[Federal Register Volume 71, Number 193 (Thursday, October 5, 2006)]
[Proposed Rules]
[Pages 58994-58996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16441]



[[Page 58993]]

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Part IV





Department of Housing and Urban Development





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24 CFR Part 15



 Revisions to the Public Access to HUD Records Under the Freedom of 
Information Act (FOIA) Regulations; Proposed Rule

  Federal Register / Vol. 71 , No. 193 / Thursday, October 5, 2006 / 
Proposed Rules  

[[Page 58994]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 15

[Docket No. FR-5069-P-01]
RIN 2501-AD22


Revisions to the Public Access to HUD Records Under the Freedom 
of Information Act (FOIA) Regulations

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would clarify and explain the procedures to 
be followed by requesters seeking a waiver or a reduction of fees under 
the Freedom of Information Act (FOIA). This proposed rule describes the 
information that must be included in a FOIA request and the 
demonstrations that must be made in order for a waiver or reduction in 
fees to be granted. This proposed rule would also revise the FOIA fee 
schedule, clarify the time at which HUD will begin processing a FOIA 
request, and modify HUD's policy on the use of outside contractors to 
fulfill FOIA requests. HUD is undertaking this effort in order to make 
the regulations governing fee waivers more informative and helpful in 
accordance with the President's recently issued Executive Order 13392, 
``Improving Agency Disclosure of Information.''

DATES: Comment Due Date: December 4, 2006.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Office of General Counsel, Rules Docket 
Clerk, Department of Housing and Urban Development, 451 Seventh Street, 
SW., Room 10276, Washington, DC 20410-0001. Communications should refer 
to the above docket number and title and should contain the information 
specified in the ``Request for Comments'' section.
    Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make comments immediately available 
to the public. Comments submitted electronically through the 
www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.
    No Facsimile Comments. Facsimile (FAX) comments are not acceptable. 
In all cases, communications must refer to the docket number and title.
    Public Inspection of Public Comments. All comments and 
communications submitted to HUD will be available, without charge, for 
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the 
above address. Due to security measures at the HUD Headquarters 
building, an advance appointment to review the public comments must be 
scheduled by calling the Regulations Division at (202) 708-3055 (this 
is not a toll-free number). Persons with hearing or speech impairments 
may access this number via TTY by calling the toll-free Federal 
Information Relay Service at 1-(800) 877-8339. Copies of all comments 
submitted are available for inspection and downloading at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Holly Salamido, Assistant General 
Counsel for Litigation, Freedom of Information Act (FOIA) Division, 
Office of Litigation, Office of General Counsel, Department of Housing 
and Urban Development, 451 Seventh Street, SW., Room 10248, Washington, 
DC 20410-5000; telephone (202) 708-3866 (this is not a toll-free 
number). Persons with hearing or speech impairments may access this 
number via TTY by calling the toll-free Federal Information Relay 
Service at 1-(800) 877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 14, 2005, President Bush issued Executive Order 13392, 
entitled ``Improving Agency Disclosure of Information,'' which 
acknowledged the importance of participation by an informed citizenry 
in the effective functioning of our constitutional democracy. Executive 
Order 13392 was published in the Federal Register on December 19, 2005 
(70 FR 75373). FOIA provides the means by which the public can obtain 
information regarding Federal agencies. Under FOIA, the public can 
request records from any agency, which the agency must provide, subject 
to certain exemptions and statutory exclusions.
    In issuing Executive Order 13392, the President emphasized that 
agencies are providing a service to FOIA requesters and shall respond 
accordingly. The President also advised agencies to process requests 
under FOIA in an efficient and appropriate manner and to achieve 
tangible and measureable improvements in FOIA processing. According to 
the Executive Order, if agencies' FOIA programs are not meeting these 
goals, the programs should be reformed in order to better reflect the 
policy goals and objectives described in the Executive Order.
    HUD's regulations at 24 CFR part 15, entitled ``Public Access to 
HUD Records under the Freedom of Information Act and Testimony and 
Production of Information by HUD Employees,'' describe the policies and 
procedures governing public access to HUD records under FOIA. Those 
regulations describe how the public is to make a FOIA request, what 
must be included in the request, how the request will be processed, any 
applicable fees that will be charged, and the process for appealing a 
denial of a request or a fee determination.

II. This Proposed Rule

    The revisions contained in this proposed rule respond to Executive 
Order 13392, which has served as an impetus for each agency to review 
its FOIA regulations to determine whether its regulations are as 
helpful as they can be, especially since these regulations reach out to 
the public generally and are not specific to participants in particular 
government programs.

