Escolar Documentos
Profissional Documentos
Cultura Documentos
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31122 Federal Register / Vol. 71, No. 105 / Thursday, June 1, 2006 / Proposed Rules
B. Record Retention and Safe and opinions, analyses, or financial data examinations, requiring reports and
Sound Operations related to the audit or review.6 disclosures, and enforcing compliance
As noted above, the importance of with applicable laws, rules and
In furtherance of the safety and adequate record retention has been regulations.
soundness authorities of OFHEO, the recognized by federal regulators to
proposed regulation would require the facilitate their oversight and Regulatory Impact
Enterprises to establish and maintain a enforcement of Federal laws and Executive Order 12866, Regulatory
record retention program to ensure that regulations. This proposed regulation Planning and Review
the records are readily accessible for represents a similar recognition by
examination and other supervisory The proposed regulation would not
OFHEO. However, it is noted that the
purposes. OFHEO recognizes that the result in an annual effect on the
requirements of the proposal would
effectiveness of the examination process economy of $100 million or more or a
have no effect on the policies, rules, or
is dependent upon the prompt major increase in costs or prices for
guidance of other federal agencies that
production of complete and accurate consumers, individual industries,
may require record retention terms or
records. OFHEO, through the Federal, State, or local government
practices different from those set forth
supervisory process, must have access agencies, or geographic regions; or have
in the proposal. This proposed
to the records of an Enterprise that are significant adverse effects on
regulation only addresses record
necessary to determine the financial competition, employment, investment,
retention requirements for the record
condition of the Enterprise or the details productivity, innovation, or on the
management programs of the
or the purpose of any transaction that ability of United States-based
Enterprises under the safety and
may have a material effect on the enterprises to compete with foreign-
soundness responsibilities of OFHEO
financial condition of the Enterprise.3 based enterprises in domestic or foreign
under the Act.
markets. Accordingly, no regulatory
Retention of such records not only III. Analysis of Proposed Regulation impact assessment is required.
facilitates the examination process, but Nevertheless, the proposed regulation
also allows an Enterprise to manage Section 1732.1 would explain that the
proposal is intended to make Enterprise was submitted to the Office of
more effectively its business and detect Management and Budget for review
improper behavior that might cause records readily accessible for OFHEO
examination and supervisory purposes. under other provisions of Executive
financial damage to the corporation. Order 12866 as a significant regulatory
Section 1732.2 would define the
Additionally, such records serve as action.
terms contained in the proposed
documentation for an Enterprise in any
regulation. Regulatory Flexibility Act
controversy over its business activities
Section 1732.5 would require that
or transactions. The Regulatory Flexibility Act (5
each Enterprise establish and maintain
The importance of sound record a record retention program, and evaluate U.S.C. 601 et seq.) requires that a
retention policies and procedures by such program. The record retention regulation that has a significant
regulated institutions also has been program would be required to include a economic impact on a substantial
recognized by Congress and other record retention schedule. Section number of small entities, small
federal regulators. Adequate record 1732.6 would provide minimum businesses, or small organizations must
retention by the institutions has been requirements for the program, including include an initial regulatory flexibility
determined to have a high degree of requirements relating to a record analysis describing the regulation’s
usefulness in criminal, tax, and retention schedule. Requirements impact on small entities. Such an
regulatory investigations or proceedings, relating to a record hold, specified in analysis need not be undertaken if the
and has been identified as a requisite proposed § 1732.7 would address record agency has certified that the regulation
component of an institution’s operation retention methods, record access and will not have a significant economic
and management on a safety and retrieval policies, and notification impact on a substantial number of small
soundness basis.4 procedures for employees. Moreover, entities. 5 U.S.C. 605(b). OFHEO has
In addition to facilitating the the section would require an Enterprise considered the impact of the proposed
oversight and enforcement of federal employee who is aware of a potential regulation under the Regulatory
banking laws, adequate record retention OFHEO investigation, enforcement Flexibility Act. The General Counsel of
has been recognized by Congress as proceeding, or litigation involving the OFHEO certifies that the proposed
being essential to the oversight and Enterprise or an employee to notify regulation, if adopted, is not likely to
enforcement of the federal securities immediately the legal department of the have a significant economic impact on
laws. For example, as mandated by Enterprise and retain any records that a substantial number of small business
section 802 of the Sarbanes-Oxley Act,5 may be relevant to such investigation, entities because the regulation is
the U.S. Securities and Exchange enforcement proceeding, or litigation. applicable only to the Enterprises,
Commission adopted rules requiring Section 1732.10 would explain that which are not small entities for
accounting firms to retain for seven failure by an Enterprise to comply with purposes of the Regulatory Flexibility
years certain records relevant to their the requirements of the proposed Act.
