This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

60192 

Vol. 73, No. 198 

Friday, October 10, 2008 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1202 

RIN 2590–AA05 

Freedom of Information Act 

AGENCY: Federal Housing Finance 

Agency. 

ACTION: Notice of Proposed Rulemaking. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) is proposing a 

regulation and soliciting comments on 

implementation of the Freedom of 

Information Act (FOIA) (U.S.C. 552), 

establishing procedures for public 

disclosure of information required to be 

disclosed under the FOIA, and 

procedures to protect from disclosure 

business confidential and trade secret 

information, as appropriate. 

DATES: Comments regarding this Notice 

of Proposed Rulemaking must be 

received in writing on or before 

November 10, 2008. For additional 

information, see SUPPLEMENTARY

INFORMATION. 

ADDRESSES: You may submit your 

comments on the proposed rulemaking, 

identified by ‘‘RIN 2590–AA05,’’ by any 

of the following methods: 

• E-mail: RegComments@fhfa.gov. 

Please include ‘‘RIN–2590–AA05’’ in 

the subject line of the message. 

• Any U.S. Mail service, United 

Parcel Service, Federal Express, or other 

commercial delivery service, addressed 

to: Alfred M. Pollard, General Counsel, 

(Office of Federal Housing Enterprise 

Oversight) (OFHEO)) and Christopher 

Curtis, General Counsel (Federal 

Housing Finance Board (FHFB)), 

Attention: Comments/RIN 2590–AA05, 

Federal Housing Finance Agency, 

Fourth Floor, 1700 G Street, NW., 

Washington, DC 20552. 

• Hand Delivery/Courier to: Alfred M. 

Pollard, General Counsel (OFHEO) and 

Christopher Curtis, General Counsel 

(FHFB), Attention: Comments/RIN 

2590–AA05, Federal Housing Finance 

Agency, Fourth Floor, 1700 G Street, 

NW., Washington, DC 20552. The 

package should be logged at the Guard 

Desk, First Floor, on business days 

between 9 a.m. and 3 p.m. 

FOR FURTHER INFORMATION CONTACT: 

Mark D. Laponsky, Deputy General 

Counsel, telephone (202) 414–3832, (not 

a toll free number), Federal Housing 

Finance Agency, Fourth Floor, 1700 G 

Street, NW., Washington, DC 20552. The 

telephone number for the 

Telecommunications Device for the Deaf 

is (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Comments 

The Federal Housing Finance Agency 

(FHFA) invites comment on all aspects 

of the proposed regulation, and will take 

all relevant comments into 

consideration before issuing the final 

regulation. 

Instructions: FHFA requests that 

comments submitted in hard copy also 

be accompanied by the electronic 

version in Microsoft Word or in a 

portable document format (PDF) on 3.5’’ 

disk or CD-ROM. All submissions 

received must include the agency name 

or Regulatory Information Number (RIN) 

for this rulemaking. Copies of all 

comments received will be posted 

without change on the internet web site, 

http://www.ofheo.gov, and will include 

any personal information provided. In 

addition, copies of all comments 

received will be available for 

examination by the public on business 

days between the hours of 10 a.m. and 

3 p.m. at the Federal Housing Finance 

Agency, Fourth Floor, 1700 G Street, 

NW., Washington, DC 20552. To make 

an appointment to inspect comments, 

please call the Office of General Counsel 

(OFHEO) at (202) 414–3751. 

II. Background 

The Federal Housing Finance 

Regulatory Reform Act of 2008 (Act) 

(Pub. L. 110–289), established FHFA as 

an independent agency of the Federal 

Government to ensure that the Federal 

National Mortgage Association (Fannie 

Mae), the Federal Home Loan Mortgage 

Corporation (Freddie Mac) and the 

Federal Home Loan Banks (collectively, 

the Regulated Entities) are capitalized 

adequately and operate safely and 

soundly and in compliance with 

applicable laws, rules and regulations. 

III. Section-by-Section Analysis 

Section 1202.1 Why did FHFA Issue 

this Regulation? 

This section describes the purpose of 

the part to implement the Freedom of 

Information Act (FOIA), explaining 

FHFA’s general policies and procedures 

for disclosing information under the 

FOIA. 

Section 1202.2 What do the Terms in 

this Regulation Mean? 

This section sets forth definitions of 

many terms relevant to the proposed 

regulation. 

Section 1202.3 What Information can I 

Obtain through FOIA? 

This section describes for the public 

the type of information that may be 

obtained under the FOIA. 

Section 1202.4 What Information is 

Exempt from Disclosure? 

This section describes records that 

FHFA does not have to disclose even if 

requested. 

Section 1202.5 How do I Request 

Information from FHFA under FOIA? 

This section explains what a person 

must do to submit a valid request to 

FHFA to disclose records. It describes 

the information to provide; allowing 

FHFA to identify the records sought and 

determine whether they can be 

disclosed. 

Section 1202.6 What if my Request 

does not have all the Information FHFA 

Requires? 

This section explains that FHFA will 

give requesters an opportunity to 

modify or amend a request that is 

incomplete or insufficient. It also 

explains how FHFA will treat such 

requests until adequate information is 

received. 

Section 1202.7 How will FHFA 

Respond to my FOIA Request? 

This section describes FHFA’s multitrack method of processing requests and 

the time within which FHFA will 

respond to requests. It also explains that 

FHFA will grant or deny requests in 

writing, provide reasons if a request is 

denied in whole or in part, refer the 

request to another agency if it is 

appropriate to do so, and explain the 

right of appeal. 


