[Federal Register Volume 60, Number 91 (Thursday, May 11, 1995)]
[Proposed Rules]
[Pages 25162-25174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11546]



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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of Federal Housing Enterprise Oversight

12 CFR Part 1710

RIN 2550-AA01


Releasing Information

AGENCY: Office of Federal Housing Enterprise Oversight, HUD.

ACTION: Proposed rule.

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SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is 
issuing a proposed rule to set forth the basic policies of OFHEO 
regarding information it maintains and the procedures for obtaining 
access to such information. The rule contains regulations of OFHEO 
implementing the Freedom of Information Act (FOIA) and establishes a 
schedule of fees which will be charged for the processing of document 
requests under the FOIA. In addition, the proposed rule sets forth 
procedures to be followed with respect to testimony and the production 
of documents in legal proceedings in which OFHEO is not a named party 
as well as procedures for service of process upon OFHEO in any legal 
proceeding.

DATES: Written comments on the proposed rule must be received by July 
10, 1995.

ADDRESSES: All comments concerning the proposed rule should be 
addressed to Anne E. Dewey, General Counsel, Office of Federal Housing 
Enterprise Oversight, 1700 G Street NW., Fourth Floor, Washington, DC 
20552. Copies of all communications received will be available for 
public inspection and copying at the same location.

FOR FURTHER INFORMATION CONTACT: Christine C. Dion, Associate General 
Counsel, 1700 G Street NW., Fourth Floor, Washington, DC 20552 (202/
414-3800) (not a toll-free number).

SUPPLEMENTARY INFORMATION: Title XIII of the Housing and Community 
Development Act of 1992, Pub. L. No. 102-550, known as the Federal 
Housing Enterprises Financial Safety and Soundness Act of 1992, 12 
U.S.C. 4501 et seq., established OFHEO as an independent office within 
the Department of Housing and Urban Development. The primary function 
of OFHEO is to ensure the financial safety and soundness and the 
capital adequacy of the nation's two largest housing finance 
institutions--the Federal National Mortgage Association (Fannie Mae) 
and the Federal Home Loan Mortgage Corporation (Freddie Mac) 
(collectively, the Enterprises). OFHEO proposes to adopt this rule to 
explain matters relating to the availability of information generated 
and maintained by OFHEO and to set forth procedures for accessing such 
information. The proposed rule, among other things, implements the 
Freedom of Information Act. The rule establishes procedures by which 
the public may inspect OFHEO records, request and obtain copies of 
materials, and appeal denials of such requests. This rule includes a 
schedule of fees and procedures for determining when fees should be 
waived or reduced. The fee schedule conforms to guidelines published in 
the Federal Register by the Office of Management and Budget on March 
27, 1987 (52 FR 10012). The proposed rule also implements Executive 
Order 12600 by providing predisclosure notification procedures for 
confidential commercial or financial information.
    In addition, the proposed rule sets forth the procedures to be 
followed with respect to testimony concerning official matters and 
production of official documents of OFHEO in legal proceedings in which 
OFHEO is not a named party. The proposed rule establishes the 
procedures for effecting service upon OFHEO in any legal process, 
including service of process by litigants seeking access to OFHEO 
records.

SECTION-BY-SECTION ANALYSIS

I. Information and Records Generally

    Subpart A of the proposed rule contains general provisions relating 
to disclosure of information and records in the possession of OFHEO. 
Section 1710.1 sets forth procedures for disclosure of such materials 
by OFHEO employees. Section 1710.2 provides that the disclosure 
requirements of the FOIA and the proposed rule apply to all OFHEO 
records. It also provides that if another statute sets forth procedures 
for the disclosure of specific types of records, OFHEO will process a 
request for those records in accordance with the procedures that apply 
to those specific records. However, in cases where the record is not 
required to be released under the specific procedures set forth in 
another statute, OFHEO will consider the request under the FOIA. In 
addition, section 1710.2 describes the relationship between the FOIA 
and the Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, and explains 
that records that are available through an established distribution 
system should preferably be obtained through that system, rather than 
pursuant to the provisions of the FOIA.
    Section 1710.3 of subpart A contains a general provision providing 
that reports of examinations prepared by OFHEO are the property of 
OFHEO and may only be disclosed in accordance with this section or with 
the prior written consent of the Director of OFHEO. The section further 
provides that any unauthorized use or disclosure of such reports may be 
subject to penalties under federal law. Section 1710.3 explains that 
the Director will make available to each Enterprise a copy of the 
examination report of that Enterprise and that the Enterprise may not 
disclose or use such reports except as expressly permitted by the 
Director. The section also explains that the Director has discretion to 
make the examination reports available for the confidential use of 
governmental [[Page 25163]] agencies responsible for investigating and 
enforcing applicable laws.

II. Availability of OFHEO Records

    Subpart B implements the FOIA, 5 U.S.C. 552, and describes (1) The 
types of OFHEO records available to the public upon request, (2) the 
kinds of information exempt from disclosure, (3) the indexing 
procedures for OFHEO records that are available to the public, (4) the 
format for requesting records under the FOIA, (5) the procedures for 
responding to FOIA requests, (6) the format of the responses, (7) the 
procedures for appealing denials of requests, and (8) the time limits 
to which OFHEO will adhere in processing FOIA requests and appeals. 
Subpart B also contains OFHEO's procedures for disclosure of business 
information provided to OFHEO.
    Section 1710.11 describes OFHEO records that are available pursuant 
to 5 U.S.C. 552(a) for public inspection and copying at the offices of 
OFHEO. These records include any final orders and agreements made in 
adjudication of cases, which are enumerated in section 1710.41 of the 
proposed rule. Section 1710.11 also describes the classes of OFHEO 
records that are exempt from disclosure. These exemptions follow the 
exemptions provided in the FOIA. These exemptions permit OFHEO's 
Freedom of Information Officer to withhold a requested record in 
certain circumstances. In deciding whether to withhold material, 
consideration will be given as to whether another statute, Executive 
order, or regulation prohibits release or, if not, whether it would be 
in the public interest to withhold it.
    Section 1710.12 sets forth the indexing requirements as to any 
records OFHEO maintains which are required to be indexed under 5 U.S.C. 
552(a)(2). The section 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.
    Section 1710.13 contains rules of procedure for requesting records 
under the FOIA. Requests for OFHEO records should be in writing and 
addressed to OFHEO's Freedom of Information Officer. Each request 
should contain sufficient detail to allow the Freedom of Information 
Officer to locate the record with a reasonable amount of effort. If a 
request is too broad or too vague to allow the record to be located 
with a reasonable amount of effort, OFHEO will assist the requester in 
revising the request as appropriate.
    Procedures for OFHEO's response to FOIA requests are explained in 
sections 1710.14 and 1710.15. OFHEO's Freedom of Information Officer 
has been designated responsibility in proposed section 1710.14 to grant 
or deny such requests and to determine fees. Paragraph (b) of the 
section also provides that OFHEO will ordinarily refer FOIA requests 
for records that originated in another government agency to that agency 
for response. In such cases, the requester will be notified of the 
referral. As specified in paragraph (c) of section 1710.14, in cases 
where a requester asks for a record in a format that does not currently 
exist, OFHEO will provide whatever records reasonably respond to the 
request, but will not create a new record in order to respond. 
Moreover, under paragraph (d) of section 1710.14, if a record cannot be 
located from the information supplied, the Freedom of Information 
Officer will so inform the requester.
    Proposed section 1710.15 requires the Freedom of Information 
Officer to notify a requester in writing of the determination to grant 
a request in whole or in part. The response must describe the manner in 
which the record will be disclosed and inform the requester of any fees 
that will be charged. Similarly, the Freedom of Information Officer's 
determination to deny a request in whole or in part must be made in 
writing and signed by OFHEO's Freedom of Information Officer. 
Consistent with section 1710.15(b) as proposed, any denial is to 
contain a brief statement describing the basis of the denial, including 
the FOIA exemption(s) that is relied upon. Moreover, the denial must 
state that the requester has a right to appeal and must explain OFHEO's 
appeal procedures.
    OFHEO's appeal procedures are set forth in section 1710.16 of the 
proposed rule. Denials may be appealed to OFHEO's Freedom of 
Information Appeals Officer within 30 days after receipt of a denial 
letter. Appeals must be in writing and must contain reasons for, or 
arguments in support of, disclosure. OFHEO will respond to appeals in 
writing and will specify the reason for affirming any original denial. 
When a denial is reversed in whole or in part, the request for 
disclosure will be processed promptly. The decision on appeal is 
OFHEO's final action on a request. Requesters have a right to seek 
judicial review of the final action under 5 U.S.C. 552(a)(4).
    Section 1710.17 of the proposed rule describes the time limits to 
which OFHEO will adhere in responding to initial requests and appeals 
of denials of requests. The time limits applicable to either may be 
extended up to a total of ten days (excluding weekends and legal 
holidays) in unusual circumstances, i.e., when the records are in a 
location other than the main office of OFHEO, the request is for a 
large number of records, or OFHEO must consult with another agency or 
with various offices within OFHEO.
    Proposed section 1710.18 contains OFHEO's procedures for disclosure 
of business information provided to OFHEO. Generally, the section would 
require submitters of business information to designate those portions 
of their submissions they believe may be exempt from disclosure under 
Exemption 4 of the FOIA. If records so designated are subsequently 
requested under the FOIA, in most cases the submitter will have an 
opportunity to provide a written objection to disclosure. The written 
objection must demonstrate why the information is contended to be a 
trade secret or commercial or financial information that is privileged 
or confidential and why disclosure would cause competitive harm. 
Whenever possible, the submitter's claim of confidentiality should be 
supported by a statement or certification by an officer or authorized 
representative of the submitter. Information provided by a submitter 
for the purpose of objecting to disclosure may itself be subject to 
disclosure under the FOIA.

