[Federal Register Volume 65, Number 132 (Monday, July 10, 2000)]
[Proposed Rules]
[Pages 42578-42586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17181]



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Part IX





Department of Housing and Urban Development





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24 CFR Part 15



Revision of Freedom of Information Act Regulations; Proposed Rule

  Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / 
Proposed Rules  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 15

[Docket No. FR-4292-P-01]
RIN 2501-AC51


Revision of Freedom of Information Act Regulations

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend HUD's Freedom of Information 
Act (FOIA) regulations in their entirety. The rule would implement the 
amendments made by the Electronic Freedom of Information Act to FOIA. 
The proposed rule would also rewrite the FOIA regulations using plain 
language. Plain language is an approach to writing that promotes 
responsive, accessible, and understandable written communication. The 
rule would also make various streamlining and organizational changes to 
the regulations. These proposed amendments would simplify and improve 
the clarity of the HUD's FOIA requirements.

DATES: Comments Due Date: Submit comments on or before September 8, 
2000.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Office of the General Counsel, Rules Docket 
Clerk, Room 10276, Department of Housing and Urban Development, 451 
Seventh Street, SW, Washington, DC 20410-0500. Comments should refer to 
the above docket number and title. Facsimile (FAX) comments are not 
acceptable. A copy of each communication submitted will be available 
for public inspection and copying during regular business hours (7:30 
a.m. to 5:30 p.m. Eastern time) at the above address.

FOR FURTHER INFORMATION CONTACT: Marylea Byrd, Assistant General 
Counsel, FOIA Division, Office of the General Counsel, Department of 
Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 
20410-0500, Room 10248; Telephone (202) 708-3866 (this is not a toll-
free number.) Hearing or speech-impaired individuals may access this 
number via TTY by calling the toll-free Federal Information Relay 
Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    HUD's regulations at 24 CFR part 15 describe the policies and 
procedures governing public access to HUD records under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552). Enacted in 1966, FOIA gives 
persons the right to request and receive a wide range of information 
from any Federal agency, subject to certain exemptions. As stated by 
President Clinton in his October 4, 1993 memorandum to the heads of all 
Federal departments and agencies, FOIA ``was enacted based upon the 
fundamental principle that an informed citizenry is essential to the 
democratic process and that the more the American people know about 
their government the better they will be governed.''
    The Congress has amended FOIA several times, most recently in 1996 
with the enactment of the Electronic Freedom of Information Act (Public 
Law 104-231, approved October 2, 1996; 110 Stat. 3048) (EFOIA). The 
1996 amendments were designed to improve public access to government 
information and records, particularly electronic records, and expedite 
agency responses to requests for records under FOIA.
    This proposed rule would revise HUD's FOIA regulations in their 
entirety in order to: (1) Implement the statutory amendments made by 
the Electronic Freedom of Information Act to FOIA; and (2) simplify and 
improve the clarity of HUD's freedom of information requirements. The 
following sections of this preamble summarize the major changes that 
would be made by this proposed rule to HUD's FOIA regulations.

II. Implementation of Electronic FOIA Amendments

    As noted above, EFOIA made various amendments designed to enhance 
public access to agency records and agency processing of FOIA requests. 
The following is a summary of the major amendments made by EFOIA that 
would be implemented by this proposed rule.

Electronic Access to Information

    EFOIA improves the ability of a requester to obtain information in 
an electronic format by requiring agencies to provide information in 
the format preferred by a requester, and by requiring agencies to 
provide more information on-line. This proposed rule would make several 
amendments designed to implement the EFOIA electronic information 
requirements. The following is a summary of the most significant of 
these amendments:
    1. Information available in electronic format. Section 15.101 of 
this proposed rule describes HUD's overall policy concerning disclosing 
identifiable records. (This information is currently located in 
Sec. 15.3.) This section has been revised to implement the EFOIA 
requirement that readily reproducible records be made available in the 
format requested, including an electronic format (5 U.S.C. 
552(a)(3)(B)).
    2. Electronic Reading Room. EFOIA requires that agencies make 
information available over ``electronic reading rooms'' on the internet 
(5 U.S.C. 552(a)(2)(E)). Section 15.102 of this proposed rule specifies 
where the public may inspect and copy the documents that HUD is 
required to make readily available under section 552(a)(2) of FOIA. 
(This information is included in current Sec. 15.12.) HUD has reading 
rooms in Headquarters in Washington, DC and in each of the Secretary's 
Representative's offices listed in Appendix A to this document. This 
section has been amended to include the internet address of HUD's 
``FOIA electronic reading room,'' which contains on-line access to HUD 
records. The proposed rule would also provide that requesters may use 
HUD's internet web site for submitting FOIA requests for records that 
are located in HUD Headquarters.

Enhanced FOIA Processing Procedures

    EFOIA also modifies the deadlines and procedures for processing 
FOIA requests to provide faster processing for some requests, and to 
assist agencies to reduce backlogs and delays. This proposed rule would 
make various amendments to implement these enhanced FOIA processing 
procedures. The following is a summary of the most significant of these 
amendments:
    1. Multitrack processing. EFOIA permits agencies to implement 
multitrack FOIA processing systems, based on the amount of work or time 
(or both) involved in processing FOIA requests (5 U.S.C. 552(a)(6)(D)). 
Under the first-come, first-served process used by agencies, FOIA 
requesters with simple requests could experience lengthy delays in the 
processing of their requests if the agency is handling a previous FOIA 
request involving voluminous records. Multitrack processing is designed 
to mitigate this problem.
    Section 15.105 of this proposed rule explains how HUD will process 
FOIA requests. The proposed rule would provide for multitrack 
processing at Sec. 15.105(a). Specifically, this proposed rule sets out 
a two track system: (1) A complex track, and (2) a routine track.
    When HUD has a significant number of pending requests that prevents 
a responsive determination being made within 20 working days, the 
requests

