[Federal Register Volume 63, Number 133 (Monday, July 13, 1998)]
[Rules and Regulations]
[Pages 37483-37489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18468]
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FEDERAL HOUSING FINANCE BOARD
12 CFR Part 904
[No. 98-26]
RIN 3069-AA71
Revisions to the Freedom of Information Act Regulation
AGENCY: Federal Housing Finance Board.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Federal Housing Finance Board (Finance Board) is revising
its Freedom of Information Act (FOIA) regulation to comply with new
statutory requirements. The Finance Board is also reorganizing and
streamlining the FOIA regulation to clarify the Finance Board's
practices and procedures in responding to requests for information.
DATES: The interim final rule will become effective on July 13, 1998.
The Finance Board will accept comments on the interim final rule in
writing on or before September 11, 1998.
ADDRESSES: Mail comments to Elaine L. Baker, Secretary to the Board,
Federal Housing Finance Board, 1777 F Street, NW, Washington, DC 20006.
Comments will be available for public inspection at this address.
FOR FURTHER INFORMATION CONTACT: Elaine L. Baker, Secretary to the
Board and Associate Director, Executive Secretariat, Office of the
Managing Director, 202/408-2837, or Janice A. Kaye, Attorney-Advisor,
Office of General Counsel, 202/408-2505, Federal Housing Finance Board,
1777 F Street, NW, Washington, DC 20006.
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Background
Congress amended FOIA by enacting the Electronic Freedom of
Information Act Amendments of 1996 (EFOIA). See 5 U.S.C. 552, as
amended by Pub. L. 104-231, 110 Stat. 3048 (Oct. 2, 1996). Among other
procedural changes, EFOIA increases the time for responding to a FOIA
request from 10 to 20 days, specifically applies FOIA disclosure
requirements to electronic records, and adds frequently requested
records as a category of reading room records. EFOIA also requires an
agency to promulgate regulations that provide for the expedited
processing of FOIA requests.
In addition to amending its FOIA regulation, codified at 12 CFR
part 904, to comply with these statutory changes, the Finance Board is
reorganizing and streamlining the regulation to clarify its practices
and procedures in responding
[[Page 37484]]
to requests for information. The reorganization is technical and
procedural in nature and will have no substantive effect on the
operation of the Finance Board's FOIA process.
II. Analysis of the Interim Final Rule
A. Elimination of Obsolete Provisions
In order to streamline the FOIA regulation, the Finance Board is
removing two provisions that restate statutory requirements,
Sec. 904.1, purpose and scope, and Sec. 904.3(a), published
information. See 12 CFR 904.1, 904.3(a); 5 U.S.C. 552(a). The Finance
Board is also eliminating Sec. 904.10 in its entirety. 12 CFR 904.10.
Section 904.10(a), which concerns service of process under FOIA, is
unnecessary because service of process under FOIA is governed by the
Federal Rules of Civil Procedure. Id. Sec. 904.10(a); Fed. R. Civ. P.
4(i). Section 904.10 (b) and (c), which concerns disclosure of Finance
Board records by persons other than Finance Board employees, is being
deleted because the Finance Board does not have the authority to
enforce the stated restrictions. 12 CFR 904.10(b)-(c).
B. Implementation of New Statutory Requirements and Clarification of
the Current Regulation
1. Definitions
The interim final rule restates the definitions of the terms
``Finance Board,'' ``FOIA,'' ``requester,'' and ``search'' without
substantive change. To reflect an internal agency reorganization, the
term ``Secretary to the Board'' replaces the term ``Executive
Secretary.'' The address for the Secretary to the Board is now included
in the definition of that term. The definitions of the terms that
relate to the assessment and collection of FOIA fees, i.e.,
``commercial use request,'' ``direct costs,'' ``educational
institution,'' and ``representative of the news media,'' are relocated
without substantive change to Sec. 904.8, the fees section of the
interim final rule.