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Section 1202.8 If the Records I Request 

Contain Confidential Commercial 

Information, what Procedures will FHFA 

Follow? 

This section explains how FHFA 

complies with Executive Order No. 

12,600 and describes special procedures 

required before FHFA discloses 

confidential commercial information in 

response to a FOIA request. 

Section 1202.9 How do I Appeal a 

Response Denying my FOIA Request? 

This section describes the process by 

which a requester whose request is 

denied in whole or in part may appeal. 

It explains when and how to appeal and 

how and within what time limits FHFA 

will respond to appeals. 

Section 1202.10 Will FHFA Expedite 

My Request or Appeal? 

This section explains how a person 

can ask FHFA to expedite a request or 

your appeal. It describes the reasons 

that justify expediting a request or an 

appeal and the time within which FHFA 

will notify the person that the request or 

appeal will or will not be expedited. 

Section 1202.11 What Will It Cost To 

Get the Records I Requested? 

This section explains when FHFA 

will charge for searching for and 

providing copies of records and how to 

identify the costs FHFA will charge. 

Section 1202.12 Is There Anything 

Else I Need To Know About FOIA 

Procedures? 

This section explains that FHFA’s 

FOIA regulation does not create any 

independent rights, but provides 

procedures for exercising rights granted 

by the FOIA. 

Regulatory Impacts 

Paperwork Reduction Act 

The proposed regulations in this part 

do not contain any information 

collection requirement that requires the 

approval of OMB under the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires that a 

regulation that has a significant 

economic impact on a substantial 

number of small entities, small 

businesses, or small organizations must 

include an initial regulatory flexibility 

analysis describing the regulation’s 

impact on small entities. Such an 

analysis need not be undertaken if the 

agency has certified that the regulation 

does not have a significant economic 

impact on a substantial number of small 

entities (5 U.S.C. 605(b)). The FHFA has 

considered the impact of the proposed 

regulation under the Regulatory 

Flexibility Act. The FHFA certifies that 

the proposed regulation is not likely to 

have a significant economic impact on 

a substantial number of small business 

entities because the regulation is 

applicable only to the internal 

operations and legal obligations of the 

FHFA. 

List of Subjects in 12 CFR Part 1202 

Appeals, Confidential commercial 

information, Disclosure, Exemptions, 

Fees, Final action, Freedom of 

Information Act, Judicial review, 

Records, Requests. 

Accordingly, for the reasons stated in 

the preamble, the FHFA proposes to 

amend 12 CFR chapter XII by adding 

part 1202 to subchapter A to read as 

follows. 

PART 1202—FREEDOM OF 

INFORMATION ACT 

Sec. 

1202.1 Why did FHFA issue this part? 

1202.2 What do the terms in this part 

mean? 

1202.3 What information can I obtain 

through FOIA? 

1202.4 What information is exempt from 

disclosure? 

1202.5 How do I request information from 

FHFA under FOIA? 

1202.6 What if my request does not have all 

the information FHFA requires? 

1202.7 How will FHFA respond to my 

FOIA request? 

1202.8 If the records I request contain 

confidential commercial information, 

what procedures will FHFA follow? 

1202.9 How do I appeal a response denying 

my FOIA request? 

1202.10 Will FHFA expedite my request or 

appeal? 

1202.11 What will it cost to get the records 

I requested? 

1202.12 Is there anything else I need to 

know about FOIA procedures? 

Authority: Public Law 110–289, 122 Stat. 

2654; 5 U.S.C. 301, 552; 12 U.S.C. 4526; E.O. 

12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 

235; E.O. 13392, 70 FR 75373–75377, 3 CFR, 

2006 Comp., p. 216–200. 

§ 1202.1 Why did FHFA issue this part? 

(a) The Freedom of Information Act 

(FOIA) (5 U.S.C. 552), is a federal law 

that requires the Federal Housing 

Finance Agency (FHFA) and other 

government agencies to disclose records 

to the public. 

(b) This part explains the rules that 

FHFA follows when processing and 

responding to requests for records under 

the FOIA. It also explains what you 

must do to request records from FHFA 

under the FOIA. You should read this 

part together with the FOIA, which 

explains in more detail your rights and 

the records FHFA may release to you. 

(c) If you want to request information 

about yourself under the Privacy Act (5 

U.S.C. 552a), you should file your 

request using FHFA’s Privacy Act 

regulations at part 1204 of this Title. If 

you file a FOIA request for information 

about yourself, FHFA will process it as 

a request under the separate Privacy Act 

rules. 

(d) FHFA may make public 

information that it routinely publishes 

or discloses when performing its 

activities without following these 

procedures. 

§ 1202.2 What do the terms in this part 

mean? 

Some of the terms you need to 

understand while reading the 

regulations in this part are— 

Appeals Officer or FOIA Appeals 

Officer means a person designated by 

the Director of the Federal Housing 

Finance Agency (FHFA) to process 

appeals of denials of requests for FHFA 

records under the FOIA. 

Confidential commercial information 

means records provided to the 

government by a submitter that arguably 

contain material exempt from release 

under Exemption 4 of the Freedom of 

Information Act, 5 U.S.C. 552(b)(4), 

because disclosure could reasonably be 

expected to cause substantial 

competitive harm. 