audits and reviews of issuers’ financial regulation may subject the Enterprise or Executive Order 13132, Federalism
statements. Records to be retained the board members, officers, or
employees to supervisory action by Executive Order 13132 requires that
include an accounting firm’s
OFHEO. The section also would provide Executive departments and agencies
workpapers and certain other
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that the proposed regulation does not identify regulatory actions that have
documents that contain conclusions,
limit the authority of OFHEO under its significant federalism implications. A
3 12 safety and soundness mandate to take regulation has federalism implications if
U.S.C. 4632(c).
4 See, other actions such as conducting it has substantial direct effects on the
e.g., 12 U.S.C. 1829b, and the Guidelines
and Interagency Standards for Safety and States, on the relationship or
Soundness at 12 CFR part 30, Appendix A, II, B. 6 17 CFR part 210. See Release Nos. 33–8180; 34– distribution of power between the
5 Public Law 107–204, 116 Stat. 745 (2002). 47241; IC–2591; FR–66; File No. S7–46–02. Federal Government and the States, or
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Federal Register / Vol. 71, No. 105 / Thursday, June 1, 2006 / Proposed Rules 31123
on the distribution of power and (a) Act means the Federal Housing handheld computers, other wireless
responsibilities among various levels of Enterprises Financial Safety and devices with text messaging capabilities,
Government. The Enterprises are Soundness Act of 1992, Title XIII of the and on-site or off-site at a storage
federally chartered corporations Housing and Community Development facility;
supervised by OFHEO. The proposed Act of 1992, Public Law 102–550, (3) Whether the document is
regulation sets forth minimum record section 1301, Oct. 28, 1992, 106 Stat. maintained or used on Enterprise-
retention requirements with which the 3672, 3941 through 4012 (1993) (12 owned equipment, or personal or home
Enterprises must comply for Federal U.S.C. 4501 et seq.). computer systems of an employee; or
supervisory purposes and address the (b) Active record means a document (4) Whether the document is active or
safety and soundness authorities of the that is necessary to conduct the current inactive.
agency. The proposed regulation does business of an office or business unit of (k) Record retention schedule means a
not affect in any manner the powers and an Enterprise and, therefore, is readily form that details the categories of
authorities of any State with respect to available for consultation and reference. records an Enterprise is required to store
the Enterprises or alter the distribution (c) Director means the Director of and their corresponding record
of power and responsibilities between OFHEO, or his or her designee. retention periods. The record retention
State and Federal levels of government. (d) Electronic record means a record schedule includes reproductions, as
Therefore, OFHEO has determined that created, generated, communicated, or well as all media, including microfilm
the proposed regulation has no stored by electronic means. and machine-readable computer
federalism implications that warrant the (e) Employee means any officer or records, for each record category.
preparation of a Federalism Assessment employee of an Enterprise, any (l) Retention period means the length
in accordance with Executive Order conservator appointed by OFHEO, or of time that records must be kept before
13132. any agent or independent contractor they are destroyed. Records not
acting on behalf of an Enterprise. authorized for destruction have a
List of Subjects in 12 CFR Part 1732 (f) Enterprise means the Federal
retention period of ‘‘permanent.’’