A. Revision to Fee Waiver Provisions

    In its review of 24 CFR part 15, HUD determined that a good 
starting point for possible revisions to its FOIA regulations pertains 
to the regulatory provisions governing fee waiver and reduction of 
fees. HUD determined that these regulations could provide more helpful 
information and explanation about what a requester must include in its 
request for a fee waiver or fee reduction and the elements that HUD 
will evaluate in determining whether a waiver or reduction of fees 
should be granted. HUD recognizes that members of the public are not 
only interested in seeking information from HUD, but also are 
interested in the cost of obtaining that information.
    This proposed rule would revise the regulations at 24 CFR part 15 
to clarify the public interest provision governing waivers and 
reductions of fees. Section 15.110(h), entitled ``Waiver or reduction 
of fees in the public interest,'' would be revised to provide more 
detailed and illustrative information on the type of demonstrations 
that a requester must make in order to qualify for either a waiver or 
reduction of fees. The revisions would also clarify what is meant by 
seeking information that is in the public interest. HUD will make a

[[Page 58995]]

determination as to whether the disclosure of the information sought 
would be in the public interest and, if the necessary showings are 
made, HUD may waive or reduce the fee.
    Currently, Sec.  15.110(h) merely reiterates the statutory criteria 
contained in FOIA. The proposed revisions would not replace the 
statutory criteria as the basis of HUD's regulations, but instead would 
provide supplemental guidance as to the elements that a requester must 
establish, and the criteria HUD will consider in determining whether 
such demonstrations have been made. FOIA requires Federal departments 
and agencies to furnish documents at no charge or at a reduced fee 
provided that disclosure of the information contained therein is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. As 
proposed, HUD's regulations would address and explain this statutory 
mandate.

B. Other Revisions

    In its review of the regulations governing public access to records 
under FOIA, HUD has also taken the opportunity to revise other 
regulatory provisions of FOIA to better reflect the policy goals 
expressed in Executive Order 13392. HUD proposes to amend other 
subparagraphs of Sec.  15.110, which addresses fees, in general. In 
Sec.  15.110(c), the hourly rates to be charged for search and review 
of requested documents by professional and clerical employees would be 
revised. Rather than listing a specific hourly rate, the regulations 
would be amended so that the actual salary rate of the employee 
involved, plus 16 percent of the salary rate, to cover employee 
benefits, would be assessed. This change would make the regulations 
more in line with actual costs. By inserting the proposed language, 
subsequent revisions to the regulation would not be needed to reflect 
future increases in salary costs.
    Section 15.110(i) would be amended to clarify that if the estimated 
fee is more than $250.00 or if the requester has a history of failing 
to pay FOIA fees in a timely manner, HUD will not begin processing a 
FOIA request until payment of estimated fees and past due charges have 
been forwarded to HUD. This revision would make the processing of FOIA 
requests more efficient by avoiding the expenditure of time and 
resources on requests where the requester is not willing to pay the 
requisite cost.
    Section 15.110(k) would be revised to notify requesters that HUD 
may contract with the private sector to fulfill FOIA requests, but 
would do so only if it would be the most efficient, least costly 
method, and will not cost more than if HUD had performed the services 
itself. HUD is conscientious in its effort to make its processing of 
FOIA requests more results-oriented and efficient.

III. Findings and Certifications

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. 
The regulatory amendments that would be made by this proposed rule are 
procedural and explanatory in nature. The FOIA statute establishes 
criteria by which waivers of fees or reduction of fees may be obtained 
for a FOIA request. 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.
    Accordingly, the undersigned certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. Notwithstanding HUD's determination that this rule will not 
have a significant 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.

Paperwork Reduction Act

    The Department has reviewed the proposed rule with reference to the 
Paperwork Reduction Act and has concluded that it does not involve a 
``collection of information'' within the requirements of the Act.
    The rule would not require any person to fill out a form or 
otherwise provide specific information (other than self-identification 
and appropriate certifications) to the Department in order to make a 
FOIA request or a request for a waiver or reduction in fees. Pursuant 
to regulations of the Office of Management and Budget (OMB) 
implementing the Paperwork Reduction Act, affidavits, oaths, 
affirmations, certifications, receipts, changes of address, consents, 
or acknowledgments are not ``information collections'' under the law (5 
CFR 1320.3(h)(1)).
    Consistent with the FOIA, the proposed rule would require those 
seeking fee waivers to address specific requirements set forth by the 
law. Each requester would need to address a different factual situation 
that is tailored to the issue in the specific request. Pursuant to OMB 
regulations implementing the Paperwork Reduction Act, facts or opinions 
requested from a single person are not ``information collections'' 
under the law (5 CFR 1320.3(h)(6)).

Environmental Impact

    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. Accordingly, under 24 CFR 50.19(c)(1), this 
proposed rule is categorically excluded from the requirements of the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

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 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.