Days, unless stated as ‘‘calendar 

days,’’ are working days and do not 

include Saturdays, Sundays, and federal 

holidays. If the last day of any period 

prescribed herein falls on a Saturday, 

Sunday, or federal holiday, the last day 

of the period will be the next working 

day that is not a Saturday, Sunday, or 

federal holiday. 

Direct costs means the expenses, 

including for contract services, incurred 

by FHFA in search time, or reviewing 

and duplicating records to respond to a 

request for information. In the case of a 

commercial use request, the term also 

means those expenditures FHFA 

actually incurs in reviewing records to 

respond to the request. Direct costs 

include the cost of the time of the 

employee performing the work, the cost 

of any computer searches, and the cost 

of operating duplication equipment. 

Direct costs do not include overhead 

expenses such as costs of space, and 

heating or lighting the facility in which 

the records are stored. 

Employee, for the purposes of this 

part, means any person holding an 

appointment to a position of 

employment with FHFA or any person 

who formerly held such an 

appointment; any conservator appointed 


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by FHFA; or any agent or independent 

contractor acting on behalf of FHFA, 

even though the appointment or 

contract has terminated. 

FHFA means the Federal Housing 

Finance Agency and includes its 

predecessor agencies, the Office of 

Federal Housing Enterprise Oversight 

(OFHEO), and the Federal Housing 

Finance Board (FHFB). FHFA is an 

agency responsible for the regulation or 

supervision of financial institutions. 

FOIA Officer and Chief FOIA Officer 

are persons designated by the Director 

of FHFA to process and respond to 

requests for FHFA records under the 

FOIA. The mailing address for the FOIA 

Officer or the Chief FOIA Officer is 

FHFA, 1700 G Street, NW., Washington, 

DC 20552. 

Readily reproducible means that the 

requested record or records exist in 

electronic format and can be 

downloaded or transferred intact to a 

computer disk, tape, or other electronic 

medium with equipment and software 

currently in use by FHFA. 

Record means information or 

documentary material FHFA maintains 

in any form or format, including 

electronic, which FHFA— 

(1) Created or received under federal 

law or in connection with the 

transaction of public business; 

(2) Preserved or determined is 

appropriate for preservation as evidence 

of FHFA’s operations or activities or 

because of the value of the information 

it contains; and 

(3) Controls at the time it receives a 

request for disclosure. 

Regulated entities means the Federal 

Home Loan Mortgage Corporation 

(‘‘Freddie Mac’’), the Federal National 

Mortgage Association (‘‘Fannie Mae’’), 

any Federal Home Loan Bank and/or 

any affiliate thereof that is subject to the 

regulatory authority of FHFA. 

Requester means any person seeking 

access to FHFA records under the FOIA. 

Search time means the amount of 

time spent by or on behalf of FHFA in 

attempting to locate records responsive 

to a request, manually, or by electronic 

means, including page-by-page or lineby-line identification of responsive 

material within a record or extraction of 

electronic information from electronic 

storage media. 

Submitter means any person or entity 

providing confidential information to 

the government. The term submitter 

includes, but is not limited to 

corporations, state governments, and 

foreign governments. 

Unusual circumstances means the 

need to— 

(1) Search for and collect records from 

agencies, offices, facilities, or locations 

that are separate from the office 

processing the request; 

(2) Search, review, and duplicate a 

voluminous amount of separate and 

distinct records in order to process a 

single request; or 

(3) Consult with another agency or 

among two or more components of 

FHFA that have a substantial interest in 

the determination of a request. 

§ 1202.3 What information can I obtain 

through FOIA? 

(a) General. FHFA generally follows a 

policy prohibiting employees from 

releasing or disclosing confidential or 

otherwise non-public information that 

FHFA possesses, except as authorized 

by this part or by the Director of FHFA, 

when the disclosure is necessary for the 

performance of official duties 

(b) Records. You may request that 

FHFA disclose to you its records on a 

subject of interest to you. The FOIA 

only requires the disclosure of records. 

It does not require FHFA to create 

compilations of information or to 

provide narrative responses to questions 

or queries. Some information is exempt 

from disclosure. 

(c) Reading Rooms. FHFA maintains 

electronic and physical reading rooms. 

(1) You may visit the physical reading 

room for FHFA and OFHEO records at 

1700 G Street, NW., Fourth Floor, 

Washington, DC 20552, open to the 

public from 9 a.m. to 3 p.m. each 

business day. For an appointment, 

contact the FOIA Officer by calling 202– 

414–6425 or by e-mail at foia@fhfa.gov 

or foia.office@ofheo.gov. 

(2) You may visit the physical reading 

room for FHFA and FHFB records and 

at 1675 Eye Street, NW., 4th Floor, 

Washington, DC 20006, open to the 

public from 9 a.m. to 3 p.m. each 

business day. For an appointment, 

contact the FOIA Officer by calling 202– 

408–2505 or by e-mail at foia@fhfa.gov 

or foia@fhfb.gov. 

(3) You can find FHFA’s electronic 

reading rooms by visiting FHFA’s Web 

site at http://www.fhfa.gov and linking 

to its predecessor agencies’ Web sites: 

http://www.ofheo.gov (Office of Federal 

Housing Enterprise Oversight); and 

http://www.fhfb.gov (Federal Housing 

Finance Board). 