III. Fees for Provision of Information

    Subpart C of the proposed rule contains provisions relating to the 
fees which will be assessed for services rendered in responding to and 
processing requests for records under the FOIA. Fees are to be based on 
the type of service provided, e.g., search, review, and duplication, as 
well as the category of person making the request, e.g., commercial 
user, educational institution, and news media. Generally, commercial 
requesters will pay the full amount of permissible fees relating to 
record search, review and duplication. Educational and noncommercial 
scientific institutions and the news media will pay only duplication 
costs, excluding charges for the first 100 pages. All other requesters 
will be assessed fees for search and duplication, except that the first 
100 pages of duplication and the first two hours of search time will be 
furnished without charge. As a matter of policy, OFHEO will not charge 
fees for any individual request if the cost of collecting a fee would 
equal or exceed the fee itself.
    Additionally, under the proposal, OFHEO may furnish records without 
charge or at a reduced charge where disclosure of the requested 
information is in the public interest because it is likely to 
contribute significantly to [[Page 25164]] public understanding of the 
operations or activities of the federal government and is not primarily 
in the commercial interest of the requester. In making this 
determination, OFHEO will apply the six analytical factors set out by 
the Department of Justice in its advisory memorandum on making FOIA fee 
waiver determinations. The memorandum, titled ``New FOIA Fee Waiver 
Policy Guidance,'' was issued by the Assistant Attorney General for 
Legal Policy to the heads of all federal agencies on April 2, 1987. The 
factors enumerated in the memorandum have been incorporated in proposed 
section 1710.24.
    Section 1710.25 as proposed contains a number of miscellaneous 
provisions concerning fees, including a requirement that requesters pay 
in advance fees likely to exceed $250.00. However, advance payment may 
not be required in the case of a requester who has a history of prompt 
payment. This section also includes a provision permitting interest to 
be charged on fees over 30 days past due at the rate prescribed in 31 
U.S.C. 3717 for an outstanding debt on a U.S. Government claim.

IV. Testimony and Production of Documents in Legal Proceedings in Which 
OFHEO Is Not a Named Party

    Subpart D prescribes the policies and procedures of OFHEO with 
respect to the testimony of official matters and production of official 
documents of OFHEO in legal proceedings in which OFHEO is not a named 
party. The subpart does not affect the rights and procedures governing 
public access to OFHEO documents pursuant to the FOIA or the Privacy 
Act.
    Section 1710.31 sets forth the purpose of subpart D which is to (1) 
ensure the confidentiality of OFHEO documents and information, (2) 
maintain the impartial position of OFHEO in litigation in which OFHEO 
is not a named party, (3) conserve the time of OFHEO employees for 
their official duties, and (4) enable the Director to determine when to 
authorize testimony and the release of documents in legal proceedings 
in which OFHEO is not a named party.
    Section 1710.32 contains the definitions applicable to the subpart. 
Section 1710.33 provides the general policy of OFHEO with respect to 
testimony and production of documents in any legal proceeding in which 
OFHEO is not a named party, i.e., OFHEO employees, including former 
OFHEO employees, are prohibited from disclosing any information 
obtained in or resulting from their official capacities unless the 
Director determines in writing that disclosure would be in the best 
interest of OFHEO or in the public interest. Section 1710.33 further 
provides that, prior to any authorized testimony or release of official 
documents, the requesting party must obtain a protective order from the 
court before which the action is pending to preserve the 
confidentiality of the testimony or documents subsequently produced.
    Section 1710.34 describes the procedures to which OFHEO will adhere 
to enable the Director to determine whether to grant requests for 
testimony concerning official matters or disclosure of official 
documents. Section 1710.35 provides that the scope of permissible 
testimony by an OFHEO employee is limited to that set forth in the 
written authorization granted that employee by the Director. The 
section also prohibits OFHEO employees from giving opinion testimony in 
any legal proceeding to which OFHEO is not a party. OFHEO believes that 
the use of OFHEO employees to give opinion testimony would hamper 
OFHEO's ability to carry out its statutory responsibilities and would 
impose an administrative burden on OFHEO's staff.
    Section 1710.36 describes the manner in which authorized testimony 
of OFHEO employees will be made available. The section provides that 
the testimony will be available only through depositions or written 
interrogatories. A party requesting authorized testimony must serve a 
subpoena on the OFHEO employee in accordance with applicable federal or 
state rules of procedure, with a copy of the subpoena sent by 
registered mail to OFHEO's General Counsel. Upon completion of an 
authorized deposition at OFHEO's office, a copy of the transcript of 
the testimony shall be furnished at the requesting party's expense to 
OFHEO's General Counsel.
    Section 1710.37 describes the manner in which official documents 
authorized for release by the Director will be produced. Certified or 
authenticated copies of OFHEO documents authorized by the Director to 
be released under subpart D will be provided upon request.
    Section 1710.38 describes the fees charged for documents produced 
by OFHEO in connection with requests under subpart D. Unless waived or 
reduced, OFHEO will charge for searches for documents, duplication of 
documents, and certification or authentication of documents as detailed 
in the section.
    Section 1710.39 provides that an OFHEO employee served with a 
demand in a legal proceeding, which requires his or her attendance as a 
witness concerning OFHEO or the production of official documents or 
information, must notify OFHEO's General Counsel of such service. The 
notification would assist the General Counsel in determining whether 
the individual should be authorized to testify or the material 
requested should be made available. When authorization to testify or 
produce documents is not granted by the Director, OFHEO's General 
Counsel shall provide the party issuing the demand or the court with a 
copy of the regulations contained in subpart D and also shall advise 
the party or the court that the OFHEO employee upon whom the demand has 
been made is prohibited from testifying or producing the documents 
without the Director's prior approval.
    Proposed section 1710.39 also provides that any OFHEO employee who 
has official information that has not been approved for disclosure must 
respond to a legal process by attending at the time and place required. 
The individual shall respectfully decline to disclose the information 
on the basis of subpart D of the proposed rule. If a court orders 
disclosure contrary to the Director's instructions, the OFHEO employee 
shall continue to decline to disclose the information and shall advise 
OFHEO of the order for such action as OFHEO may deem appropriate. 
Notably, a determination by OFHEO to comply or not to comply with any 
demand shall not constitute any ground for noncompliance and OFHEO may 
oppose any demand on any legal basis independent of its determination 
under subpart D of the proposed rule.
    Section 1710.40 pertains to persons who are not employees or former 
employees of OFHEO. Non-OFHEO persons may not disclose reports 
generated by OFHEO, or any related documents, to any person without the 
Director's prior written consent. Moreover, any non-OFHEO person served 
with a demand in a legal proceeding requiring that person to produce 
OFHEO documents or to testify with respect thereto, must (1) notify 
OFHEO's General Counsel regarding the service, (2) object to production 
of such documents or information contained therein on the basis that 
the documents are the property of OFHEO and cannot be released without 
OFHEO's consent, and (3) note that the documents' production must be 
sought from OFHEO following procedures set forth in proposed sections 
1710.34(b) and (c) [[Page 25165]] and 1710.37(b) of subpart D of the 
proposed rule.
    Section 1710.41 of the proposed rule enumerates documents that 
OFHEO shall make available to the public. The records include any final 
orders or agreements made in adjudication of cases and transcripts of 
public hearings on the record with respect to any action of the 
Director or notice of charges issued by the Director. The section does 
not authorize the withholding of any information from, or prohibit the 
disclosure of any information to, Congress.