To include changes made by EFOIA, the Finance Board has amended the
definition of the term ``unusual circumstances'' and added specific
references to records maintained in an electronic format in the
definitions of the terms ``duplication'' and ``record.'' See 5 U.S.C.
552(a)(3)(B)-(C), (6)(B)(iii), (f)(2). To ensure consistency with FOIA,
the interim final rule includes a definition of the term ``agency''
with the same meaning as under FOIA. Id. 552(f)(1).
To broaden the coverage of the regulatory provisions concerning
financial regulatory agency records, the definition of the term
``financial regulatory agency'' now includes the Farm Credit
Administration and any state officer, agency, supervisor, or other
entity that has regulatory authority over, or is empowered to institute
enforcement action against, a financial institution, including an
insurance company. To avoid repetition within the FOIA regulation, the
term ``working day'' is defined to exclude Saturdays, Sundays, and
legal public holidays.
2. Records Available to the Public
Section 904.2 of the interim final rule restates Sec. 904.3(b)-(d),
Sec. 904.4, and Sec. 904.7(c)(1) of the current rule with minor changes
required by EFOIA. See 12 CFR 904.3(b)-(d); 904.4; 904.7(c)(1). The
EFOIA changes include a separate paragraph, designated as
Sec. 904.2(b), which clarifies the types of records that are available
for public inspection in the Finance Board's reading room. In addition
to the records listed in Sec. 904.4(b) of the current rule, the Finance
Board considers the following records to be reading room records: (1)
records previously disclosed to any requester pursuant to FOIA which,
because of the nature of their subject matter, the Finance Board has
determined will likely be the subject of subsequent requests for
substantially the same records, and a general index thereof; (2)
current indices that provide identifying information about all matters
issued, adopted, or promulgated by the Finance Board; and (3) the FOIA
report the Finance Board submits to the Attorney General pursuant to 5
U.S.C. 552(e). See 5 U.S.C. 552(a)(2). As required by EFOIA, the
Finance Board is making each reading room record created on or after
November 1, 1996 available by computer telecommunications or other
electronic means, such as on computer diskettes or on the Finance
Board's Internet Web site, found at http://www.fhfb.gov. Id. To
maximize the availability of records to the public, the Finance Board
will provide copies of reading room records in response to a FOIA
request in accordance with the procedures and fee schedule in its FOIA
regulation.
3. Requests For Records
Section 904.3 of the interim final rule is a restatement of
Sec. 904.5(a) and (b)(1) and (2) of the current rule. See 12 CFR
904.5(a), (b)(1)-(2). Like the current rule, the interim final rule
describes the information a requester must provide in order for the
Finance Board to process a FOIA request and requires a requester to
submit the request in writing to the Secretary to the Board. Id.
Sec. 904.5(a), (b)(1). A new provision in the interim final rule
provides that if a request is incomplete, the Secretary to the Board
may advise the requester that additional information is needed. If the
requester submits a corrected request, the Finance Board will treat the
corrected request as a new request. Id. Sec. 904.5(b)(2). This
provision will allow the Secretary to the Board to close out its FOIA
files. If the Secretary to the Board notifies a requester that the
request is incomplete, the requester is free to initiate a new request
that includes the necessary information.
4. Responses to Requests for Records
Section 904.4 of the interim final rule, which concerns the Finance
Board's initial response to a FOIA request, restates Sec. 904.5(b)(4)-
(5) and (f) and Sec. 904.6(d), (k), and (m) of the current rule and
adds a new provision concerning expedited processing. See id.
Sec. 904.5(b)(4)-(5), (f); 904.6(d), (k), (m). EFOIA increases the time
limit for initial FOIA responses from 10 to 20 days. See 5 U.S.C.
552(a)(6)(A)(i). Accordingly, Sec. 904.4(a) of the interim final rule
requires the Secretary to the Board to grant or deny each complete
request within 20 working days of receipt.
