[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Rules and Regulations]
[Pages 4643-4645]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1967]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 77, No. 20 / Tuesday, January 31, 2012 /
Rules and Regulations
[[Page 4643]]
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1202
RIN 2590-AA44
Freedom of Information Act Implementation
AGENCY: Federal Housing Finance Agency.
ACTION: Final rule.
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SUMMARY: The Federal Housing Finance Agency (FHFA) issues this final
regulation revising its existing Freedom of Information Act (FOIA)
regulation. This final regulation provides procedures and guidelines
under which FHFA and the FHFA Office of Inspector General (FHFA-OIG)
will implement FOIA.
DATES: The final regulation is effective January 31, 2012.
FOR FURTHER INFORMATION CONTACT: David A. Lee, FHFA Chief FOIA Officer,
(202) 649-3058, david.lee@fhfa.gov (not a toll-free number), Federal
Housing Finance Agency, 400 Seventh Street SW., Eighth Floor,
Washington, DC 20024. Please note that all mail sent to FHFA via the
United States Postal Service is routed through a national irradiation
facility, a process that may delay delivery by approximately two weeks.
For any time-sensitive correspondence, please plan accordingly. The
telephone number for the Telecommunications Device for the Hearing
Impaired (TDD) is (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Interim Final Regulation
FHFA issued an interim final regulation on May 23, 2011 at 76 FR
29633 revising its 2009 FOIA regulation in various aspects. These
revisions were necessary to provide procedures and guidelines under
which FHFA and FHFA-OIG would implement FOIA, as well as to implement
certain necessary updates and revisions to the 2009 regulation. FHFA
solicited public comments on the interim final regulation for a 60-day
period that ended on July 22, 2011.
II. Analysis of Comment Received and Final Regulation
FHFA received one comment letter in response to the interim final
regulation from the National Archives and Records Administration's
Office of Government Information Services (NARA). NARA recommended
several changes to the interim final regulation. These changes are
discussed below. Additionally, since the publication of the interim
final regulation, FHFA has relocated its headquarters and its mailing
address and contact information for the FOIA program has changed. As a
result, FHFA will also be making technical changes to the regulation to
include the new mailing address and telephone, and facsimile numbers
for the FOIA program.
Section 1202.1--Why did FHFA issue this regulation?
NARA suggested revising Sec. 1202.1(c) to clarify how FHFA and
FHFA-OIG will handle first-party access requests--i.e., a request for
information about yourself--which are commonly submitted pursuant to
the Privacy Act. FHFA and FHFA-OIG agree with this recommendation and
have revised the final regulation to clarify how first-party access
requests will be handled.
Section 1202.2--What do the terms in this regulation mean?
NARA suggested adding definitions for the terms ``FOIA Liaison,''
``Fee Waiver,'' and ``Requester Category.'' FHFA has revised the
regulation to include definitions for the terms ``FOIA Liaison'' and
``Fee Waiver.'' As for NARA's recommendation regarding the term
``Requester Category,'' FHFA and FHFA-OIG have incorporated three
different categories into the definition of ``Requester in the final
regulation.'' Therefore, a separate, stand-alone definition of
``Requester Category'' is unnecessary and has not been adopted in the
final regulation.
NARA also suggested that clarifying language be added to the
definition of ``Direct Costs,'' at least to the extent that such costs
may relate to contract services costs. Since neither FHFA nor FHFA-OIG
uses or contemplates using contract services to fulfill FOIA
responsibilities, the term's current definition is sufficiently
descriptive and no further clarification is necessary, and none has
been adopted in the final regulation.
NARA further suggested that the definition of ``Unusual
Circumstances'' be revised to ``differentiate between FHFA's 12 Federal
Home Loan Banks (FHLBanks) located across the country and an office
that is on another floor or a few blocks away.'' This comment suggests
that the FHLBanks are units of FHFA. FHLBanks are not units of FHFA.
FHFA regulates the FHLBanks, which are wholly private entities and
therefore not subject to FOIA. Any reference in this final regulation
to ``other components'' of FHFA or FHFA-OIG refers to offices within
FHFA or FHFA-OIG, not to the FHLBanks. As a result, such a revision is
unnecessary and has not been adopted in the final regulation.