V. Rules and Procedures for Service Upon OFHEO

    Section 1710.51 provides that, with limited exceptions, any legal 
process on OFHEO must be issued and served upon OFHEO's General Counsel 
and any OFHEO personnel named in the caption of the documents. Service 
may be effected by either personal delivery or by registered or 
certified mail to the General Counsel at OFHEO's office.

Regulatory Impact

Executive Order 12606, The Family

    The General Counsel, as the designated Official under Executive 
Order 12606, The Family, has determined that this proposed rule does 
not have potential for significant impact on family formation, 
maintenance, and general well-being, and thus, is not subject to review 
under Executive Order 12606.

Executive Order 12612, Federalism

    The General Counsel, as Designated Official under section 6(a) of 
Executive Order 12612, Federalism, has determined that the policies 
contained in this proposed rule will not have substantial direct 
effects on states or their political subdivisions, or the relationship 
between the federal government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
As a result, the proposed rule does not warrant the preparation of a 
Federalism Assessment in accordance with Executive Order 12612.

Executive Order 12866, Regulatory Planning and Review

    In promulgating this proposed rule, the Office of Federal Housing 
Enterprise Oversight has adhered to the regulatory philosophy and the 
applicable principles of regulations set forth in section 1 of 
Executive Order 12866, Regulatory Planning and Review. This proposed 
rule has been reviewed by the Office of Management and Budget under 
that Executive Order.

Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., the General Counsel has certified that this 
proposed rule will not have significant economic impact on a 
substantial number of small entities.

Paperwork Reduction Act

    This proposed rule contains no information collection requirements 
that require the approval of the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

List of Subjects in 12 CFR Part 1710

    Administrative practice and procedure, Confidential business 
information, Freedom of information.

    Accordingly, for the reasons set out in the preamble, the Office of 
Federal Housing Enterprise Oversight proposes to amend Chapter XVII of 
Title 12 of the Code of Federal Regulations by adding Part 1710 to read 
as follows:

PART 1710--RELEASING INFORMATION

Subpart A--Information and Records Generally

Sec.
1710.1  General rule.
1710.2  Applicability.
1710.3  Office of Federal Housing Enterprise Oversight examination 
reports.
Subpart B--Availability of Records of the Office of Federal Housing 
Enterprise Oversight
1710.11  Official records of the Office of Federal Housing 
Enterprise Oversight.
1710.12  Index identifying information for the public.
1710.13  Request for records.
1710.14  Response to requests.
1710.15  Form and content of responses.
1710.16  Appeal of denials.
1710.17  Time limits.
1710.18  Business information.

Subpart C--Fees for Provision of Information

1710.21  Definitions.
1710.22  Fees to be charged--general.
1710.23  Fees to be charged--categories of requesters.
1710.24  Limitations on charging fees.
1710.25  Miscellaneous fee provisions.
Subpart D--Testimony and Production of Documents in Legal Proceedings 
in Which the Office of Federal Housing Enterprise Oversight is Not a 
Named Party
1710.31  General purposes.
1710.32  Definitions.
1710.33  General Policy.
1710.34  Request for testimony or production of documents.
1710.35  Scope of permissible testimony.
1710.36  Manner in which testimony is given.
1710.37  Manner in which documents will be produced.
1710.38  Fees.
1710.39  Responses to demands served on OFHEO employees.
1710.40  Responses to demands served on non-OFHEO employees or 
entities.
1710.41  Orders and agreements available to the public.
Subpart E--Rules and Procedures for Service Upon the Office of Federal 
Housing Enterprise Oversight
1710.51  Service of Process.

    Authority: 5 U.S.C. 552; 12 U.S.C. 4513, 4526, 4639; E.O. 12600, 
3 CFR, 1987 Comp., p. 235.

Subpart A--Information and Records Generally


Sec. 1710.1  General rule.

    Except as necessary in performing official duties or as authorized 
by Secs. 1710.11 through 1710.39 of this part, no employee of the 
Office of Federal Housing Enterprise Oversight (OFHEO) shall in any 
manner disclose or permit disclosure of any information in the 
possession of OFHEO that is confidential or otherwise of a non-public 
nature, including information regarding OFHEO or the Federal National 
Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage 
Corporation (Freddie Mac) (collectively, the Enterprises).


Sec. 1710.2  Applicability.

    (a) General. The Freedom of Information Act (FOIA) and the 
regulations in this part apply to all OFHEO records. However, if 
another law sets forth procedures for the disclosure of specific types 
of records, OFHEO will process a request for those records in 
accordance with the procedures that apply to those specific records. If 
there is any record which is not required to be released under those 
provisions, OFHEO will consider the request under the FOIA and the 
regulations in this part.
    (b) The relationship between the FOIA and the Privacy Act of 1974. 
The Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, applies to 
records that are about individuals, but only if the records are in a 
system of records as defined in the Privacy Act. Requests from 
individuals for records about themselves which are contained in an 
OFHEO system of records will be processed under the provisions of the 
Privacy Act as well as the FOIA. OFHEO will not deny access by a first 
party to a record under the FOIA or the Privacy Act unless the record 
is not available to [[Page 25166]] that individual under both the 
Privacy Act and the FOIA.

    (c) Records available through routine distribution procedures. When 
the record requested includes material published and offered for sale, 
e.g., by the Superintendent of Documents or the Government Printing 
Office, or which is available to the public through an established 
distribution system (such as that of the National Technical Information 
Service of the Department of Commerce), OFHEO will first refer the 
requester to those sources. Nevertheless, if the requester is not 
satisfied with the alternative sources, OFHEO will process the request 
under the FOIA.

Sec. 1710.3  Office of Federal Housing Enterprise Oversight examination 
reports.

    (a) General. Reports of examinations prepared by OFHEO may be 
disclosed only in accordance with this part or with the prior written 
consent of the Director of OFHEO. No person, agency, or authority, or 
director, officer, employee, or agent thereof, shall disclose any such 
report or information contained therein in any manner except as 
authorized in accordance with this subpart. The report of examination 
is the property of OFHEO and any unauthorized use or disclosure of such 
report may be subject to the penalties provided in 18 U.S.C. 641.

    (b) Enterprises. The Director makes available to each Enterprise a 
copy of OFHEO's report of examination of such Enterprise. The report of 
examination is the property of OFHEO and is loaned to the Enterprise 
for its confidential use only. Under no circumstance shall the 
Enterprise or any director, officer, employee, or agent thereof, make 
public or disclose in any manner the report of examination or any 
portion of the contents thereof to any person or organization not 
officially connected with the Enterprise as director, officer, 
employee, attorney, auditor, or independent auditor. Any other 
disclosure or use of this report except as expressly permitted by the 
Director may be subject to the penalties of 18 U.S.C. 641.

    (c) Government agencies. The Director of OFHEO may make available 
reports of examination for the confidential use of federal agencies 
responsible for investigating or enforcing applicable federal laws.

Subpart B--Availability of Records of the Office of Federal Housing 
Enterprise Oversight


Sec. 1710.11  Official records of the Office of Federal Housing 
Enterprise Oversight.

