[Federal Register Volume 78, Number 27 (Friday, February 8, 2013)]
[Proposed Rules]
[Pages 9336-9341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02908]
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FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1215
RIN 2590-AA51
Production of FHFA Records, Information, and Employee Testimony
in Legal Proceedings
AGENCY: Federal Housing Finance Agency.
ACTION: Notice of proposed rulemaking; with request for comments.
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SUMMARY: The Federal Housing Finance Agency (FHFA) proposes a
regulation governing the production of FHFA records, information or
employee testimony in connection with legal proceedings in which
neither the United States, nor FHFA is a party. This proposed rule
would establish requirements and procedures for demanding or requesting
parties to submit demands or requests, and factors for FHFA to consider
in determining whether FHFA employees will provide records, information
or testimony relating to their official duties. FHFA's desirable intent
is to standardize practices, promote uniformity in decisions, preserve
the ability of FHFA to conduct agency business, protect confidential
information, provide guidance to demanding or requesting parties,
minimize involvement in matters unrelated to the agency missions and
programs of FHFA, avoid wasteful allocation of agency resources, and
preclude spending public time and money for private purposes.
DATES: Comments on this proposed rule are due 60 days after
publication. For additional information, see SUPPLEMENTARY INFORMATION.
[[Page 9337]]
ADDRESSES: You may submit your comments, identified by Regulatory
Information Number (RIN) 2590-AA51, by any of the following methods:
Email: Comments to Alfred M. Pollard, General Counsel, may
be sent by email to [email protected]. Please include Comments/RIN
2590-AA51 in the message's subject line.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. If you submit your
comment to the Federal eRulemaking Portal, please also send it by email
to FHFA at [email protected] to ensure timely receipt by the Agency.
Please include Comments/RIN 2590-AA51 in the subject line of the
message.
Courier/Hand Delivery: The hand delivery address is:
Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA51,
Federal Housing Finance Agency, Constitution Center, Eighth Floor, 400
Seventh Street SW., Washington, DC 20024. The package should be logged
in at the Guard's Desk, First Floor, on business days between 9 a.m.
and 5 p.m.
U.S. Mail, United Parcel Service, Federal Express or Other
Mail Service: The mailing address for comments is: Alfred M. Pollard,
General Counsel, Attention: Comments/RIN 2590-AA51, Federal Housing
Finance Agency, Constitution Center, Eighth Floor, 400 Seventh Street
SW., Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: James P. Jordan, Senior Counsel, 202-
649-3075 (not a toll-free number), Federal Housing Finance Center,
Constitution Center, Eighth Floor, 400 Seventh Street SW., Washington,
DC 20024. The telephone number for the Telecommunications Device for
the Hearing Impaired is 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA invites comments on all aspects of the proposed rule, and may
revise the language of the proposed rule as appropriate after taking
all comments into consideration. Copies of all comments received will
be posted without change on the FHFA web site at http://www.fhfa.gov,
and will include any personal information you provide, such as your
name, address, email address, and telephone number. Copies of all
comments received will be made available for examination by the public
on business days between the hours of 10 a.m. and 3 p.m., at the
Federal Housing Finance Agency, Constitution Center, Eighth Floor, 400
Seventh St. SW., Washington, DC 20024. To make an appointment to
inspect comments, please call the Office of General Counsel at 202-649-
3804
II. Background
A. Establishment of FHFA
The Housing and Economic Recovery Act of 2008 (``HERA''), Public
Law No. 110-289, 122 Stat. 2654, amended the Federal Housing
Enterprises Financial Safety and Soundness Act of 1992 (Safety and
Soundness Act) (12 U.S.C. 4501 et seq.) and the Federal Home Loan Bank
Act (12 U.S.C. 1421-1449) to establish FHFA as an independent agency of
the Federal Government. HERA transferred the supervisory and oversight
responsibilities of the Office of Federal Housing Enterprise Oversight
over Fannie Mae and Freddie Mac, and of the Federal Housing Finance
Board over the Federal Home Loan Banks and the Bank System's Office of
Finance, to FHFA. FHFA is tasked with ensuring that the Federal
National Mortgage Association, the Federal Home Loan Mortgage
Corporation, and the Federal Home Loan Banks (collectively, the
regulated entities) operate in a safe and sound manner; foster liquid,
efficient, competitive and resilient national housing finance markets;
comply with their respective authorizing statutes, and all rules,
regulations, guidelines, and orders issued pursuant to those
authorities; carry out their missions through duly authorized
activities; and that their activities and operations are consistent
with the public interest. Section 1105 of HERA amended the Safety and
Soundness Act and the Inspector General Act of 1978 to establish an
Inspector General within FHFA. See 12 U.S.C. 4517(d). Among other
duties, FHFA Office of Inspector General (``FHFA-OIG'') is responsible
for conducting audits, evaluations, and investigations of FHFA's
programs and operations; recommending policies that promote economy and
efficiency in the administration of FHFA's programs and operations; and
preventing and detecting fraud, waste and abuse in FHFA's programs and
operations.