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will be processed in a multitrack processing system, based on the date 
of receipt, the amount of work and time involved in processing the 
requests. Factors HUD will consider in assigning a request to the 
simple or complex track will include whether the request involves the 
processing of voluminous documents and/or whether the request involves 
responsive documents from three or more HUD organizational units. 
Unless HUD determines the request is complex, HUD will place each 
request into the ``routine track.'' Within each of these tracks, HUD 
will process the requests on a first-in, first-out basis.
    2. Expedited processing. EFOIA requires that agencies promulgate 
regulations authorizing expedited processing of FOIA requests for 
records if the requester demonstrates a ``compelling need'' for a 
speedy response (5 U.S.C. 552(a)(6)(E)). Section 15.105(b) of this 
proposed rule provides for expedited processing of FOIA requests. The 
proposed rule provides that HUD will consider a compelling need to 
exist if:
     The failure of a requester to obtain the requested records 
on an expedited basis could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual or a threatened 
loss of substantial due process rights; or
     If the requester is primarily engaged in disseminating 
information and there is an urgency to inform the public concerning 
actual or alleged Federal Government activity.
    3. Changes in time periods for processing FOIA requests. EFOIA 
amended the time periods for agency processing of FOIA requests. 
Specifically, EFOIA expanded the amount of time an agency has to 
provide an initial response to a FOIA request from ten working days to 
20 working days (5 U.S.C. 552(a)(6)(A)). In unusual circumstances, the 
agency may extend this time period by an additional ten days (5 U.S.C. 
552(a)(6)(B)(i)). If the additional time needed is more than 10 working 
days, the agency must offer the requester an opportunity to limit the 
scope of the request so that the agency may process it within the extra 
10 working day period (5 U.S.C. 552(a)(6)(B)(ii)).
    EFOIA defines ``unusual circumstances'' to include the need to:
     Search for, collect, and appropriately examine a 
voluminous amount of records;
     Search for and collect the records from other offices than 
the one handling the request; and
     Consult with another government office having a 
substantial interest in the determination of the FOIA request. (5 U.S.C 
552(a)(6)(B)(iii).)
    This proposed rule would implement the statutory amendments to the 
time period for responding to FOIA requests at Sec. 15.104.

III. Clarifying Changes

    In addition to implementing the statutory amendments made by EFOIA, 
this proposed rule would make several amendments to simplify and 
improve the clarity of HUD's freedom of information requirements. The 
following is a summary of the major clarifying changes that would be 
made by this rule:

Plain Language

    This rule would rewrite the FOIA regulations using plain language, 
in response to President Clinton's Memorandum of June 1, 1998, entitled 
``Plain Language in Government'' (63 FR 31885, Wednesday, June 10, 
1998). In this memorandum, President Clinton directed Federal agencies 
to use plain language in all government writing. With respect to rules, 
President Clinton directed Federal agencies to use plain language in 
new proposed and final rules beginning January 1, 1999. In the same 
memorandum, President Clinton also urged Federal agencies to consider 
rewriting existing regulations in plain language, as resources permit.
    Plain language is an approach to writing that promotes responsive, 
accessible, and understandable written communications. It involves the 
use of a number of writing tools to create documents that are visually 
inviting, logically organized, and understandable on the first reading. 
These writing tools include:
     Using the active voice and strong verbs;
     Using compact sentences;
     Using personal pronouns such as ``you'' and ``we'';
     Using common, everyday words;
     Avoiding surplus words and technical or legal jargon;
     Using tables to present information where appropriate; and
     Using a design and layout that increases comprehension.
    HUD selected to rewrite the FOIA regulations in plain language, 
because it is important that the requirements governing the public's 
access to HUD records be simple to understand.

Streamlining and Organizational Changes

    In addition to rewriting HUD's FOIA regulations in plain language, 
this proposed rule would also make various streamlining and 
organizational changes to 24 CFR part 15. The following is a brief 
summary of the major streamlining changes that would be made by this 
proposed rule:
    1. Consolidation of FOIA regulations. Currently, HUD's FOIA 
regulations are located in seven separate subparts of 24 CFR part 15 
(subparts A through C, E through G, and J). This proposed rule would 
simplify HUD's freedom of information requirements by consolidating 
them in subpart B of 24 CFR part 15.
    Existing 24 CFR part 15, subparts H and I are not FOIA-related. 
Current subpart H, which describes the procedures HUD follows in 
responding to subpoenas or demands of courts and other agencies to 
produce or disclose documents, would be redesignated as subpart C. 
Current subpart I, which describes the procedures HUD follows 
concerning the testimony of its employees in legal proceedings, would 
be redesignated as subpart D. With the exceptions of the changes in 
designation and conforming amendments, these regulations would not be 
revised by this proposed rule.
    2. Removal of repetitive statutory language. As part of the overall 
simplification of the FOIA regulations, HUD would remove codified 
language which simply restates statutory provisions. For example, this 
proposed rule does not include a section comparable to Sec. 15.11 of 
the current rule, which simply restates section 552(1) of FOIA. Section 
552(1) identifies the matters that HUD must publish in the Federal 
Register. Nor does the proposed rule restate the statutory exemptions 
in section 552(b) of FOIA currently contained in Sec. 15.21(a).
    3. Clarification of FOIA request procedures. Section 15.103 of the 
proposed rule describes the information that must be included in a FOIA 
request. The proposed rule would provide more instruction on what 
should be included in a request than does the current rule (see 
Sec. 15.41 of the current rule). Among other clarifications, the 
proposed rule would ask the requester to specify a fee amount above 
which HUD and the requester would consult before the requester agrees 
to pay the fee. Proposed Sec. 15.103 also seeks information concerning 
multitracking and expedited processing (see section II of this 
preamble).
    4. Time limits regarding fee payments. Section 15.106 of the 
proposed rule would also add time limits on conferring about 
reformulating a request to reduce the fee and on paying or committing 
to pay a fee. Proposed Sec. 15.106 would also provide that HUD can 
consider a FOIA request withdrawn

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if the requester fails to respond within the specified period. HUD 
believes that this clarification is needed to avoid delays to other 
requesters that might otherwise occur because of the first-in, first-
out policy.