    (a) OFHEO shall, upon a written request for records which 
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 (d) of this section.
    (b) Records available. OFHEO records which are required by 5 U.S.C. 
552(a)(2) to be made available for public inspection and copying are 
maintained at OFHEO's offices located at 1700 G Street, NW., Fourth 
Floor, Washington, DC 20552. The records include--
    (1) Any final opinions, as well as orders made in adjudication of 
cases as set forth in Sec. 1710.41 of this part;
    (2) Any statements of policy and interpretation that have been 
adopted by OFHEO and are not published in the Federal Register;
    (3) Any administrative staff manuals and instructions to staff that 
affect a member of the public, and which are not exempt from disclosure 
under 5 U.S.C. 552(b); and
    (4) Any current indexes providing identifying information for the 
public as to any matter which OFHEO has issued, adopted or promulgated, 
and is required by 5 U.S.C. 552(a)(2) to be made available or 
published.
    (c) Copying. The cost of copying information available in the 
offices of OFHEO shall be imposed on a requester in accordance with the 
provisions of subpart C of this part.
    (d) Records not available. Except as otherwise provided in this 
part, or as may be specifically authorized by the Director of OFHEO, 
the following information and records, or portions thereof, are not 
available to the public--
    (1) Any record, or portion thereof, which 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, which is specifically exempted 
from disclosure by statute (other than 5 U.S.C. 552(b)), provided that 
such statute
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Any matter that is a trade secret or that constitutes 
commercial or financial information obtained from a person and that is 
privileged or confidential;
    (5) Any matter contained in inter-agency or intra-agency memoranda 
or letters which 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 which 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; or
    (9) Any geological and geophysical information and data, including 
maps, concerning wells.
    (e) Even if an exemption described in paragraph (d) of this section 
may be reasonably applicable to a requested record, or portion thereof, 
OFHEO may [[Page 25167]] 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.
    (f) 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.
    (g) To the extent necessary to prevent an invasion of personal 
privacy, the Director may delete identifying details from a document 
described in paragraph (b) of this section. In each case of such 
deletion, the justification therefore will be clearly explained in 
writing.
    (h) 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.


Sec. 1710.12  Index identifying information for the public.

    (a) OFHEO will maintain and make available for public inspection 
and copying a current index of materials available at the office of 
OFHEO which are required to be indexed under 5 U.S.C. 552(a)(2).
    (b) Because of the lack of requests to date for material required 
to be indexed, the Director of OFHEO has determined that it is 
unnecessary and impracticable to publish quarterly, or more frequently, 
and distribute (by sale or otherwise) copies of each index and 
supplements thereto, as provided in 5 U.S.C. 552(a)(2). However, OFHEO 
will provide a copy of such indexes to a member of the public upon 
request, at a cost not to exceed the direct cost of duplication and 
mailing, if sending records by other than ordinary mail.


Sec. 1710.13  Requests for records.

    (a) Addressing requests. Requests for records in the possession of 
OFHEO shall be made in writing. The envelope and the request both 
should be clearly marked ``FOIA Request,'' and addressed to: Freedom of 
Information Officer, Office of Federal Housing Enterprise Oversight, 
1700 G Street NW, Fourth Floor, Washington, DC 20552. A request 
improperly addressed will be deemed not to have been received for 
purposes of the ten-day time period set forth in Sec. 1710.17(a) of 
this subpart until it is received, or would have been received with the 
exercise of due diligence by OFHEO personnel, by the Freedom of 
Information Officer. Records requested in conformance with this subpart 
and which are not exempt records may be received in person or by mail 
as specified in the request. Records to be received in person will be 
available for inspection or copying during business hours on a regular 
business day in the office of OFHEO.
    (b) Description of records. Each request must reasonably describe 
the desired records in sufficient detail to enable OFHEO personnel to 
locate the records with a reasonable amount of effort. A request for a 
specific category of records will be regarded as fulfilling this 
requirement if it enables responsive records to be identified by a 
technique or process that is not unreasonably burdensome or disruptive 
of OFHEO operations.
    (1) Whenever possible, a request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record.
    (2) If the Freedom of Information Officer determines that a request 
does not reasonably describe the records sought, he or she will either 
advise the requester what additional information is needed to locate 
the record, or otherwise state why the request is insufficient. The 
Freedom of Information Officer will also extend to the requester an 
opportunity to confer with OFHEO personnel with the objective of 
reformulating the request in a manner which will meet the requirements 
of this section.


Sec. 1710.14  Responses to requests.

    (a) Response to initial request. The Freedom of Information Officer 
of OFHEO is authorized to grant or deny any request for a record and to 
determine appropriate fees.
    (b) Referral to another agency. When a requester seeks records that 
originated in another federal government agency, OFHEO will normally 
refer the request to the other agency for response. If OFHEO refers the 
request to another agency, it will notify the requester of the 
referral. A request for any records classified by some other agency 
will be referred to that agency for response.
    (c) Creating records. If a person seeks information from OFHEO in a 
format that does not currently exist, OFHEO will not ordinarily 
reformat the information for the purpose of responding to the request. 
OFHEO's Freedom of Information Officer will advise the requester that 
OFHEO does not have the record in the format sought, but will provide 
records in existing formats that would reasonably respond to the 
request. Additionally, OFHEO will not develop a new record of 
information to satisfy a request.
    (d) Record cannot be located. If a requested record cannot be 
located from the information supplied, the Freedom of Information 
Officer will so notify the requester in writing.


Sec. 1710.15  Form and content of responses.

    (a) Form of notice granting a request. After the Freedom of 
Information Officer has made a determination to grant a request in 
whole or in part, the requester will be notified in writing. The notice 
shall describe the manner in which the record will be disclosed, 
whether by providing a copy of the record with the response or at a 
later date, or by making a copy of the record available to the 
requester for inspection at a reasonable time and place. The procedure 
for such an inspection may not unreasonably disrupt the operation of 
OFHEO. The response letter will also inform the requester of any fees 
to be charged in accordance with the provisions of subpart C of this 
part.
    (b) Form of notice denying a request. When the Freedom of 
Information Officer denies a request in whole or in part, he or she 
will so notify the requester in writing. The response will be signed by 
the Freedom of Information Officer and will include:
    (1) The name and title or position of the person making the denial;
    (2) A brief statement of the reason or reasons for the denial, 
including the FOIA exemption or exemptions which the Freedom of 
Information Officer has relied upon in denying the request; and
    (3) A statement that the denial may be appealed under Sec. 1710.16 
of this subpart, and a description of the requirements of that section.


Sec. 1710.16  Appeals of denials.

    (a) Right of appeal. If a request has been denied in whole or in 
part, the requester may appeal the denial to: Freedom of Information 
Appeals Officer, Office of Federal Housing Enterprise Oversight, 1700 G 
Street, NW, Fourth Floor, Washington, DC 20552.
    (b) Letter of appeal. The appeal must be in writing and must be 
sent within 30 days of receipt of the denial letter. An appeal should 
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. Both the envelope and the letter of appeal must be clearly 
marked ``FOIA Appeal.'' An appeal improperly addressed shall be deemed 
not to have [[Page 25168]] been received for purposes of the 20-day 
time period set forth in paragraph (b) of Sec. 1710.17 until it is 
received, or would have been received with the exercise of due 
diligence by OFHEO personnel, by the Freedom of Information Appeals 
Officer.
    (c) Action on appeal. The disposition of an appeal will be in 
writing and will constitute the final action of OFHEO on a request. A 
decision affirming in whole or in part the denial of a request will 
include a brief statement of the reason or reasons for affirmance, 
including each FOIA exemption relied on. If the denial of a request is 
reversed in whole or in part on appeal, the request will be processed 
promptly in accordance with the decision on appeal.
    (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).


Sec. 1710.17  Time limits.

    (a) Initial request. Following receipt of a request for records, 
the Freedom of Information Officer will determine whether to comply 
with the request and will notify the requester in writing of his or her 
determination within ten days (excluding Saturdays, Sundays, and legal 
holidays) after receipt of the request.
    (b) Appeal. A written determination on an appeal submitted in 
accordance with Sec. 1710.16 of this subpart will be issued within 20 
days (excluding Saturdays, Sundays, and legal holidays) after receipt 
of the appeal. 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 up to a total of ten days (excluding Saturdays, Sundays, 
and legal holidays) 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. 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.


Sec. 1710.18  Business Information.

