83_FR_5709 83 FR 5681 - Freedom of Information Act Implementation

83 FR 5681 - Freedom of Information Act Implementation

FEDERAL HOUSING FINANCE AGENCY

Federal Register Volume 83, Issue 28 (February 9, 2018)

Page Range5681-5685
FR Document2018-02338

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.

Federal Register, Volume 83 Issue 28 (Friday, February 9, 2018)
[Federal Register Volume 83, Number 28 (Friday, February 9, 2018)]
[Rules and Regulations]
[Pages 5681-5685]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-02338]



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Rules and Regulations
                                                Federal Register
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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 FOIA@fhfa.gov. 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: ogis@nara.gov; 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



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                                              Rules and Regulations                                                                                         Federal Register
                                                                                                                                                            Vol. 83, No. 28

                                                                                                                                                            Friday, February 9, 2018



                                              This section of the FEDERAL REGISTER                    I. Background and the Interim Final                   General Comments
                                              contains regulatory documents having general            Rule
                                              applicability and legal effect, most of which
                                                                                                                                                               One commenter suggested that
                                              are keyed to and codified in the Code of                   The FOIA Improvement Act of 2016,                  FHFA’s interim final rule is ‘‘fairly
                                              Federal Regulations, which is published under           Public Law 114–185, 130 Stat. 538 (June               vague’’ without providing further
                                              50 titles pursuant to 44 U.S.C. 1510.                                                                         comments. FHFA disagrees. FHFA’s
                                                                                                      30, 2016) (Act), amended the FOIA, 5
                                                                                                                                                            interim final rule incorporates the
                                              The Code of Federal Regulations is sold by              U.S.C. 552, and required agencies to
                                                                                                                                                            requirements of the FOIA Improvement
                                              the Superintendent of Documents.                        review their FOIA regulations and issue
                                                                                                                                                            Act of 2016 as well as clarifies and
                                                                                                      certain amendments by December 27,
                                                                                                                                                            updates its existing FOIA regulation. As
                                                                                                      2016. On March 15, 2017, FHFA                         such, no changes will be made in the
                                              FEDERAL HOUSING FINANCE                                 published an interim final rule to revise
                                              AGENCY                                                                                                        final rule other than those described
                                                                                                      its FOIA regulation at 12 CFR part 1202               below.
                                                                                                      to incorporate changes made to the                       One commenter asked, ‘‘who declares
                                              12 CFR Part 1202                                        FOIA by the Act, and to make general                  an ‘unusual circumstance,’ and how
                                                                                                      updates to the regulation. See 82 FR                  does he/she do so?’’ The commenter
                                              RIN 2590–AA86                                           13743 (Mar. 15, 2017). The primary                    also stated that, ‘‘every agency is busy,
                                                                                                      changes to the FOIA made by the Act                   and we cannot simply allow for such an
                                              Freedom of Information Act
                                                                                                      include codifying the foreseeable harm                extension with the potential for abuse.’’
                                              Implementation
                                                                                                      standard when making a determination                  Because the circumstance in which an
                                              AGENCY:    Federal Housing Finance                      whether to release agency records under               agency can invoke ‘‘unusual
                                              Agency.                                                 Exemption 5; notifying requesters of the              circumstance’’ is adequately covered in
                                                                                                      availability of dispute resolutions                   § 1202.7(g) and is in line with the FOIA,
                                              ACTION:   Final rule.                                   services at various times throughout the              FHFA declines to address this comment.
                                                                                                      FOIA process; providing a minimum of
                                              SUMMARY:    The Federal Housing Finance                                                                       Section 1202.2—What do the terms in
                                                                                                      90 days for requesters to file an                     this regulation mean?