(4) Each reading room has the 

following records created by FHFA or 

its predecessor agencies, after November 

1, 1996, and current indices to all of the 

following records created by FHFA or 

its predecessor agencies before or after 

November 1, 1996— 

(i) Final opinions or orders issued by 

FHFA, or its predecessor agencies in 

adjudication; 

(ii) Statements of policy and 

interpretation that have been adopted by 

FHFA or its predecessor agencies that 

are not published in the Federal 

Register; 

(iii) FHFA or its predecessor agencies 

administrative staff manuals and 

instructions to staff that affect a member 

of the public, and that are not exempt 

from disclosure under FOIA; and 

(iv) Copies of all records released 

pursuant to this subpart that FHFA 

determines have become or are likely to 

become the subject of subsequent 

requests for substantially the same 

records. 

§ 1202.4 What information is exempt from 

disclosure? 

(a) General. Unless the Director of 

FHFA, his or her designee, any FHFA 

regulation, or a statute specifically 

authorizes disclosure, FHFA will not 

release records of matters that are— 

(1) Specifically authorized under 

criteria established by an Executive 

order to be kept secret in the interest of 

national defense or foreign policy, and 

is in fact properly classified pursuant to 

such Executive order. 

(2) Related solely to FHFA’s internal 

personnel rules and practices. 

(3) 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) Trade secrets and commercial or 

financial information obtained from a 

person and privileged or confidential. 

(5) Contained in inter-agency or intraagency memoranda or letters that would 

not be available by law to a private party 

in litigation with FHFA. 

(6) Contained in personnel, medical 

or similar files (including financial files) 

the disclosure of which would 

constitute a clearly unwarranted 

invasion of personal privacy. 

(7) 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 


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foreign agency or authority or any 

private institution or an entity that is 

regulated and examined by FHFA that 

furnished information on a confidential 

basis, and, in the case of a record 

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) Contained in or related to 

examination, operating, or condition 

reports that are prepared by, on behalf 

of, or for the use of an agency 

responsible for the regulation or 

supervision of financial institutions. 

(9) Geological and geophysical 

information and data, including maps, 

concerning wells. 

(b) Discretion to Apply Exemptions. 

Although records or parts of them may 

be exempt from disclosure, FHFA may 

elect under the circumstances of any 

particular request not to apply an 

exemption. This election does not 

generally waive the exemption and it 

does not have precedential effect. FHFA 

may still apply the exemption to any 

other records or portions of records, 

regardless of when the request is 

received. 

(c) Redacted Portion. If a requested 

record contains exempt information and 

information that can be disclosed and 

the portions can reasonably be 

segregated from each other, the portion 

of the record that can be disclosed will 

be released to the requester after FHFA 

deletes the exempt portions. If it is 

technically feasible, FHFA will indicate 

the amount of the information deleted at 

the place in the record where the 

deletion is made and include a notation 

identifying the exemption that was 

applied, unless including that 

indication would harm an interest 

protected by an exemption. 

(d) Exempt and Redacted Material. 

FHFA is not required to provide an 

itemized index correlating each 

withheld document (or redacted 

portion) with a specific exemption 

justification. 

(e) Disclosure to Congress. This 

section does not allow FHFA to 

withhold any information from, or to 

prohibit the disclosure of any 

information to, the Congress or any 

congressional committee or 

subcommittee. 

§ 1202.5 How do I request information 

from FHFA under FOIA? 

(a) Where to Send Your Request. FOIA 

requests must be in writing. You may 

make a request for FHFA records by 

writing directly to the FOIA Office 

through electronic mail, regular mail, or 

fax. The electronic mail address is: 

foia.office@fhfa.gov. The regular mail 

address is: FOIA Officer, Federal 

Housing Finance Agency, 1700 G Street, 

NW., Washington, DC 20552. The fax 

number is: (202) 414–8917. You can 

help FHFA process your request by 

marking electronic mail, letter, or fax 

and the subject line, envelope, or fax 

cover sheet ‘‘FOIA Request.’’ You may 

find the FHFA’s ‘‘Freedom of 

Information Act Reference Guides,’’ 

available electronically on the FHFA’s 

Web site, http://www.fhfa.gov, helpful 

in making your request. 

(b) Provide Your Name and Address. 

Your request must include your full 

name, your address and, if different, the 

address at which FHFA is to notify you 

about your request; a telephone number 

at which you can be reached during 

normal business hours, and an 

electronic mail address, if any. 

(c) Request is Under FOIA. Your 

request must have a statement 

identifying it as being made under 

FOIA. 

(d) Your FOIA Status. If you are 

submitting your request as a 

‘‘commercial use’’ requester, an 

‘‘educational institution’’ requester, a 

‘‘non-commercial scientific institution’’ 

requester, or a ‘‘representative of the 

news media’’ for the purposes of the fee 

provisions of FOIA, your request must 

include a statement specifically 

identifying your status. 

(e) Describing the Records you 

Request. You must describe the records 

that you seek in enough detail to enable 

FHFA personnel to locate them with a 

reasonable amount of effort. Your 

request should include as much specific 

information as possible that you know 

about each record you request, such as 

the date, title or name, author, recipient, 

subject matter, and file designations or 

descriptions of the record. 

(f) How You want the Records 

Produced to You. Your request must tell 

FHFA whether you will inspect the 

records before duplication or want them 

duplicated and furnished without 

inspection. 

(g) Agreement to Pay Fees. Your FOIA 

request is an agreement by you to pay 

all applicable fees charged under 

§ 1202.11, up to $100.00, unless you 

seek a fee waiver. When making a 

request, you may specify a higher or 

lower amount you will pay without 

consultation. Your inability to pay a fee 

does not justify granting a fee waiver. 