Government-Sponsored Enterprises, National Mortgage Association or the
(m) Vital records means documents
Reporting and recordkeeping Federal Home Loan Mortgage
that are needed to meet operational
requirements, Records. Corporation; and the term ‘‘Enterprises’’
responsibilities of an Enterprise under
means, collectively, the Federal
Accordingly, for the reasons stated in emergency or disaster conditions
National Mortgage Association and the
the preamble, OFHEO proposes to add (emergency operating records) or to
Federal Home Loan Mortgage
part 1732 to subchapter C of 12 CFR protect the legal and financial rights of
Corporation.
chapter XVII to read as follows: an Enterprise and those affected by
(g) E-mail means electronic mail,
Subchapter C—Safety and Soundness which is a method of communication in Enterprise activities. Emergency
which: operating records are the type of vital
PART 1732—RECORD RETENTION (1) Usually text is transmitted (but records essential to the continued
sometimes also graphics and/or audio functioning or reconstitution of an
Subpart A—General Enterprise during and after an
information);
Sec. (2) Operations include sending, emergency. A vital record may be both
1732.1 Purpose and scope. an emergency operating record and a
1732.2 Definitions.
storing, processing, and receiving
information; legal and financial rights record.
1732.3–1732.4 [Reserved]
(3) Users are allowed to communicate § 1732.3–1732.4 [Reserved]
Subpart B—Record Retention Program under specified conditions; and
1732.5 Establishment and evaluation of (4) Messages are held in storage until Subpart B—Record Retention Program
record retention program. called for by the addressee, including
1732.6 Minimum requirements of record any attachment of separate electronic § 1732.5 Establishment and evaluation of
retention program. files. record retention program.
1732.7 Record hold. (h) Inactive record means a document (a) Establishment. An Enterprise shall
1732.8—1732.9 [Reserved]
that is seldom used but must be retained establish and maintain a written record
Subpart C—Supervisory Action by an Enterprise for legislative, fiscal, retention program and provide a copy of
1732.10 Supervisory action. legal, archival, historical, or vital such program to the Examiner in Charge
records purposes. of the Enterprise within 120 days of the
Authority: 12 U.S.C. 4513(a), 4513(b)(1),
4513(b)(5), 4514, 4631, and 4632.
(i) OFHEO means the Office of Federal effective date of this part, and annually
Housing Enterprise Oversight. thereafter, and whenever a significant
Subpart A—General (j) Record means any document revision to the program has been made.
whether generated internally or received (b) Evaluation. Management of the
§ 1732.1 Purpose and scope. from outside sources by an Enterprise or Enterprise shall evaluate in writing the
In furtherance of the safety and employee in connection with Enterprise adequacy and effectiveness of the record
soundness authorities of OFHEO, this business, regardless of the following: retention program at least every three
part sets forth minimum requirements (1) Form or format, including hard years and provide a copy of the
in connection with the record retention copy documents (e.g. files, logs, and evaluation to the board of directors and
program of each Enterprise. The reports) and electronic documents (e.g., the Examiner in Charge of the
requirements are intended to ensure that e-mail, databases, spreadsheets, Enterprise.
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31124 Federal Register / Vol. 71, No. 105 / Thursday, June 1, 2006 / Proposed Rules
(1) Be reasonably designed to assure enforcement proceeding, or litigation by SUMMARY: In a Federal Register notice
that retained records are complete and OFHEO involving the Enterprise or an published on April 12, 2006, 71 FR
accurate; employee shall notify immediately the 19054, the FTC requested comment on
(2) Be reasonably designed to assure legal department of the Enterprise and its Notice of Proposed Rulemaking in
that the format of retained records and shall retain any records that may be connection with the Business
the retention period— relevant in any way to such Opportunity Rule. The Notice stated
(i) Are adequate to support litigation investigation, enforcement proceeding, that comments must be submitted on or
and the administrative, business, or litigation. before June 16, 2006, and that rebuttal
external and internal audit functions of (c) Method of record retention. The comments must be submitted on or
the Enterprise; record retention program of an before July 7, 2006. In response to a
(ii) Comply with requirements of Enterprise shall address the method by request for an extension of the comment
applicable laws and regulations; and which an Enterprise will retain records period received on May 5, 2006, the
(iii) Permit ready access by the during a record hold. Specifically, the Commission has extended the comment
Enterprise and, upon request, by the program shall describe the method for period for one additional month.
examination and other staff of OFHEO; the continued preservation of electronic DATES: Comments addressing the
(3) Assign in writing authorities and records, including e-mails, and the Business Opportunity Rule Notice of
responsibilities for record retention conversion of records from paper to Proposed Rulemaking must be
activities; electronic format as well as any submitted on or before July 17, 2006.