Section 1202.3--What information can I obtain through FOIA?
NARA recommended that Sec. 1202.3(b) be revised to expand the
universe of information a requester may obtain to include compilations
of information contained in databases, ``especially if a compilation
can be produced through a few keystrokes.'' FHFA and FHFA-OIG decline
to make this change. NARA's recommendation would require proactive
disclosure of anything that might be produced electronically while
imposing an undue burden, regardless of whether the requester sought
it. However, if a requester seeks a compilation of information
contained in databases, he or she may ask for it. This position is
consistent with FOIA and with applicable case precedent. Therefore,
FHFA and FHFA-OIG decline to adopt NARA's suggested modification. FHFA,
however, will be making technical changes to this section to update the
contact information of the FOIA program to that of FHFA's new
headquarters.
Section 1202.4--What information is exempt from disclosure?
NARA recommended that Sec. 1202.4(d), which specifically concerns
``[e]xempt and redacted material,'' be revised to make plain that no
itemized index of withheld materials needs to be provided to a
requester ``at the administrative
[[Page 4644]]
stage of processing a request.'' The current language of paragraph (d)
complies with applicable statutory and precedential requirements for
FOIA. Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested
modification.
Section 1202.5--How do I request information from FHFA or FHFA-OIG
under FOIA?
NARA suggested that Sec. 1202.5(c) through (g) be revised to
indicate not that requesters ``must'' comply with the procedural
requirements set forth therein, but that they merely ``should'' do so.
FHFA and FHFA-OIG decline to adopt this recommendation. Establishing
clear requirements minimizes ambiguity in processing and handling FOIA
requests, and helps ensure that all requesters are treated equally.
Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested
modification.
NARA also suggested that Sec. 1202.5(d) be revised to indicate
that requesters should attempt to identify their fee status, but not
absolutely require that they do so. FHFA and FHFA-OIG agree and have
made the suggested modification.
Additionally, FHFA will be making technical changes to this section
to update the contact information of the FOIA program to that of FHFA's
new headquarters.
Section 1202.7--How will FHFA and FHFA-OIG respond to my FOIA request?
In the interim final regulation, Sec. 1202.7(c), Referrals to
other agencies, provided that FHFA and FHFA-OIG refer requests that
seek records originating in other agencies to that agency. It also
provided that the requester be notified when such referrals occur. NARA
recommended that Sec. 1202.7(c) be revised to provide that FHFA and
FHFA-OIG also notify requesters of what part of the request was
referred, the name of the agency to which the request was referred, as
well as the name of a contact at that agency to whom the requester may
speak about the referred request. As a matter of procedure, FHFA
provides this information to requesters but will include that procedure
expressly in Sec. 1202.7(c).
NARA also recommended that Sec. 1202.7(d) be revised to designate
the ``search cut-off date''--i.e., the date of the request--as the date
of search, on the presumption that such a designation could ``result in
a much fuller search.'' As a matter of policy, however, FHFA and FHFA-
OIG consistently use the date on which each request is received as the
date of search. Further, it is not evident that the recommended change
would necessarily result in a ``fuller'' search. FHFA and FHFA-OIG
elect to use their discretion on this point, and thereby decline to
adopt NARA's suggested modification.
Section 1202.9--How do I appeal a response denying my FOIA request?
NARA suggested that Sec. 1202.9(b) be revised to extend a
requester's deadline for appealing the agency response on a given
request from 30 days to 45 or even 60 days. FOIA requires only a 30-day
appeal window and FHFA and FHFA-OIG decline to extend it further.
NARA also suggested that Sec. 1202.9 be amended by adding a new
paragraph (g), which would require that requesters be advised of the
services offered by NARA's Office of Government Information Services
(OGIS) services, and further informing the requester that FHFA and
FHFA-OIG will work with OGIS to resolve disputes concerning responses
to FOIA requests. Section 1202.9 of the final regulation has been
amended to include a new paragraph (g), which advises requesters that
they may consult the OGIS regarding disputes. However, current law does
not require that such disputes be referred to the OGIS, which offers
mediation services, but possesses no binding authority over either FHFA
or FHFA-OIG with regard to information production or any other matter.
