[Federal Register Volume 69, Number 234 (Tuesday, December 7, 2004)]
[Proposed Rules]
[Pages 70868-70870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26769]



[[Page 70867]]

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

Part VI





Department of Housing and Urban Development





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



24 CFR Part 2004



Office of Inspector General (OIG) Subpoenas and Production in Response 
to Subpoenas or Demands of Courts or Other Authorities; Proposed Rule

  Federal Register / Vol. 69, No. 234 / Tuesday, December 7, 2004 / 
Proposed Rules  

[[Page 70868]]


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

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 2004

[Docket No. FR-4942-P-01; HUD-2004-0018]]
RIN 2508-AA14


Office of Inspector General (OIG) Subpoenas and Production in 
Response to Subpoenas or Demands of Courts or Other Authorities

AGENCY: Office of Inspector General, HUD.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule would amend HUD's Office of Inspector 
General's (OIG's) regulations to provide an appellate review procedure 
regarding the OIG's responses to subpoenas issued to OIG employees 
requesting documents or testimony in legal proceedings where the OIG is 
not a party. The establishment of an appellate proceeding is designed 
to ensure both a thorough review process by the OIG and a complete 
opportunity for a party or person to take formal exception to the OIG's 
determination.

DATES: Comment Due Date: February 7, 2005.

ADDRESSES: Interested persons are invited to submit comments regarding 
this rule to the Regulations Division, Office of General Counsel, Room 
10276, Department of Housing and Urban Development, 451 Seventh Street, 
SW., Washington, DC 20410-0500. Electronic comments may be submitted 
through either:
     The Federal eRulemaking Portal at www.regulations.gov; or
     The HUD electronic Web site at www.epa.gov/feddocket. 
Follow the link entitled ``View Open HUD Dockets.'' Commenters should 
follow the instructions provided on that site to submit comments 
electronically.
    Facsimile (FAX) comments are not acceptable. In all cases, 
communications must refer to the docket number and title. All comments 
and communications submitted will be available for public inspection 
and copying between 8 a.m. and 5 p.m. weekdays at the above address. 
Copies are also available for inspection and downloading at 
www.epa.gov/feddocket.

FOR FURTHER INFORMATION CONTACT: Bryan Saddler, Counsel to the 
Inspector General, Room 8260, Department of Housing and Urban 
Development, 451 Seventh Street, SW., Washington, DC 20410-4500; 
telephone (202) 708-1613 (this is not a toll-free number). Persons with 
hearing or speech impairments may access this number through TTY by 
calling the toll-free Federal Information Relay Service at (800) 877-
8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The regulations regarding requests of HUD's Office of Inspector 
General (OIG) employees for testimony and production of documents are 
located at 24 CFR part 2004. Under Sec.  2004.20, no OIG employee may 
produce official records or provide any testimony relating to official 
information in response to a demand or request without the prior 
written approval of the Inspector General (IG) or the Counsel for 
Inspector General (Counsel). The IG has delegated the authority to 
respond to requests and demands for production of OIG records and 
testimony of OIG employees to the Counsel.
    Section 2004.21 identifies the factors that the OIG will consider 
in making determinations in response to requests for OIG documents or 
testimony, and Sec.  2004.25 provides that the Counsel's decision is 
the final determination on demands and requests of OIG employees for 
the production of official records and information or testimony.
    After request or demand of documents or testimony, the Counsel will 
review the demand and determine whether the OIG employee is authorized 
to release documents or testify. The Counsel will notify the requester 
of the final determination and the reasons for the grant or denial of 
the request.

II. This Proposed Rule

    As the current regulations are written, no review process exists 
for unfavorable decisions made by the Counsel. Once the Counsel makes a 
determination denying a request for documents or testimony, or 
restricting the release of documents or testimony, the decision is 
final. This proposed rule addresses the need for a review process by 
amending 24 CFR part 2004 to provide for an appellate review process 
regarding the Counsel's responses to subpoenas issued to OIG employees 
in legal proceedings where the OIG is not a party.
    When a party or any person is aggrieved by the Counsel's decision 
denying a request for documents or testimony, that party or person may 
seek review of the decision by filing a written Notice of Intention to 
Petition for Review (Notice). After filing this Notice, the party or 
person must also file a Petition for Review (Petition) detailing the 
issues and reasons why a review of the Counsel's decision is 
appropriate. All filings must be served on the Counsel in accordance 
with Sec.  2004.23. Either the Counsel or the IG will review the 
Petition, and the decision on the Petition will become the final 
decision of the OIG.
    If the party or person is not satisfied with the OIG's decision, 
the party or person may seek judicial review. However, as noted in the 
current regulations, if the Counsel declines to approve a demand for 
records or testimony, and a court or other authority rules that the 
demand must be complied with regardless of OIG instructions not to 
release the material or information sought, the OIG employee or former 
OIG employee upon whom the demand has been made shall respectfully 
decline to comply with the demand.
    This rule amendment sets forth a review process where Counsel can 
thoroughly and timely consider the party's or person's petition prior 
to issuing a final decision on the release of documents or testimony.