(4) Include policies and procedures alternative storage method. Rebuttal comments must be submitted
concerning record holds, consistent (d) Access to and retrieval of records. on or before August 7, 2006.
with § 1732.7; The record retention program of an ADDRESSES: Interested parties are
(5) Include an accurate, current, and Enterprise shall ensure access to and invited to submit written comments.
comprehensive record retention retrieval of records by an Enterprise and Comments should refer to ‘‘Business
schedule that lists records by major access, upon request, by OFHEO, during Opportunity Rule, R511993’’ to facilitate
categories, subcategories, record type, a record hold. the organization of comments. A
and retention period, which retention comment filed in paper form should
period is appropriate to the specific §§ 1732.8—1732.9 [Reserved]
include this reference both in the text
record and consistent with applicable and on the envelope, and should be
legal, regulatory, fiscal, and Subpart C—Supervisory Action
mailed or delivered, with two complete
administrative requirements; § 1732.10 Supervisory action. copies, to the following address: Federal
(6) Include adequate security and Trade Commission/Office of the
(a) Supervisory action. Failure by an
internal controls to protect records from Secretary, Room H–135 (Annex W), 600
Enterprise to comply with this part may
unauthorized access and data alteration; Pennsylvania Avenue, NW.,
subject the Enterprise or the board
and Washington, DC 20580. The FTC is
(7) Provide for adequate back-up and members, officers, or employees thereof
to supervisory action by OFHEO under requesting that any comment filed in
recovery of electronic records. paper form be sent by courier or
(b) Training. The record retention the Act, including but not limited to
cease-and-desist proceedings, temporary overnight service, if possible, because
program shall provide for training of U.S. postal mail in the Washington area
and notice to all employees on a cease-and-desist proceedings, and civil
money penalties. and at the Commission is subject to
periodic basis on their record retention delay due to heightened security
responsibilities, including instruction (b) No limitation of authority. This
part does not limit or restrict the precautions. Moreover, because paper
regarding penalties provided by law for mail in the Washington area and at the
the unlawful removal or destruction of authority of OFHEO to act under its
safety and soundness mandate, in Agency is subject to delay, please
records. consider submitting your comments in
accordance with the Act. Such authority
§ 1732.7 Record hold. includes, but is not limited to, electronic form, as prescribed below.
(a) Definition. For purposes of this conducting examinations, requiring Comments containing confidential
part, the term ‘‘record hold’’ means a reports and disclosures, and enforcing material, however, must be filed in
requirement, an order, or a directive compliance with applicable laws, rules, paper form, must be clearly labeled
from an Enterprise or OFHEO that the and regulations. ‘‘Confidential,’’ and must comply with
Enterprise is to retain records relating to Commission Rule 4.9(c).1
Dated: May 24, 2006. Comments filed in electronic form
a particular issue in connection with an James B. Lockhart III, should be submitted by clicking on the
actual or a potential OFHEO Acting Director, Office of Federal Housing following Web link: https://
examination, investigation, enforcement Enterprise Oversight. secure.commentworks.com/ftc-
proceeding, or litigation. [FR Doc. E6–8491 Filed 5–31–06; 8:45 am] bizopNPR/ and following the
(b) Notification by Enterprise. The
BILLING CODE 4220–01–P instructions on the web-based form. To
record retention program of an
ensure that the Commission considers
Enterprise shall:
(1) Address how all employees will an electronic comment, you must file it
receive prompt notification of a record FEDERAL TRADE COMMISSION on the web-based form at the https://
hold; secure.commentworks.com/ftc-
(2) Designate an individual to 16 CFR Part 437
1 The comment must be accompanied by an
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