Freedom of Information Act Implementation, 5681-5685 [2018-02338]

Agencies

• FEDERAL HOUSING FINANCE AGENCY

[Federal Register Volume 83, Number 28 (Friday, February 9, 2018)]
[Rules and Regulations]
[Pages 5681-5685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02338]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 83, No. 28 / Friday, February 9, 2018 / Rules 
and Regulations

[[Page 5681]]



FEDERAL HOUSING FINANCE AGENCY

12 CFR Part 1202

RIN 2590-AA86


Freedom of Information Act Implementation

AGENCY: Federal Housing Finance Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Housing Finance Agency (FHFA) is finalizing its 
interim final rule that amended its Freedom of Information Act (FOIA) 
regulation. The amendments to FHFA's regulation incorporate the 
requirements of the FOIA Improvement Act of 2016 by giving notice of 
the circumstances under which FHFA may extend the time limit for 
responding to a FOIA request due to unusual circumstance; notifying a 
requester of their right to seek dispute resolution services; affording 
a requester a minimum of 90 days to file an administrative appeal; and 
clarifying and updating the existing regulation. The interim final rule 
became effective on March 15, 2017. This final rule finalizes the 
interim final rule with minor revisions for consistency and 
clarification.

DATES: The final regulation is effective on February 9, 2018. For 
additional information, see SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: David A. Lee, Chief FOIA Officer, 
(202) 649-3803, or Stacy J. Easter, FOIA Officer (202) 649-3803, (not 
toll free numbers), Federal Housing Finance Agency, 400 Seventh Street 
SW, Eighth Floor, Washington, DC 20219, or [email protected]. The telephone 
number for the Telecommunications Device for the Deaf is (800) 877-
8339.

SUPPLEMENTARY INFORMATION: 

I. Background and the Interim Final Rule

    The FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 
(June 30, 2016) (Act), amended the FOIA, 5 U.S.C. 552, and required 
agencies to review their FOIA regulations and issue certain amendments 
by December 27, 2016. On March 15, 2017, FHFA published an interim 
final rule to revise its FOIA regulation at 12 CFR part 1202 to 
incorporate changes made to the FOIA by the Act, and to make general 
updates to the regulation. See 82 FR 13743 (Mar. 15, 2017). The primary 
changes to the FOIA made by the Act include codifying the foreseeable 
harm standard when making a determination whether to release agency 
records under Exemption 5; notifying requesters of the availability of 
dispute resolutions services at various times throughout the FOIA 
process; providing a minimum of 90 days for requesters to file an 
administrative appeal; incorporating the new statutory restrictions on 
charging fees in certain circumstances, and reflecting recent 
developments in the case law.
    The interim final rule also made general updates to the regulation 
to remove the FHFA-OIG individual component procedures from the body of 
FHFA's regulation, adding them to the newly created appendices, as well 
as to make clarifying technical revisions to the regulation.
    The interim final rule became effective on March 15, 2017. FHFA 
accepted public comments, however, until May 15, 2017. This final rule 
finalizes the interim final rule with minor revisions for consistency 
and clarification.

II. Summary of Public Comments and Final Rule

    The Federal Housing Finance Agency received four public comments on 
the interim final rule, including comments from two Federal agencies, 
the National Archives and Records Administration (NARA) and the 
Department of Justice. FHFA has given consideration to each of the 
comments received and has made several modifications that will be 
adopted in the final rule. Discussion of each of the comments and 
FHFA's response follows.