Section 904.4(c), which concerns extensions of this 20-day time
limit, includes a revision required by EFOIA allowing a requester to
narrow a request so that it may be processed within the 20-day time
limit or arrange an alternative time frame for processing the request.
Id. 552(a)(6)(B)(i)-(ii).
EFOIA also requires an agency to promulgate regulations providing
for expedited processing of FOIA requests. Id. 552(a)(6)(E). The
Finance Board has included an expedited processing provision that
conforms to the statutory requirements in Sec. 904.4(d) of the interim
final rule.
Section 904.4(e) of the interim final rule combines provisions
appearing in Sec. 904.6(d), (k), and (m) of the current rule. See 12
CFR 904.6(d), (k), (m). It provides that the Finance Board will furnish
one copy of a record to a requester in any form or format requested if
the record is readily reproducible by the Finance Board in that form or
format. The record will be provided by regular U.S. mail to the address
indicated in the request unless other arrangements are made, such as
taking delivery at the Finance Board or an agreement by the requester
to pay additional fees for transmission by facsimile or other express
delivery methods.
If the Finance Board denies a request in whole or in part, the
requester may appeal under Sec. 904.8 of the interim final
[[Page 37485]]
rule. As under Sec. 904.5(c), (e), and (f) of the current rule,
Sec. 904.8(a) permits a requester to file an appeal within 30 days of
the initial determination and requires a response from the Finance
Board within 20 working days, or in unusual circumstances, within 30
working days, of receipt of an application for appeal. Id.
Sec. 904.5(c), (e), (f). Section 904.8(b), which concerns
administrative appeals during judicial review, is a restatement of
Sec. 904.5(d) of the current rule. Id. Sec. 904.5(d).
5. FOIA Exemptions
Section 904.5(a) of the interim final rule incorporates all of the
disclosure exemptions provided by FOIA. See 5 U.S.C. 552(b); 12 CFR
904.7(a). Consistent with Sec. 904.7(b) of the current rule, under
Sec. 904.5(b) of the interim final rule the Finance Board will provide
a requester with any reasonably segregable portion of a record after
redacting the portion that is exempt from disclosure. See 5 U.S.C.
552(b); 12 CFR 904.7(b). As required by EFOIA, the Finance Board will
make a reasonable effort to estimate the volume of redacted information
and provide that information to the requester unless providing the
estimate would harm an interest protected by the exemption under which
the redaction is made. See 5 U.S.C. 552(a)(6)(F). The Finance Board
also will indicate the estimated volume of redacted information on the
released portion of the record, and, if technically feasible, will make
the indication at the place in the record where the redaction is made
unless the indication would harm an interest protected by the exemption
under which the redaction is made. Id. 552(b).
Like Sec. 904.4(a) of the current rule, Sec. 904.5(c) permits the
Finance Board to disclose otherwise exempt records if disclosure is in
the public interest. See 12 CFR 904.4(a).
6. Disclosure of Examination Reports and Other Records of Financial
Regulatory Agencies
Section 904.6 of the interim final rule, which concerns disclosure
of Federal Home Loan Bank examination reports to financial regulatory
agencies, is a restatement of Sec. 904.8 of the current rule. Id.
Sec. 904.8. The only change other than reorganizing the provision, is
replacement of a reference to the Finance Board's former District Banks
Directorate with a reference to the Finance Board.
Section 904.7 of the interim final rule, which prohibits the
Finance Board from disclosing records of other financial regulatory
agencies, is a restatement of Sec. 904.9 of the current rule without
substantive change. Id. Sec. 904.9.
7. Fees
Section 904.9 of the interim final rule concerns the assessment and
collection of fees for providing FOIA services. Other than modestly
increasing the amount of the charges the Finance Board will assess for
certain services, this provision is not substantively different than
the current FOIA fee provision. Id. Sec. 904.6.
