[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 72204-72207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27872]



[[Page 72203]]

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Part IV





Department of Housing and Urban Development





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24 CFR Part 15



Public Access to HUD Records under the Freedom of Information Act 
(FOIA) and Production of Material or Provision of Testimony by HUD 
Employees: Revisions to Policies and Practices Regarding Subpoenas and 
Other Demands for Testimony; Final Rule

  Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / 
Rules and Regulations  

[[Page 72204]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 15

[Docket No. FR-5206-F-02]
RIN 2501-AD39


Public Access to HUD Records Under the Freedom of Information Act 
(FOIA) and Production of Material or Provision of Testimony by HUD 
Employees: Revisions to Policies and Practices Regarding Subpoenas and 
Other Demands for Testimony

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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SUMMARY: This final rule modifies HUD's policies and practices 
regarding responses to subpoenas and other demands for testimony of HUD 
employees, or for production of documents by HUD. This rule delegates 
authority to additional officials within HUD's Office of General 
Counsel and revises the criteria used to evaluate such demands. 
Finally, this rule eliminates unnecessary provisions covering HUD's 
response to demands in cases in which the United States is a party to 
the case in which testimony or documents are requested. This rule 
follows publication of an August 12, 2008 proposed rule, but makes no 
changes at this final rule stage.

DATES: Effective Date: December 26, 2008.

FOR FURTHER INFORMATION CONTACT: Nancy Christopher, Associate General 
Counsel for Litigation, Office of Litigation, Office of General 
Counsel, Department of Housing and Urban Development, 451 7th Street, 
SW., Room 10258, Washington, DC 20410-0500; telephone number 202-708-
0300 (this is not a toll-free telephone number). Persons with hearing 
or speech impairments may access this number through 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) and the policies and procedures 
governing the production of material or provision of testimony by HUD 
employees. On February 26, 2007 (72 FR 8580), HUD published a final 
rule to clarify and explain the various types of requests for HUD 
documents and testimony by HUD employees that are intended to be 
covered by HUD's document production and testimony approval 
regulations. The final rule revised subparts C and D to describe the 
procedures to be followed by a party in making a demand to HUD for 
documents or testimony, and to explain the standards followed by HUD in 
determining whether production or testimony should be permitted. A 
technical correction to the final rule was published on September 20, 
2007 (72 FR 53876).
    After implementing the revised procedures for consideration of 
demands for documents or testimony, HUD determined that additional 
changes were necessary to ensure the careful and efficient processing 
of all such demands. Those changes were proposed in a rule published on 
August 12, 2008 (73 FR 46826). The changes included, among other 
things, adding reference to the various officials within the Office of 
General Counsel (OGC) with responsibility for addressing a demand for 
production of material or provision of testimony, and providing 
guidance to persons engaged in private litigation, to which the United 
States is not a party, on the procedures to be followed when making a 
demand on HUD for documents or testimony. The preamble to the August 
12, 2008 proposed rule, at 73 FR 46826 and 46827, explained in detail 
the changes proposed to the regulations in 24 CFR part 15, and HUD 
refers the reader to the proposed rule for the full listing of the 
regulatory changes proposed.
    The August 12, 2008 proposed rule provided a 60-day public comment 
period, which ended on October 14, 2008. At the end of the public 
comment period, HUD received only one public comment. The commenter 
complained that the proposed rule, in Sec.  15.206, appeared to direct 
HUD employees not to cooperate with court orders for the production of 
testimony or materials. The language in Sec.  15.206, which directs HUD 
employees not to produce documents or testimony without official HUD 
approval, is longstanding. This regulatory section was amended by the 
August 2008 proposed rule primarily to add reference to the 
``Authorized Approving Official,'' the official who is in the best 
position to consider and approve demands for testimony or documents.
    HUD believes that the commenter misunderstands the directions to 
HUD employees provided in Sec.  15.206. What ``official HUD approval'' 
provides is confirmation that the subpoena is directed to matters 
within the scope of the individual's employment, and the employee was 
not acting outside the scope of his or her employment. Official HUD 
approval is required for the protection of the employee, not to 
frustrate a court proceeding.

II. This Final Rule

    At this final rule stage, HUD adopts the August 12, 2008 proposed 
rule without change.