General Comments

    One commenter suggested that FHFA's interim final rule is ``fairly 
vague'' without providing further comments. FHFA disagrees. FHFA's 
interim final rule incorporates the requirements of the FOIA 
Improvement Act of 2016 as well as clarifies and updates its existing 
FOIA regulation. As such, no changes will be made in the final rule 
other than those described below.
    One commenter asked, ``who declares an `unusual circumstance,' and 
how does he/she do so?'' The commenter also stated that, ``every agency 
is busy, and we cannot simply allow for such an extension with the 
potential for abuse.'' Because the circumstance in which an agency can 
invoke ``unusual circumstance'' is adequately covered in Sec.  
1202.7(g) and is in line with the FOIA, FHFA declines to address this 
comment.
Section 1202.2--What do the terms in this regulation mean?
    One commenter suggested that the ``discretionary release'' 
definition is not necessary and that it could create confusion with the 
foreseeable harm standard. FHFA agrees and has removed this definition 
from the final rule.
    One commenter suggested that, under the definition of ``Direct 
costs,'' the words ``federal records center'' or ``records center'' 
should be added to the NARA reference to prevent confusion in regards 
to the two types of records handled by NARA. FHFA has determined that 
including ``federal records center'' would be helpful. As such, FHFA 
has included this reference in the definition in the final rule.
Section 1202.4--What information is exempt from disclosure?
    One commenter suggested that Sec.  1202.4(b) should be removed 
because the FOIA exemptions are inherently discretionary. FHFA agrees 
and has removed this section from the final rule.
    One commenter suggested that Sec.  1202.4(d) should be removed or 
revised to include a statement on how a Vaughn index is not required 
during the administrative stage of processing a request. FHFA agrees 
and has revised this section in the final rule to state that a Vaughn 
index will not be provided during the administrative stage.
    One commenter stated that Sec.  1202.4(e) is ``not necessary 
because it simply

[[Page 5682]]