(h) Valid Requests. FHFA will only 

process valid requests. A valid request 

must meet all the requirements of this 

section. 

§ 1202.6 What if my request does not have 

all the information FHFA requires? 

If the FHFA determines that your 

request does not reasonably describe the 

records you seek, is overly broad, or 

otherwise lacks required information, 

we will inform you in writing to explain 

why your request is incomplete or 

insufficient and give you 30 calendar 

days to modify your request to meet all 

the requirements. The first request for 

additional information tolls the 20 days 

period for FHFA to respond to your 

request under § 1202.7. 

(a) If you respond with an amended 

request, FHFA will process the 

amended request as a new request. 

(b) If you do not respond or provide 

additional information within the time 

allowed, or if the additional information 

you provide is still incomplete or 

insufficient, FHFA will consider the 

request withdrawn. 

(c) If the additional information you 

are required to provide concerns fees 

that may be incurred or an agreement to 

pay fees, FHFA may toll the 20 days 

response time under § 1202.7, as often 

as necessary to obtain the additional 

information. 

§ 1202.7 How will FHFA respond to my 

FOIA request? 

(a) Authority to Grant or Deny 

Requests. The FOIA Officer and the 

Chief FOIA Officer are authorized to 

grant or deny any request for FHFA 

records. 

(b) Multi-Track Request Processing. 

FHFA uses a multi-track system to 

process FOIA requests. This means that 

FOIA requests are processed based on 

their complexity. When FHFA receives 

your request, it is assigned to a Standard 

Track or Complex Track. FHFA will 

notify you if your request is assigned to 

the Complex Track as described in 

paragraph (e) of this section for 

extensions of time. 

(1) Standard Track. FHFA assigns 

FOIA requests that are routine and 

require little or no search time, review, 

or analysis to the Standard Track. We 

respond to these requests within 20 

days after receipt, in the order in which 

they are received. If FHFA determines 

while processing your Standard Track 

request, that it is more appropriately a 

Complex Track request, we will reassign 

it to the Complex Track and notify you 


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as described in paragraph (e) of this 

section for extensions of time. 

(2) Complex Track. FHFA assigns 

requests that are not routine to the 

Complex Track. Complex Track requests 

are those to which FHFA determines 

that the response will be voluminous, 

involve two or more FHFA units, 

require consultation with other agencies 

or entities, require searches of archived 

documents; or when FHFA determines 

that the request seeks confidential 

commercial information as described in 

§ 1202.8, or will require an unusually 

high level of effort to search for, review 

and/or duplicate records, or will cause 

undue disruption to the day-to-activities 

of FHFA regulating and supervising the 

regulated entities. FHFA will respond to 

Complex Track requests as soon as 

reasonably possible, regardless of the 

date of receipt. 

(c) Referrals to Other Agencies. When 

FHFA receives a request seeking records 

that originated in another Federal 

Government agency, FHFA refers the 

request to the other agency for response. 

FHFA will notify you if your request is 

referred to another agency. 

(d) Responses to FOIA Requests. 

FHFA will respond to your request by 

granting or denying it in full, or by 

granting and denying it in parts. FHFA’s 

response will be in writing. In 

determining which records are 

responsive to your request, we 

ordinarily will include only records we 

possess as of the date of the request. 

(1) Requests that FHFA Grants. If 

FHFA grants your request in full, the 

response will include the requested 

records or details about how FHFA will 

provide them to you, and the amount of 

any fees charged. 

(2) Requests that FHFA Denies or 

Grants and Denies in Parts. If FHFA 

denies your request in full or grants and 

denies separate parts of it, the response 

will be signed by the official 

responding. If we deny your request in 

whole or in part because a requested 

record does not exist or cannot be 

located, is not readily reproducible in 

the form or format you sought, is not 

subject to the FOIA, or is exempt from 

disclosure, the written response will 

include the requested records, if any, 

the amount of any fees charged, the 

reasons for any denial, and a notice and 

description of your right to file an 

administrative appeal under § 1202.9. 

(e) Format and Delivery of Disclosed 

Records. If FHFA grants, in whole or in 

part, your request for disclosure of 

records under FOIA, we will make the 

records available to you in the form or 

format you requested, if it is readily 

reproducible in that form or format. We 

will send them to the address you 

provided by regular U.S. Mail or by 

electronic mail unless we agree with 

you on alternate arrangements, such as 

your agreement to pay express or 

expedited delivery service fees or to 

pick up records at our office. 

(f) Extensions of Time. In unusual 

circumstances, FHFA may extend the 

time limit in paragraph (b) of this 

section for no more than ten (10) days 

and notify you of— 

(1) The reason for the extension; 

(2) The date on which the 

determination in accordance with 

paragraph (b) of this section is expected; 

and 

(3) The opportunity to limit the scope 

of the request so that the FHFA may 

process it on the simple track, or arrange 

an alternative time period for processing 

the request or a modified request. 

§ 1202.8 If the records I request contain 

confidential commercial information, what 

procedures will FHFA follow? 

(a) General. FHFA will not disclose 

confidential commercial information in 

response to your FOIA request except as 

described in this section. 

