33790 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

1Pub. L. 104–231, 110 Stat. 3048.

(12) Any other criteria the

Administrator determines to be

applicable to the particular case.

* * * * *

(f) RUS shall consider the following

criteria for any provider of a specialized

telecommunications service in

determining whether such service is

reasonably adequate:

(1) The provider of a specialized

telecommunications service is providing

area coverage as described in § 1735.11.

(2) An adequate signal strength is

provided throughout the largest

practical portion of the service area.

(3) There is an absence of frequent

service interruptions.

(4) The quality and variety of service

provided is comparable to that provided

in nonrural areas.

(5) The service provided complies

with industry standards.

(6) No Federal, State, or local

regulatory commission having

jurisdiction has determined that the

quality, availability, or reliability of the

service provided is inadequate.

(7) Services are provided at

reasonably affordable rates.

(8) Any other criteria the

Administrator determines to be

applicable to the particular case.

5. In § 1735.14, as proposed to be

amended at 65 FR 6924, remove ‘‘and’’

at the end of paragraph (c)(1), remove

the period at the end of paragraph (c)(2)

and add ‘‘; and’’ in its place, and add

new paragraph (c)(3) to read as follows:

§ 1735.14 Borrower eligibility.

* * * * *

(c) * * *

(3) If a local exchange carrier, must be

either an eligible telecommunications

carrier (ETC) within the State or tribal

jurisdiction in which the RUS-financed

facilities are to be located, a LEC that

has made a commitment, satisfactory to

RUS, to become an ETC within the State

or tribal jurisdiction in which the

financed facilities are to be located, or

a LEC that commits to act as an ETC in

such a manner as to meet the area

coverage requirements as described in

§ 1735.11.

Dated: May 12, 2000.

Jill Long Thompson,

Under Secretary, Rural Development.

[FR Doc. 00–12657 Filed 5–24–00; 8:45 am]

BILLING CODE 3410–15–P

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.

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 33791

Although not required by the 1996 Act,

the proposed regulation would allow

requests to be made electronically.

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

§ 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 § 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 § 1710.12. The existing provisions of

§ 1710.12 would be deleted, because

they are made unnecessary by other

amendments to the regulation. Specific

changes to the existing text of

§§ 1710.11 and 1710.12 are explained

more fully below.

Section 1710.11(a) would be amended

to incorporate the substance of

§ 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 § 1710.12(a)

and amended to: (1) Incorporate the

substance of § 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

§§ 1710.11(a) and 1710.12(a).

Section 1710.11(d), which sets forth

FOIA exemptions, would then be

redesignated as § 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 § 1710.1(c).

Section 1710.11(f) would be

redesignated as § 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 § 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 § 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

§ 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

§ 1710.11(b), which would be

redesignated as § 1710.12(a) and

amended as described above. The

heading of § 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 § 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

33792 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

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

§ 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,

§ 1710.23(g), and § 1710.38(a) of this

part.

Technical changes to § 1710.22

include substituting ‘‘computer

equipment’’ for ‘‘central processing

unit’’ and changing the heading in

§ 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 § 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.

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 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

§ 1710.2 [Amended]

2. Amend § 1710.2(j) by adding ‘‘,

regardless of form or format,’’ after

‘‘document’’.

Subpart B—Documents and

Information Generally

§ 1710.7 [Amended]

3. Amend the first sentence of

§ 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 § 1710.11 to read as follows:

§ 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 interagency 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.

33794 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

(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 § 1710.12 to read as follows:

§ 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

§ 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

§ 1710.11(b) pursuant to which the

deletion is made.

6. Revise § 1710.13(a) to read as

follows:

§ 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

§ 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.

* * * * *

§ 1710.14 [Amended]

7. Amend § 1710.14(c) by removing

‘‘will not’’ and adding ‘‘is not required

to’’ in its place in the last sentence.

8. Amend § 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:

§ 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 § 1710.11 (b) pursuant to

which the denial was made;

* * * * *

9. Amend § 1710.16 by revising

paragraphs (a), (b), and (d) to read as

follows:

§ 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 § 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 § 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

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules 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 § 1710.17 to read as

follows:

§ 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 § 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.

§ 1710.18 [Amended]

11. Amend § 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

‘‘§ 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

‘‘§ 1710.11(b)(4)’’.

c. In paragraph (d)(2), remove ‘‘5

U.S.C. 552(b)(4)’’ and add in its place

‘‘§ 1710.11(b)(4)’’.

d. In paragraph (e)(1), remove ‘‘5

U.S.C. 552(b)(4)’’ and add in its place

‘‘§ 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 § 1710.21 by revising

paragraphs (b) and (f) to read as follows:

§ 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

§ 1710.22(b)(1)(i), the cost of any

computer searches, determined in

accordance with § 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 § 1710.22 to read as

follows:

§ 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 § 1710.23 of this subpart

for services rendered by OFHEO staff in

responding to, and processing requests

for, records under this part. Fees

33796 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Proposed Rules

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 § 1710.23 by revising

paragraph (g) to read as follows:

§ 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

§ 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 § 1710.38 by revising

paragraph (a) to read as follows:

§ 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 § 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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 00–ANM–07]

Proposed Modification of Class E

Airspace, Wenatchee, WA

AGENCY: Federal Aviation

Administration (FAA), DOT

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This notice proposes to

modify the Wenatchee, WA, Class E

airspace to remove the Fancher Field

airspace exclusion at the Panghorn

Memorial Airport, Wenatchee, WA.

DATES: Comments must be received on

or before July 10, 2000.

ADDRESSES: Send comments on the

proposal in triplicate to: Manger,

Airspace Branch, ANM–520, Federal

Aviation Administration, Docket No.

00–ANM–07, 1601 Lind Avenue SW,

Renton, Washington 98055–4056.

The official docket may be examined

in the Office of the Regional Chief

Counsel for the Northwest Mountain

Region at the same address.

An informal docket may also be

examined during normal business hours

in the office of the Manger, Air Traffic

Division, Airspace Branch, at the

address listed above.

FOR FURTHER INFORMATION CONTACT:

Brian Durham, ANM–520.7, Federal

Aviation Administration, Docket No.

00–ANM–07, 1601 Lind Avenue SW,

Renton, Washington 98055–4056:

telephone number: (425) 227–2527.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested parties are invited to

participate in this proposed rulemaking

by submitting such written data, views,

or arguments, as they may desire.

Comments that provide the factual basis

supporting the views and suggestions

presented are particularly helpful in

developing reasoned regulatory

decisions on the proposal. Comments

are specifically invited on the overall