restates the statutory provision.'' FHFA agrees and has removed this 
section from the final rule.
Section 1202.5--How do I request information from FHFA under the FOIA?
    One commenter suggested that Sec.  1202.5(f) should be revised to 
``may state in what form or format . . .'' because requiring a 
requester to state a format is unnecessary. FHFA agrees and has revised 
this section in the final rule.
    One commenter raised concern with Sec.  1202.5(g), which provides 
that all requesters agree to pay fees up to $100.00. The commenter 
suggested that this section should be revised to ask the requester to 
specify an amount, if any, that they are willing to pay but not require 
them to agree to pay fees up front. The commenter also suggested that 
FHFA add language to this section indicating that the Agency will 
notify requesters of any fees above $25. To conform to OMB Guidelines, 
FHFA agrees and has revised this section in the final rule to include 
the suggested language. FHFA has also revised the regulation text for 
clarity.
Section 1202.6--What if my request does not have all the information 
FHFA requires?
    One commenter suggested that ``overly broad, unduly burdensome to 
process'' should be removed. The commenter states that both are covered 
under ``does not reasonably describe the records you seek.'' The 
commenter also suggested that ``tolling'' should be removed because it 
suggests that the clock has started when in fact it has not started for 
unperfected request. FHFA agrees and has removed ``overly broad, unduly 
burdensome to process'' from the final rule. FHFA has also revised the 
regulation text for clarity.
    One commenter suggested that the deadline for clarification is 
short and should be extended from 15 calendar days to 30 days. Given 
the fact that most clarification requests are transmitted 
electronically, FHFA believes that 15 calendar days gives a requester 
sufficient time to respond. Therefore, FHFA declines to make the 
suggested change in the final rule.
    One commenter raised concern that the wording in Sec.  1202.6(b) 
could confuse a requester. The commenter suggested removing ``or if the 
additional information you provide is still incomplete or 
insufficient'' as not to confuse the requester that their request was 
withdrawn when in fact the request was closed. FHFA understands how 
this may be confusing and has revised this section in the final rule to 
replace ``withdrawn'' with ``closed.''
Section 1202.7--How will FHFA respond to my FOIA request?
    One commenter suggested changing the search cut-off date in Sec.  
1202.7(b) from the ``date of the FOIA request'' to ``date of the 
search.'' FHFA declines to make the suggested change in the final rule. 
Using the date of the FOIA request as the cut-off date provides clarity 
to requesters. Further, since FHFA receives a small number of FOIA 
request in a given year, the timeframe from when a request is received 
and when a search is conducted is, in most cases, within days apart and 
therefore there is little to no impact on the search results.
    One commenter suggested revising Sec.  1202.7(d) to reference 
``records'' that are being referred instead of ``requests.'' FHFA 
agrees and has revised this section in the final rule to indicate that 
records are being referred not the FOIA request.
    One commenter suggested that language should be added addressing 
consultations with other agencies. FHFA agrees and has included a 
provision with the suggested language under Sec.  1202.7 in the final 
rule.
    One commenter suggested that the specific tracks in Sec.  1202.7(g) 
should be deleted and that unusual circumstances should only be 
discussed in general terms, noting that the requirement of unusual 
circumstances applies regardless of the track. FHFA agrees and has 
removed the specific track reference from this section in the final 
rule.
    Two commenters suggested that a reference should be added about 
notifying a requester of the availability of the Office of Government 
Information Services (OGIS) for dispute resolutions services when 
notice is given that a request will take longer than 30 days. FHFA 
agrees and has included an OGIS reference in this section in the final 
rule.
Section 1202.8--If the requested records contain confidential 
commercial information, what procedures will FHA follow?
    One commenter suggested revising Sec.  1202.8(d)(1) to remove 
``confidential'' since at this point it may not be clear whether the 
information is confidential. FHFA agrees and has revised this section 
in the final rule to remove ``confidential.''
    One commenter suggested that language from Executive Order 12600 is 
missing at Sec.  1202.8(e)(4). FHFA agrees and has revised this section 
in the final rule to include ``unless the agency has substantial reason 
to believe that disclosure of the information would result in 
competitive harm.''
Section 1202.9--How do I appeal a response denying my FOIA request?
    One commenter suggested that the last sentence of Sec.  1202.9(e) 
be removed because there is no legal grounds to prevent a requester 
from filing a lawsuit. FHFA agrees and has removed the last sentence of 
this section in the final rule.
    One commenter suggested that, in Sec.  1202.9(g), in order to help 
clarify for requesters that they may engage in various types of dispute 
resolution approaches to resolve disputes, that the description of OGIS 
services should be changed from ``mediation services to resolve FOIA 
disputes'' to ``services to resolve FOIA disputes.'' FHFA agrees and 
has revised this section in the final rule.
    It has also been suggested that the last sentence in Sec.  
1202.9(g) be removed because the phrase ``mediation decision'' may 
confuse a requesters on the role of OGIS. FHFA agrees and has removed 
the last sentence of this section in the final rule.
Section 1202.10--Will FHFA expedite my request or appeal?
    One commenter suggested revising Sec.  1202.10(c) by changing ``10 
days'' to ``10 calendar days.'' FHFA agrees with the commenter. Ten 
calendar days conforms to OMB guidelines; therefore, FHFA has revised 
this section in the final rule.
Section 1202.11--What will it cost to get the records I requested?
    One commenter suggested revising Sec.  1202.11(d) to include 
notification to requesters if fees exceed $25. To conform to OMB 
guidelines, FHFA agrees and has included a statement regarding fee 
notifications in this section in the final rule. This statement has 
also be included in Sec.  1202.5(g).
    Section 1202.11(e) would allow FHFA to request advance payment if 
fees are likely to exceed a certain amount and if a requester has a 
history of not paying. One commenter suggested that this section was 
unclear. FHFA agrees and has revised the final rule to make clear in 
what instance it would require advance payment.
    Finally, in keeping in line with OMB's most recent guidelines, FHFA 
has updated Sec.  1202.11(h) and (j) of the final rule.

III. Regulatory Impacts

Paperwork Reduction Act

    This final regulation does not contain any information collection 
requirement that requires the approval of OMB under

[[Page 5683]]

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)). FHFA has considered the impact of this 
final regulation under the Regulatory Flexibility Act. FHFA certifies 
that the 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 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.

Authority and Issuance

    Accordingly, for the reasons stated in the Preamble, the Interim 
Final Rule published at 82 FR 13743 on March 15, 2017 is adopted as a 
final rule with the following changes:

PART 1202--FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 1202 continues to read as follows:

    Authority:  Pub. L. 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.


Sec.  1202.2   [Amended]

0
2. Amend Sec.  1202.2 by:
0
a. Removing the definition of ``Discretionary release'';
0
b. Adding the words ``at a Federal records center operated by the'' 
before the word ``National'' in the definition of ``Direct costs''; and
    c. Adding a definition for ``Vaughn index'' in alphabetical order.
    The addition reads as follows:


Sec.  1202.2  What do the terms in this regulation mean?