B. Need for Proposed Rule
Federal agencies often receive formal demands (including subpoenas)
or informal requests to produce records, information, or testimony in
judicial, legislative or administrative proceedings in which those
agencies or the United States is not a named party. Many federal
agencies have issued regulations to address the submission, evaluation,
and processing of these demands or requests. They have done so because
responding to these demands or requests is burdensome, may disrupt an
agency employee's work schedule significantly, may involve the agency
in issues unrelated to its responsibilities, may divert agency
resources from accomplishing mission critical functions, and may impede
the agency's accomplishment of its mission and goals. Standard rules
alleviate these difficulties by ensuring timely notice and centralized,
objective decision making. The United States Supreme Court upheld this
type of regulation in United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951), holding that provisions in the federal ``housekeeping''
statute, 5 U.S.C. 22, 5 U.S.C.A. 22 (now 5 U.S.C. 301), authorize
agencies to promulgate rules governing record production and employee
testimony.
Since the establishment of FHFA and the establishment of the FHFA-
OIG within FHFA, FHFA has not issued a regulation governing the
submission, evaluation, and processing of demands or requests in
connection with a legal proceeding. This proposed rule fills that gap
and replaces applicable legacy regulations issued by FHFA's predecessor
agencies, the Office of Federal Housing Enterprise Oversight and the
Federal Housing Finance Board. The proposed rule would prohibit FHFA
employees from producing records, information, or testimony in response
to demands or requests, unless the demands or requests comply with the
rule, and FHFA then grants permission for the production. Compliance
with the rule is necessary, but not sufficient, for production to
occur. The proposed rule identifies the information that demanding or
requesting parties must provide and the factors that FHFA may consider
when evaluating demands or requests.
The proposed rule would ensure a more efficient use of agency
resources, minimize the possibility of involving FHFA in issues
unrelated to its mission, promote uniformity in responding to demands
or requests, and maintain the impartiality of FHFA in matters that are
in dispute between other parties. It will also serve the interests of
FHFA in protecting sensitive, confidential and privileged information
and records that are generated and compiled in the performance of
official duties.
For these reasons, public notice and opportunity to comment are not
required under the Administrative Procedure Act, but FHFA is providing
such notice and opportunity to comment as a matter of discretion.
[[Page 9338]]
III. Section-by-Section Analysis
Section 1215.1 Scope and Purpose
This section describes the rule's scope, which includes internal
agency operations. This section also sets forth the rule's purpose,
which is to specify the manner in which, and standards by which,
demands or requests for records, information, or testimony must be
submitted, evaluated, and processed.
Section 1215.2 Applicability
This section identifies those demands or requests for FHFA records,
information, or testimony that are subject to the rule. This section
also states the types of demands or requests excepted from the rule.
Section 1215.3 Definitions
This section defines terms relevant to the regulation.
Section 1215.4 General Prohibition
This section bars producing FHFA records, information, or testimony
in response to a demand or request without proper written
authorization.
Section 1215.5 Delegation
This section authorizes FHFA's Director to delegate his authority
under this part.
Section 1215.6 Factors FHFA May Consider
This section sets forth factors that FHFA may consider when
evaluating demands or requests.
Section 1215.7 Serving Demands and Submitting Requests
This section describes the manner in which demands or requests for
FHFA records, information, or testimony must be served and submitted.
Section 1215.8 Timing and Form of Demands and Requests
This section describes the timing by which and the form in which a
demanding or requesting party must serve its demand or submit its
request.
Section 1215.9 Failure To Meet This Part's Requirements
This section describes the consequences of failing to meet
requirements set forth in this part.
Section 1215.10 Processing Demands and Requests
This section describes how demands or requests must be processed
and establishes deadlines. This section also provides the limited
instances in which these processes or deadlines may be waived.
Section 1215.11 FHFA Determination
This section authorizes FHFA's Director to make FHFA's
determination on demands or requests for information to be provided by
FHFA. This section also describes the notice to be provided to the
demanding or requesting parties when an FHFA determination is made.