III. Notice and Public Participation
The Finance Board is promulgating these technical, procedural
changes as an interim final rule in order to conform its FOIA
regulation to the EFOIA amendments that have already taken effect.
However, because FOIA requires notice and receipt of public comment,
the Finance Board will accept written comments on the interim final
rule on or before September 11, 1998.
IV. Effective Date
For the reasons stated in part III above, the Finance Board for
good cause finds that the interim final rule should become effective on
July 13, 1998. See 5 U.S.C. 553(d)(3).
V. Regulatory Flexibility Act
The Finance Board is adopting the amendments to part 904 in the
form of an interim final rule and not as a proposed rule. Therefore,
the provisions of the Regulatory Flexibility Act do not apply. See 5
U.S.C. 601(2), 603(a).
VI. Paperwork Reduction Act
The interim final rule does not contain any collections of
information pursuant to the Paperwork Reduction Act of 1995. See 44
U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted
any information to the Office of Management and Budget for review.
List of Subjects in Part 904
Confidential business information, Federal home loan banks, Freedom
of information. For the reasons stated in the preamble, the Finance
Board hereby revises 12 CFR part 904 to read as follows:
PART 904--FREEDOM OF INFORMATION ACT REGULATION
Sec.
904.1 Definitions.
904.2 Records available to the public.
904.3 Requests for records.
904.4 Finance Board response to requests for records.
904.5 Records not disclosed.
904.6 Disclosure of Federal Home Loan Bank examination reports.
904.7 Records of financial regulatory agencies held by the
Finance Board.
904.8 Appeals.
904.9 Fees.
Authority: 5 U.S.C. 552; 52 FR 10012 (Mar. 27, 1987).
Sec. 904.1 Definitions.
For purposes of this part:
(a) Agency has the same meaning as in 5 U.S.C. 552(f)(1).
(b) Duplication means the process of making a copy of a record in
order to respond to a FOIA request, including paper copies, microfilm,
audio-video materials, and computer diskettes or other electronic
copies.
(c) Finance Board means the agency established as the Federal
Housing Finance Board.
(d) Financial regulatory agency means the Board of Governors of the
Federal Reserve System, Office of the Comptroller of the Currency,
Federal Deposit Insurance Corporation, Office of Thrift Supervision,
National Credit Union Administration, Farm Credit Administration, or a
state officer, agency, supervisor, or other entity that has regulatory
authority over, or is empowered to institute enforcement action
against, a financial institution, including an insurance company.
(e) FOIA means the Freedom of Information Act, as amended (5 U.S.C.
552).
(f) Record means information or documentary material the Finance
Board maintains in any form or format, including an electronic form or
format, which the Finance Board:
(1) Made 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 Finance Board operations or activities or because of the
value the information it contains; and
(3) Controls at the time it receives a request.
(g) Requester means any person, including an individual,
corporation, firm, organization, or other entity, who makes a request
to the Finance Board under FOIA for records.
(h) Review means the process of examining a record to determine
whether all or part of the record may be withheld, and includes
redacting or otherwise processing the record for disclosure to a
requester. It does not include time spent:
(1) Resolving legal or policy issues regarding the application of
exemptions to a record; or
(2) At the administrative appeal level, unless the Finance Board
determines that the exemption under which it
[[Page 37486]]
withheld records does not apply and the records are reviewed again to
determine whether a different exemption may apply.
(i) Search means the time spent locating records responsive to a
request, manually or by electronic means, including page-by-page or
line-by-line identification of responsive material within a record.
(j) Secretary to the Board means the Secretary to the Board of
Directors of the Finance Board. The address for the Secretary to the
Board is Executive Secretariat, Office of the Managing Director,
Federal Housing Finance Board, 1777 F Street NW, Washington, DC 20006.
(k) Unusual circumstances means the need to:
(1) Search for and collect records from establishments 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
the Finance Board that have a substantial interest in the determination
of a request.