* * * * *
    Vaughn index means an itemized index, used in litigation, 
correlating each withheld document (or portion) with a specific FOIA 
exemption and the relevant part of the agency's nondisclosure 
justification.


Sec.  1202.4   [Amended]

0
3. Amend Sec.  1202.4 by:
0
a. Removing paragraph (b);
0
b. Redesignating paragraphs (c) and (d) as paragraphs (b) and (c) 
respectively;
0
c. Revising newly redesignated paragraphs (b) and (c); and
0
d. Removing paragraph (e).
    The revisions read as follows:


Sec.  1202.4  What information is exempt from disclosure?

* * * * *
    (b) 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 disclosable portion of 
the record will be released to the requester after FHFA redacts the 
exempt portions. If it is technically feasible, FHFA will indicate the 
amount of the information redacted at the place in the record where the 
redaction is made and include a notation identifying the exemption that 
was applied, unless including that indication would harm an interest 
protected by an exemption.
    (c) Exempt and redacted material. FHFA is not required to and will 
not provide a Vaughn index during the administrative stage of 
processing your FOIA request.

0
4. Amend Sec.  1202.5 by revising paragraphs (f) and (g) to read as 
follows:


Sec.  1202.5  How do I request information from FHFA under the FOIA?

* * * * *
    (f) How you want the records produced to you. Your request may 
state in what form or format you want FHFA to furnish the releasable 
records, e.g., hardcopy, or electronic.
    (g) Agreement to pay fees. In your FOIA request you must 
acknowledge that you are aware of the applicable fees charged under 
Sec.  1202.11, and specify an amount, if any, you are willing to pay 
without consultation. Your inability to pay a fee does not justify 
granting a fee waiver. The fact that FHFA withholds all responsive 
documents or does not locate any documents responsive to your request, 
does not mean that you are not responsible for paying applicable fees. 
Your FOIA request will not be considered received by FHFA until your 
acknowledgement of the applicable fees, in writing, is received. FHFA 
will notify a requester of any fees above $25.00.
* * * * *

0
5. Amend Sec.  1202.6 by revising the introductory text and paragraph 
(b) to read as follows:


Sec.  1202.6  What if my request does not have all the information FHFA 
requires?

    If FHFA determines that your request does not reasonably describe 
the records you seek, cannot be processed for reasons related to fees, 
or lacks required information, you will be informed in writing why your 
request cannot be processed. You will be given 15 calendar days to meet 
all requirements. If you are notified that your request cannot be 
processed for the reasons cited herein, your request will be placed on 
hold and will not be considered as being received by FHFA for the 
purpose of processing your request under this part.
* * * * *
    (b) If you do not respond or provide additional information within 
the time period allowed, or if the additional information you provide 
is still incomplete or insufficient, FHFA will consider your request 
closed and will notify you that it will not be processed.


Sec.  1202.7   [Amended]

0
6. Amend Sec.  1202.7 by:
0
a. Removing the reference ``paragraph (g)'' and adding in its place the 
reference ``paragraph (h)'' in paragraphs (c) introductory text and 
(c)(1);
0
b. Revising paragraph (d);
0
c. Redesignating paragraphs (e), (f), and (g) as paragraphs (f), (g), 
and (h) respectively;
0
d. Adding new paragraph (e);
0
e. Removing the words ``Standard Track'' and adding in their place the 
word ``statutory'' in newly redesignated paragraph (h)(1) introductory 
text; and
0
f. Revising newly redesignated paragraphs (f)(2) and (h)(2).
    The revisions and addition read as follows:


Sec.  1202.7  How will FHFA respond to my FOIA request?