                                              Agency (FHFA) is finalizing its interim                 administrative appeal; incorporating the
                                              final rule that amended its Freedom of                  new statutory restrictions on charging                   One commenter suggested that the
                                              Information Act (FOIA) regulation. The                  fees in certain circumstances, and                    ‘‘discretionary release’’ definition is not
                                              amendments to FHFA’s regulation                         reflecting recent developments in the                 necessary and that it could create
                                              incorporate the requirements of the                     case law.                                             confusion with the foreseeable harm
                                              FOIA Improvement Act of 2016 by                                                                               standard. FHFA agrees and has removed
                                              giving notice of the circumstances under                   The interim final rule also made                   this definition from the final rule.
                                              which FHFA may extend the time limit                    general updates to the regulation to                     One commenter suggested that, under
                                              for responding to a FOIA request due to                 remove the FHFA–OIG individual                        the definition of ‘‘Direct costs,’’ the
                                              unusual circumstance; notifying a                       component procedures from the body of                 words ‘‘federal records center’’ or
                                              requester of their right to seek dispute                FHFA’s regulation, adding them to the                 ‘‘records center’’ should be added to the
                                              resolution services; affording a requester              newly created appendices, as well as to               NARA reference to prevent confusion in
                                              a minimum of 90 days to file an                         make clarifying technical revisions to                regards to the two types of records
                                              administrative appeal; and clarifying                   the regulation.                                       handled by NARA. FHFA has
                                              and updating the existing regulation.                      The interim final rule became                      determined that including ‘‘federal
                                              The interim final rule became effective                 effective on March 15, 2017. FHFA                     records center’’ would be helpful. As
                                              on March 15, 2017. This final rule                      accepted public comments, however,                    such, FHFA has included this reference
                                              finalizes the interim final rule with                   until May 15, 2017. This final rule                   in the definition in the final rule.
                                              minor revisions for consistency and                     finalizes the interim final rule with
                                              clarification.                                                                                                Section 1202.4—What information is
                                                                                                      minor revisions for consistency and                   exempt from disclosure?
                                              DATES: The final regulation is effective                clarification.
                                                                                                                                                               One commenter suggested that
                                              on February 9, 2018. For additional                     II. Summary of Public Comments and                    § 1202.4(b) should be removed because
                                              information, see SUPPLEMENTARY                          Final Rule                                            the FOIA exemptions are inherently
                                              INFORMATION.                                                                                                  discretionary. FHFA agrees and has
                                                                                                        The Federal Housing Finance Agency                  removed this section from the final rule.
                                              FOR FURTHER INFORMATION CONTACT:                        received four public comments on the                     One commenter suggested that
                                              David A. Lee, Chief FOIA Officer, (202)                 interim final rule, including comments                § 1202.4(d) should be removed or
                                              649–3803, or Stacy J. Easter, FOIA                      from two Federal agencies, the National               revised to include a statement on how
                                              Officer (202) 649–3803, (not toll free                  Archives and Records Administration                   a Vaughn index is not required during
                                              numbers), Federal Housing Finance
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                                                                                                      (NARA) and the Department of Justice.                 the administrative stage of processing a
                                              Agency, 400 Seventh Street SW, Eighth                   FHFA has given consideration to each of               request. FHFA agrees and has revised
                                              Floor, Washington, DC 20219, or FOIA@                   the comments received and has made                    this section in the final rule to state that
                                              fhfa.gov. The telephone number for the                  several modifications that will be                    a Vaughn index will not be provided
                                              Telecommunications Device for the Deaf                  adopted in the final rule. Discussion of              during the administrative stage.
                                              is (800) 877–8339.
                                                                                                      each of the comments and FHFA’s                          One commenter stated that § 1202.4(e)
                                              SUPPLEMENTARY INFORMATION:                              response follows.                                     is ‘‘not necessary because it simply