IV. Findings and Certifications

Environmental Impact

    This proposed rule is categorically excluded from environmental 
review under the National Environmental Policy Act (42 U.S.C. 4321). 
The proposed revision of the FOIA-related provisions of 24 CFR part 15 
falls within the exclusion provided by 24 CFR 50.19(c)(1), in that it 
does not direct, provide for assistance or loan and mortgage insurance 
for, or otherwise govern or regulate, real property acquisition, 
disposition, leasing, rehabilitation, alteration, demolition, or new 
construction, or establish, revise, or provide for standards for 
construction or construction materials, manufactured housing, or 
occupancy.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed and approved this rule before publication 
and in so doing certifies that this rule will not have a significant 
economic impact on a substantial number of small entities because the 
rule is procedural. Accordingly, the proposed rule would not have any 
impact on the substantive rights or duties of small entities requesting 
HUD records under the Freedom of Information Act. Furthermore, the fees 
charged under this rule are limited by FOIA to direct costs of 
searching for, reviewing, and duplicating the records processed for 
requesters and are not economically significant.
    Notwithstanding HUD's determination that this rule will not have a 
significant economic effect on a substantial number of small entities, 
HUD specifically invites comments regarding any less burdensome 
alternatives to this rule that will meet HUD's objectives as described 
in this preamble.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial direct compliance costs on State and local 
governments and is not required by statute, or the rule preempts State 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This proposed rule would not have 
federalism implications and does not impose substantial direct 
compliance costs on State and local governments or preempt State law 
within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. This proposed rule does not impose 
any Federal mandates on any State, local, or tribal governments or the 
private sector within the meaning of Unfunded Mandates Reform Act of 
1995.

List of Subjects in 24 CFR Part 15

    Classified information, Courts, Freedom of information, Government 
employees, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, HUD proposes to amend 24 
CFR part 15 as follows:

PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD 
EMPLOYEES

    1. Revise the heading of part 15 to read as set forth above.
    2. The authority citation for part 15 is revised to read as 
follows:

    Authority: 42 U.S.C. 3535(d).

    Subpart A also issued under 5 U.S.C. 552.
    Section 15.107 also issued under E.O. 12958, 60 FR 19825, 3 CFR 
Comp., p. 333.
    Subparts C and D also issued under 5 U.S.C. 301.

    3. Revise subpart A to read as follows:

Subpart A--Purpose and Policy

Sec.
15.1   What is the purpose of this part?
15.2   What definitions apply to this part?


Sec. 15.1  What is the purpose of this part?

    (a) Subpart B of this part. Subpart B of this part describes the 
procedures by which HUD makes documents available under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552). Subpart A of this part applies 
to all HUD organizational units; however, applicability of subpart A to 
the Office of the Inspector General is subject to parts 2002 and 2004 
of the title.
    (b) Subpart C of this part. Subpart C of this part describes the 
procedures HUD follows in responding to subpoenas or demands of courts 
and other agencies to produce or disclose documents.
    (c) Subpart D of this part. Subpart D of this part describes the 
procedures HUD follows concerning the testimony of its employees in 
legal proceedings.
    (d) Inapplicability of subparts B and C to Office of Inspector 
General. Subparts B and C of this part do not apply to employees in the 
Office of the Inspector General. The procedures that apply to employees 
in the Office the Inspector General are described in part 2004 of this 
title.


Sec. 15.2  What definitions apply to this part?

    The following definitions apply to this part.
    (a) Terms defined in part 5 of this title. The terms HUD, 
Secretary, and Organizational unit are defined in part 5 of this title.
    (b) Other terms used in this part. As used in this part:
    Business information means commercial or financial information 
provided to HUD by a submitter that arguably is protected from 
disclosure under Exemption 4 (42 U.S.C. 552(b)(4)) of FOIA.
    Duplication means the process of making a copy of a document 
necessary to respond to a FOIA request. Such copies can take the form 
of paper copy, microform, audio-visual materials, or machine readable 
documentation (e.g., magnetic tape or disk), among others.
    Educational institution means:
    (i) A preschool;
    (ii) A public or private elementary or secondary school;
    (iii) An institution of graduate higher education;
    (iv) An institution of undergraduate higher education
    (v) An institution of professional education; or
    (vi) An institution of vocational education, that primarily (or 
solely) operates a program or programs of scholarly research.
    Employee of the Department means a current or former officer or 
employee of the United States appointed by or subject to the 
supervision of the Secretary, but does not include an officer or 
employee covered by part 2004 of this title.
    FOIA means the Freedom of Information Act (5 U.S.C. 552).
    Legal proceeding includes any proceeding before a court of law or 
other authority, i.e., administrative board or commission, hearing 
officer, arbitrator or other body conducting a quasi-judicial or 
legislative proceeding.
    Legal proceeding in which the United States is a party means any 
legal proceeding including as a named party the United States, the 
Department of Housing and Urban Development, or

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any other Federal executive or administrative agency or department, or 
any official thereof in his official capacity.
    Legal proceeding among private litigants means any legal proceeding 
in which the United States is not a party.
    News means information that is about current events or that would 
be of current interest to the public.
    Person means person as defined in 5 U.S.C. 551(2). It includes 
corporations and organizations as well as individuals.
    Review means the process of examining a document located in 
response to a request to determine whether any portion of it may be 
withheld, excising portions to be withheld, and otherwise preparing the 
document for release. Review time includes time HUD spends considering 
any formal objection to disclosure made by a submitter under 
Sec. 15.108. Review does not include time spent resolving general legal 
or policy issues regarding the application of exemptions.
    Search includes all time spent looking manually or by automated 
means for material that is responsive to a request, including page-by-
page or line-by-line identification of material within documents.
    Submitter means any person or entity who provides business 
information, directly or indirectly, to HUD. The term includes, but is 
not limited to, corporations, State governments, and foreign 
governments.
    4. Revise subpart B to read as follows:

Subpart B--FOIA Disclosure of Information

Sec.
15.101   What is HUD's overall policy concerning disclosing 
identifiable records?
15.102   Where and when may I inspect and copy records that FOIA 
requires HUD to make regularly available to the public?
15.103   How can I get other records from HUD?
15.104   What are the time periods for HUD to respond to my request 
for records?
15.105   How will HUD process my request?
15.106   How will HUD respond to my request?
15.107   How does HUD handle requests that involve classified 
records?
15.108   What are HUD's policies concerning designating confidential 
commercial or financial information under Exemption 4 of the FOIA 
and responding to requests for business information?
15.109   How will HUD respond to a request for information from Form 
HUD-92410 (Statement of Profit and Loss)?
15.110   What fees will HUD charge?
15.111   How do I appeal a denial of my request for records or a fee 
determination?
15.112   How will HUD respond to my appeal?
15.101   What is HUD's overall policy concerning disclosing 
identifiable records?
    HUD will fully and responsibly disclose its identifiable records 
and information consistent with competing public interests concerning 
the national security, personal privacy, agency deliberative process, 
and obligations of confidentiality as are recognized by FOIA. HUD will 
make a record available in the form or format requested, if the record 
is readily reproducible in that format.


Sec. 15.102  Where and when may I inspect and copy records that FOIA 
requires HUD to make regularly available to the public?

    (a) You may inspect and copy records, including indices of the 
records, that section 552(a)(2) of FOIA requires HUD make available to 
the public at HUD's reading rooms. HUD has reading rooms in 
Headquarters in Washington, DC and in each of the Secretary's 
Representative's offices. These reading rooms are open during the 
business hours for the HUD office in which they are located.
    (b) This information is also available to you through HUD's 
Internet web site at http://www.hud.gov.


Sec. 15.103  How can I get other records from HUD?

    (a) Generally. You may submit a written request for copies of 
records in person or by mail.
    (b) Records located in a HUD field office. If you are submitting a 
request for records located in a HUD field office, you should deliver 
or mail your request to the FOIA Liaison in each HUD Field Office.
    (c) Records located in HUD headquarters. If you are submitting a 
request for records located in HUD Headquarters, you should deliver or 
mail your request to the FOIA Division, Office of the General Counsel. 
You may also use the FOIA electronic request form on HUD's Internet web 
site at http://www.hud.gov.
    (d) What should I include in my FOIA request? In your FOIA request 
you should:
    (1) Clearly state that you are making a FOIA request. Although 
Federal agencies are required to process all requests for documents as 
Freedom of Information Act requests, whether or not specifically 
designated as FOIA requests, failure to clearly state that you are 
making a FOIA request could unduly delay the initial handling of your 
correspondence through HUD's FOIA processing;
    (2) Reasonably describe the records you seek. Include information 
that you may know about the documents you are requesting;
    (3) Indicate the form or format in which you would like the record 
made available;
    (4) State your agreement to pay the fee. You may specify a dollar 
amount above which you want HUD to consult with you before you will 
agree to pay the fee;
    (5) Indicate the fee category that you believe applies to you (see 
Sec. 15.110);
    (6) If you are making a request on behalf of another person for 
information about that person, include a document signed by that person 
authorizing you to request the information on his or her behalf; and
    (7) If you are requesting expedited processing, include your 
certification setting out the facts you believe show that there is a 
compelling need (see Sec. 15.104(d)) to expedite processing of your 
request.


Sec. 15.104  What are the time periods for HUD to respond to my request 
for records?

    (a) What time limits generally apply? If you have met the fee 
requirements of Sec. 15.110, HUD, in general, will respond within 20 
working days after the correct office receives your request. If you 
have sent your request to the wrong office, that office will send it to 
the correct office within 10 working days and will send you an 
acknowledgment letter.
    (b) What time limits apply to requests made on behalf of another 
person? The time limits described in paragraph (a) of this section also 
apply to requests you make on behalf of another person for information 
about that person. However, the time limits will not commence to run 
until HUD's receipt of the document signed by that person authorizing 
you to request information on his or her behalf. If you make your 
request on behalf of another person without including such signed 
authorization, HUD will inform you of the authorization needed.
    (c) What time limits apply in unusual circumstances? If you have 
requested an especially large number of records, the records are not 
located in the office handling the request, or HUD needs to consult 
with another government office, HUD will notify you that extra time is 
required. If the extra time needed is more than 10 working days beyond 
the general time limit set out in paragraph (a) of this section, HUD 
will offer you any opportunity to limit the scope of your request so 
that HUD may process it within the extra 10 working day period.
    (d) What time limits apply to my request for expedited processing? 
If you

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requested expedited processing, HUD will notify you within 10 working 
days after it receives your request whether it will grant expediting 
processing.


Sec. 15.105  How will HUD process my request?

    (a) Multitracking. HUD places each request in one of two tracks. 
HUD places requests in its simple or complex track based on the amount 
of work and time involved in processing the request. Factors HUD will 
consider in assigning a request in the simple or complex track will 
include whether the request involves the processing of voluminous 
documents and/or whether the request involves responsive documents from 
three or more organizational units. Within each track, HUD processes 
requests in the order in which they are received.
    (b) Expedited processing. HUD may take your request or appeal out 
of normal order if HUD determines that you have a compelling need for 
the records. If HUD grants your request for expedited processing, HUD 
will give your request priority and will process it as soon as 
practicable. HUD will consider a compelling need to exist if:
    (1) Your failure to obtain the requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual or a threatened loss of 
substantial due process rights; or
    (2) You are primarily engaged in disseminating information and 
there is an urgency to inform the public concerning actual or alleged 
Federal Government activity.