* * * * *
    (d) Referrals to other agencies. If you submit a FOIA request that 
seeks records originating in another Federal Government agency, FHFA 
will refer those records, as applicable, to the other agency for a 
direct response. FHFA will provide you notice of the referral, what 
records were referred, and the name of the other agency and relevant 
contact information.
    (e) Consultation with other agencies. When records originate with 
FHFA, but contain within them information of

[[Page 5684]]

interest to another agency, FHFA will consult with the other 
agency(ies) prior to making a determination on your request.
    (f) * * *
    (2) Requests that are denied, or granted and denied in part. If 
FHFA denies 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 
releasable records, if any, the amount of any fees charged, the reasons 
for denial, and a notice and description of your right to file an 
administrative appeal under Sec.  1202.9. FHFA will not provide you 
with a Vaughn index during the administrative stage of processing your 
request.
* * * * *
    (h) * * *
    (2) When a request requires more than 30 days to process, FHFA will 
make available its FOIA Public Liaison or other FOIA contact to assist 
you in modifying or reformulating your request. If the request cannot 
be modified or reformulated, FHFA will notify you regarding an 
alternative time period for processing the request. FHFA will also 
notify you of the availability of the Office of Government Information 
Services to provide dispute resolution service.
* * * * *

0
7. Amend Sec.  1202.8 by revising paragraphs (d)(1) and (e)(4) to read 
as follows:


Sec.  1202.8  If the requested records contain confidential commercial 
information, what procedures will FHFA follow?

* * * * *
    (d) * * *
    (1) A description of the commercial information requested or copies 
of the records or portions thereof containing the business information; 
and
* * * * *
    (e) * * *
    (4) The information requested is not designated by the submitter as 
confidential commercial information pursuant to this section, unless 
the agency has substantial reason to believe that disclosure of the 
information would result in competitive harm; or
* * * * *

0
8. Amend Sec.  1202.9 by revising paragraphs (e) and (g) to read as 
follows:


Sec.  1202.9  How do I appeal a response denying my FOIA request?

* * * * *
    (e) Notice of delayed determinations on appeal. If FHFA cannot send 
a final determination on your appeal within the 20-day time limit, the 
designated component Appeals Officer will continue to process the 
appeal and upon expiration of the time limit, will inform you of the 
reason(s) for the delay and the date on which a determination may be 
expected.
* * * * *
    (g) Additional resource. To aid the requester, the FOIA Public 
Liaison is available and will assist in the resolution of any disputes. 
Also, the National Archives and Records Administration (NARA), Office 
of Government Information Services (OGIS) offers non-compulsory, non-
binding services to resolve FOIA disputes. If you need information 
regarding the OGIS and/or the services it offers, please contact OGIS 
directly at Office of Government Information Services, National 
Archives and Records Administration, 8601 Adelphi Road-OGIS, College 
Park, MD 20740-6001; email: [email protected]; phone: (202) 741-5770; toll-
free: 1 (877) 684-6448; or facsimile at (202) 741-5769. This 
information is provided as a public service only.


Sec.  1202.10  [Amended]

0
9. Amend Sec.  1202.10 in paragraph (c) by adding the word ``calendar'' 
after the number ``10''.

0
10. Amend Sec.  1202.11 by revising paragraphs (d), (e), (h), (i), (j), 
and (k) to read as follows:


Sec.  1202.11  What will it cost to get the records I requested?

* * * * *
    (d) Notice of anticipated fees in excess of $25.00. When FHFA 
determines or estimates that the fees chargeable to you will exceed 
$25.00, you will be notified 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 $25.00, your request will be tolled 
until you agree to pay, in writing, 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 be 
tolled by FHFA until the advance payment or deposit is received. FHFA 
may request advance payment or a deposit if--
    (1) The fees are likely to exceed $250.00;
    (2) You do not have a history of payment;
    (3) You previously failed to pay a FOIA fee to FHFA in a timely 
fashion, i.e., within 30 calendar days of the date of a billing; or
    (4) You have an outstanding balance due from a prior request. FHFA 
will 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.
* * * * *
    (h) Fee waiver requests. You may request a fee waiver in accordance 
with the FOIA and this regulation. Requests for a waiver of fees must 
be made in writing and should be made at the time you submit your FOIA 
request. However, your fee waiver may be submitted at a later time so 
long as the underlying record request is pending or on administrative 
appeal. FHFA may grant your fee waiver request or a reduction of fees 
if disclosure of the information is in the public interest because it 
is likely to contribute significantly to public understanding of the 
operations or activities of the Federal Government and is not primarily 
in your commercial interest. In submitting a fee waiver request, you 
must address the following six factors--
    (1) Whether the subject of the requested records concerns the 
operations or activities of the Federal Government. The subject of the 
request must concern identifiable operations or activities of the 
Federal Government with a connection that is direct and clear, not 
remote or attenuated;
    (2) Whether the disclosure is likely to contribute significantly to 
the public understanding of Federal Government operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (i) Disclosure of the requested information must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding; and
    (ii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to your individual understanding. Your expertise in the subject 
area as well as your ability and intention to effectively convey 
information to the public must be considered. FHFA will presume that a 
representative of the news media will satisfy this consideration.
    (3) The disclosure must not be primarily in your commercial 
interest.