NARA's additional suggestions would commit FHFA and FHFA-OIG to take
steps beyond those required by law that would unduly burden this
process. Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested
modification.
Additionally, FHFA will be making technical changes to this section
to update the contact information of the FOIA program to that of FHFA's
new headquarters.
Section 1202.11--What will it cost to get the records I requested?
NARA recommended that Sec. 1202.11(a) be revised to provide
requesters with a breakdown of all fees applicable to the FOIA process.
This change is unnecessary, because paragraph (c) of this section
directs requesters to FHFA's Web site for the most current fee
schedule, to which FHFA-OIG also abides. Referring requesters to the
Web site eliminates the need to update formally the regulation every
time a fee changes. Therefore, FHFA and FHFA-OIG decline to adopt
NARA's suggested modification.
NARA also recommended that Sec. 1202.11(b) be modified to provide
information on how FHFA would determine the electronic equivalent of
100 pages of duplication, for the purpose of assessing an applicable
fee. FHFA and FHFA-OIG decline to confine themselves to any one method
for making such a determination, since the nature and format of the
responsive material will necessarily dictate how best to ascertain that
material's relative ``page length.'' Further, methods for making this
determination are likely to change as technology develops, making a
regulatory commitment to follow one method over another inadvisable.
Therefore, FHFA and FHFA-OIG decline to adopt NARA's suggested
modification.
NARA further recommended that Sec. 1202.11(h) be revised to permit
fee waivers ``as a matter of administrative discretion.'' FHFA and
FHFA-OIG decline to revise the existing language, which tracks the
statutory and legal requirements of FOIA and provides for the even-
handed treatment of all requesters. Therefore, FHFA and FHFA-OIG
decline to adopt NARA's suggested modification.
Regulatory Impacts
Paperwork Reduction Act
The regulations in this part do not contain any information
collection requirement that requires the approval of the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
a regulation that has a significant economic impact on a substantial
number of small entities, small businesses, or small organizations must
include an initial regulatory flexibility analysis describing the
regulation's impact on small entities. Such an analysis need not be
undertaken if the agency has certified that the regulation does not
have a significant economic impact on a substantial number of small
entities (5 U.S.C. 605(b)). FHFA has considered the impact of the
regulation under the Regulatory Flexibility Act. FHFA certifies that
the regulation is not likely to have a significant economic impact on a
substantial number of small business entities because the regulation is
applicable only to the internal operations and legal obligations of
FHFA and FHFA-OIG.
[[Page 4645]]
List of Subjects in 12 CFR Part 1202
Appeals, Confidential commercial information, Disclosure,
Exemptions, Fees, Final action, Freedom of Information Act, Judicial
review, Records, Requests.
Authority and Issuance
Accordingly for the reasons stated in the preamble, the interim
final regulation amending 12 CFR part 1202 that was published in the
Federal Register at 76 FR 29633 on May 23, 2011 is adopted as a final
regulation with the following changes:
PART 1202--FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 1202 continues to read as follows:
Authority: Pub. L. 110-289, 122 Stat. 2654; 5 U.S.C. 301, 552;
12 U.S.C. 4526; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235;
E.O. 13392, 70 FR 75373-75377, 3 CFR, 2006 Comp., p. 216-200.
0
2. Amend Sec. 1202.1 by revising paragraph (c) to read as follows:
Sec. 1202.1 Why did FHFA issue this regulation?
* * * * *
(c) If you want to request information about yourself, this is
considered a first-party or Privacy Act request under the Privacy Act
(5 U.S.C. 552a), and therefore you should file your request using
FHFA's Privacy Act regulations at part 1204 of this title. If you file
a request for information about yourself, FHFA or FHFA-OIG will process
this request under both FOIA and Privacy Act in order to give you the
greatest degree of access to any responsive material.
* * * * *
0
3. Amend Sec. 1202.2 as follows:
0
a. Add definitions for the terms ``Fee Waiver'' and ``FOIA Public
Liaison'' in alphabetical order; and
0
b. Revise the definition for the term ``Requester''.