(l) Working days do not include Saturdays, Sundays, and legal
public holidays.
Sec. 904.2 Records available to the public.
(a) General. (1) It is the policy of the Finance Board to respond
promptly to all FOIA requests.
(2) The Finance Board may disclose records that were previously
published or disclosed or are customarily furnished to the public in
the course of the performance of official duties without complying with
this part. These records include, but are not limited to, the annual
report the Finance Board submits to Congress pursuant to section 2B(d)
of the Federal Home Loan Bank Act (12 U.S.C. 1422b(d)), press releases,
Finance Board forms, and materials published in the Federal Register.
(3) Except as provided in the Privacy Act (5 U.S.C. 552a), the
Finance Board's Privacy Act regulation (12 CFR part 909), or paragraph
(a)(2) of this section, the Finance Board shall not disclose records
except in accordance with the requirements of this part.
(b) Reading room. (1) Subject to Secs. 904.5 through 904.7, the
following records shall be available for public inspection and copying
in the Finance Board reading room from 9:00 a.m. to 4:00 p.m. each
working day:
(i) Final opinions or orders of the Finance Board in the
adjudication of cases.
(ii) A record of the final votes of each member of the Board of
Directors in every Finance Board proceeding.
(iii) Statements of policy and interpretations adopted by the
Finance Board that are not published in the Federal Register.
(iv) Administrative staff manuals and instructions to staff that
affect a member of the public.
(v) Records previously disclosed to any requester pursuant to this
part which, because of the nature of their subject matter, the Finance
Board has determined will likely be the subject of subsequent requests
for substantially the same records, and a general index thereof.
(vi) Current indices that provide identifying information about all
matters issued, adopted, or promulgated by the Finance Board.
(vii) The report the Finance Board submits to the Attorney General
pursuant to 5 U.S.C. 552(e).
(2) The Finance Board shall make each reading room record created
on or after November 1, 1996 available by computer telecommunications
or other electronic means, such as on computer diskettes or on the
Finance Board's Internet Web site, found at http://www.fhfb.gov.
(3) The Finance Board shall assess fees for searching, reviewing,
or duplicating reading room records in accordance with Sec. 904.9.
Sec. 904.3 Requests for records.
(a) Request requirements. Requests for access to, or copies of,
Finance Board records shall be in writing and addressed to the
Secretary to the Board. Each request shall include the following:
(1) A description of the requested record that provides sufficient
detail to enable the Finance Board to locate the record with a
reasonable amount of effort;
(2) The requester's full name, mailing address, and a telephone
number where the requester can be reached during normal business hours;
(3) A statement that the request is made pursuant to FOIA; and
(4) At the discretion of the requester, a dollar limit on the fees
the Finance Board may incur to respond to the request for records. The
Finance Board shall not exceed such limit.
(b) Incomplete requests. If a request does not meet all of the
requirements of paragraph (a) of this section, the Secretary to the
Board may advise the requester that additional information is needed.
If the requester submits a corrected request, the Finance Board shall
treat the corrected request as a new request.
Sec. 904.4 Finance Board response to requests for records.
(a) Response deadline. Subject to Sec. 904.9(f), within 20 working
days of receipt of a request meeting the requirements of Sec. 904.3(a)
and any extensions of time under paragraph (c) of this section, the
Secretary to the Board shall:
(1) Determine whether to grant or deny the request in whole or in
part;
(2) Notify the requester in writing of the determination and the
reasons therefor; and
(3) Make the records, if any, available to the requester.
(b) Denials. If the Secretary to the Board denies the request in
whole or in part, the notice required under paragraph (a)(2) of this
section shall state that the Secretary to the Board is the person
responsible for the denial, the denial is not a final agency action,
and the requester may appeal the denial under Sec. 904.8.