Sec. 15.106  How will HUD respond to my request?

    (a) Who will respond to my request? (1) The FOIA Division of the 
Office of General Counsel in HUD Headquarters and the FOIA liaisons in 
each HUD Field Office are authorized to release copies of any HUD 
records unless disclosure is clearly not appropriate under FOIA.
    (2) The FOIA Division in HUD Headquarters and the FOIA liaisons in 
each HUD Field Office may deny a request for a record in accordance 
with the provisions of FOIA and this part.
    (b) What type of a response will I receive? Within the time limit 
described in Sec. 15.103, HUD will either:
    (1) Agree to give you all the records you requested;
    (2) Advise you that HUD will not give you some or all of the 
records you requested. Any denial or partial denial of a requested 
record must be concurred in by the FOIA Division in Headquarters, by 
counsel in the Field Offices, or by counsel in HUD's Departmental 
Enforcement Center Satellite Offices. In this case, HUD will:
    (i) Explain why it has decided not to comply fully with your 
request, citing specific exemptions where applicable;
    (ii) Describe the records denied or, if there are fewer than 21 
records denied, list them specifically;
    (iii) Estimate the volume of the records denied unless doing so 
would harm a protected interest; and
    (iv) Explain how to appeal that decision, and provide the name and 
address of the HUD official to whom you should submit your appeal.
    (3) Tell you that HUD's estimate of the fee is more than you have 
agreed to pay and ask to confer within 10 days to see if you can 
reformulate your request so that HUD can meet your request at a fee 
that is acceptable to you; or
    (4) Tell you that you will not receive a response until you have 
either paid your fee or committed to the amount of fee you will pay, as 
applicable, and will provide you 10 days to pay, or commit to pay, the 
fee.
    (5) If you requested expedited processing, advise you whether your 
request is granted or denied and, if your request is denied, advise you 
of your right to appeal.
    (c) What action may HUD take if I fail to respond? If you fail to 
respond within a period specified in this subpart, HUD may consider 
your request for records withdrawn and may terminate processing of your 
request.


Sec. 15.107  How does HUD handle requests that involve classified 
records?

    If your request involves the release of documents that are 
classified under Executive Order 12958, HUD will refer your request and 
the pertinent documents to the originating agency for processing. HUD 
may refuse to confirm or deny the existence of the requested 
information if the originating agency determines that the fact of its 
existence is itself classified.


Sec. 15.108  What are HUD's policies concerning designating 
confidential commercial or financial information under Exemption 4 of 
the FOIA and responding to requests for business information?

    (a) HUD's general policy concerning business information which may 
be considered as confidential commercial or financial information. 
Except as provided in this section or otherwise required by law, HUD 
officers and employees may not disclose business information which is 
considered as confidential commercial or financial information to 
anyone other than to HUD officers or employees who are properly 
entitled to the information to perform their official duties.
    (b) How does a submitter make a claim that business information is 
confidential commercial or financial information? (1) If you are a 
submitter, you may request confidential treatment of business 
information at the time the information is submitted to HUD or within a 
reasonable time after it is submitted.
    (2) To obtain a designation of confidentiality, you must:
    (i) Support your request with an authorized statement or a 
certification giving the facts and the legal justification for your 
request and stating that the information has not been made public; and
    (ii) Clearly designate the information that you consider 
confidential.
    (3) Your designation of confidentiality will expire 10 years after 
the date the information was submitted to HUD, unless you have provided 
a reasonable explanation for a later expiration date.
    (c) How will HUD respond to a request for business information? If 
the information requested has been designated in good faith by the 
submitter as information to be protected under 5 U.S.C. 552(b)(4) 
(``Exemption 4'') or if HUD has reason to believe that the information 
may be protected by Exemption 4, HUD shall:
    (1) Unless an exception in paragraph (c)(2) of this section 
applies, promptly notify the submitter about the request or the 
administrative appeal and give the submitter 10 working days to submit 
a written objection to disclosure. HUD will describe the requested 
business information or will provide copies of all or a portion of the 
records;
    (2) If any of the following circumstances apply, HUD will not 
notify the submitter:
    (i) HUD determines that the information should not be disclosed;
    (ii) The information has been published lawfully or has been made 
available officially to the public;
    (3) A law other than FOIA requires HUD to disclose the information;
    (4) A HUD regulation requires HUD to disclose the information. The 
regulation must:
    (i) Have been adopted pursuant to notice and public comment; and
    (ii) Specify narrow classes of records submitted to HUD that are to 
be released under the FOIA.
    (d) Notice to requester. At the same time HUD notifies the 
submitter, HUD will also notify the requester that the request is 
subject to the provisions of this section and that the submitter is 
being afforded an opportunity to object to disclosure of the 
information.

[[Page 42583]]

    (e) Opportunity to object to disclosure. If the submitter timely 
objects to disclosure, HUD will consider the submitter's objections, 
but will not be bound by them. HUD generally will not consider 
conclusory statements that particular information would be useful to 
competitors or would impair sales, or other similar statements, 
sufficient to justify confidential treatment. Information provided by a 
submitter or its designee may itself be subject to disclosure under the 
FOIA.
    (f) Notice of intent to disclose. If after considering the 
submitter's objections, HUD decides to disclose business information 
over the objection of a submitter, HUD will send a written notice of 
intent to disclose to both the submitter and the requester. HUD will 
send these notices at least 10 working days before the specified 
disclosure date. The notices will include:
    (1) A statement of the reasons why HUD rejected the submitter's 
disclosure objections;
    (2) A description of the business information to be disclosed; and
    (3) A disclosure date.
    (g) What other policies apply to a submitter? (1) HUD notice of 
FOIA lawsuit. HUD will promptly notify the submitter of any suit to 
compel HUD to disclose business information.
    (2) Determination of confidentiality. HUD will not determine the 
validity of any request for confidentiality until HUD receives a 
request for disclosure of the information.
    (3) Current mailing address for the submitter. Each submitter must 
give HUD a mailing address for receipt of any notices under this 
section, and must notify HUD of any change of address.