Section 1215.12 Restrictions That Apply to Testimony
This section authorizes the imposition of conditions on FHFA
employee testimony.
Section 1215.13 Restrictions That Apply to Records and Information
This section authorizes the imposition of conditions on production
of FHFA records or information.
Section 1215.14 Procedure in the Event of an Adverse FHFA Determination
This section establishes an administrative mechanism by which
parties aggrieved by an FHFA determination about a demand or request
may seek reconsideration of that determination. This section also
establishes a petition for FHFA reconsideration as a prerequisite to
judicial review.
Section 1215.15 Conflicting Court Order
This section directs persons in possession of FHFA information to
decline to comply with a court order that conflicts with an FHFA
determination.
Section 1215.16 Fees
This section describes FHFA's entitlement to fees arising from the
production of requested records, information, or testimony.
IV. Paperwork Reduction Act
The proposed rule does 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.).
V. 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). FHFA has considered the impact of the
regulation under the Regulatory Flexibility Act. FHFA certifies that
the proposed regulation, if adopted, 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.
List of Subjects in 12 CFR Part 1215
Administrative practice and procedure, Courts, Government
employees, Records, Subpoenas, Testimony.
For the reasons set forth in the SUPPLEMENTARY INFORMATION, and
under the authority of 12 U.S.C. 4526, the Federal Housing Finance
Agency proposes to amend Chapter XII of Title 12 of the Code of Federal
Regulations by adding a new part 1215.
0
1. Add Part 1215 to read as follows:
PART 1215--PRODUCTION OF FHFA RECORDS, INFORMATION, AND EMPLOYEE
TESTIMONY IN LEGAL PROCEEDINGS
Sec.
1215.1 Scope and Purpose.
1215.2 Applicability.
1215.3 Definitions.
1215.4 General Prohibition.
1215.5 Delegation.
1215.6 Factors FHFA May Consider.
1215.7 Serving Demands and Submitting Requests.
1215.8 Timing and Form of Demands and Requests.
1215.9 Failure to Meet this Part's Requirements
1215.10 Processing Demands and Requests.
1215.11 FHFA Determination.
1215.12 Restrictions That Apply to Testimony.
1215.13 Restrictions That Apply to Records and Information.
1215.14 Procedure in the Event of an Adverse FHFA Determination.
1215.15 Conflicting Court Order.
1215.16 Fees.
Authority: 5 U.S.C. 301; 12 U.S.C. 4526.
Sec. 1215.1 Scope and Purpose.
(a) This regulation sets forth the policies and procedures that
must be followed in order to compel an employee of the Federal Housing
Finance Agency (FHFA) to produce records or information, or to provide
testimony relating to the employee's official duties, in the context of
a legal proceeding. Parties seeking records, information, or testimony
must comply with these requirements when submitting demands or
requests:
[[Page 9339]]
(b) FHFA intends these provisions to:
(1) Promote economy and efficiency in its programs and operations;
(2) Minimize the possibility of involving FHFA in controversial
issues not related to its mission and functions;
(3) Maintain FHFA's impartiality;
(4) Protect employees from being compelled to serve as involuntary
witnesses for wholly private interests, or as inappropriate expert
witnesses regarding current law or the activities of FHFA; and
(5) Protect sensitive, confidential information and FHFA's
deliberative processes.
(c) By providing these policies and procedures, FHFA does not waive
the sovereign immunity of the United States.
(d) This part provides guidance for FHFA's internal operations.
This part does not create any right or benefit, substantive or
procedural, that a party may rely upon in any legal proceeding against
the United States.
(e) The production of records, information, or testimony pursuant
to this part, does not constitute a waiver by FHFA of any privilege.
Sec. 1215.2 Applicability.
(a) This regulation applies to demands or requests for records,
information, or testimony, in legal proceedings in which FHFA is not a
named party.
(b) This regulation does not apply to:
(1) Demands or requests for an FHFA employee to testify as to facts
or events that are unrelated to his or her official duties or that are
unrelated to the functions of FHFA;
(2) Requests for the release of non-exempt records under the
Freedom of Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C.
552a; or
(3) Congressional demands or requests for records or testimony.
Sec. 1215.3 Definitions.
As used in this part--
Demand means a subpoena, or an order or other command of a court or
other competent authority, for the production of records, information,
or testimony that is issued in a legal proceeding.