    (a) In general. Business information provided to OFHEO by a 
business submitter shall not be disclosed pursuant to a FOIA request 
except in accordance with this section.
    (b) Definitions. For the purpose of this section, the following 
definitions shall apply:
    (1) Business information means trade secrets or other commercial or 
financial information, provided to OFHEO by a submitter, which arguably 
is protected from disclosure under Exemption 4 of the Freedom of 
Information Act, 5 U.S.C. 552(b)(4).
    (2) Business submitter means any person or entity which provides 
business information, directly or indirectly, to OFHEO and who has a 
proprietary interest in the information.
    (3) Freedom of Information Officer means the Freedom of Information 
Officer of OFHEO.
    (4) Freedom of Information Appeals Officer means the Freedom of 
Information Appeals Officer of OFHEO.
    (5) Requester means the person or entity making the FOIA request.
    (c) Designation of business information. Submitters of business 
information should use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, those portions of their submissions which they deem to be 
protected under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such 
designation will expire ten years after the records were submitted to 
the government, unless the submitter requests, and provides reasonable 
justification for, a designation period of longer duration.
    (d) Predisclosure notification. (1) Except as is provided for in 
paragraph (i) of this section, the Freedom of Information Officer 
shall, to the extent permitted by law, provide a submitter with prompt 
written notice of a FOIA request or administrative appeal encompassing 
its business information whenever required under paragraph (e) of this 
section. Such notice shall either describe the exact nature of the 
business information requested or provide copies of the records or 
portions thereof containing the business information. The requester 
also shall be notified that notice and an opportunity to object are 
being provided to the submitter.
    (2) Whenever the Freedom of Information Officer provides a business 
submitter with the notice set forth in paragraph (e)(1) of this 
section, the Freedom of Information Officer shall notify the requester 
that the request includes information that may arguably be exempt from 
disclosure under 5 U.S.C. 552(b)(4) and that the person or entity who 
submitted the information to OFHEO has been given the opportunity to 
comment on the proposed disclosure of information.
    (e) When notice is required. OFHEO shall provide a business 
submitter with notice of a request whenever:
    (1) The business submitter has in good faith designated the 
information as commercially or financially sensitive information deemed 
protected from disclosure under 5 U.S.C. 552(b)(4); or
    (2) OFHEO has reason to believe that disclosure of the information 
may result in commercial or financial injury to the business submitter.
    (f) Opportunity to object to disclosure. Through the notice 
described in paragraph (d) of this section, OFHEO shall, to the extent 
permitted by law, afford a business submitter a reasonable period 
within which it can provide OFHEO with a detailed written statement of 
any objection to disclosure. Such statement shall demonstrate why the 
information is contended to be a trade secret or commercial or 
financial information that is privileged or confidential and why 
disclosure would cause competitive harm. Whenever possible, the 
business submitter's claim of confidentiality should be supported by a 
statement or certification by an officer or authorized representative 
of the business submitter. Information provided by a submitter pursuant 
to this paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. (1) The Freedom of Information 
Officer shall consider carefully a business submitter's objections and 
specific grounds for nondisclosure prior to determining whether to 
disclose business information. Whenever the Freedom of Information 
Officer decides to disclose business information over the objection of 
a business submitter, the Freedom of Information Officer shall forward 
to the business submitter a written notice at least ten days (excluding 
Saturdays, [[Page 25169]] Sundays, and legal holidays) before the date 
of disclosure containing--
    (i) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained,
    (ii) A description of the business information to be disclosed, and
    (iii) A specified disclosure date.
    (2) Such notice of intent to disclose shall be forwarded to the 
submitter a reasonable number of days prior to the specified disclosure 
date and the requester shall be notified likewise.
    (h) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information, the Freedom of 
Information Officer shall promptly notify the business submitter of 
such action.
    (i) Exceptions to predisclosure notification. The requirements of 
this section shall not apply if--
    (1) The Freedom of Information Officer determines that the 
information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such a case, the Freedom of Information Officer will provide the 
submitter with written notice of any final administrative decision to 
disclose business information within a reasonable number of days prior 
to a specified disclosure date.

Subpart C--Fees for Provision of Information


Sec. 1710.21  Definitions.

    For the purpose of this subpart, the following definitions shall 
apply:
    (a) Commercial use request means a request for information that is 
from, or on behalf of, a requester seeking information for a use or 
purpose that furthers the commercial, trade, or profit interests of the 
requester or the person on whose behalf the request is being made. To 
determine whether a request is properly classified as a commercial use 
request, OFHEO shall determine the purpose for which the requested 
documents shall be used. If OFHEO has reasonable cause to doubt the 
purpose specified in the request for which a requester will use the 
records sought, or where the purpose is not clear from the request 
itself, OFHEO shall seek additional clarification before assigning the 
request to a specified category.
    (b) Direct costs means the expenditures actually incurred by OFHEO 
in searching for and reproducing documents 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 documents 
to respond to the request. The direct cost shall include the salary of 
the employee performing work (the basic rate of pay for the employee 
plus 16 percent of that rate to cover benefits) 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.
    (c) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, and an institution of vocational education, 
which operates a program or programs of scholarly research.
    (d) Non-commercial scientific institution refers to an institution 
that is not operated on a commercial, trade, or profit basis and which 
is operated solely for the purpose of conducting scientific research, 
the results of which are not intended to promote any particular product 
or industry.
    (e) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that 
is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances in which the periodicals can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not intended to be all-inclusive. As traditional methods of news 
delivery evolve, e.g., electronic dissemination of newspapers through 
telecommunication services, such alternative media would be included in 
this category. ``Freelance'' journalists may be regarded as working for 
a news organization if they can demonstrate a solid basis for expecting 
publication through that organization even though they are not actually 
employed by the organization. A publication contract would be the 
clearest proof that a journalist is working for a news organization, 
but OFHEO may look to the requester's past publication record to 
determine whether a journalist is working for a news organization.
    (f) Reproduce and reproduction mean the process of making a copy of 
a document 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 a form that is reasonably usable by 
requesters.
    (g) Review means the process of examining documents located in 
response to a request for information to determine whether any portion 
of any document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to prepare the documents for release. The term review does 
not include the time spent resolving general legal or policy issues 
regarding the application of exemptions. OFHEO shall only charge fees 
for reviewing documents in response to a commercial use request.
    (h) The term search includes all time spent looking for material 
that is responsive to a request for information, including page-by-page 
or line-by-line identification of material within documents. The term 
search includes the extraction of information from a computer using 
existing programming. Searching for materials shall be done in the most 
efficient and least expensive manner so as to minimize the costs of 
OFHEO and the requester. For example, a line-by-line search for 
responsive material should not be performed when merely reproducing an 
entire document would be less expensive and the faster method of 
complying with the request for information. A search for material that 
is responsive to a request should be distinguished from a review of 
material to determine whether the material is exempt from disclosure.


Sec. 1710.22  Fees to be charged--general.

    (a) Policy. Generally, the fees charged for requests for records 
pursuant to 5 U.S.C. 552 shall cover the full allowable direct costs of 
searching for, reproducing, and reviewing documents that are responsive 
to a request for information. Fees shall be assessed according to the 
schedule contained in paragraph (b) of this section and the category of 
requesters described in Sec. 1710.23 of this subpart for services 
rendered by OFHEO staff in responding to, and processing requests for, 
records under this part. Fees assessed will be paid by check or money 
order payable to the Office of Federal Housing Enterprise Oversight. 
[[Page 25170]] 
    (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. Whenever feasible, 
OFHEO will charge at the salary rate(s), i.e., basic pay plus 16 
percent, of the employee(s) making the search. Charges for search time 
will be billed by 15-minute segments.
    (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 
central processing unit for that portion of operating time that is 
directly attributable to searching for records and the operator/
programmer salary, i.e., basic pay plus 16 percent, apportionable to 
the search. A charge shall 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. OFHEO will 
not alter or develop programming to conduct a search.
    (iii) Unproductive searches. OFHEO will charge search fees even if 
no records are found which are responsive to the request, or if the 
records found are exempt from disclosure.
    (2) Duplication. Records will be reproduced at a rate of $.15 per 
page. For copies prepared by computer, such as tapes or printouts, the 
requester shall 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 document(s) shall be 
charged.
    (3) Review. Only requesters who are seeking documents 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 subsequent 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.


Sec. 1710.23  Fees to be charged--categories of requesters.