(c) Extensions of time. In unusual circumstances, the Secretary to
the Board may extend the time limit in paragraph (a) of this section
for a period not to exceed 10 working days by notifying the requester
in writing of:
(1) The reasons for the extension;
(2) The date on which a determination is expected; and
(3) The opportunity for the requester to either limit the scope of
the request so that the Finance Board may process it in accordance with
paragraph (a) of this section, or arrange an alternative time frame for
processing the request or a modified request.
(d) Expedited processing. (1) The Finance Board shall process a
request for records as soon as practicable if it determines that
expedited processing is appropriate or the requester demonstrates a
compelling need. To demonstrate a compelling need, a requester shall
submit a written application certified to be true and correct to the
best of the requester's knowledge and belief to the Secretary to the
Board. The application shall state that:
(i) The failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) With respect to a requester who is primarily engaged in
disseminating information, such as a representative of the news media
as defined in Sec. 904.9(a)(4)(iv), there is urgency to inform the
public concerning actual or alleged Finance Board activity.
(2) Within 10 working days of receipt of an application for
expedited processing that meets the requirements
[[Page 37487]]
of paragraph (c)(1) of this section, the Secretary to the Board shall
determine whether to grant or deny the application and notify the
requester in writing of the determination.
(3) A requester may appeal the denial of an application for
expedited processing by submitting a written application stating the
grounds for the appeal to the Secretary to the Board. The Finance Board
shall expeditiously determine whether to grant or deny the appeal and
shall notify the requester in writing of the determination, the name
and title or position of the person responsible for the determination,
and of the provisions for judicial review of this final action under 5
U.S.C. 552(a) (4) and (6).
(e) Providing responsive records. The Finance Board shall provide
one copy of a record to a requester in any form or format requested if
the record is readily reproducible by the Finance Board in that form or
format by regular U.S. mail to the address indicated in the request
unless other arrangements are made, such as taking delivery of the
document at the Finance Board. At the option of the requester and upon
the requester's agreement to pay fees in accordance with Sec. 904.9,
the Finance Board shall provide copies by facsimile transmission or
other express delivery methods.
Sec. 904.5 Records not disclosed.
(a) Records exempt from disclosure. Except as otherwise provided in
this part, the Finance Board shall not disclose records 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 are in fact properly classified pursuant to such
Executive order.
(2) Related solely to the Finance Board's internal personnel rules
and practices.
(3) Specifically exempted from disclosure by a statute other than
FOIA if such statute requires the record to be withheld from the public
in such a manner as to leave no discretion on the issue, establishes
particular criteria for withholding, or refers to particular types of
records to be withheld.
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential.
(5) Inter- or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the
Finance Board.
(6) Personnel, medical, or similar 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 a 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, any private institution, or a Federal Home Loan Bank, which
furnished information on a confidential basis, and, in the case of a
record compiled by criminal law enforcement authority in the course of
a criminal investigation or by an agency conducting a lawful national
security 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 prepared by, on behalf of, or for the use of the Finance Board,
a Federal Home Loan Bank, or a financial regulatory agency.
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) Reasonably segregable portions. (1) The Finance Board shall
provide a requester with any reasonably segregable portion of a record
after redacting the portion that is exempt from disclosure under
paragraph (a) of this section.
(2) The Finance Board shall make a reasonable effort to estimate
the volume of redacted information and provide that information to the
requester unless providing the estimate would harm an interest
protected by the exemption under which the redaction is made.
(3) The Finance Board shall indicate the estimated volume of
redacted information on the released portion of the record unless
providing the estimate would harm an interest protected by the
exemption under which the redaction is made. If technically feasible,
the Finance Board shall make the indication at the place in the record
where the redaction is made.
(c) Public interest. The Finance Board may disclose records it has
authority to withhold under paragraph (a) of this section upon a
determination that disclosure would be in the public interest.
Sec. 904.6 Disclosure of Federal Home Loan Bank examination reports.