Employee means:
(1) Any current or former officer or employee of FHFA or of FHFA-
OIG;
(2) Any other individual hired through contractual agreement by or
on behalf of FHFA who has performed or is performing services under
such an agreement for FHFA; and
(3) Any individual who has served or is serving in any consulting
or advisory capacity to FHFA, whether formal or informal.
Federal Home Loan Bank means a bank established under the authority
of 12 U.S.C. 1423(a).
FHFA means the Federal Housing Finance Agency including the FHFA-
OIG.
FHFA Counsel means an attorney in FHFA's Office of the General
Counsel.
General Counsel means FHFA's General Counsel or a person within
FHFA's Office of General Counsel to whom the General Counsel has
delegated responsibilities under this part.
Legal Proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer, or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
Produce means provide, disclose, expose, or grant access to.
Records or Information means, regardless of the person or entity in
possession:
(1) All documents and materials that are FHFA agency records under
the Freedom of Information Act, 5 U.S.C. 552;
(2) All other documents and materials contained in FHFA files; and
(3) All other information or materials acquired by an FHFA employee
in the performance of his or her official duties or because of his or
her official status.
Regulated entity has the same meaning as set forth in 12 U.S.C.
4502(20). For this regulation's purposes, ``regulated entity'' also
includes--
(1) The Office of Finance; and
(2) Any current or former director, officer, employee, contractor
or agent of a regulated entity.
Request means any informal request, by whatever method, in
connection with a legal proceeding, seeking production of records,
information, or testimony that has not been ordered by a court or other
competent authority.
Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations, and
recorded interviews made by an individual about FHFA information in
connection with a legal proceeding.
Sec. 1215.4 General Prohibition.
(a) No employee, agent, regulated entity, the Office of Finance, or
any other person or entity in possession of records or information may
produce those records or information, or provide any testimony related
to the records or information, in response to any demand or request
without prior written approval to do so from the Director.
(b) Any person or entity that fails to comply with this part may be
subject to the penalties provided in 18 U.S.C. 641 and other applicable
laws. A current employee also may be subject to administrative or
disciplinary proceedings.
Sec. 1215.5 Delegation.
To the extent permissible by statute, the Director may delegate his
authority under this part to any FHFA employee and the General Counsel
may delegate his authority under this part to any FHFA Counsel.
Sec. 1215.6 Factors FHFA May Consider.
The Director may grant an employee permission to testify regarding
agency matters, and to produce records and information, in response to
a demand or request. Among the relevant factors that the Director may
consider in making this determination are whether:
(a) This part's purposes are met;
(b) FHFA has an interest in the decision that may be rendered in
the legal proceeding;
(c) Approving the demand or request would assist or hinder FHFA in
performing statutory duties or use FHFA resources;
(d) Production might assist or hinder employees in doing their
work;
(e) The records, information, or testimony can be obtained from
other sources. (Concerning testimony, ``other sources'' means a non-
agency employee, or an agency employee other than the employee named).
(f) The demand or request is unduly burdensome or otherwise
inappropriate under the rules of discovery or procedure governing the
case or matter in which the demand or request arose;
(g) Production of the records, information, or testimony might
violate or be inconsistent with a statute, Executive Order, regulation,
or other legal authority;
(h) Production of the records, information, or testimony might
reveal confidential or privileged information, trade secrets, or
confidential commercial or financial information;
(i) Production of the records, information, or testimony might
impede or interfere with an ongoing law enforcement investigation or
proceedings, or compromise constitutional rights;
(j) Production of the records, information, or testimony might
result in FHFA appearing to favor one litigant over another;
(k) The demand or request pertains to documents that were produced
by another agency;
(l) The demand or request complies with all other applicable rules;
[[Page 9340]]
(m) The demand or request is sufficiently specific to be answered;
(n) The relevance of the records, information, or testimony to the
purposes for which they are sought, and for which they may be used for
substantive evidence;
(o) Production of the records, information, or employee testimony
may implicate a substantial government interest; and
(p) Any other good cause.
Sec. 1215.7 Serving Demands and Submitting Requests.
(a) All demands and requests must be in writing.
(b) Demands must be served and requests must be submitted to the
FHFA General Counsel at the following address: General Counsel, Federal
Housing Finance Agency, Constitution Center, Eighth Floor, 400 Seventh
Street, SW., Washington, DC 20024.