    (a) Fees for various requester categories. Paragraphs (b) through 
(e) of this section state, for each category of requester, the types of 
fees generally charged by OFHEO. However, for each of these categories, 
the fees may be limited, waived or reduced in accordance with the 
provisions set forth in paragraph (c) of Sec. 1710.24. If OFHEO has 
reasonable cause to doubt the purpose specified in the request for 
which a requester will use the records sought, or where the purpose is 
not clear from the request itself, OFHEO will seek clarification before 
assigning the request a specific category.
    (b) Commercial use requester. OFHEO shall charge fees for records 
requested by persons or entities making a commercial use request in an 
amount that equals the full direct costs for searching for, reviewing 
for release, and reproducing the records sought. Commercial use 
requesters are not entitled to two hours of free search time nor 100 
free pages of reproduction of documents. In accordance with 
Sec. 1710.22, commercial use requesters may be charged the costs of 
searching for and reviewing records even if there is ultimately no 
disclosure of records.
    (c) Educational and noncommercial scientific institutions. OFHEO 
shall charge fees for records requested by, or on behalf of, 
educational institutions and non-commercial scientific institutions in 
an amount which equals the cost of reproducing the documents responsive 
to the request, excluding the cost of reproducing the first 100 pages. 
No search fee shall be charged with respect to requests by educational 
and noncommercial scientific institutions. For a request to be included 
in this category, requesters must show that the request being made is 
authorized by and under the auspices of a qualifying institution and 
that the records are not sought for commercial use but are sought in 
furtherance of scholarly research (if the request is from an 
educational institution) or scientific research (if the request is from 
a non-commercial scientific institution).
    (d) News media. OFHEO shall charge fees for records requested by 
representatives of the news media in an amount which equals the cost of 
reproducing the documents responsive to the request, excluding the 
costs of reproducing the first 100 pages. No search fee shall be 
charged with respect to requests by representatives of the news media. 
For a request to be included in this category, the requester must 
qualify as a representative of the news media and the request must not 
be made for a commercial use. A request for records supporting the news 
dissemination function of the requester shall not be considered to be a 
request that is for commercial use.
    (e) All other requesters. OFHEO shall charge fees for records 
requested by persons or entities that are not classified in any of the 
categories listed in paragraphs (b), (c), or (d) of this section in an 
amount that equals the full reasonable direct cost of searching for and 
reproducing records that are responsive to the request, excluding the 
first two hours of search time and the cost of reproducing the first 
100 pages of records. In accordance with Sec. 1710.22, requesters in 
this category may be charged the cost of searching for records even if 
there is ultimately no disclosure of records, excluding the first two 
hours of search time.
    (f) For purposes of the exceptions contained in this section on 
assessment of fees, the word pages refers to paper copies of ``8\1/
2\ x 11'' or ``11 x 14.'' Thus, requesters are not entitled to 100 
microfiche or 100 computer disks, for example. A microfiche containing 
the equivalent of 100 pages or a computer disk containing the 
equivalent of 100 pages of computer printout meets the terms of the 
exception.
    (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 
central processing unit and the operator's hourly salary plus 16 
percent. When the cost of the search (including the operator time and 
the cost of operating the computer to process a request) equals the 
equivalent dollar amount of two hours of the salary plus 16 percent of 
the person performing the search, i.e., the operator, OFHEO will begin 
assessing charges for the computer.


Sec. 1710.24  Limitations on charging fees.

    (a) In general. Except for requesters seeking records for a 
commercial use as described in Sec. 1710.23(b), OFHEO will provide, 
without charge, the first 100 pages of duplication and the first two 
[[Page 25171]] hours of search time, or their cost equivalent.
    (b) No fee charged. OFHEO will not charge fees to any requester, 
including commercial use requesters, if the cost of collecting a fee 
would be equal to or greater than the fee itself. The elements to be 
considered in determining the ``cost of collecting a fee'' are the 
administrative costs of receiving and recording a requester's 
remittance, and processing the fee.
    (c) Waiver or reduction of fees. OFHEO may grant a waiver or 
reduction of fees if OFHEO determines that the disclosure of the 
information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the Federal government, and the disclosure of the 
information is not primarily in the commercial interest of the 
requester. Requests for a waiver or reduction of fees will be 
considered on a case-by-case basis.
    (1) The following factors will be considered by OFHEO in 
determining whether a waiver or reduction of fees is in the public 
interest:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
government.'' The subject matter of the requested records, in the 
context of the request, must specifically concern identifiable 
operations or activities of the Federal government with a connection 
that is direct and clear, not remote or attenuated. Furthermore, the 
records must be sought for their informative value with respect to 
those government operations or activities; a request for access to 
records for their intrinsic informational content alone will not 
satisfy this threshold consideration.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative on specific 
government operations or activities in order to hold potential for 
contributing to increased public understanding of those operations and 
activities. The disclosure of information that is already in the public 
domain, in either a duplicative or substantially identical form, would 
not be likely to contribute to such understanding, as nothing new would 
be added to the public record.
    (iii) The contribution to an understanding of the subject by the 
general public: Whether disclosure of the requested information will 
contribute to the ``public understanding.'' The disclosure must 
contribute to the understanding of the public at large, as opposed to 
the individual understanding of the requester or a narrow segment of 
interested persons. A requester's identity and qualifications, e.g., 
expertise in the subject area and ability and intention to convey 
information to the general public, will be considered.
    (iv) The significance of the contribution in public understanding: 
Whether the disclosure is likely to ``significantly enhance'' the 
public understanding of government operations or activities. The 
public's understanding of the subject matter in question, as compared 
to the level of public understanding existing prior to the disclosure, 
must be likely to be enhanced by the disclosure to a significant 
extent. The Freedom of Information Officer shall not make a separate 
value judgment as to whether information, even though it in fact would 
contribute significantly to public understanding of the operations or 
activities of the government, is ``important'' enough to be made 
public.
    (2) In order to determine whether the second fee waiver requirement 
is met, i.e., that disclosure of the requested information is not 
primarily in the commercial interest of the requester, OFHEO shall 
consider the following two factors in sequence:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester, or any person on whose behalf the requester may be 
acting, has a commercial interest that would be furthered by the 
requested disclosure. In assessing the magnitude of identified 
commercial interests, consideration will be given to the effect that 
the information disclosed would have on those commercial interests, as 
well as to the extent to which FOIA disclosures serve those interests 
overall. Requesters shall be given a reasonable opportunity in the 
administrative process to provide information bearing upon this 
consideration.
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the 
requester.'' A fee waiver or reduction is warranted only where, once 
the ``public interest'' standard set out in paragraph (c)(1) of this 
section is satisfied, that public interest can fairly be regarded as 
greater in magnitude than that of the requester's commercial interest 
in disclosure. OFHEO will ordinarily presume that, where a news media 
requester has satisfied the public interest standard, the public 
interest will be serviced primarily by disclosure to that requester. 
Disclosure to requesters who compile and market Federal government 
information for direct economic return will not be presumed to 
primarily serve the ``public interest.''
    (3) Where only a portion of the requested record satisfies the 
requirements for a waiver or reduction of fees under this paragraph, a 
waiver or reduction shall be granted only as to that portion.
    (4) A request for a waiver or reduction of fees must accompany the 
request for disclosure of records, and should include--
    (i) A clear statement of the requester's interest in the documents;
    (ii) The proposed use of the documents and whether the requester 
will derive income or other benefit from such use;
    (iii) A statement of how the public will benefit from release of 
the requested documents; and
    (iv) If specialized use of the documents is contemplated, a 
statement of the requester's qualifications that are relevant to the 
specialized use.
    (5) A requester may appeal the denial of a request for a waiver or 
reduction of fees in accordance with the provisions of Sec. 1710.16.


Sec. 1710.25  Miscellaneous fee provisions.