(b) Designation of Confidential 

Commercial Information. Submitters of 

commercial 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 the 

information they deem to be protected 

under 5 U.S.C. 552(b)(4) and section 

1202.4(a)(4). Any such designation 

expired ten (10) years after they were 

submitted to the Government, unless the 

submitter requests, and provides 

reasonable justification for, a 

designation period of longer duration. 

(c) Predisclosure Notification. Except 

as provided in paragraph (e) of this 

section, if your FOIA request 

encompasses confidential commercial 

information, FHFA will, prior to 

disclosure of the information and to the 

extent permitted by law, provide 

prompt written notice to a submitter 

that confidential commercial 

information was requested when— 

(1) The submitter has in good faith 

designated the information as 

confidential commercial information 

protected from disclosure under 5 

U.S.C. 552(b)(4) and section 

1202.4(a)(4); or 

(2) FHFA has reason to believe that 

the request seeks confidential 

commercial information, the disclosure 

of which may result in substantial 

competitive harm to the submitter. 

(d) Content of Predisclosure 

Notification. When FHFA sends a 

predisclosure notification to a 

submitter, it will contain— 

(1) A description of the exact nature 

of the confidential commercial 

information requested or copies of the 

records or portions thereof containing 

the confidential business information; 

and 

(2) An opportunity to object to 

disclosure within ten (10) days by 

providing to FHFA a detailed written 

statement demonstrating all reasons the 

submitter opposes disclosure. 

(e) Exceptions to Predisclosure 

Notification. FHFA is not required to 

send a predisclosure notification if— 

(1) FHFA determines that 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 the FOIA; 

(4) The information requested is not 

designated by the submitter as 

confidential commercial information 

pursuant to this section; or 

(5) The designation made by the 

submitter, under paragraph (b) of this 

section, appears obviously frivolous; 

except that, FHFA will provide the 

submitter with written notice of any 

final decision to disclose the designated 

confidential commercial information 

within a reasonable number of days 

prior to a specified disclosure date. 

(f) Submitter’s Objection to 

Disclosure. A submitter may object to 

disclosure within ten (10) days after 

date of the Predisclosure Notification, or 

such other time period that FHFA may 

allow, by delivering to FHFA a 

statement demonstrating all grounds on 

which it opposes disclosure, and all 

reasons supporting its contention that 

the information should not be disclosed. 

The submitter’s objection must contain 

a certification by the submitter, or an 

officer or authorized representative of 

the submitter, that the grounds and 

reasons presented are true and correct to 

the best of the submitter’s knowledge. 

The submitter’s objection may itself be 

subject to disclosure under the FOIA. 

(g) Notice of Intent to Disclose 

Information. FHFA will consider 

carefully all grounds and reasons 

provided by a submitter objecting to 

disclosure. If FHFA decides to disclose 

confidential commercial information 

over the objection of the submitter, it 

will provide to the submitter, at least 

ten (10) days before the date of 

disclosure, written notice containing— 

(1) A statement of the reasons for not 

sustaining the submitter’s objections to 

disclosure; 

(2) A description of the confidential 

commercial information to be disclosed; 

and 

(3) A specified disclosure date. 


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(h) Notice to Requester. FHFA will 

give a requester whose request 

encompasses confidential commercial 

information the following notices— 

(1) At the time a Predisclosure 

Notification is provided to the 

submitter, written notice that the 

request encompasses confidential 

commercial information that may be 

exempt from disclosure under 5 U.S.C. 

552(b)(4) and section 1202.4(a)(4) and 

that the submitter of the information has 

been given the opportunity to comment 

on the proposed disclosure of the 

information; and 

(2) At the time a Notice of Intent to 

Disclose is provided to the submitter, a 

copy of the Notice of Intent to Disclose, 

at least days before the specified 

disclosure date. 

(i) Notice of FOIA Lawsuit. FHFA will 

promptly notify the submitter whenever 

a requester files suit seeking to compel 

disclosure of the submitter’s 

confidential commercial information. 

§ 1202.9 How do I appeal a response 

denying my FOIA request? 

(a) Right of Appeal. If FHFA denied 

your request in whole or in part, you 

may appeal the denial to: FOIA Appeals 

Officer, Federal Housing Finance 

Agency, 1700 G Street, NW., 

Washington, DC 20552. If you use a 

mail, express, or courier delivery service 

to file your appeal, include a clear 

marking identifying it as a ‘‘FOIA 

APPEAL.’’ You may file your appeal 

electronically by sending it to: 

foia@fhfa.gov with ‘‘FOIA Appeal’’ in 

the subject line. You may file an appeal 

by facsimile addressed to the attention 

of the FOIA Appeals Officer at (202) 

414–6504, clearly identifying on the 

cover sheet that it is a ‘‘FOIA Appeal.’’ 

(b) Timing, Form, Content and 

Receipt of an Appeal. Your appeal must 

be written and submitted within 30 

calendar days after you received FHFA’s 

response denying your request. Your 

appeal must 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 you believe support 

disclosure of the requested record. 

FHFA will not consider an improperly 

addressed appeal to have been received 

for the purposes of the 20 days time 

period of paragraph (d) of this section, 

until it is actually received by the 

Appeals Officer, or would have been 

received by the Appeals Officer if due 

diligence were exercised. 

(c) Extensions of Time to Appeal. If 

you need more time to file your appeal, 

you may request an extension of time of 

no more than ten (10) days in which to 

file your appeal, but only if your request 

is made within the original 30 calendar 

days time period for filing the appeal. 