Sec. 15.109  How will HUD respond to a request for information from 
Form HUD-92410 (Statement of Profit and Loss)?

    (a) To whom will HUD disclose the information? HUD will release 
information from Form HUD-92410 (or a HUD approved substitute form that 
the mortgagor may have submitted) only to eligible potential purchasers 
and only during the period specified by HUD for the mortgage sale.
    (b) Under what conditions will HUD release such information? HUD 
will release the information only if all of the following three 
conditions are met:
    (1) The information concerns a project that is subject to a HUD-
held mortgage which HUD is selling under the authority of sections 207 
(k) and (l) of the National Housing Act (12 U.S.C. 1713 (k) and (l)) or 
section 7(i)(3) of the Department of Housing and Urban Development Act 
(42 U.S.C. 3535(i)(3)).
    (2) The eligible potential purchasers have agreed to:
    (i) Keep the information confidential;
    (ii) Disclose the information only to potential investors in the 
mortgage and only for the period specified by HUD for the mortgage sale 
and to notify those potential purchasers of their obligations under 
this section;
    (iii) Use the information only to evaluate the mortgage in 
connection with the mortgage sale; and
    (iv) To follow disclosure procedures for that sale that have been 
established by the Secretary.
    (3) The potential investors in the mortgage have agreed to keep the 
information confidential and to use the information only to evaluate 
the mortgage in connection with their investment decision.
    (c) To whom may potential investors disclose such information? 
Potential investors in the mortgage may disclose the information to 
other entities only if the disclosure is:
    (1) Necessary for the investor's evaluation of the mortgage;
    (2) Made in accordance with disclosure procedures for the specific 
sale that have been established by HUD; and
    (3) Limited to the period specified by HUD for the mortgage sale.
    (d) What sanctions are available for improper disclosure of such 
information? An eligible potential purchaser or a potential investor 
(who has received the information from a potential purchaser and has 
been notified by that entity of its obligations under paragraph (b) of 
this section), who discloses information from Form HUD-92410 in 
violation of this regulation, may be subject to sanctions under part 24 
of this title.


Sec. 15.110  What fees will HUD charge?

    (a) How will HUD determine your fee? HUD will determine your fee 
based on which category of requester you are in and on the other 
provisions of this section. With your request, you should submit 
information to help HUD determine the proper category. If HUD cannot 
tell from your request, or if HUD has reason to doubt the use to which 
the records will be put, HUD will ask you to provide additional 
information before assigning the request to a specific category.
    (b) What are the categories of requesters?--(1) Commercial use 
requester. You are a commercial use requester if you request 
information for a use or purpose that furthers your commercial, trade, 
or profit interests or those interests of the person on whose behalf 
you have made the request. In determining whether your request properly 
belongs in this category, HUD determines the use to which you will put 
the documents requested.
    (2) Educational requester. You are an educational requester if your 
request is on behalf of an educational institution and you do not seek 
the records for a commercial use, but to further scholarly research.
    (3) Non-commercial scientific requester. You are a non-commercial 
scientific requester if you are not a commercial use requester and your 
request is on behalf of an organization that is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    (4) Representative of the news media requester. (i) You are a 
representative of the news media requester if you actively gather news 
for an entity that is primarily organized and operated to publish or 
broadcast news to the public.
    (ii) Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of news) who make their products available for purchase 
or subscription by the general public.
    (iii) Freelance journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though not actually 
employed by it. A publication contract would be the clearest proof, but 
HUD may also look to the past publication record of a requester in 
making this determination.
    (iv) If you are a representative of the news media requester, HUD 
will not consider you to be a commercial use requester.
    (5) Other requester. You are considered an ``other'' requester if 
you do not fall within the categories of requesters described above.
    (c) FOIA Fee Schedule. The following table sets out the Fee 
Schedule that HUD uses to determine your fee. The rates for 
professional and clerical search and review includes the salary of the 
employee performing the work. The duplication cost includes the cost of 
operating duplicating machinery. The computer run time includes the 
cost of operating a central processing unit for that portion of the 
operating time attributable to searching for responsive records, as 
well as the costs of operator/programmer salary apportionable to the 
search. HUD's fee schedule does not include overhead expenses such as 
costs of space and heating or lighting the facility in which the 
records are stored.

[[Page 42584]]



----------------------------------------------------------------------------------------------------------------
                                                                              News media,
                                                                              educational
            Activity                     Rate           Commercial use       research, or       Other requester
                                                           requester          scientific
                                                                          research requester
----------------------------------------------------------------------------------------------------------------
Professional search.............  $37.00 per hour...  Applies...........  Does not apply....  Applies. No charge
                                                                                               for first two
                                                                                               hours of
                                                                                               cumulative search
                                                                                               time.
Professional review.............  $37.00 per hour...  Applies...........  Does not apply....  Does not apply.
Clerical search.................  $16.35............  Applies...........  Does not apply....  Applies. No charge
                                                                                               for first two
                                                                                               hours of
                                                                                               cumulative search
                                                                                               time.
Clerical review.................  $16.35 per hour...  Applies...........  Does not apply....  Does not apply.
Programming services............  $35.00 per hour...  Applies...........  Does not apply....  Applies.
Computer run time (includes only  The direct cost of  Applies...........  Does not apply....  Applies.
 mainframe search time not         conducting the
 printing).                        search.
Duplication costs...............  $0.15 per page....  Applies...........  Applies. No charge  Applies. No charge
                                                                           for first 100       for first 100
                                                                           pages.              pages.
----------------------------------------------------------------------------------------------------------------