[[Page 5685]]

To determine whether disclosure of the requested information is 
primarily in your commercial interest FHFA will consider the following 
criteria:
    (i) FHFA will determine whether you have any commercial interest 
that would be furthered by the requested disclosure. A commercial 
interest includes any commercial, trade, or profit interest. You will 
be given an opportunity to provide explanatory information regarding 
this consideration; and
    (ii) If there is an identified commercial interest, FHFA will 
determine whether that is the primary interest furthered by the 
request.
    (i) Fee Waiver determination. FHFA will notify you within 20 days 
of receipt of your request whether the fee waiver has been granted. 
Where only some of the records to be released satisfy the requirements 
for a waiver of fees, a waiver will be granted for those records. For 
those records that do not satisfy the requirements for a waiver of 
fees, you may be charged for those records. When you have committed to 
pay fees and subsequently ask for a waiver of those fees and that 
waiver is denied, you must pay any costs incurred up to the date the 
fee waiver request was received. A request for fee waiver that is 
denied may only be appealed when a final decision has been made on the 
initial FOIA request.
    (j) Restrictions on charging fees. (1) When FHFA determines that 
you are an educational institution, non-commercial scientific 
institution, or representative of the news media, and the records are 
not sought for commercial use, FHFA will not charge search fees.
    (2)(i) If FHFA fails to comply with the FOIA's time limits in which 
to respond to your request, FHFA will not charge search fees, or, in 
the instances of requests from requesters described in paragraph (j)(1) 
of this section, will not charge duplication fees, except as described 
in paragraphs (j)(2)(ii) through (iv) of this section.
    (ii) If FHFA has determined that unusual circumstances as defined 
by the FOIA apply and FHFA has provided timely written notice to you in 
accordance with the FOIA, FHFA's failure to comply with the time limit 
will be excused for an additional 10 days.
    (iii) If FHFA determines that unusual circumstances, as defined by 
the FOIA, apply and more than 5,000 pages are necessary to respond to 
your request, FHFA may charge search fees, or, in the case of a 
requester described in paragraph (j)(1) of this section, may charge 
duplication fees, if the following steps are taken. FHFA must have 
provided timely written notice of unusual circumstances to you in 
accordance with the FOIA and FHFA must have discussed with you via 
written mail, email, or telephone (or made not less than three good-
faith attempts to do so) how you could effectively limit the scope of 
your request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this 
exception is satisfied, FHFA may charge all applicable fees incurred in 
the processing of the request.
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) If you seek records for a commercial use, FHFA will provide 
without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.00.
    (k) Additional resource. The FOIA Public Liaison or other FOIA 
contact is available to assist you in modifying or reformulating a 
request to meet your needs at a lower cost. FHFA will also notify you 
of the availability of OGIS to provide dispute resolution service.
* * * * *

Appendix A to Part 1202 [Amended]

0
11. Amend Appendix A to Part 1202:
0
a. In paragraph 2 by adding the word ``only'' after the word 
``Headquarters'' and adding the language ``on FHFA's public website'' 
after the word ``located''; and
0
b. In paragraphs 3 and 4 by removing the comma before the website 
hyperlink text and adding in its place ``. You can find additional 
information on FHFA's FOIA program at''.

    Dated: January 30, 2018.
Melvin L. Watt,
Director, Federal Housing Finance Agency.
[FR Doc. 2018-02338 Filed 2-8-18; 8:45 am]
 BILLING CODE 8070-01-P