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                                              5682               Federal Register / Vol. 83, No. 28 / Friday, February 9, 2018 / Rules and Regulations

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


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                                                                 Federal Register / Vol. 83, No. 28 / Friday, February 9, 2018 / Rules and Regulations                                          5683

                                              the Paperwork Reduction Act (44 U.S.C.                    Vaughn index means an itemized                      in writing, is received. FHFA will notify
                                              3501 et seq.).                                          index, used in litigation, correlating                a requester of any fees above $25.00.
                                                                                                      each withheld document (or portion)                   *     *     *     *    *
                                              Regulatory Flexibility Act
                                                                                                      with a specific FOIA exemption and the                ■ 5. Amend § 1202.6 by revising the
                                                The Regulatory Flexibility Act (5                     relevant part of the agency’s                         introductory text and paragraph (b) to
                                              U.S.C. 601 et seq.) requires that a                     nondisclosure justification.                          read as follows:
                                              regulation that has a significant
                                              economic impact on a substantial                        § 1202.4    [Amended]                                 § 1202.6 What if my request does not have
                                              number of small entities, small                         ■ 3. Amend § 1202.4 by:                               all the information FHFA requires?
                                              businesses, or small organizations must                 ■ a. Removing paragraph (b);                             If FHFA determines that your request
                                              include an initial regulatory flexibility               ■ b. Redesignating paragraphs (c) and                 does not reasonably describe the records
                                              analysis describing the regulation’s                    (d) as paragraphs (b) and (c)                         you seek, cannot be processed for
                                              impact on small entities. Such an                       respectively;                                         reasons related to fees, or lacks required
                                              analysis need not be undertaken if the                  ■ c. Revising newly redesignated                      information, you will be informed in
                                              agency has certified that the regulation                paragraphs (b) and (c); and                           writing why your request cannot be
                                              does not have a significant economic                    ■ d. Removing paragraph (e).                          processed. You will be given 15
                                              impact on a substantial number of small                   The revisions read as follows:                      calendar days to meet all requirements.
                                              entities (5 U.S.C. 605(b)). FHFA has                                                                          If you are notified that your request
                                              considered the impact of this final                     § 1202.4 What information is exempt from              cannot be processed for the reasons
                                              regulation under the Regulatory                         disclosure?                                           cited herein, your request will be placed
                                              Flexibility Act. FHFA certifies that the                *      *    *     *     *                             on hold and will not be considered as
                                              regulation is not likely to have a                         (b) Redacted portion. If a requested               being received by FHFA for the purpose
                                              significant economic impact on a                        record contains exempt information and                of processing your request under this
                                              substantial number of small business                    information that can be disclosed and                 part.
                                              entities because the regulation is                      the portions can reasonably be                        *      *     *    *     *
                                              applicable only to the internal                         segregated from each other, the                          (b) If you do not respond or provide
                                              operations and legal obligations of                     disclosable portion of the record will be             additional information within the time
                                              FHFA.                                                   released to the requester after FHFA                  period allowed, or if the additional
                                              List of Subjects in 12 CFR Part 1202                    redacts the exempt portions. If it is                 information you provide is still
                                                                                                      technically feasible, FHFA will indicate              incomplete or insufficient, FHFA will
                                                Appeals, Confidential commercial                      the amount of the information redacted                consider your request closed and will
                                              information, Disclosure, Exemptions,                    at the place in the record where the                  notify you that it will not be processed.
                                              Fees, Final action, Freedom of                          redaction is made and include a
                                              Information Act, Judicial review,                       notation identifying the exemption that               § 1202.7   [Amended]
                                              Records, Requests.                                      was applied, unless including that                    ■ 6. Amend § 1202.7 by:
                                              Authority and Issuance                                  indication would harm an interest                     ■ a. Removing the reference ‘‘paragraph
                                                                                                      protected by an exemption.                            (g)’’ and adding in its place the
                                                Accordingly, for the reasons stated in                   (c) Exempt and redacted material.                  reference ‘‘paragraph (h)’’ in paragraphs
                                              the Preamble, the Interim Final Rule                    FHFA is not required to and will not                  (c) introductory text and (c)(1);
                                              published at 82 FR 13743 on March 15,                   provide a Vaughn index during the                     ■ b. Revising paragraph (d);
                                              2017 is adopted as a final rule with the                administrative stage of processing your               ■ c. Redesignating paragraphs (e), (f),
                                              following changes:                                      FOIA request.                                         and (g) as paragraphs (f), (g), and (h)
                                                                                                                                                            respectively;
                                              PART 1202—FREEDOM OF                                    ■ 4. Amend § 1202.5 by revising
                                                                                                                                                            ■ d. Adding new paragraph (e);
                                              INFORMATION ACT                                         paragraphs (f) and (g) to read as follows:            ■ e. Removing the words ‘‘Standard
                                                                                                      § 1202.5 How do I request information                 Track’’ and adding in their place the
                                              ■ 1. The authority citation for part 1202               from FHFA under the FOIA?                             word ‘‘statutory’’ in newly redesignated
                                              continues to read as follows:                                                                                 paragraph (h)(1) introductory text; and
                                                                                                      *      *    *     *    *
                                                Authority: Pub. L. 110–289, 122 Stat.                                                                       ■ f. Revising newly redesignated
                                                                                                         (f) How you want the records
                                              2654; 5 U.S.C. 301, 552; 12 U.S.C. 4526; E.O.                                                                 paragraphs (f)(2) and (h)(2).
                                                                                                      produced to you. Your request may state
                                              12600, 52 FR 23781, 3 CFR, 1987 Comp., p.                                                                        The revisions and addition read as
                                              235; E.O. 13392, 70 FR 75373–75377, 3 CFR,              in what form or format you want FHFA
                                                                                                                                                            follows:
                                              2006 Comp., p. 216–200.                                 to furnish the releasable records, e.g.,
                                                                                                      hardcopy, or electronic.                              § 1202.7 How will FHFA respond to my
                                              § 1202.2   [Amended]                                       (g) Agreement to pay fees. In your                 FOIA request?
                                              ■  2. Amend § 1202.2 by:                                FOIA request you must acknowledge                     *     *    *      *    *
                                              ■  a. Removing the definition of                        that you are aware of the applicable fees               (d) Referrals to other agencies. If you
                                              ‘‘Discretionary release’’;                              charged under § 1202.11, and specify an               submit a FOIA request that seeks
                                              ■ b. Adding the words ‘‘at a Federal                    amount, if any, you are willing to pay                records originating in another Federal
                                              records center operated by the’’ before                 without consultation. Your inability to               Government agency, FHFA will refer
                                              the word ‘‘National’’ in the definition of              pay a fee does not justify granting a fee             those records, as applicable, to the other
                                              ‘‘Direct costs’’; and                                   waiver. The fact that FHFA withholds                  agency for a direct response. FHFA will
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                                                 c. Adding a definition for ‘‘Vaughn                  all responsive documents or does not                  provide you notice of the referral, what
                                              index’’ in alphabetical order.                          locate any documents responsive to                    records were referred, and the name of
                                                 The addition reads as follows:                       your request, does not mean that you are              the other agency and relevant contact
                                                                                                      not responsible for paying applicable                 information.
                                              § 1202.2 What do the terms in this                      fees. Your FOIA request will not be                     (e) Consultation with other agencies.
                                              regulation mean?                                        considered received by FHFA until your                When records originate with FHFA, but
                                              *      *     *       *      *                           acknowledgement of the applicable fees,               contain within them information of


