic impact on a substantial number of small
entities. 5 U.S.C. 605(b).
OFHEO has considered the impact of the regulation under the
Regulatory Flexibility Act. The General Counsel has certified that this
final rule will not have significant economic impact on a substantial
number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, requires
that regulations involving the collection of information receive
clearance from OMB. This rule contains no such collection of
information requiring OMB approval under the Paperwork Reduction Act.
Consequently, no information has been submitted to OMB for review under
the Paperwork Reduction Act.
List of Subjects in 12 CFR Part 1710
Administrative practice and procedure, Confidential business
information, Electronic products, Freedom of information.
Accordingly, for reasons set forth in the preamble, OFHEO proposes
to amend 12 CFR part 1710 as follows:
PART 1710--RELEASING INFORMATION
1. The authority citation for part 1710 continues to read as
follows:
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 4513, 4522, 4526, 4639;
E.O. 12600; 3 CFR, 1987 Comp., p. 235.
Subpart A--General Definitions
Sec. 1710.2 [Amended]
2. Amend Sec. 1710.2(j) by adding ``, regardless of form or
format,'' after ``document''.
Subpart B--Documents and Information Generally
Sec. 1710.7 [Amended]
3. Amend the first sentence of Sec. 1710.7(c) by adding ``or
material offered on OFHEO's website (http://www.ofheo.gov),'' after the
comma following the parenthetical.
Subpart C--Availability of Records of OFHEO
4. Revise Sec. 1710.11 to read as follows:
Sec. 1710.11 Official records of OFHEO.
(a) OFHEO shall, upon a written request for records that 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 (b) of this section. OFHEO may charge a fee
determined in accordance with subpart D of this part. OFHEO will make
the record available in the form or format requested if the record is
readily reproducible in that form or format with reasonable effort.
``Readily reproducible'' means, with respect to electronic format, that
the requested record or records can be downloaded or transferred intact
to a computer disk, tape, or other electronic medium using equipment
currently in use by OFHEO.
(b) Records not available. Except as otherwise provided in this
part, or as may be specifically authorized by the Director, the
following information and records, or portions thereof, are not
available to requesters:
(1) Any record, or portion thereof, that 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 that is specifically exempted
from disclosure by statute (other than 5 U.S.C. 552b), 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 that 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 that furnished information on a confidential basis,
and, in the case of a record of information compiled by a criminal law
enforcement authority in the course of a criminal investigation or by
an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Any matter that is contained in or related to examination,
operating, or condition reports that are prepared by, on behalf of, or
for the use of OFHEO.
(9) Any geological and geophysical information and data, including
maps, concerning wells.
[[Page 33794]]
(c) Even if an exemption described in paragraph (b) of this section
may be reasonably applicable to a requested record, or portion thereof,
OFHEO may elect under the circumstances of any particular request not
to apply the exemption to such requested record, or portion thereof.
The fact that the exemption is not applied by OFHEO to any requested
record, or portion thereof, has no precedential significance as to the
application or nonapplication of the exemption to any other requested
record, or portion thereof, no matter when the request is received.
(d) 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. The amount of the
information deleted shall be indicated on the released portion of the
record, unless including that indication would harm an interest
protected by the exemption in paragraph (b) of this section pursuant to
which the deletion is made. If technically feasible, the amount of the
information deleted shall be indicated at the place in the record where
the deletion is made.
(e) 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.
5. Revise Sec. 1710.12 to read as follows:
Sec. 1710.12 Publicly available records
(a) The records described in this paragraph are available for
public inspection and copying, for a fee determined in accordance with
subpart D of this part, at OFHEO's offices located at 1700 G Street,
NW, Fourth Floor, Washington, DC 20552. Records created on or after
November 1, 1996, and current indexes to all records described in
paragraphs (a)(1), (a)(2), (a)(3), and (a)(4) of this section,
including those created before November 1, 1996, are available
electronically at http://www.ofheo.gov/docs/. The publicly available
records include--
(1) Any final opinions issued by OFHEO, as well as orders made in
adjudication of cases as set forth in Sec. 1710.9 of subpart B of this
part;
(2) Any statements of policy and interpretation that have been
adopted by OFHEO and have not been published in the Federal Register;
(3) Any OFHEO administrative staff manuals and instructions to
staff that affect a member of the public, and that are not exempt from
disclosure under the Freedom of Information Act;
(4) Copies of all records released pursuant to this subpart that
OFHEO determines have become or are likely to become the subject of
subsequent requests for substantially the same records; and
(5) Current indexes to the records described in this paragraph.