III. Findings and Certifications

Paperwork Reduction Act

    The information collection requirements contained in this rule were 
submitted to the Office of Management and Budget (OMB) for review and 
approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). 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 that is 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 made by this rule are procedural and serve to 
advise on the process and procedures engaged in by the Department when 
producing material or providing testimony in response to demands in 
legal proceedings. Accordingly, the undersigned certifies that this 
rule will not have a significant economic impact on a substantial 
number of small entities.

Environmental Impact

    This 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 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

[[Page 72205]]

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.

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 rule does not 
impose any federal mandates on any state, local, or tribal government, 
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.

0
Accordingly, for the reasons discussed in the preamble, HUD amends 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

0
1. The authority citation for part 15 continues 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.


0
2. Amend Sec.  15.2(b) by adding, in alphabetical order, definitions of 
the terms ``Appropriate Associate General Counsel,'' ``Appropriate 
Regional Counsel,'' and ``Authorized Approving Official,'' to read as 
follows:


Sec.  15.2  Definitions.

* * * * *
    (b) * * *
    Appropriate Associate General Counsel means the Associate General 
Counsel for Litigation or the Associate General Counsel for HUD 
Headquarters employees in those programs for which the Associate 
provides legal advice.
    Appropriate Regional Counsel means the Regional Counsel for the 
Regional Office having delegated authority over the project or activity 
with respect to which the information is sought. For assistance in 
identifying the Appropriate Regional Counsel, see Appendix A to this 
part.
    Authorized Approving Official means the Secretary, General Counsel, 
Appropriate Associate General Counsel, or Appropriate Regional Counsel.
* * * * *


Sec.  15.102  [Amended]

0
3. In Sec.  15.102(b), remove the reference ``http://www.hud.gov/ogc/bshelf2a.html'' and, in its place, add the reference ``http://www.hud.gov.''


Sec.  15.103  [Amended]

0
4. In Sec.  15.103(c), remove the reference ``http://www.hud.gov/ogc/foiafree.html'' and, in its place, add the reference ``http://www.hud.gov.''

0
5. Add Sec.  15.201(c) to read as follows:


Sec.  15.201   Purpose and Scope.

* * * * *
    (c) This subpart also provides guidance to persons engaged in 
private litigation, to which the United States is not a party, on the 
procedures to be followed when making a demand for documents or 
testimony on the Department of Housing and Urban Development. This 
subpart does not, and may not be relied upon to, create any affirmative 
right or benefit, substantive or procedural, enforceable against HUD.

0
6. Revise Sec.  15.202 to read as follows:


Sec.  15.202   Production of material or provision of testimony 
prohibited unless approved.

    Neither the Department nor any employee of the Department shall 
comply with any demand for production of material or provision of 
testimony in a legal proceeding among private litigants, unless the 
prior approval of the Authorized Approving Official has been obtained 
in accordance with this subpart. This rule does not apply to any legal 
proceeding in which an employee may be called to participate, either 
through the production of documents or the provision of testimony, not 
on official time, as to facts or opinions that are in no way related to 
material described in Sec.  15.201.

0
7. Revise Sec.  15.203 to read as follows:


Sec.  15.203   Making a demand for production of material or provision 
of testimony.

    (a) Any demand made to the Department or an employee of the 
Department to produce any material or provide any testimony in a legal 
proceeding among private litigants must:
    (1) Be submitted in writing to the Department or employee of the 
Department, with a copy to the Appropriate Associate General Counsel or 
Appropriate Regional Counsel, no later than 30 days before the date the 
material or testimony is required;
    (2) State, with particularity, the material or testimony sought;
    (3) If testimony is requested, state:
    (i) The intended use of the testimony, and
    (ii) Whether expert or opinion testimony will be sought from the 
employee;
    (4) State whether the production of such material or provision of 
such testimony could reveal classified, confidential, or privileged 
material;
    (5) Summarize the need for and relevance of the material or 
testimony sought in the legal proceeding and include a copy of the 
complaint, if available;
    (6) State whether the material or testimony is available from any 
other source and, if so, state all such other sources;
    (7) State why no document[s], or declaration[s] or affidavit[s], 
could be used in lieu of oral testimony that is being sought;
    (8) Estimate the amount of time the employee will need in order to 
prepare for, travel to, and attend the legal proceeding, as 
appropriate;
    (9) State why the production of the material or provision of the 
testimony is appropriate under the rules of procedure governing the 
legal proceeding for which it is sought (e.g., not be unduly burdensome 
or otherwise inappropriate under the relevant rules governing 
discovery); and
    (10) Describe how producing such material or providing such 
testimony would affect the interests of the United States.
    (b) If the Department determines that the requestor has failed to 
provide the information required by paragraph (a) of this section, or 
that the information provided is insufficient to consider the demand in 
accordance with Sec.  15.204, the Department may require that 
additional information be provided by the requestor before the demand 
is considered.
    (c) Whenever a demand is made upon the Department or an employee of 
the Department for the production of material or provision of 
testimony, the employee shall immediately notify the Appropriate 
Associate General Counsel or Appropriate Regional Counsel.