    (d) How does HUD assess review charges? HUD will assess review 
charges only for the first time it analyzes the applicability of a 
specific exemption to a particular record or portion of a record. HUD 
will not charge for its review at the administrative appeal level of an 
exemption already applied. If HUD has withheld in full a record or 
portions of a record under an exemption which is subsequently 
determined not to apply, HUD will assess charges for its review to 
determine the applicability of other exemptions not previously 
considered.
    (e) How does HUD handle multiple requests? If you, or others acting 
with you, make multiple requests at or about the same time for the 
purpose of dividing one request into a series of requests for the 
purpose of evading the assessment of fees, HUD will aggregate your 
requests for records. In no case will HUD give you more than the first 
two hours of search time, or more than the first 100 pages of 
duplication without charge.
    (f) Unsuccessful searches. If HUD's search for records is 
unsuccessful, HUD will still bill you for the search.
    (g) No charge for costs under $25. HUD will not charge you a fee if 
the total amount calculated under this section is less than $25.00.
    (h) Reducing fees in the public interest. If HUD determines that 
disclosure of the information you seek is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and 
that you are not seeking the information for your own commercial 
interests, HUD may waive or reduce the fee.
    (i) When do I pay the fee? HUD will bill you when it responds to 
your request. You must pay within thirty-one calendar days. If the fee 
is more than $250.00 or you have a history of failing to pay FOIA fees 
in a timely manner, HUD will ask you to remit the estimated amount and 
any past due charges before sending you the records.
    (j) What happens if I do not pay the fees? (1) If you do not pay by 
the thirty-first day after the billing date, HUD will charge interest 
at the maximum rate allowed under 31 U.S.C. 3717.
    (2) If you do not pay the amount due within ninety calendar days of 
the due date, HUD may notify consumer credit reporting agencies of your 
delinquency.
    (3) If you owe fees for previous FOIA responses, HUD will not 
respond to further requests unless you pay the amount due.
    (k) Contract services. HUD will contract with private sector 
sources to locate, reproduce and disseminate records in response to 
FOIA requests when that is the most efficient method. When doing so HUD 
will charge the cost to the requester that the private sector source 
has charged HUD for performing these tasks. In some instances, these 
costs may be higher than the charges HUD would ordinarily charge if the 
processing tasks had been done by the agency itself. In no case will 
HUD contract out responsibilities which the FOIA provides that HUD 
alone may discharge, such as determining the applicability of an 
exemption, or determining whether to waive or reduce fees. HUD will 
ensure that, when documents that would be responsive to a request are 
maintained for distribution by agencies operating statutory-based fee 
schedule programs such as the National Technical Information Service, 
HUD will inform requesters of the steps necessary to obtain records 
from those sources. Information provided routinely in the normal course 
of business will be provided at no charge.


Sec. 15.111  How do I appeal a denial of my request for records or a 
fee determination?

    (a) To what address do I submit my appeals? You must submit your 
appeal, in writing, to the address specified in HUD's notice responding 
to your FOIA request (see Sec. 15.106(a)(2)(iv)). If you send your 
appeal to the wrong HUD office, that office will forward it to the 
correct office. That office will also notify you that it has so 
forwarded your appeal and advise you that, for processing purposes, the 
time of receipt will be when the appropriate office receives your 
appeal.
    (b) How much time do I have to submit an appeal? Your written 
appeal must be postmarked within 30 calendar days of the date of the 
HUD determination from which you are appealing. If your appeal is 
transmitted by other than the United States Postal Service (i.e., 
facsimile, messenger or delivery service) it must be received in the 
appropriate office by close of business on the 30th calendar day after 
the date of the HUD determination.
    (c) What information must I provide if I am appealing a denial of 
request for information? If you are appealing a denial of your request 
for information, the appeal must contain the following information:
    (1) A copy of your original request;
    (2) A copy of the written denial of your request; and
    (3) Your statement of the facts and legal arguments supporting 
disclosure.
    (d) What information must I provide if I am appealing a fee 
determination? If you are appealing a fee determination, including a 
denial of your request for HUD to waive the fee, the appeal must 
contain the following information:
    (1) The address of the office which made the fee determination from 
which you are appealing;
    (2) The fee that office charged;
    (3) The fee, if any, you believe should have been charged;
    (4) The reasons you believe that your fee should be lower than the 
fee which the Agency charged or should have been waived; and

[[Page 42585]]

    (5) A copy of the initial fee determination and copies of any 
correspondence concerning the fee.
    (e) What information must I provide if I am appealing a denial of 
expedited processing? If you are appealing a denial of your request for 
expedited processing, your appeal must contain the following 
information:
    (1) A copy of your original request;
    (2) A copy of the written denial of your request; and
    (3) Your statement of the facts and legal arguments supporting 
expedited processing.


Sec. 15.112  How will HUD respond to my appeal?

    (a) How much time does HUD have to decide my appeal? HUD will 
decide your appeal of a denial of expedited processing within 10 
working days after its receipt. For any other type of appeal, HUD will 
decide your appeal within 20 working days after its receipt. HUD may 
have an additional 10 working days if unusual circumstances require.
    (b) What action will HUD take if it grants my appeal? (1) Appeal of 
a denial of request for information. If you are appealing a decision to 
deny your request for records, HUD will either:
    (i) Give you the records you requested or advise you that the 
records will be provided by the originating office;
    (ii) Give you some of the records you requested while declining to 
give you other records you requested, tell you why HUD has concluded 
that the documents were exempt from disclosure under FOIA, and tell you 
how to obtain judicial review of HUD's decision; or
    (iii) Decline to give you the records you requested, tell you why 
HUD has concluded that the records were exempt from disclosure under 
FOIA, and tell you how to obtain judicial review of HUD's decision.
    (2) Appeal of a fee determination. If you are appealing a fee 
determination, HUD will either:
    (i) Waive the fee or charge the fee that you have requested;
    (ii) Modify the original fee charged, and explain why it has 
determined that the fee is appropriate; or
    (iii) Advise you that the original fee charged was appropriate, and 
explain why it has determined that the fee is appropriate.
    (3) Appeal of a denial of expedited processing. If you are 
appealing a denial of your request for expedited processing, HUD will 
either:
    (i) Agree to expedited processing of your request; or
    (ii) Advise you that the decision to deny expedited processing has 
been affirmed, and tell you how to obtain judicial review of HUD's 
decision.
    5. Remove subparts C, D, F, G, and J.
    6. Redesignate subparts H, consisting of Secs. 15.71 through 15.74, 
as subpart C, consisting of Secs. 15.201 through 15.204, to read as 
follows:

Subpart C--Production In Response to Subpoenas or Demands of Courts 
or Other Authorities

Sec.
15.201   Purpose and scope.
15.202   Production or disclosure prohibited unless approved by the 
Secretary.
15.203   Procedure in the event of a demand for production or 
disclosure.
15.204   Procedure in the event of an adverse ruling.

    7. In newly designated Sec. 15.201, the undesignated paragraph is 
redesignated as paragraph (a) and a new paragraph (b) is added to read 
as follows:


Sec. 15.201  Purpose and scope.

* * * * *
    (b) The term ``legal proceeding'' has the meaning given in 
Sec. 15.301(b).


Sec. 15.203  [Amended]

    8. In newly designated Sec. 15.203(a), revise the reference to 
Sec. 15.71 to read Sec. 15.201.


Sec. 15.204  [Amended]

    9. In newly designated Sec. 15.204, revise the reference to 
Sec. 15.73(b) to read Sec. 15.203(b).
    10. Redesignate subpart I, consisting of Secs. 15.81 through 15.85, 
as subpart D, consisting of Secs. 15.301 through 15.309, to read as 
follows:

Subpart D--Testimony of Employees in Legal Proceedings

Sec.
15.301   Purpose.
15.302   Testimony in proceedings in which the United States is a 
party.
15.303   Legal proceedings among private litigants; general rule.
15.304   Legal proceedings among private litigants; subpoenas.
15.305   Legal proceedings among private litigants; expert or 
opinion testimony.


Sec. 15.304  [Amended]

    11. In newly designated Sec. 15.304, revise the reference to 
Secs. 15.71-15.74 to read Secs. 15.201-204.

    Dated: June 14, 2000.
Andrew Cuomo,
Secretary.

    Note: This appendix will not appear in the Code of Federal 
Regulations.

    Appendix A--Reading Rooms
    The Department maintains a reading room in Headquarters, 451 
Seventh Street, SW, Washington, DC 20410 and in each of its 
Secretary Representative's Offices as follows:
    New England, Boston Office--Room 375, Thomas P. O'Neill, Jr. 
Federal Building, 10 Causeway Street, Boston, Massachusetts 02222-
1092. The New England Office oversees jurisdiction for HUD Offices 
located in Maine, New Hampshire, Vermont, Massachusetts, 
Connecticut, and Rhode Island.
    New York/New Jersey, New York Office--26 Federal Plaza, New 
York, New York 10278-0068. The New York/New Jersey Office oversees 
jurisdiction for HUD Offices located in New York and New Jersey.
    Mid Atlantic, Philadelphia Office--Liberty Square Building, 105 
South 7th Street, Philadelphia, Pennsylvania 19106-3392. The Mid 
Atlantic Office oversees jurisdiction for HUD Offices located in 
Pennsylvania, Delaware, Maryland, Virginia, and West Virginia.
    Southeast/Caribbean, Atlanta Office--Five Points Plaza Building, 
40 Marietta St., Atlanta, Georgia 30303. The Southeast/Caribbean 
Office oversees jurisdiction for HUD Offices located in Kentucky, 
Tennessee, North Carolina, South Carolina, Georgia, Alabama, 
Mississippi, Florida, and Puerto Rico.
    Midwest, Chicago Office--Ralph Metcalfe Federal Building, 77 
West Jackson Boulevard, Chicago, Illinois 60604-3507. The Midwest 
Office oversees jurisdiction for HUD Offices located in Illinois, 
Indiana, Ohio, Michigan, Wisconsin, and Minnesota.
    Southwest, Fort Worth Office--Burnett Plaza Building, 801 Cherry 
Street, Fort Worth, Texas 76102. The Southwest Office oversees 
jurisdiction for HUD Offices located in Oklahoma, Texas, Arkansas, 
Louisiana, and New Mexico.
    Great Plains, Kansas City Office--Room 200, Gateway Tower II, 
400 State Avenue, Kansas City, Kansas 66101-2406. The Great Plains 
Office oversees jurisdiction for HUD Offices located in Missouri, 
Iowa, Kansas, and Nebraska.
    Rocky Mountain, Denver Office--633 17th Street, Denver, Colorado 
80202-3607. The Rocky Mountain Office oversees jurisdiction for HUD 
Offices located in Colorado, Utah, Wyoming, North Dakota, South 
Dakota, and Montana.

[[Page 42586]]

    Pacific/Hawaii, San Francisco Office--Philip Burton Federal 
Building & U.S. Courthouse, 450 Golden Gate Avenue, PO Box 36003, 
San Francisco, California 94102-3448. The Pacific/Hawaii Office 
oversees jurisdiction for HUD Offices located in California, Nevada, 
Arizona, and Hawaii.
    Northwest/Alaska, Seattle Office--Suite 200, Seattle Federal 
Office Building, 909 First Avenue, Seattle, Washington 98104-1000. 
The Northwest/Alaska Office oversees jurisdiction for HUD Offices 
located in Alaska, Washington, Oregon, and Idaho.

[FR Doc. 00-17181 Filed 7-7-00; 8:45 am]
BILLING CODE 4210-32-P