(c) Demands must not be served upon, nor requests submitted to any
regulated entity for records, information, or testimony regardless of
whether the records, information, or testimony sought are in the
possession of, or known by, the regulated entity. If a regulated entity
receives a request or demand for records, information, or testimony,
the regulated entity must immediately notify the General Counsel and
provide FHFA an opportunity to object to the demand or request before
responding to the demand or request. Submitting a demand or request to
a regulated entity may result in rejection of the demand or request
under Sec. 1215.9.
(d) If an employee receives a request or demand that is not
properly routed through FHFA's General Counsel, as required under this
section, the employee must promptly notify the General Counsel. An
employee's failure to notify the General Counsel is grounds for
discipline or other adverse action.
Sec. 1215.8 Timing and Form of Demands and Requests.
(a) A party seeking records, information, or testimony must submit
a request and receive a rejection before making a demand for records,
information, or testimony.
(b) A demand or request to FHFA must include a detailed description
of the basis for the demand or request and comply with the requirements
in Sec. 1215.7.
(c) Demands and requests must be submitted at least 60 days in
advance of the date on which the records, information, or testimony is
needed. Exceptions to this requirement may be granted upon a showing of
compelling need.
(d) A demand or request for testimony also must include an estimate
of the amount of time that the employee will need to devote to the
process of testifying (including anticipated travel time and
anticipated duration of round trip travel), plus a showing that no
document or the testimony of non-agency persons, including retained
experts, could suffice in lieu of the employee's testimony.
(e) Upon submitting a demand or request seeking employee testimony,
the requesting party must notify all other parties to the legal
proceeding.
(f) After receiving notice of a demand or request for testimony,
but before the testimony occurs, a party to the legal proceeding who
did not join in the demand or request and who wishes to question the
witness beyond the scope of the testimony sought must submit a separate
demand or request within 60 days of receiving the notice required under
paragraph (e) of this section and must then comply with paragraph (c)
of this section.
(g) Every demand or request must include the legal proceeding's
caption and docket number, the forum; the name, address, phone number,
State Bar number, and, if available, electronic mail address of counsel
to all parties to the legal proceeding (in the case of pro-se parties,
substitute the name, address, phone number, and electronic mail address
of the pro-se party); and a statement of the demanding or requesting
party's interest in the case. In addition, the demanding or requesting
party must submit a clear and concise written statement that includes:
a summary of the legal and factual issues in the proceeding and a
detailed explanation as to how the records, information or testimony
will contribute substantially to the resolution of one or more
specially identified issues in the legal proceeding. A copy of the
complaint or charging document may accompany--but must not be
substituted for--the required statement.
Sec. 1215.9 Failure to Meet this Part's Requirements.
FHFA may oppose any demand or request that does not meet the
requirements set forth in this part.
Sec. 1215.10 Processing Demands and Requests.
(a) The Director will review every demand or request received and,
in accordance with this regulation, determine whether, and under what
conditions, to authorize an employee to produce records, information,
or testimony.
(b) The Director will process demands and requests in the order in
which they are received. The Director will ordinarily respond within 60
days from the date that the agency receives all information necessary
to evaluate the demand or request. However, the time for response will
depend upon the scope of the demand or request. The Director may
respond outside of the 60-day period:
(1) Under exigent or unusual circumstances; or
(2) When FHFA must receive and process records or information in
the possession, custody, or control of a third party.
(c) The Director may confer with counsel to parties to a legal
proceeding about demands or requests made pursuant to this part. The
conference may be ex-parte. Failure to confer in good faith, in order
to enable the Director to make an informed determination, may justify
rejection of the demand or request.
(d) The Director may rely on sources of information other than
those provided by the demanding or requesting parties as bases for
making a determination.
(e) The Director may grant a waiver of any requirement in this
section to promote a significant interest of FHFA or the United States,
or for other good cause.
Sec. 1215.11 FHFA Determination.
(a) The Director makes FHFA's determinations regarding demands and
requests.
(b) The Director will notify the demanding or requesting party of
FHFA's determination, the reasons for the approval or rejection of the
demand or request, and any conditions that the Director may impose on
the release of records, information, or testimony.
Sec. 1215.12 Restrictions That Apply to Testimony.
(a) The Director may impose conditions or restrictions on
testimony, including but not limited to limiting the scope of testimony
or requiring the demanding or requesting party and other parties to the
legal proceeding to agree that the testimony transcript will be kept
under seal or will only be used or made available in the particular
legal proceeding for which testimony was requested. The Director may
also require a copy of the transcript of testimony to be provided to
FHFA at the demanding or requesting party's expense.
(b) The Director may offer an employee's written declaration in
lieu of testimony.