The Finance Board may disclose an examination, operating, or
condition report of a Federal Home Loan Bank or a related record to a
financial regulatory agency upon a determination that:
(a) The person requesting the record on behalf of the financial
regulatory agency has the authority to make such request;
(b) The financial regulatory agency is requesting the record for a
legitimate regulatory purpose; and
(c) The financial regulatory agency making the request agrees that
it shall not disclose the record pursuant to FOIA, the agency's
regulations, or any other authority.
Sec. 904.7 Records of financial regulatory agencies held by the
Finance Board.
The Finance Board shall not disclose an examination, operating, or
condition report, or other record prepared by, on behalf of, or for the
use of a financial regulatory agency. Upon a receipt of a request for
such records, the Finance Board shall promptly refer the request to the
appropriate agency and notify the requester of the referral.
Sec. 904.8 Appeals.
(a) Procedure. (1) If the Secretary to the Board has denied a
request in whole or in part, the requester may appeal the denial by
submitting a written application to the Secretary to the Board stating
the grounds for the appeal within 30 working days of the date of the
Finance Board's determination under Sec. 904.4.
(2) Subject to Sec. 904.9(f), within 20 working days of receipt of
an application for appeal meeting the requirements of paragraph (a)(1)
of this section and any extensions of time under paragraph (a)(3) of
this section, the Finance Board shall determine whether to grant or
deny the appeal and notify the requester in writing of the
determination, the name and title or position of the person responsible
for the determination, and the provisions for judicial review of this
final action under 5 U.S.C. 552(a)(4).
(3) In unusual circumstances, the Secretary to the Board may extend
the time limit in paragraph (a)(2) of this section for a period not to
exceed 10
[[Page 37488]]
working days by notifying the requester in writing of the reasons for
the extension and the date on which a determination is expected.
(b) Appeal during pendency of judicial review. If a requester files
an action in a United States district court under 5 U.S.C. 552(a)(4)
concerning a request for Finance Board records before exhausting the
administrative appeals process for that request under paragraph (a) of
this section, the Finance Board may:
(1) Initiate and process an administrative appeal; or
(2) Continue to process an administrative appeal previously filed
under paragraph (a) of this section.
Sec. 904.9 Fees.
(a) Fees. Except as otherwise provided in a statute specifically
providing for setting fees for particular types of records or in this
section, the Finance Board shall assess against each requester the
direct costs of responding to a request for records.
(1) If the records are requested for a commercial use, the direct
costs are limited to the reasonable operating costs the Finance Board
incurs to search, review, and duplicate records.
(2) If the records are not requested for a commercial use and the
requester is an educational institution, non-commercial scientific
institution, or representative of the news media, the direct costs are
limited to the reasonable operating costs the Finance Board incurs to
duplicate records in excess of 100 pages.
(3) If neither the request nor the requester is described in
paragraphs (a) (1) or (2) of this section, the direct costs are limited
to the reasonable operating costs the Finance Board incurs to search in
excess of two hours and duplicate records in excess of 100 pages.
(4) For purposes of this section, the term:
(i) Commercial use request means a request from, or on behalf of, a
person who seeks records 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 made.
(ii) Educational institution means a preschool, public or private
elementary or secondary school, or institution of undergraduate,
graduate, professional, or vocational higher education that operates a
program of scholarly research.
(iii) Non-commercial scientific institution means a nonprofit
institution operated solely for the purpose of conducting scientific
research the results of which are not intended to promote any
particular product or industry.
(iv) Representative of the news media means a requester who is
actively gathering information that is about current events or would be
of current interest to the public for an entity that is organized and
operated to publish or broadcast news to the public.
(b) Fees when no records are provided. The Finance Board may assess
a fee for the direct costs of searching for a requested record the
Finance Board cannot locate or if located, determines to be exempt from
disclosure under Sec. 904.5.
(c) Interest. The Finance Board may assess interest at the rate
prescribed in 31 U.S.C. 3717 on any unpaid fees beginning 31 days after
the earlier of the date of the Finance Board's determination under
Sec. 904.4 or the date a fee statement is mailed to a requester.