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                                              5684               Federal Register / Vol. 83, No. 28 / Friday, February 9, 2018 / Rules and Regulations

                                              interest to another agency, FHFA will                   determination on your appeal within            i.e., within 30 calendar days of the date
                                              consult with the other agency(ies) prior                the 20-day time limit, the designated          of a billing; or
                                              to making a determination on your                       component Appeals Officer will                    (4) You have an outstanding balance
                                              request.                                                continue to process the appeal and upon        due from a prior request. FHFA will
                                                 (f) * * *                                            expiration of the time limit, will inform      require you to pay the full amount owed
                                                 (2) Requests that are denied, or                     you of the reason(s) for the delay and         plus any applicable interest, as provided
                                              granted and denied in part. If FHFA                     the date on which a determination may          in paragraph (f) of this section, or
                                              denies your request in whole or in part                 be expected.                                   demonstrate that the fee owed has been
                                              because a requested record does not                     *      *     *     *    *                      paid, as well as payment of the full
                                              exist or cannot be located, is not readily                 (g) Additional resource. To aid the         amount of anticipated fees before
                                              reproducible in the form or format you                  requester, the FOIA Public Liaison is          processing your request.
                                              sought, is not subject to the FOIA, or is               available and will assist in the               *       *    *    *      *
                                              exempt from disclosure, the written                     resolution of any disputes. Also, the             (h) Fee waiver requests. You may
                                              response will include the requested                     National Archives and Records                  request a fee waiver in accordance with
                                              releasable records, if any, the amount of               Administration (NARA), Office of               the FOIA and this regulation. Requests
                                              any fees charged, the reasons for denial,               Government Information Services                for a waiver of fees must be made in
                                              and a notice and description of your                    (OGIS) offers non-compulsory, non-             writing and should be made at the time
                                              right to file an administrative appeal                  binding services to resolve FOIA               you submit your FOIA request.
                                              under § 1202.9. FHFA will not provide                   disputes. If you need information              However, your fee waiver may be
                                              you with a Vaughn index during the                      regarding the OGIS and/or the services         submitted at a later time so long as the
                                              administrative stage of processing your                 it offers, please contact OGIS directly at     underlying record request is pending or
                                              request.                                                Office of Government Information               on administrative appeal. FHFA may
                                              *      *     *     *    *                               Services, National Archives and Records        grant your fee waiver request or a
                                                 (h) * * *                                            Administration, 8601 Adelphi Road-             reduction of fees if disclosure of the
                                                 (2) When a request requires more than                OGIS, College Park, MD 20740–6001;             information is in the public interest
                                              30 days to process, FHFA will make                      email: ogis@nara.gov; phone: (202) 741–        because it is likely to contribute
                                              available its FOIA Public Liaison or                    5770; toll-free: 1 (877) 684–6448; or          significantly to public understanding of
                                              other FOIA contact to assist you in                     facsimile at (202) 741–5769. This              the operations or activities of the
                                              modifying or reformulating your                         information is provided as a public            Federal Government and is not
                                              request. If the request cannot be                       service only.                                  primarily in your commercial interest.
                                              modified or reformulated, FHFA will                                                                    In submitting a fee waiver request, you
                                              notify you regarding an alternative time                § 1202.10 [Amended]                            must address the following six factors—
                                              period for processing the request. FHFA                 ■ 9. Amend § 1202.10 in paragraph (c)             (1) Whether the subject of the
                                              will also notify you of the availability of             by adding the word ‘‘calendar’’ after the requested records concerns the
                                              the Office of Government Information                    number ‘‘10’’.                                 operations or activities of the Federal
                                              Services to provide dispute resolution                  ■ 10. Amend § 1202.11 by revising              Government. The subject of the request
                                              service.                                                paragraphs (d), (e), (h), (i), (j), and (k) to must concern identifiable operations or
                                              *      *     *     *    *                               read as follows:                               activities of the Federal Government
                                              ■ 7. Amend § 1202.8 by revising                                                                        with a connection that is direct and
                                              paragraphs (d)(1) and (e)(4) to read as                 § 1202.11 What will it cost to get the         clear, not remote or attenuated;
                                              follows:
                                                                                                      records I requested?                              (2) Whether the disclosure is likely to
                                                                                                      *      *    *     *     *                      contribute significantly to the public
                                              § 1202.8 If the requested records contain                  (d) Notice of anticipated fees in excess understanding of Federal Government
                                              confidential commercial information, what               of $25.00. When FHFA determines or             operations or activities. This factor is
                                              procedures will FHFA follow?                            estimates that the fees chargeable to you satisfied when the following criteria are
                                              *     *     *    *      *                               will exceed $25.00, you will be notified met:
                                                (d) * * *                                             of the actual or estimated amount of fees         (i) Disclosure of the requested
                                                (1) A description of the commercial                   you will incur, unless you earlier             information must be meaningfully
                                              information requested or copies of the                  indicated your willingness to pay fees as informative about government
                                              records or portions thereof containing                  high as those anticipated. When you are operations or activities. The disclosure
                                              the business information; and                           notified that the actual or estimated fees of information that already is in the
                                              *     *     *    *      *                               exceed $25.00, your request will be            public domain, in either the same or a
                                                (e) * * *                                             tolled until you agree to pay, in writing, substantially identical form, would not
                                                (4) The information requested is not                  the anticipated total fee.                     be meaningfully informative if nothing
                                              designated by the submitter as                             (e) Advance payment of fees. FHFA           new would be added to the public’s
                                              confidential commercial information                     may request that you pay estimated fees understanding; and
                                              pursuant to this section, unless the                    or a deposit in advance of responding to          (ii) The disclosure must contribute to
                                              agency has substantial reason to believe                your request. If FHFA requests advance         the understanding of a reasonably broad
                                              that disclosure of the information would                payment or a deposit, your request will        audience of persons interested in the
                                              result in competitive harm; or                          be tolled by FHFA until the advance            subject, as opposed to your individual
                                              *     *     *    *      *                               payment or deposit is received. FHFA           understanding. Your expertise in the
                                              ■ 8. Amend § 1202.9 by revising                         may request advance payment or a               subject area as well as your ability and
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                                              paragraphs (e) and (g) to read as follows:              deposit if—                                    intention to effectively convey
                                                                                                         (1) The fees are likely to exceed           information to the public must be
                                              § 1202.9 How do I appeal a response                     $250.00;                                       considered. FHFA will presume that a
                                              denying my FOIA request?                                   (2) You do not have a history of            representative of the news media will
                                              *     *    *     *    *                                 payment;                                       satisfy this consideration.
                                                (e) Notice of delayed determinations                     (3) You previously failed to pay a             (3) The disclosure must not be
                                              on appeal. If FHFA cannot send a final                  FOIA fee to FHFA in a timely fashion,          primarily in your commercial interest.