(c) If authorized to testify pursuant to this part, an employee may
testify as to
[[Page 9341]]
facts within his or her personal knowledge, but, unless specifically
authorized to do so by the Director, the employee must not:
(1) Disclose confidential or privileged information; or
(2) Testify as an expert or opinion witness with regard to any
matter arising out of the employee's official duties or FHFA's mission
or functions. This provision does not apply to requests from the United
States for expert or opinion testimony.
(d) The Director may assign FHFA Counsel to be present for an
employee's testimony.
Sec. 1215.13 Restrictions That Apply to Records and Information.
(a) The Director may impose conditions or restrictions on the
release of records and information, including but not limited to
requiring that parties to the legal proceeding obtain a protective
order or execute a confidentiality agreement to limit access and
further disclosure, or that parties take other appropriate steps to
comply with applicable privacy requirements. The terms of a protective
order or confidentiality agreement must be acceptable to the Director.
In cases where protective orders or confidentiality agreements have
already been executed, the Director may condition the release of
records and information on an amendment to the existing protective
order or confidentiality agreement.
(b) If the Director so determines, original agency records may be
presented for examination in response to a demand or request, but they
are not to be presented as evidence or otherwise used in a manner by
which they could lose their status as original records, nor are they to
be marked or altered. In lieu of the original records, certified copies
will be presented for evidentiary purposes.
(c) The scope of permissible production is limited to that set
forth in the prior, written authorization granted by the Director.
(d) If records or information are produced in connection with a
legal proceeding, the demanding or requesting party must:
(1) Promptly notify all other parties to the legal proceeding that
the records or information are FHFA records or information and are
subject to this part and any applicable confidentiality agreement or
protective order;
(2) Provide copies of any confidentiality agreement or protective
order to all other parties; and
(3) Retrieve the records or information from the court or other
competent authority's file when the court or other competent authority
no longer requires the records or information and certify that every
party covered by a confidentiality agreement, protective order, or
other privacy protection has destroyed all copies of the records or
information.
Sec. 1215.14 Procedure in the Event of an Adverse FHFA Determination.
(a) Procedure for seeking reconsideration of FHFA's determination.
A demanding or requesting party seeking reconsideration of FHFA's
rejection of a demand or request, or of any restrictions on receiving
records, information, or testimony, may seek reconsideration of the
rejection or restrictions as follows--
(1) Notice of Intention to Petition for Reconsideration. The
aggrieved demanding or requesting party may seek reconsideration by
filing a written Notice of Intention to Petition for Reconsideration
(Notice) within 10 business days of the date of FHFA's determination.
The Notice must identify the petitioner, the determination for which
reconsideration is being petitioned, and any dates (such as deposition,
hearing, or court dates) that are significant to petitioner. The Notice
must be served in accordance with Sec. 1215.7.
(2) Petition for Reconsideration. Within five business days of
filing Notice, the petitioner must file a Petition for Reconsideration
(Petition) in accordance with Sec. 1215.7. The Petition must contain a
clear and concise statement of the basis for the reconsideration with
supporting authorities. Determinations about petitions for
reconsideration are within the discretion of the FHFA Director, and are
final.
(b) Prerequisite to judicial review. Pursuant to section 704 of the
Administrative Procedure Act, 5 U.S.C. 704, a petition to FHFA for
reconsideration of a final determination made under the authority of
this part is a prerequisite to judicial review.
Sec. 1215.15 Conflicting Court Order.
Notwithstanding FHFA's rejection of a demand for records,
information, or testimony, if a court or other competent authority
orders an FHFA employee to comply with the demand, the employee must
promptly notify FHFA's General Counsel of the order, and the employee
must respectfully decline to comply, citing United States ex rel. Touhy
v. Ragen, 340 U.S. 462 (1951). An employee's failure to notify the
General Counsel of a court or other authority's order is grounds for
discipline or other adverse action.
Sec. 1215.16 Fees.
(a) The Director may condition the production of records,
information, or an employee's appearance on advance payment of
reasonable costs to FHFA, which may include but are not limited to
those associated with employee search time, copying, computer usage,
and certifications.
(b) Witness fees will include fees, expenses, and allowances
prescribed by the rules applicable to the particular legal proceeding.
If no fees are prescribed, FHFA will base fees on the rule of the
federal district court closest to the location where the witness will
appear. Such fees may include but are not limited to time for
preparation, travel, and attendance at the legal proceeding.
Dated: February 2, 2013.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2013-02908 Filed 2-7-13; 8:45 am]
BILLING CODE 8070-01-P