(b) To the extent necessary to prevent an invasion of personal
privacy, the Director may delete identifying details from a record
described in paragraph (a) of this section. In each case of such
deletion, the justification will be clearly explained in writing and
the extent of such deletion indicated (at the place in the record where
the deletion is made if technically feasible), unless including that
indication would harm an interest protected by the exemption in
Sec. 1710.11(b) pursuant to which the deletion is made.
6. Revise Sec. 1710.13(a) to read as follows:
Sec. 1710.13 Requests for records.
(a) Addressing requests. Requests for records in the possession of
OFHEO shall be made in writing but may be submitted by regular mail,
electronic mail, or facsimile. If the request is sent by regular mail,
the request shall be addressed to FOIA Officer, Office of Federal
Housing Enterprise Oversight, 1700 G Street NW., Fourth Floor,
Washington, DC 20552, with both the envelope and the letter marked
``FOIA Request.'' Electronic mail requests shall be addressed to
foia_office@ofheo.gov, with ``FOIA Request'' in the subject line.
Requests submitted by fax shall be sent to FOIA Officer at (202) 414-
8917 and shall be clearly marked ``FOIA Request.'' All requests shall
include the requester's name, address, and telephone number. An
improperly addressed request will be deemed not to have been received
for purposes of the 20-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 the FOIA Officer. Records requested in
conformance with this subpart that are not exempt records may be
obtained in person, by regular mail, or by electronic mail, as
specified in the request, provided the records are readily reproducible
in the requested form or format with reasonable effort. Records to be
obtained in person will be available for inspection or copying during
business hours on a regular business day in the office of OFHEO.
* * * * *
Sec. 1710.14 [Amended]
7. Amend Sec. 1710.14(c) by removing ``will not'' and adding ``is
not required to'' in its place in the last sentence.
8. Amend Sec. 1710.15(b) by redesignating paragraphs (b)(2) and
(b)(3) as (b)(3) and (b)(4) respectively, and adding a new paragraph
(b)(2) to read as follows:
Sec. 1710.15 Form and content of responses.
* * * * *
(b) * * *
(2) An estimate of the volume of any requested matter that is
withheld, unless providing the estimate would harm an interest
protected by the exemption in Sec. 1710.11 (b) pursuant to which the
denial was made;
* * * * *
9. Amend Sec. 1710.16 by revising paragraphs (a), (b), and (d) to
read as follows:
Sec. 1710.16 Appeals of denials.
(a) Right of appeal. If a request, including a request for
expedited processing, has been denied in whole or in part, the
requester may appeal the denial to: FOIA Appeals Officer, Office of
Federal Housing Enterprise Oversight, 1700 G Street, NW, Fourth Floor,
Washington DC 20552. Electronic appeals shall be submitted to
foia_appeals_office@ofheo.gov with ``FOIA Appeal_ in the subject line.
(b) Letter of appeal. The appeal must be in writing and submitted
within 30 days of receipt of the denial letter. The appeal shall be
submitted in the manner described in Sec. 1710.13, except that it shall
be clearly marked ``FOIA Appeal'' instead of ``FOIA Request.'' An
appeal shall 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. An improperly addressed appeal shall be deemed
not to have been received for the purposes of the 20-day time period
set forth in Sec. 1710.17(b) until it is received, or would have been
received with the exercise of due diligence, by the Appeals Officer.