III. Findings and Certifications

Information Collection Requirements

    The information collection requirements contained in this proposed 
rule have been submitted to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In 
accordance with the Paperwork Reduction Act, an agency may not conduct 
or sponsor, and a person is not required to respond to, a collection of 
information unless the collection displays a currently valid OMB 
control number.
    The burden of the information collections in this proposed rule is 
estimated as follows:

[[Page 70869]]



                                       Reporting and Recordkeeping Burden
----------------------------------------------------------------------------------------------------------------
                                                                                   Estimated
                                                 Number of        Number of       average time      Estimated
              Section reference                   parties       responses per   for requirement   annual burden
                                                                  respondent       (in hours)       (in hours)
----------------------------------------------------------------------------------------------------------------
Sec.   2004.28(c)...........................               8                2                5               80
----------------------------------------------------------------------------------------------------------------

    In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments 
from members of the public and affected agencies concerning this 
collection of information to:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond; including through the use of appropriate automated 
collection techniques or other forms of information technology (e.g., 
permitting electronic submission of responses).
    Interested persons are invited to submit comments regarding the 
information collection requirements in this rule. Under the provisions 
of 5 CFR part 1320, OMB is required to make a decision concerning this 
collection of information between 30 and 60 days after today's 
publication date. Therefore, a comment on the information collection 
requirements is best assured of having its full effect if OMB receives 
the comment within 30 days of today's publication. This time frame does 
not affect the deadline for comments to the agency on the proposed 
rule, however. Comments must refer to the proposal by name and docket 
number (FR-4942-P-01) and must be sent to:

Mark Menchik, HUD Desk Officer, Office of Management and Budget, New 
Executive Office Building, Washington, DC 20503, Fax number: (202) 395-
6947, E-mail: [email protected];

 and

Reports Liaison Officer, Office of Inspector General, Department of 
Housing and Urban Development, 451 Seventh Street, SW, Room 8170, 
Washington, DC 20410-4500.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule would provide those persons aggrieved by an OIG decision 
denying a request for production of documents or testimony the 
opportunity to seek review of the decision. This rule would impose no 
additional economic or other burdens. Rather, this rule provides small 
entities with the benefit of a review process for unfavorable OIG 
decisions. Accordingly, this proposed rule would not have a significant 
economic impact on a substantial number of small entities. Therefore, 
the undersigned certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities, 
and an initial regulatory flexibility analysis is not required. 
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 
by this preamble.

Environmental Impact

    In accordance with 24 CFR 50.19(c)(1) of the Department's 
regulations, this proposed rule 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. Therefore, this proposed rule is 
categorically excluded from the requirements of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.).

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (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 government 
or the private sector within the meaning of UMRA.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits, to the 
extent practicable and permitted by law, an agency from publishing any 
rule that has federalism implications and 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 rule does 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.

List of Subjects in 24 CFR Part 2004

    Administrative practice and procedure, Courts.

    For the reasons stated in the preamble, HUD proposes to amend 24 
CFR part 2004 as follows:

PART 2004--SUBPOENAS AND PRODUCTION IN RESPONSE TO SUBPOENAS OR 
DEMANDS OF COURTS OR OTHER AUTHORITIES

    1. The authority citation for 24 CFR part 2004 continues to read as 
follows:

    Authority: Inspector General Act of 1978, as amended (5 U.S.C. 
app.) and 42 U.S.C. 3535(d).

    2. Revise Sec.  2004.28 to read as follows:


Sec.  2004.28  Procedure in the event of an adverse ruling.

    (a) Opportunity to review adverse ruling. Any person aggrieved by a 
decision made by the Counsel under this part denying a request for 
documents or testimony, or restricting the release of documents or 
testimony, may seek review of that decision pursuant to paragraph (c) 
of this section.
    (b) Procedure in the event of conflicting court order. If the 
Inspector General or Counsel declines to approve a demand for records 
or testimony and a court or other authority rules that the

[[Page 70870]]

demand must be complied with irrespective of the instructions from the 
OIG not to produce the material or disclose the information sought, the 
employee or former employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (c) Procedure. (1) Notice of intention to petition for review. A 
party or any person aggrieved by the decision made pursuant to this 
part denying or restricting the release of documents or testimony may 
seek review of the decision by filing a written Notice of Intention to 
Petition for Review (Notice) within five business days of the date of 
this decision. The Notice shall identify the petitioner, the adverse 
decision, and any dates (such as deposition, hearing, or court dates) 
that are significant to the party. The Notice shall be served in 
accordance with Sec.  2004.23.
    (2) Petition for review. Within five business days of the filing of 
a Notice, the person or party seeking review shall file a Petition for 
Review (Petition) containing a clear and concise statement of the 
issues to be reviewed and the reasons why the review is appropriate. 
The petition shall include exceptions to any findings of fact or 
conclusions of law made, together with supporting reasons and arguments 
for such exceptions based on appropriate citations to such record or 
law as may exist. These reasons may be stated in summary form. 
Decisions on the Petition may be made by either the Inspector General 
or the Counsel and shall become the final decisions of the OIG. The 
Petition will be served in accordance with Sec.  2004.23.
    (d) Prerequisite to judicial review. Pursuant to Section 704 of the 
Administrative Procedure Act, 5 U.S.C. 704, a petition to the agency 
for review of a decision made under the authority of this part is a 
prerequisite to the seeking of judicial review of the final decision.

    Dated: November 3, 2004.
Kenneth M. Donohue, Sr.,
Inspector General.
[FR Doc. 04-26769 Filed 12-6-04; 8:45 am]
BILLING CODE 4210-78-P