    (a) Notice of anticipated fees in excess of $25.00. Where OFHEO 
determines or estimates that the fees chargeable will amount to more 
than $25.00, OFHEO shall promptly notify the requester of the actual or 
estimated amount of fees or such portion thereof that can be readily 
estimated, unless the requester has indicated his or her willingness to 
pay fees as high as those anticipated. Where a requester has been 
notified that the actual or estimated fees may exceed $25.00, the 
request will be deemed not to have been received until the requester 
has agreed to pay the anticipated total fee. A notice to the requester 
pursuant to this paragraph will include the opportunity to confer with 
OFHEO personnel in order to reformulate the request to meet the 
requester's needs at a lower cost.
    (b) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid the payment of fees. When OFHEO 
reasonably believes that a requester, or a group of requesters acting 
in concert, is attempting to break a request into a series of requests 
for the purpose of evading the assessment of fees, OFHEO may aggregate 
such requests and charge accordingly. One [[Page 25172]] element to be 
considered in determining whether a belief would be reasonable is the 
time period over which the requests have occurred. OFHEO will presume 
that multiple requests of this type made within a 30-day period have 
been made in order to evade fees. Where requests are separated by a 
longer period, OFHEO shall aggregate them only where there exists a 
solid basis for determining that such aggregation is warranted, e.g., 
where the requests involve clearly related matters. Multiple requests 
regarding unrelated matters will not be aggregated.
    (c) Advance payment of fees. OFHEO does not require an advance 
payment before work is commenced or continued, unless:
    (1) OFHEO estimates or determines that the fees are likely to 
exceed $250.00. If it appears that the fees will exceed $250.00, OFHEO 
will notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payment of FOIA fees. In the case of requesters with no history of 
payment, OFHEO may require an advance payment of fees in an amount up 
to the full estimated charge that will be incurred; or
    (2) The requester has previously failed to pay a fee in a timely 
fashion, i.e., within 30 days of the date of a billing. In such cases, 
OFHEO may require the requester to pay the full amount owed plus any 
applicable interest, as provided in paragraph (d) of this section, or 
demonstrate that the fee owed has been paid, prior to processing any 
further record request. Under these circumstances, OFHEO may require 
the requester to make an advance payment of the full amount of the fees 
anticipated before processing a new request or finishing processing of 
a pending request from that requester.
    (3) A request for an advance deposit shall include an offer to the 
requester to confer with identified OFHEO personnel to attempt to 
reformulate the request in a manner which will meet the needs of the 
requester at a lower cost.
    (4) When OFHEO requests an advance payment of fees, the 
administrative time limits described in 5 U.S.C. 552(a)(6) begin only 
after OFHEO has received the advance payment.
    (d) Interest. OFHEO may assess interest charges on an unpaid bill 
starting on the 31st day following the day on which the bill was sent. 
Once a fee payment has been received by OFHEO, even if not processed, 
the accrual of interest shall be stayed. Interest charges shall be 
assessed at the rate prescribed in 31 U.S.C. 3717 and shall accrue from 
the date of the billing.

Subpart D--Testimony and Production of Documents in Legal 
Proceedings in Which the Office of Federal Housing Enterprise 
Oversight is Not a Named Party


Sec. 1710.31  General purposes.

    The purposes of this subpart are to maintain the confidentiality of 
official documents and information of OFHEO, conserve the time of OFHEO 
employees for their official duties, maintain the impartial position of 
OFHEO in litigation in which OFHEO is not a named party, and enable the 
Director to determine when to authorize testimony and to produce 
documents in legal proceedings in which OFHEO is not a named party. 
This subpart sets forth the procedures to be followed with respect to 
testimony concerning official matters and production of official 
documents of OFHEO in legal proceedings in which OFHEO is not a named 
party. This subpart in no way affects the rights and procedures 
governing public access to official documents pursuant to the Freedom 
of Information Act or the Privacy Act.


Sec. 1710.32  Definitions.

    For the purpose of this subpart:
    (a) Court means any entity conducting a legal proceeding.
    (b) Demand means any order, subpoena, or other legal process for 
testimony or documents.
    (c) Director means the Director of OFHEO or his or her designee.
    (d) Document means any record or paper, including but not limited 
to a report, credit review, audit, examination, letter, telegram, 
memorandum, study, calendar and diary entry, log, graph, pamphlet, 
note, chart, tabulation, analysis, statistical or information 
accumulation, any kind of record of meetings and conversations, film 
impression, magnetic tape, or any electronic media, disk, film, or 
mechanical reproduction that is generated, obtained, or adopted by 
OFHEO in connection with the conduct of its official business.
    (e) Employee means any officer, former officer, employee, or former 
employee of OFHEO; any conservator appointed by OFHEO; or any agent or 
independent contractor acting on behalf of OFHEO, even though the 
appointment or contract has terminated.
    (f) General Counsel means the General Counsel of OFHEO or his or 
her designee.
    (g) Legal proceeding means any administrative, civil, or criminal 
proceeding, including a discovery proceeding therein, before a court of 
law, administrative board or commission, hearing officer, or other body 
in which OFHEO is not a named party or in which OFHEO has not 
instituted the administrative investigation or administrative hearing.
    (h) Official means concerning the authorized business of OFHEO.
    (i) OFHEO Counsel means the General Counsel or his or her designee, 
a Department of Justice attorney, or counsel authorized by OFHEO to act 
on behalf of OFHEO or an employee.
    (j) OFHEO means the Office of Federal Housing Enterprise Oversight.
    (k) Person means any individual, or any agency, corporation, 
partnership, trust, association, joint venture, pool, syndicate, sole 
proprietorship, unincorporated organization, or any other form of 
entity not specifically listed herein but does not include OFHEO or any 
OFHEO employee.


Sec. 1710.33  General policy.

    It is the policy of OFHEO that in any legal proceeding in which 
OFHEO is not a named party, no employee of OFHEO shall, in response to 
a demand, produce any material contained in the files of OFHEO, or 
disclose any information relating to, or based upon, material contained 
in the files of OFHEO, or disclose or produce any material acquired as 
part of the performance of that employee's official duties or because 
of that employee's official status. Under appropriate circumstances, 
the Director may grant exceptions in writing to this policy when the 
Director determines that the testimony of OFHEO employees or disclosure 
of official documents would be in the best interest of OFHEO or in the 
public interest. Prior to any authorized testimony or release of 
official documents, the requesting party shall obtain a protective 
order from the court before which the action is pending to preserve the 
confidentiality of the testimony or documents subsequently produced. 
The protective order shall be in a form satisfactory to OFHEO.


Sec. 1710.34  Request for testimony or production of documents.

    (a) No OFHEO employee shall give testimony concerning official 
matters or produce any official documents in any legal proceeding to 
which OFHEO is not a named party without the prior written 
authorization of the Director.
    (b) If testimony by an OFHEO employee concerning official matters 
or the production of official documents is desired, the requesting 
party, or his or her attorney, shall submit a letter to the Director 
setting forth the title of the case, the forum, the requesting party's 
interest in the case, a summary of the [[Page 25173]] issues in the 
litigation, the reasons for the request, and a showing that the desired 
testimony, documents, or information are not reasonably available from 
any other source. If an appearance or testimony is requested, the 
letter shall also set forth the intended use of the testimony, a 
general summary of the scope of the testimony requested, and a showing 
that no document could be provided and used in lieu of the testimony or 
other appearance requested.
    (c) The General Counsel is authorized to consult with the 
requesting party or his or her attorney to refine and limit the request 
so that compliance is less burdensome, or obtain information necessary 
to make the determination described in Sec. 1710.33 of this part. 
Failure of the requesting party, or his or her attorney, to cooperate 
in good faith with the General Counsel to enable the Director to make 
an informed determination under this subpart may serve as the basis for 
a determination not to comply with the request.


Sec. 1710.35  Scope of permissible testimony.

    (a) The scope of permissible testimony by an OFHEO employee is 
limited to that set forth in the written authorization granted that 
employee by the Director.
    (b) OFHEO employees are not authorized to give opinion testimony. 
OFHEO, as the regulatory agency charged with the responsibility of 
examining, supervising, and regulating the financial safety and 
soundness and capital adequacy of the Enterprises under the Federal 
Housing Enterprises Financial Safety and Soundness Act of 1992, 12 
U.S.C. 4501 et seq., relies on the ability of its employees to gather 
full and complete information in order to carry out its statutory 
responsibilities. The use of OFHEO employees to give opinion testimony 
would hamper OFHEO's ability to carry out its statutory 
responsibilities and would cause a serious administrative burden on 
OFHEO's staff.


Sec. 1710.36  Manner in which testimony is given.

