[Federal Register Volume 70, Number 121 (Friday, June 24, 2005)]
[Rules and Regulations]
[Pages 36790-36791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12477]



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Part III





Department of Housing and Urban Development





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24 CFR Part 2004



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

  Federal Register / Vol. 70, No. 121 / Friday, June 24, 2005 / Rules 
and Regulations  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 2004

[Docket No. FR-4942-F-02]
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: Final rule.

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SUMMARY: On December 7, 2004, HUD published a proposed rule proposing 
to 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. This final rule 
follows publication of the December 7, 2004, proposed rule. HUD did not 
receive any public comments on the proposed rule and, therefore, is 
adopting the proposed rule without change.

DATES: Effective Date: July 25, 2005.

FOR FURTHER INFORMATION CONTACT: Bryan Saddler, Counsel to the 
Inspector General, Department of Housing and Urban Development, 451 
Seventh Street, SW., Room 8260, 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.
    On December 7, 2004 (69 FR 70868), HUD published a proposed rule 
proposing to amend 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.

II. This Final Rule

    This final rule follows publication of the December 7, 2004, 
proposed rule. The proposed rule provided for a 60-day comment period. 
The comment period for the proposed rule closed on February 7, 2005. 
HUD did not receive any public comments on the proposed rule. 
Accordingly, this final rule adopts the proposed rule without change.
    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 final 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

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been submitted to the Office of Management and Budget (OMB) for review 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The 
OMB control number, when assigned, will be published in a separate 
notice. Under this 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 valid control number.

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 final rule will 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 final rule will impose 
no additional economic or other burdens. Rather, this rule provides 
small entities with the benefit of a review process for unfavorable OIG 
decisions. Therefore, the undersigned certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities.

Environmental Impact

    In accordance with 24 CFR 50.19(c)(1) of the Department's 
regulations, this final rule does not direct, provide for assistance or 
loan and mortgage insurance for, or otherwise govern or regulate, real 
property acquisition,

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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 final 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 final 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.


0
For the reasons stated in the preamble, HUD amends 24 CFR part 2004 as 
follows:

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

0
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).


0
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 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: April 6, 2005.
Kenneth M. Donohue, Sr.,
Inspector General.
[FR Doc. 05-12477 Filed 6-23-05; 8:45 am]
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