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                                                                 Federal Register / Vol. 83, No. 28 / Friday, February 9, 2018 / Rules and Regulations                                          5685

                                              To determine whether disclosure of the                  provided timely written notice of                     DEPARTMENT OF TRANSPORTATION
                                              requested information is primarily in                   unusual circumstances to you in
                                              your commercial interest FHFA will                      accordance with the FOIA and FHFA                     Federal Aviation Administration
                                              consider the following criteria:                        must have discussed with you via
                                                 (i) FHFA will determine whether you                  written mail, email, or telephone (or                 14 CFR Part 39
                                              have any commercial interest that                       made not less than three good-faith                   [Docket No. FAA–2017–0630; Product
                                              would be furthered by the requested                     attempts to do so) how you could                      Identifier 2017–NM–058–AD; Amendment
                                              disclosure. A commercial interest                       effectively limit the scope of your                   39–19173; AD 2018–02–20]
                                              includes any commercial, trade, or
                                                                                                      request in accordance with 5 U.S.C.                   RIN 2120–AA64
                                              profit interest. You will be given an
                                                                                                      552(a)(6)(B)(ii). If this exception is
                                              opportunity to provide explanatory
                                              information regarding this                              satisfied, FHFA may charge all                        Airworthiness Directives; The Boeing
                                              consideration; and                                      applicable fees incurred in the                       Company Airplanes
                                                 (ii) If there is an identified                       processing of the request.
                                                                                                                                                            AGENCY:  Federal Aviation
                                              commercial interest, FHFA will                             (iv) If a court has determined that                Administration (FAA), DOT.
                                              determine whether that is the primary                   exceptional circumstances exist, as                   ACTION: Final rule.
                                              interest furthered by the request.                      defined by the FOIA, a failure to comply
                                                 (i) Fee Waiver determination. FHFA                   with the time limits shall be excused for             SUMMARY:    We are adopting a new
                                              will notify you within 20 days of receipt               the length of time provided by the court              airworthiness directive (AD) for certain
                                              of your request whether the fee waiver                  order.                                                The Boeing Company Model 777–200,
                                              has been granted. Where only some of                                                                          –200LR, –300, and –300ER series
                                              the records to be released satisfy the                     (3) No search or review fees will be
                                                                                                                                                            airplanes. This AD was prompted by
                                              requirements for a waiver of fees, a                    charged for a quarter-hour period unless
                                                                                                                                                            reports of corrosion in the aft fuselage.
                                              waiver will be granted for those records.               more than half of that period is required
                                                                                                                                                            This AD requires a one-time review of
                                              For those records that do not satisfy the               for search or review.
                                                                                                                                                            the operator’s maintenance procedures,
                                              requirements for a waiver of fees, you                     (4) If you seek records for a                      repetitive detailed internal and external
                                              may be charged for those records. When                  commercial use, FHFA will provide                     inspections for corrosion or cracking,
                                              you have committed to pay fees and                      without charge:                                       and applicable on-condition actions.
                                              subsequently ask for a waiver of those                                                                        This AD also includes an optional
                                              fees and that waiver is denied, you must                   (i) The first 100 pages of duplication
                                                                                                      (or the cost equivalent for other media);             terminating action for the inspections.
                                              pay any costs incurred up to the date                                                                         We are issuing this AD to address the
                                              the fee waiver request was received. A                  and
                                                                                                                                                            unsafe condition on these products.
                                              request for fee waiver that is denied may                  (ii) The first two hours of search.
                                                                                                                                                            DATES: This AD is effective March 16,
                                              only be appealed when a final decision                     (5) No fee will be charged when the
                                              has been made on the initial FOIA                                                                             2018.
                                                                                                      total fee, after deducting the 100 free                  The Director of the Federal Register