0
8. Revise Sec.  15.204 to read as follows:

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Sec.  15.204  Consideration of demands for production of material or 
provision of testimony.

    (a) The Authorized Approving Official shall determine what material 
is to be produced or what testimony is to be provided, based upon the 
following standards:
    (1) Expert or opinion material or testimony. In any legal 
proceeding among private litigants, no employee of the Department may 
produce material or provide testimony as described in Sec.  15.201(a) 
that is of an expert or opinion nature, unless specifically authorized 
by the Authorized Approving Official for good cause shown.
    (2) Factual material or testimony. In any legal proceeding among 
private litigants, no employee of the Department may produce material 
or provide testimony as described in Sec.  15.201(a) that is of a 
factual nature, unless specifically authorized by the Authorized 
Approving Official. The Authorized Approving Official shall determine 
whether any of the following factors are applicable. Such a demand may 
either be denied, or conditionally granted in accordance with Sec.  
15.204(c), if any such factors are applicable:
    (i) Producing such material or providing such testimony would 
violate a statute or regulation;
    (ii) Producing such material or providing such testimony would 
reveal classified, confidential, or privileged material;
    (iii) Such material or testimony would be irrelevant to the legal 
proceeding;
    (iv) Such material or testimony could be obtained from any other 
source;
    (v) One or more documents, or a declaration or affidavit, could 
reasonably be provided in lieu of oral testimony;
    (vi) The amount of employees' time necessary to comply with the 
demand would be unreasonable;
    (vii) Production of the material or provision of the testimony 
would not be required under the rules of procedure governing the legal 
proceeding for which it is sought (e.g., unduly burdensome or otherwise 
inappropriate under the relevant rules governing discovery);
    (viii) Producing such material or providing such testimony would 
impede a significant interest of the United States; or
    (ix) The Department has any other legally cognizable objection to 
the release of such information or testimony in response to a demand.
    (b) Once a determination has been made, the requester will be 
notified of the determination. If the demand is denied, the requestor 
shall be notified of the reasons for the denial. If the demand is 
conditionally approved, the requestor shall be notified of the 
conditions that have been imposed upon the production of the material 
or provision of the testimony demanded, and the reasons for the 
conditional approval of the demand.
    (c) The Authorized Approving Official may impose conditions or 
restrictions on the production of any material or provision of any 
testimony. Such conditions or restrictions may include the following:
    (1) A requirement that the parties to the legal proceeding obtain a 
protective order or execute a confidentiality agreement to limit access 
to, and limit any further disclosure of, material or testimony;
    (2) A requirement that the requester accept examination of 
documentary material on HUD premises in lieu of production of copies;
    (3) A limitation on the subject areas of testimony permitted;
    (4) A requirement that testimony of a HUD employee be provided by 
deposition at a location prescribed by HUD or by written declaration;
    (5) A requirement that the parties to the legal proceeding agree 
that a transcript of the permitted testimony be kept under seal or will 
only be used or only made available in the particular legal proceeding 
for which testimony was demanded;
    (6) A requirement that the requester purchase an extra copy of the 
transcript of the employee's testimony from the court reporter and 
provide the Department with a copy at the requester's expense; or
    (7) Any other condition or restriction deemed to be in the best 
interests of the United States, including reimbursement of costs to the 
Department.
    (d) The determination made with respect to the production of 
material or provision of testimony pursuant to this subpart is within 
the sole discretion of the Authorized Approving Official and shall 
constitute final agency action from which no administrative appeal is 
available.

0
9. Revise Sec.  15.205 to read as follows:


Sec.  15.205   Method of production of material or provision of 
testimony.