Unfunded Mandates Reform Act

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

List of Subjects in 24 CFR Part 15

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

    Accordingly, for the reasons discussed in the preamble, HUD

[[Page 58996]]

proposes to amend 24 CFR part 15 to read 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. The authority citation for part 15 continues to read as follows:

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

    2. Revise Sec.  15.103(d)(4) to read as follows:


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

* * * * *
    (d) * * *
    (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. If you are seeking a waiver or reduction of fees, 
you must include such a request at the same time as your request for 
disclosure, and you must describe how the disclosure of the requested 
information is in the public interest and not primarily in the 
commercial interest of the requester (see section Sec.  15.110(h));
* * * * *
    3. In Sec.  15.110(c), revise the FOIA Fee Schedule, chart, as 
follows:
    a. Revise subparagraphs (1) through (4) so that the Rate column for 
each reads, ``Actual salary rate of employee involved, plus 16 percent 
of salary rate;'' and
    b. Revise the Rate of subparagraph (7) to read, ``$0.18 per page.''
    4. In Sec.  15.110, revise paragraphs (h) and (i), and remove the 
first three sentences of (k) and add two new sentences in their place 
to read as follows:


Sec.  15.110  Fees.

* * * * *
    (h) Waiver or reduction of 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 Federal 
government, and that you are not seeking the information primarily for 
your own commercial interests, HUD may waive or reduce the fee.
    (1) In order to qualify for a waiver or a reduction of fees, a 
requester must make the following demonstrations in the FOIA request:
    (i) Disclosure of the requested 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.
    (A) The subject of the request pertains to the operations or 
activities of the Federal government. Requesters must be seeking 
documents and records that contain information regarding identifiable 
operations or activities of the Federal government. The connection 
between the content of the records and Federal governmental operations 
or activities must be direct and clear.
    (B) The informative value of the information to be disclosed is 
consequential. The disclosable portions of the requested records must 
be meaningfully informative about Federal governmental operations or 
activities in order to be ``likely to contribute'' to an increased 
public understanding of those operations or activities. The disclosure 
of information that is already in the public domain, in either a 
duplicative or substantially identical form, would not be as likely to 
contribute to the public's understanding of Federal governmental 
operations or activities.
    (C) The disclosure is likely to contribute to an understanding of 
the subject by the public. The disclosure must contribute to the 
understanding of a reasonably broad audience of persons interested in 
the subject, as opposed to the individual understanding of the 
requester, in order to provide a great benefit to the public at large. 
A requester's expertise in the subject area and ability and intention 
to effectively convey the information will be considered.
    (D) The contribution to public understanding is significant. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a substantial degree. HUD will not make 
value judgments about whether the information to be disclosed is worthy 
or important enough to be made public, but rather whether it would 
contribute substantially to public understanding of the operations or 
activities of the government.
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (A) The existence and magnitude of a commercial interest. The 
requester must describe and explain any commercial interest that would 
be furthered by the requested disclosure, whether personally benefiting 
the requester or any person on whose behalf the requester may be 
acting. See the definition of a ``commercial use requester'' in 
paragraph (b)(1) of this section for further explanation.
    (B) Primary interest in disclosure. A fee waiver or reduction in 
fees is justified where the requester has demonstrated that the public 
interest in disclosure is greater in magnitude than that of any 
identified commercial interest in disclosure. However, disclosure to 
data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to 
primarily serve the public interest.
    (2) Requests for waivers must address the elements listed in 
paragraph (1) of this section, insofar as they apply to each request. 
HUD will exercise its discretion in considering the cost-effectiveness 
of its investment of administrative resources in deciding whether to 
grant waivers or reductions of fees, in consultation with appropriate 
offices as needed. Requests for the waiver or reduction of fees must be 
submitted with the request.
    (3) When only some of the requested records satisfy the 
requirements for a waiver of fees, a waiver will be granted for only 
those records.
    (4) When a fee waiver request is denied, HUD will do no further 
work on the request until it receives an assurance of payment, or an 
appeal of the fee waiver adverse determination is filed and HUD has 
made a final appeal determination pursuant to Sec.  15.112.
    (i) When do I pay the fee? HUD will bill you when it responds to 
your request. You must pay within 31 calendar days. If the estimated 
fee is more than $250.00 or you have a history of failing to pay FOIA 
fees to HUD in a timely manner, HUD will ask you to remit the estimated 
amount and any past due charges before processing and sending you the 
records.
* * * * *
    (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 and least costly method. 
HUD will ensure that the ultimate cost to the requester is no greater 
than it would be if the agency itself had performed these tasks. * * *

    Dated: September 11, 2006.
Roy A. Bernardi,
Deputy Secretary.
 [FR Doc. E6-16441 Filed 10-4-06; 8:45 am]
BILLING CODE 4210-67-P