The FOIA Appeals Officer has 

discretion to grant extensions of time to 

file appeals. 

(d) Final Action on Appeal. FHFA’s 

determination on your appeal will be in 

writing, signed by the FOIA Appeals 

Officer, and mailed within 20 days after 

the appeal is received or by the last day 

of the last extension under paragraph (e) 

of this section. The determination of an 

appeal is the final action of FHFA on a 

FOIA request. A determination— 

(1) Affirming in whole or in part the 

denial of a request and including a brief 

statement of the reason or reasons for 

affirmance, including each FOIA 

exemption relied on. 

(2) Reversing the denial of a request 

in whole or in part, requiring the 

request to be processed promptly in 

accordance with the determination. 

(3) Remanding a request to the FOIA 

Officer for re-processing, stating the 

time limits for responding to the 

remanded request. 

(e) Notice of Delayed Determinations 

on Appeal. If FHFA cannot mail a 

determination on you appeal within the 

time limit, the Appeals Officer will 

continue to process the appeal and upon 

expiration of the time limit, will inform 

you the reason for the delay and the 

date on which a determination may be 

expected to be mailed. In this notice of 

delay, the FOIA Appeals Officer may 

request that you forebear seeking 

judicial review until a final 

determination of the appeal. 

(f) Judicial Review. If the denial of 

your 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 days period in paragraph 

(d) of this section, or the last extension 

thereof, you may seek judicial review 

under 5 U.S.C. 552(a)(4). 

§ 1202.10 Will FHFA expedite my request 

or appeal? 

(a) Applications for Expedited 

Processing. You may apply for 

expedited processing of an initial 

request or of an appeal. Your 

application must be in writing. FHFA 

will grant expedited processing, and 

give the request or appeal priority if 

your application demonstrates a 

compelling need for expedited 

processing by showing— 

(1) Circumstances in which the lack of 

expedited treatment could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; 

(2) An urgency to inform the public 

about an actual or alleged Federal 

government activity if you are a person 

primarily engaged in disseminating 

information; 

(3) The loss of substantial due process 

or rights; 

(4) A matter of widespread and 

exceptional media interest in which 

there exists possible questions about the 

government’s integrity, affecting public 

confidence; or 

(5) Humanitarian need. 

(b) Certification of Compelling Need. 

Your application for expedited 

processing must include a statement 

certifying that the reasons you present 

to demonstrate a compelling need are 

true and correct to the best of your 

knowledge. 

(c) Determination on Application. 

FHFA will notify you within ten (10) 

days of receipt of your application 

whether expedited processing has been 

granted. If your application is denied, 

you may appeal under § 1202.9. 

§ 1202.11 What will it cost to get the 

records I requested? 

(a) Assessment of Fees, Generally. 

FHFA will assess you for fees covering 

the direct costs of responding to your 

request and costs for duplicating 

records, except as otherwise provided in 

a statute with respect to the 

determination of fees that may be 

assessed for disclosure, search time, or 

review of particular records. 

(b) Assessment of Fees, Categories of 

Requesters. The fees that FHFA may 

assess vary depending on the type of 

request or the type of requester you 

are— 

(1) Commercial Use. If you request 

records for a commercial use, the fees 

that FHFA may assess are limited to 

FHFA’s operating costs incurred in 

search time, and/or to review and 

duplicate records. 

(2) Educational Institution, 

Noncommercial Scientific Institution, 

Representative of the News Media. If 

you are not requesting records for 

commercial use and you are an 

educational institution, a 

noncommercial scientific institution or 

a representative of the news media, the 

fees that FHFA may assess are limited 

to FHFA’s costs incurred for duplication 

in excess of 100 pages, or an electronic 

equivalent of 100 pages. 

(3) Other. If neither paragraph (b)(1) 

nor paragraph (b)(2) of this section 

applies, the fees FHFA may assess you 

are limited to the costs FHFA incurs in 

search time and review in excess of two 

hours and to duplicate in excess of 100 

pages, or an electronic equivalent of 100 

pages. 

(c) Fee Schedule. FHFA will maintain 

a current schedule of fees on its Web 

site at: http://www.fhfa.gov. 


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(d) Notice of Anticipated Fees in 

Excess of $100.00. When FHFA 

determines or estimates that the fees 

chargeable to you will exceed $100.00, 

FHFA will notify you of the actual or 

estimated amount of fees you will incur, 

unless you earlier indicated your 

willingness to pay fees as high as those 

anticipated. When you are notified that 

the actual or estimated fees exceed 

$100.00, your FOIA request will not be 

considered received by FHFA until you 

agree to pay the anticipated total fee. 

(e) Advance Payment of Fees. FHFA 

may request that you pay estimated fees 

or a deposit in advance of responding to 

your request. If FHFA requests advance 

payment or a deposit, your request will 

not be considered received by FHFA 

until the advance payment or deposit is 

received. FHFA will request advance 

payment or a deposit only if— 

(1) The fees are likely to exceed 

$500.00. If it appears that the fees will 

exceed $500.00, FHFA will notify you of 

the likely cost and obtain satisfactory 

assurance of full payment if you have a 

history of prompt payment of FOIA fees 

to FHFA. If you do not have a history 

of payment, or if the estimate of fees 

exceeds $1,000.00, FHFA may require 

an advance payment of fees in an 

amount up to the full estimated charge 

that will be incurred; or 

(2) You previously failed to pay a fee 

to FHFA in a timely fashion, i.e., within 

30 calendar days of the date of a billing. 