    (a) Where the Authorized Approving Official has authorized the 
production of material or provision of testimony, the Department shall 
produce such material or provide such testimony in accordance with this 
section and any conditions imposed upon production of material or 
provision of testimony pursuant to Sec.  15.204(c).
    (b) In any legal proceeding where the Authorized Approving Official 
has authorized the production of documents, the Department shall 
respond by producing authenticated copies of the documents, to which 
the seal of the Department has been affixed, in accordance with its 
authentication procedures. The authentication shall be evidence that 
the documents are true copies of documents in the Department's files 
and shall be sufficient for the purposes of Rules 803(8) and 902 of the 
Federal Rules of Evidence and Rule 44(a)(1) of the Federal Rules of 
Civil Procedure.
    (c) If response to a demand is required before the determination 
from the Authorized Approving Official is received, the U.S. Attorney, 
Department of Justice Attorney, or such other attorney as may be 
designated for the purpose will appear or make such filings as are 
necessary to furnish the court or other authority with a copy of the 
regulations contained in this subpart and will inform the court or 
other authority that the demand has been, or is being, as the case may 
be, referred for prompt consideration. The court or other authority 
shall be requested respectfully to stay the demand pending receipt of 
the requested determination from the Authorized Approving Official.

0
10. Revise Sec.  15.206 to read as follows:


Sec.  15.206   Procedure in the event of an adverse ruling regarding 
production of material or provision of testimony.

    If the court or other authority declines to stay the demand made in 
accordance with Sec.  15.205(c) pending receipt of the determination 
from the Authorized Approving Official, or if the court or other 
authority rules that the demand must be complied with irrespective of 
the determination by the Authorized Approving Official not to produce 
the material or provide the testimony demanded or to produce subject to 
conditions or restrictions, the employee upon whom the demand has been 
made shall, if so directed by an attorney representing the Department, 
respectfully decline to comply with the demand. (United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951)).

0
11. Revise Sec.  15.302 to read as follows:


Sec.  15.302   Production of material or provision of testimony 
prohibited unless approved.

    Neither the Department nor any employee of the Department shall 
comply with any demand for production of material or provision of 
testimony in a legal proceeding in which the United States is a party, 
unless the prior approval of the attorney

[[Page 72207]]

representing the United States has been obtained in accordance with 
this subpart. This rule does not apply to any legal proceeding in which 
an employee may be called to participate, either through the production 
of documents or the provision of testimony, not on official time, as to 
facts or opinions that are in no way related to material described in 
Sec.  15.301.

0
12. Revise Sec.  15.303 to read as follows:


Sec.  15.303   Procedure for review of demands for production of 
material or provision of testimony in any legal proceeding in which the 
United States is a party.

    Whenever a demand is made upon the Department or an employee of the 
Department for the production of material or provision of testimony, 
the employee shall immediately notify the Appropriate Associate General 
Counsel or Appropriate Regional Counsel.

0
13. Revise Sec.  15.304 to read as follows:


Sec.  15.304   Consideration of demands for production of material or 
provision of testimony.

    Consideration of demands shall be within the province of the 
attorney representing the United States, who may raise any valid 
objection to the production of material or provision of testimony in 
response to the demand.

0
14. Add Sec.  15.305 to read as follows:


Sec.  15.305   Method of production of material or provision of 
testimony.

    If the production of material or provision of testimony has been 
authorized, the Department may respond by producing authenticated 
copies of the documents, to which the seal of the Department has been 
affixed in accordance with its authentication procedures. The 
authentication shall be evidence that the documents are true copies of 
documents in the Department's files and shall be sufficient for the 
purposes of Rules 803(8) and 902 of the Federal Rules of Evidence and 
Rule 44(a)(1) of the Federal Rules of Civil Procedure.

0
15. Revise Appendix A to read as follows:

Appendix A to Part 15--Location Information for HUD FOIA Reading Rooms 
and Contact Information for Regional Counsel

    The Department maintains a reading room in Headquarters and in 
each of the Secretary's Representative's Offices. In addition, each 
of the Secretary's Representative's Offices has a Regional Counsel. 
The location and contact information for HUD's FOIA Reading Rooms 
and for the Regional Counsel can be found in HUD's Local Office 
Directory, on HUD's Internet site at http://www.hud.gov.

    Dated: November 17, 2008.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E8-27872 Filed 11-25-08; 8:45 am]
BILLING CODE 4210-67-P