* * * * *
(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). However, a requester's refusal of OFHEO's
offer of an opportunity to limit the scope of the request or arrange
[[Page 33795]]
an alternate time frame for processing the request shall be considered
as a factor in determining whether ``exceptional circumstances'' exist,
which permits a court in which a requester has sought judicial review,
to grant a stay to allow OFHEO to complete its review of the records.
10. Revise Sec. 1710.17 to read as follows:
Sec. 1710.17 Time limits.
(a) Initial request. Following receipt of a request for records,
the FOIA Officer will determine whether to comply with the request and
will notify the requester in writing of his or her determination within
20 days (excluding Saturdays, Sundays, and legal holidays) after
receipt of the request.
(b) Appeal. A written determination on an appeal submitted in
accordance with Sec. 1710.16 of this subpart will be issued within 20
days (excluding Saturdays, Sundays, and legal holidays) after receipt
of the appeal. However, determination of an appeal of a denial of
expedited processing will be issued as expeditiously as practicable.
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 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. If the date specified for the extension is more
than 10 days after the initial time allowed for response, OFHEO will
provide the requester an opportunity to limit the scope of the request
or arrange for an alternate time frame for processing the request. 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.
(d) Related requests. OFHEO may aggregate multiple requests
involving clearly related matters made by a single requester, or a
group of requesters acting in concert, if OFHEO reasonably believes
that such requests actually constitute a single request that would
qualify as an ``unusual circumstance.''
(e) Expedited processing. (1) Upon a demonstration of compelling
need by the requester, OFHEO will grant a request for expedited
processing of a FOIA request. If a request for expedited processing is
granted, OFHEO will give the request priority and process it as soon as
practicable.
(2) To show a compelling need for expedited processing, the
requester shall provide a statement demonstrating that:
(i) The failure to obtain the requested records could reasonably be
expected to pose an imminent threat to the life or physical safety of
an individual; or
(ii) The requester's main professional occupation or activity is
information dissemination and there is a particular urgency to inform
the public of government activity involved in the request beyond the
public's right to know about government activity generally.
(3) The requester's statement of compelling need must be certified
to be true and correct to the best of his or her knowledge and belief
and must explain in detail the basis for requesting expedited
processing. The formality of the certification required to obtain
expedited treatment may be waived by OFHEO in its discretion.
(4) A requester seeking expedited processing will be notified
within ten (10) working days of the receipt of the request whether
expedited processing has been granted. If the request for expedited
processing is denied, OFHEO will act on any appeal expeditiously.
Sec. 1710.18 [Amended]
11. Amend Sec. 1710.18 as follows:
a. In paragraph (b)(1), remove ``Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4)'' and add in its place ``Sec. 1710.11(b)(4)''.
b. In paragraph (c), remove ``Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4)'' and add in its place ``Sec. 1710.11(b)(4)''.
c. In paragraph (d)(2), remove ``5 U.S.C. 552(b)(4)'' and add in
its place ``Sec. 1710.11(b)(4)''.
d. In paragraph (e)(1), remove ``5 U.S.C. 552(b)(4)'' and add in
its place ``Sec. 1710.11(b)(4)''.
e. In paragraph (i)(3), remove ``5 U.S.C. 552'' and add in its
place ``the Freedom of Information Act''.
Subpart D--Fees for Provision of Information
12. Amend Sec. 1710.21 by revising paragraphs (b) and (f) to read
as follows:
Sec. 1710.21 Fees.
* * * * *
(b) Direct costs means the expenditures actually incurred by OFHEO
in searching for and reproducing records to respond to a request for
information. In the case of a commercial use request, the term also
means those expenditures OFHEO actually incurs in reviewing records to
respond to the request. The direct costs shall include the cost of the
time of the employee performing the work, determined in accordance with
Sec. 1710.22(b)(1)(i), the cost of any computer searches, determined in
accordance with Sec. 1710.22(b)(1)(ii), 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. Direct costs also include the costs
incurred by OFHEO for any contract services that may be needed to
respond to a request.