                                              request.                                                pages (or its cost equivalent) and the
                                                 (j) Restrictions on charging fees. (1)                                                                     approved the incorporation by reference
                                              When FHFA determines that you are an                    first two hours of search, is equal to or             of a certain publication listed in this AD
                                              educational institution, non-commercial                 less than $25.00.                                     as of March 16, 2018.
                                              scientific institution, or representative                  (k) Additional resource. The FOIA                  ADDRESSES: For service information
                                              of the news media, and the records are                  Public Liaison or other FOIA contact is               identified in this final rule, contact
                                              not sought for commercial use, FHFA                     available to assist you in modifying or               Boeing Commercial Airplanes,
                                              will not charge search fees.                            reformulating a request to meet your                  Attention: Contractual & Data Services
                                                 (2)(i) If FHFA fails to comply with the              needs at a lower cost. FHFA will also                 (C&DS), 2600 Westminster Blvd., MC
                                              FOIA’s time limits in which to respond                  notify you of the availability of OGIS to             110–SK57, Seal Beach, CA 90740–5600;
                                              to your request, FHFA will not charge                   provide dispute resolution service.                   telephone: 562–797–1717; internet:
                                              search fees, or, in the instances of                                                                          https://www.myboeingfleet.com. You
                                                                                                      *       *     *     *     *                           may view this service information at the
                                              requests from requesters described in
                                              paragraph (j)(1) of this section, will not              Appendix A to Part 1202 [Amended]                     FAA, Transport Standards Branch, 1601
                                              charge duplication fees, except as                                                                            Lind Avenue SW, Renton, WA. For
                                              described in paragraphs (j)(2)(ii) through              ■  11. Amend Appendix A to Part 1202:                 information on the availability of this
                                              (iv) of this section.                                   ■  a. In paragraph 2 by adding the word               material at the FAA, call 425–227–1221.
                                                 (ii) If FHFA has determined that                                                                           It is also available on the internet at
                                                                                                      ‘‘only’’ after the word ‘‘Headquarters’’
                                              unusual circumstances as defined by the                                                                       http://www.regulations.gov by searching
                                                                                                      and adding the language ‘‘on FHFA’s
                                              FOIA apply and FHFA has provided                                                                              for and locating Docket No. FAA–2017–
                                                                                                      public website’’ after the word
                                              timely written notice to you in                                                                               0630.
                                              accordance with the FOIA, FHFA’s                        ‘‘located’’; and
                                                                                                      ■ b. In paragraphs 3 and 4 by removing
                                                                                                                                                            Examining the AD Docket
                                              failure to comply with the time limit
                                              will be excused for an additional 10                    the comma before the website hyperlink                  You may examine the AD docket on
                                              days.                                                   text and adding in its place ‘‘. You can              the internet at http://
                                                 (iii) If FHFA determines that unusual                find additional information on FHFA’s                 www.regulations.gov by searching for
                                              circumstances, as defined by the FOIA,                  FOIA program at’’.                                    and locating Docket No. FAA–2017–
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                                              apply and more than 5,000 pages are                                                                           0630; or in person at the Docket
                                                                                                        Dated: January 30, 2018.
                                              necessary to respond to your request,                                                                         Management Facility between 9 a.m.
                                              FHFA may charge search fees, or, in the                 Melvin L. Watt,                                       and 5 p.m., Monday through Friday,
                                              case of a requester described in                        Director, Federal Housing Finance Agency.             except Federal holidays. The AD docket
                                              paragraph (j)(1) of this section, may                   [FR Doc. 2018–02338 Filed 2–8–18; 8:45 am]            contains this final rule, the regulatory
                                              charge duplication fees, if the following               BILLING CODE 8070–01–P                                evaluation, any comments received, and
                                              steps are taken. FHFA must have                                                                               other information. The address for the


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Document Created: 2018-02-09 00:12:04
Document Modified: 2018-02-09 00:12:04
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThe final regulation is effective on February 9, 2018. For additional information, see SUPPLEMENTARY INFORMATION.
ContactDavid 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.
FR Citation83 FR 5681 
RIN Number2590-AA86
CFR AssociatedAppeals; Confidential Commercial Information; Disclosure; Exemptions; Fees; Final Action; Freedom of Information Act; Judicial Review; Records and Requests

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