The additions and revisions read as follows:
Sec. 1202.2 What do the terms in this regulation mean?
* * * * *
Fee Waiver means the waiver or reduction of fees if the requester
can demonstrate that certain statutory standards are met.
* * * * *
FOIA Public Liaison is a person who is responsible for assisting
requesters with their requests.
* * * * *
Requester means any person seeking access to FHFA or FHFA-OIG
records under FOIA. A requester falls into one of three categories for
the purpose of determining what fees may be charged. The three
categories are--
(1) Commercial;
(2) News media, scientific institution or educational; and
(3) Other.
* * * * *
Sec. 1202.3--[Amended]
0
4. Amend Sec. 1202.3(c)(1) as follows:
0
a. Remove the words ``1700 G Street, NW., Fourth Floor, Washington, DC
20552'' and add in their place the words ``400 Seventh Street, SW.,
Eighth Floor, Washington, DC 20024''.
0
b. Remove the words ``1625 Eye Street, NW., Washington, DC 20006'' and
add in their place the words ``400 Seventh Street, SW., Third Floor,
Washington, DC 20024''.
0
c. Remove the telephone number ``(202) 414-6425'' and add in its place
the telephone number ``(202) 649-3803''.
0
d. Remove the telephone number ``(202) 408-2577'' and remove the email
address ``bryan.saddler@fhfa.gov'' and add in their place the telephone
number ``(202) 730-2824'' and the email address
``bryan.saddler@fhfaoig.gov''.
0
5. Amend Sec. 1202.5 as follows:
0
a. In paragraph (a) remove the words ``1700 G Street, NW., Washington,
DC 20552'' and remove the facsimile number ``(202) 414-8917'' and add
in their place the words ``400 Seventh Street, SW., Eighth Floor,
Washington, DC 20024'' and the facsimile number ``(202) 649-1073''.
0
b. Revise paragraph (d) to read as follows:
Sec. 1202.5 How do I request information from FHFA or FHFA-OIG under
FOIA?
* * * * *
(d) Your FOIA status. If you are submitting your request as a
``commercial use'' requester, an ``educational institution'' requester,
a ``non-commercial scientific institution'' requester, or a
``representative of the news media'' for the purposes of the fee
provisions of FOIA, your request should include a statement
specifically identifying your status.
* * * * *
0
6. Amend Sec. 1202.7 by revising paragraph (c) to read as follows:
Sec. 1202.7 How will FHFA and FHFA-OIG respond to my FOIA request?
* * * * *
(c) Referrals to other agencies. If you submit a FOIA request that
seeks records originating in another Federal Government agency, FHFA or
FHFA-OIG will refer your request or a portion of your request, as
applicable, to the other agency for response. FHFA or FHFA-OIG will
provide you notice of the referral, what portion of the request was
referred, and the name of the other agency and contact information.
* * * * *
0
7. Amend Sec. 1202.9 as follows:
0
a. In paragraph (a) remove the words ``1700 G Street, NW., Washington,
DC 20552'' and remove the facsimile number ``(202) 414-8917'' and add
in their place the words ``400 Seventh Street, SW., Eighth Floor,
Washington, DC 20024'' and the facsimile number ``(202) 649-1073''.
0
b. Add paragraph (g) to read as follows:
Sec. 1202.9 How do I appeal a response denying my FOIA request?
* * * * *
(g) Additional Resource. The National Archives and Records
Administration (NARA), Office of Government Information Services (OGIS)
offers non-compulsory, non-binding mediation services to resolve FOIA
disputes. If you seek information regarding the OGIS and/or the
services it offers, please contact the OGIS directly at Office of
Government Information Services, National Archives and Records
Administration, Room 2510, 8601 Adelphi Road, College Park, MD 20740-
6001, Email: ogis@nara.gov, Phone: (301) 837-1996, Fax: (301) 837-0348,
Toll-free: 1-(877) 684-6448. This information is provided as a public
service only. By providing this information, FHFA and FHFA-OIG do not
commit to refer disputes to OGIS, or to defer to OGIS' mediation
decisions in particular cases.
Dated: January 24, 2012.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2012-1967 Filed 1-30-12; 8:45 am]
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