FHFA may require you to make advance 

payment of the full amount of the fees 

anticipated before processing a new 

request or finishing processing of a 

pending request. If you have an 

outstanding balance due from a prior 

request, FHFA may require you to pay 

the full amount owed plus any 

applicable interest, as provided in 

paragraph (f) of this section, or 

demonstrate that the fee owed has been 

paid, as well as payment of the full 

amount of anticipated fees before 

processing your request. 

(f) Interest. FHFA may charge you 

interest on an unpaid bill starting on the 

31st calendar day following the day on 

which the bill was sent. Once a fee 

payment has been received by FHFA, 

even if not processed, FHFA will stay 

the accrual of interest. Interest charges 

shall be assessed at the rate prescribed 

by 31 U.S.C. 3717 and shall accrue from 

the date of the billing. 

(g) FHFA Assistance to Reduce Costs. 

If FHFA notifies you of estimated fees 

exceeding $100.00 or requests advance 

payment or a deposit, you will have an 

opportunity to consult with FHFA staff 

to modify or reformulate your request to 

meet your needs at a lower cost. 

§ 1202.12 Is there anything else I need to 

know about FOIA procedures? 

The FOIA regulations in this part do 

not and shall not be construed to create 

any right or to entitle any person, as of 

right, to any service or to the disclosure 

of any record to which such person is 

not entitled under FOIA. This part only 

provides procedures for requesting 

records under FOIA. 

Dated: September 30, 2008. 

James B. Lockhart III, 

Director, Federal Housing Finance Agency. 

[FR Doc. E8–23517 Filed 10–9–08; 8:45 am] 

BILLING CODE 8070–01–P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1250 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

Office of Federal Housing Enterprise 

Oversight 

12 CFR Part 1773 

RIN 2590–AA09 

Flood Insurance 

AGENCIES: Federal Housing Finance 

Agency; Office of Federal Housing 

Enterprise Oversight. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) is requesting public 

comments on issuance of a proposed 

Flood Insurance regulation. The 

proposed regulation would codify the 

authority and responsibility of FHFA to 

oversee and enforce the statutory 

requirements affecting the operations of 

the Federal National Mortgage 

Association and the Federal Home Loan 

Mortgage Corporation under the Flood 

Disaster Protection Act of 1973, as 

amended, and to effect congressionally 

mandated adjustments to the civil 

money penalties applicable to violations 

of that law. 

DATES: Comments on the proposed 

regulation must be received in writing 

on or before December 9, 2008. For 

additional information, see 

SUPPLEMENTARY INFORMATION. 

ADDRESSES: You may submit your 

comments on the proposed regulation, 

identified by regulatory information 

number (RIN) 2590–AA09, by any of the 

following methods: 

• U.S. Mail, United Parcel Post, 

Federal Express, or Other Mail Service: 

The mailing address for comments is: 

Alfred M. Pollard, General Counsel 

(Office of Federal Housing Enterprise 

Oversight (OFHEO)), Attention: 

Comments/RIN 2590–AA09, Federal 

Housing Finance Agency, Fourth Floor, 

1700 G Street, NW., Washington, DC 

20552. 

• Hand Delivered/Courier: The hand 

delivery address is: Alfred M. Pollard, 

General Counsel (OFHEO), Attention: 

Comments/RIN 2590–AA09, Federal 

Housing Finance Agency, Fourth Floor, 

1700 G Street, NW., Washington, DC 

20552. The package should be logged at 

the Guard Desk, First Floor, on business 

days between 9 a.m. and 5 p.m. 

• E-mail: Comments to Alfred M. 

Pollard, General Counsel (OFHEO) and 

may be sent by e-mail at 

RegComments@FHFA.gov. Please 

include ‘‘RIN 2590–AA09’’ in the 

subject line of the message. 

FOR FURTHER INFORMATION CONTACT: 

Andra Grossman, Counsel, telephone 

(202) 343–1313 (not a toll-free number); 

Federal Housing Finance Agency, 

Fourth Floor, 1700 G Street, NW., 

Washington, DC 20552. The telephone 

number for the Telecommunications 

Device for the Deaf is (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Comments 

The Federal Housing Finance Agency 

(FHFA) invites comments on all aspects 

of the proposed regulation, and will take 

all comments into consideration before 

issuing the final regulation. FHFA 

requests that comments submitted in 

hard copy also be accompanied by the 

electronic version in Microsoft Word 

or in portable document format (PDF) 

on 3.5′′ disk or CD–ROM. 

Copies of all comments will be posted 

on the agency internet Web site at: 

https://www.ofheo.gov. In addition, 

copies of all comments received will be 

available for examination by the public 

on business days between the hours of 

10 a.m. and 3 p.m., at the Federal 

Housing Finance Agency, Fourth Floor, 

1700 G Street, NW., Washington, DC 

20552. To make an appointment to 

inspect comments, please call the Office 

of General Counsel (OFHEO) at (202) 

414–6924. 

II. Background 

A. Establishment of the Federal Housing 

Finance Agency 

The Housing and Economic Recovery 

Act of 2008 (HERA), Public Law 110– 

289, 122 Stat. 2654, amended the 

Federal Housing Enterprises Financial 

Safety and Soundness Act of 1992 (12 

U.S.C. 4501 et seq.) (Act) to establish 

FHFA as an independent agency of the 


sroberts on PROD1PC70 with PROPOSALS