* * * * *
(f) Reproduce and reproduction means the process of making a copy
of a record necessary to respond to a request for information. Such
copies take the form of paper copy, microfilm, audio-visual materials,
or machine readable documentation, e.g., magnetic tape or disk. The
copy provided shall be in the form or format requested, provided the
record is readily reproducible in that form or format with reasonable
effort, and shall be in a form reasonably usable by the requesters.
* * * * *
13. Revise Sec. 1710.22 to read as follows:
Sec. 1710.22 Fees to be charged--general.
(a) Generally, the fees charged for requests for records pursuant
to the Freedom of Information Act will cover the full allowable direct
costs of searching for, reproducing, and reviewing records that are
responsive to a request for information. Fees will 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
[[Page 33796]]
assessed shall be paid by check or money order payable to the Office of
Federal Housing Enterprise Oversight.
(b) Types of charges. The types of charges that may be assessed in
connection with the production of records in response to a FOIA request
are as follows:
(1) Searches. (i) Manual searches for records. OFHEO will charge
for actual search time, billed in 15-minute segments, at a rate
determined by whether the employee performing the work is classified as
clerical, professional, or executive. The hourly fee for each
classification is based on the average of the actual compensation
(salary and benefits) of employees in the classification and is
adjusted periodically to reflect significant changes in the average
compensation of the class. The ``executive'' classification includes
the senior management of OFHEO, i.e. Director, Deputy Director,
Associate Directors and Deputy Associate Directors. The ``clerical''
classification includes employees performing primarily secretarial,
clerical, or ministerial tasks. The ``professional'' classification
includes all positions not classified as ``executive'' or ``clerical.''
A current fee schedule is available on electronically at http://www.ofheo.gov/docs/ or by regular mail.
(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
computer equipment for that portion of operating time that is directly
attributable to searching for records and the cost of the time of the
employee performing the work, determined as described in paragraph
(b)(1)(i) of this section. A charge will 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.
(iii) Unproductive searches. OFHEO may charge search fees even if
no records are found that are responsive to the request or if the
records found are exempt from disclosure.
(2) Reproduction. Records will be photocopied at a rate of $.15 per
page. For copies prepared by computer, such as tapes or printouts, the
requester will be charged the actual cost, including operator time, of
production of the tape or printout. For other methods of reproduction,
the actual direct costs of reproducing the record(s) will be charged.
(3) Review. Only requesters who are seeking records for commercial
use may be charged for time spent reviewing records to determine
whether they are exempt from mandatory disclosure. Charges may be
assessed only for initial review, i.e., the review undertaken the first
time OFHEO analyzes the applicability of a specific exemption to a
particular record or portion of a record. Records or portions of
records withheld in full under an exemption that is subsequently
determined not to apply may be reviewed again to determine the
applicability of other exemptions not previously considered. The costs
for such a 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.
14. Amend Sec. 1710.23 by revising paragraph (g) to read as
follows:
Sec. 1710.23 Fees to be charged-categories of requesters.
* * * * *
(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 computer equipment and the operator's time determined as
described in paragraph (b)(1)(i) of Sec. 1710.22. When the cost of the
search (including the operator's time and the cost of operating the
computer equipment to process a request) equals the equivalent dollar
amount of two hours of the time of the person performing the work,
i.e., the operator, OFHEO will begin assessing charges for the
computer.
Subpart E--Testimony and Production of Documents in Legal
Proceedings in Which OFHEO Is Not a Named Party
15. Amend Sec. 1710.38 by revising paragraph (a) to read as
follows:
Sec. 1710.38 Fees.
* * * * *
(a) Searches for documents. OFHEO will charge for the actual search
time of the employee performing the work, billed in 15-minute segments,
as described in Sec. 1710.22(b)(i).
* * * * *
Dated: May 22, 2000.
Armando Falcon, Jr.,
Director, Office of Federal Housing Enterprise Oversight.
[FR Doc. 00-13194 Filed 5-24-00; 8:45 am]
BILLING CODE 4220-01-P