Interest shall accrue from such date.
(d) Exceptions. Notwithstanding paragraphs (a) or (b) of this
section, the Finance Board may determine not to assess a fee or to
reduce a fee if:
(1) The routine cost of collecting and processing the fee is likely
to equal or exceed the amount of the fee.
(2) The fee is equal to or less than 10 dollars.
(3) Disclosure of the record is in the public interest because it
is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requester.
(i) A requester may apply in writing to the Secretary to the Board
for a waiver of fees under this paragraph (b)(3). A fee waiver request
shall include the following:
(A) The requester's interest in and proposed use of the record;
(B) Whether the requester will derive income or other benefit from
the record;
(C) An explanation of how the public will benefit from disclosure,
including the requester's ability and intention to disseminate the
information to the public; and
(D) The requester's expertise in the subject area of the record.
(ii) In determining whether disclosure of a record is in the public
interest, the Finance Board shall consider whether the record:
(A) Concerns identifiable operations or activities of the Finance
Board;
(B) Is meaningfully informative in relation to the subject matter
of the request;
(C) Contributes to an understanding of the subject matter by the
public at large, and the significance of that contribution; and
(D) Furthers, or is primarily in, the requester's commercial
interest.
(e) Aggregating requests. If the Finance Board reasonably believes
that a requester or a group of requesters acting in concert is
attempting to break a request down into a series of requests for the
purpose of evading the assessment of fees, it may aggregate such
requests and assess fees in accordance with this section.
(f) Collecting fees. (1) The Finance Board shall deem any request
for Finance Board records as an agreement by the requester to pay fees
and interest assessed in accordance with this section.
(2) To pay fees and interest assessed under this section, a
requester shall deliver to the Secretary to the Board a check or money
order made payable to the ``Federal Housing Finance Board.''
(3) Prior to disclosing any record, the Finance Board may require a
requester to agree in writing to pay actual fees and interest incurred
in accordance with this section if the estimated fee will likely exceed
$25 but not $250.
(4) The Finance Board may require a requester to pay an estimated
fee in advance if:
(i) The Secretary to the Board determines that the fee will likely
exceed $250; or
(ii) The requester has previously failed to pay a fee assessed
under this section within 30 days of the earlier of the date of the
Finance Board's determination under Sec. 904.4 or the date a fee
statement was mailed to a requester.
(5) The Finance Board shall promptly refund to a requester any
estimated advance fee paid under paragraph (f)(4) of this section that
exceeds the actual fee. The Finance Board shall assess the requester
for the amount by which the actual fee exceeds the estimated advance
fee payment.
(g) Fee schedule. The Finance Board shall assess fees in accordance
with the following schedule:
Search:
Manual: Supervisory/Professional Staff..... $34.00 per hour.
Manual: Clerical Staff..................... $17.00 per hour.
Computer: Operator......................... $34.00 per hour.
Computer output (PC)....................... actual cost.
[[Page 37489]]
Diskettes (3\1/2\ x 5\1/4\).............. $5.00 per diskette.
Review..................................... $34.00 per hour.
Duplication:
Photocopy.................................. $.10 per page.
Computer generated......................... $.76 per 1000 lines.
Copy of microfiche......................... $.30 per page.
Transcription of audio tape................ $4.50 per page.
Certification, seal and attestation by the $5.00 per document.
Secretary to the Board.
Delivery:
Facsimile transmission (long distance)..... Long distance charges plus $.25 per page.
Facsimile transmission (local)............. $.25 per call plus $.25 per page.
Express delivery service................... Actual cost.
Dated: May 29, 1998.
By the Board of Directors of the Federal Housing Finance Board.
Bruce A. Morrison,
Chairperson.
[FR Doc. 98-18468 Filed 7-10-98; 8:45 am]
BILLING CODE 6725-01-P