    (a) Authorized testimony of OFHEO employees will be made available 
only through depositions or written interrogatories.
    (b) Where, in response to a request, the Director determines that 
circumstances warrant authorizing testimony by an OFHEO employee, the 
requesting party shall cause a subpoena to be served on the employee in 
accordance with applicable Federal or State rules of procedure, with a 
copy of the subpoena sent by registered or certified mail to the 
General Counsel.
    (c) Normally, authorized depositions will be taken at OFHEO's 
office, and at a time arranged with the employee that is reasonably 
fixed to avoid substantial interference with the performance of the 
employee's duties.
    (d) Upon completion of the deposition of an OFHEO employee, a copy 
of the transcript of the testimony shall be furnished, at the expense 
of the party requesting the deposition, to the General Counsel for 
OFHEO's files.


Sec. 1710.37  Manner in which documents will be produced.

    (a) An OFHEO employee's authorization to produce official documents 
is limited to the authority granted that employee by the Director.
    (b) Certified or authenticated copies of official OFHEO documents 
authorized by the Director to be released under this subpart will be 
provided upon request.


Sec. 1710.38  Fees.

    Unless waived or reduced, the following fees shall be charged for 
documents produced by OFHEO in connection with requests subject to this 
subpart:
    (a) Searches for documents. OFHEO will charge at the salary 
rate(s), i.e., basic pay plus 16 percent, of the employee(s) making the 
search. Charges for search time will be billed by 15 minute segments.
    (b) Copying of documents. The standard copying charge for documents 
in paper copy is $.15 per page. When responsive information is provided 
in a format other than paper copy, such as in the form of computer 
tapes and disks, OFHEO will assess the direct costs of the tape, disk, 
or whatever medium is used to produce the information, as well as any 
related reproduction costs. Normally, only one copy will be provided. 
Additional copies will be provided only upon a showing of demonstrated 
need.
    (c) Certification or authentication of documents. OFHEO will charge 
$3.00 for each certification or authentication of documents.
    (d) Computer searches. Services of personnel in the nature of a 
computer search shall be charged at rates prescribed in paragraph (a) 
of this section. A charge shall be made for the computer time involved, 
based upon the prevailing level of costs to OFHEO and upon the 
particular types of computer and associated equipment and the amount of 
time that such equipment is utilized. A charge shall also be made for 
any substantial amount of special supplies or materials used to 
contain, present, or make available the output of computers, based upon 
prevailing levels of costs to OFHEO and upon the type and amount of 
such supplies or materials that are used.
    (e) Other costs. When other services and materials not specifically 
identified in this section are requested and provided, their actual 
cost to OFHEO shall be charged.
    (f) Payments of fees. A bill will be forwarded to the requesting 
party upon completion of the production. Payment shall be made by check 
or money order payable to the Office of Federal Housing Enterprise 
Oversight.


Sec. 1710.39  Response to demands served on OFHEO employees.

    (a) Advice by person served. Any OFHEO employee who is served with 
a demand in a legal proceeding requiring his or her personal attendance 
as a witness or requiring the production of documents or information in 
any proceeding, shall immediately notify OFHEO's General Counsel of 
such service, of the testimony and documents described in the demand, 
and of all relevant facts which may be of assistance to the General 
Counsel in determining whether the individual in question should be 
authorized to testify or the material requested should be made 
available.
    (b) When authorization to testify or to produce documents has not 
been granted by the Director, OFHEO Counsel shall provide the party 
issuing the demand or the court with a copy of the regulations 
contained in this subpart and shall inform the party issuing the demand 
or the court that the employee upon whom the demand has been made is 
prohibited from testifying or producing documents without the prior 
approval of the Director.
    (c) Appearance by person served. Unless OFHEO has authorized 
disclosure of the information requested, any OFHEO employee who has 
OFHEO information that may not be disclosed, and who is required to 
respond to a subpoena or other legal process, shall attend at the time 
and place required and respectfully decline to disclose or to give any 
testimony with respect to the information, basing such refusal upon the 
provisions of this subpart. If the court nevertheless orders the 
disclosure of the information or the giving of testimony irrespective 
of instructions from the Director not to produce the documents or 
disclose the information sought, the OFHEO employee upon whom the 
demand has been made shall continue to decline respectfully to disclose 
the information and shall report promptly the facts to OFHEO for 
[[Page 25174]] such action as OFHEO may deem appropriate.
    (d) A determination under this subpart to comply or not to comply 
with any demand shall not constitute an assertion or waiver of 
privilege, lack of relevance, technical deficiencies or any other 
ground for noncompliance. OFHEO reserves the right to oppose any demand 
on any legal ground independent of its determination under this 
subpart.


Sec. 1710.40  Responses to demands served on non-OFHEO employees or 
entities for OFHEO documents.

    (a) OFHEO reports of examinations, or any documents related 
thereto, are the property of OFHEO and are not to be disclosed to any 
person without the Director's prior written consent.
    (b) If any person who has possession of an OFHEO report of 
examination, or any documents related thereto, is served with a demand 
in a legal proceeding directing that person to produce such OFHEO 
documents or to testify with respect thereto, such person shall 
immediately notify OFHEO's General Counsel of such service, of the 
testimony and described documents in the demand, and of all relevant 
facts. Such person shall also object to the production of such 
documents or information contained therein on the basis that the 
documents are the property of OFHEO and cannot be released without 
OFHEO's consent and that their production must be sought from OFHEO 
following the procedures set forth in Sec. 1710.33, Sec. 1710.34 (b) 
and (c), and Sec. 1710.37(b) of this part.


Sec. 1710.41  Orders and agreements available to the public.

    (a) General. OFHEO shall make the following documents available to 
the public:
    (1) Any written agreement or other written statement for which a 
violation may be redressed by the Director or any modification to or 
termination thereof, unless the Director, in the Director's discretion, 
determines that public disclosure would be contrary to the public 
interest;
    (2) Any order that is issued with respect to any administrative 
enforcement proceeding initiated by the Director that has become final 
in accordance with 12 U.S.C. 4633 and 4634; and
    (3) Any modification to or termination of any final order made 
public pursuant to this section.
    (4) Transcripts of any public enforcement hearing on the record 
with respect to any action of the Director or notice of charges issued 
by the Director shall be available to the public.
    (b) Delay of public disclosure under exceptional circumstances. If 
the Director makes a determination in writing that the public 
disclosure of any final order pursuant to paragraph (a) of this section 
would seriously threaten the financial health or security of the 
Enterprise, the Director may delay the public disclosure of such order 
for a reasonable time.
    (c) Documents filed under seal in public enforcement hearings. The 
Director may file any document or part thereof under seal in any 
hearing commenced by the Director if the Director determines in writing 
that disclosure thereof would be contrary to the public interest.
    (d) Retention of documents. The Director shall keep and maintain a 
record, for not less than six years, of all documents described in 
paragraph (a) of this section and all enforcement agreements and other 
supervisory actions and supporting documents issued with respect to or 
in connection with any enforcement proceedings initiated by the 
Director under 12 U.S.C. 4631-4641.
    (e) Disclosure to Congress. This section may not be construed to 
authorize the withholding of any information from, or to prohibit the 
disclosure of any information to, the Congress or any committee or 
subcommittee thereof.

Subpart E--Rules and Procedures for Service Upon the Office of 
Federal Housing Enterprise Oversight


Sec. 1710.51  Service of process.

    (a) Except as otherwise provided by OFHEO regulations, the Federal 
Rules of Civil Procedure, or order of a court with jurisdiction over 
OFHEO, any legal process upon OFHEO, including a legal process served 
on OFHEO demanding access to its records under the FOIA, shall be duly 
issued and served upon the General Counsel and any OFHEO personnel 
named in the caption of the documents.
    (b) Service of process upon the General Counsel to OFHEO may be 
effected by personally delivering a copy of the documents to the 
General Counsel or by sending a copy of the documents to the General 
Counsel by registered or certified mail, postage prepaid, to the Office 
of Federal Housing Enterprise Oversight, 1700 G Street, NW., Fourth 
Floor, Washington, DC 20552.

    Dated: May 5, 1995.

Aida Alvarez,
Director, Office of Federal Housing Enterprise Oversight.
[FR Doc. 95-11546 Filed 5-10-95; 8:45 am]
BILLING CODE 4220-01-P