[Federal Register Volume 80, Number 158 (Monday, August 17, 2015)]
[Rules and Regulations]
[Pages 49140-49152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20226]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 15

[Docket No. FR-5624-F-02]
RIN 2501-AD57


Revision of Freedom of Information Act Regulation

AGENCY: Office of the Deputy Secretary, HUD.

ACTION: Final rule.

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

SUMMARY: This final rule amends HUD's regulations implementing the 
Freedom of Information Act (FOIA) to update and streamline HUD's 
current FOIA regulation. Specifically, it updates HUD's regulations to 
reflect statutory changes to the FOIA, current HUD organizational 
structure, and current HUD policies and practices with respect to the 
FOIA. In addition, the rule uses current cost figures in calculating 
and charging fees. This final rule also incorporates changes made upon 
further evaluation of HUD's FOIA Regulation and in response to public 
comments received.

DATES: Effective: September 16, 2015.

FOR FURTHER INFORMATION CONTACT: Dolores W. Cole, Director, FOIA and 
Executive Correspondence, Office of Administration, Department of 
Housing and Urban Development, 451 7th Street SW., Room 10139, 
Washington, DC 20410-0500; telephone number 202-402-2671 (this is not a 
toll-free number). Hearing- or speech-impaired individuals may access 
this number via TTY by calling the Federal Relay Service at telephone 
number 1-800-877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Background

    HUD's regulations at 24 CFR part 15 contain the policies and 
procedures governing public access to HUD records under the FOIA (5 
U.S.C. 552). Subject to certain statutory exceptions, the FOIA gives 
persons the right to request and receive a wide range of information 
from any Federal agency. The FOIA has been amended several times since 
its enactment in 1966. In 2007, significant amendments to the FOIA were 
made by the Openness Promotes Effectiveness in our National Government 
Act of 2007 (OPEN Government Act) (Pub. L. 110-175, approved December 
31, 2007). The OPEN Government Act made several amendments to 
procedural issues affecting FOIA administration, including the 
protection of the fee status for news media, the time limits for 
agencies to act upon FOIA requests, the availability of agency records 
maintained by a private entity, the establishment of a FOIA Public 
Liaison and FOIA Requester Service Center, and the requirement to 
describe the exemptions authorizing the redaction of material provided 
under the FOIA.
    In addition to these statutory changes, several policy directives 
have been issued that affect HUD's FOIA program. These policy 
directives include Presidential memoranda dated January 21, 2009, 
entitled ``Freedom of Information Act'' (74 FR 4683, January 26, 2009), 
which applies a presumption of disclosure in FOIA decision-making and 
``Transparency and Open Government'' (74 FR 4685, January 26, 2009), 
which encourages Federal agencies to harness new technologies to 
proactively post online information about their operations and 
decisions consistent with applicable law. As required by the 
Presidential memoranda, on March 19, 2009, Attorney General Eric Holder 
issued comprehensive new FOIA guidelines (see http://www.justice.gov/ag/foia-memo-march2009.pdf). The Attorney General's guidance further 
advises that agencies should release information to the fullest extent 
of the law, including information that may be legally withheld, 
provided there is no foreseeable harm to an interest protected by an 
exemption or the disclosure is not prohibited by law. In addition, the 
Attorney General's FOIA guidelines emphasized that agencies must have 
effective systems in place for responding to FOIA requests.
    Consistent with this law and guidance, HUD undertook a 
comprehensive review of its FOIA regulation. As part of this review, 
HUD looked to the proposed updated FOIA regulation published by the 
Department of Justice (DOJ) on March 21, 2011 (76 FR 15236). DOJ 
intended that its regulation serve as a model for all agencies in 
updating their own FOIA regulations.\1\ As a result of its review, HUD 
published a proposed rule on May 31, 2013 (78 FR 32595), modeled on 
DOJ's proposed regulation, to incorporate changes enacted by the OPEN 
Government Act of 2007, reflect developments in case law, include 
current cost figures for calculating and charging fees, and enhance the 
administration and operation of HUD's FOIA program by increasing the 
transparency and clarity of the regulation.
---------------------------------------------------------------------------

    \1\ See, http://www.justice.gov/sites/default/files/testimonies/
witnesses/attachments/03/15/11/03-15-11-oip-pustay-testimony-re-the-
freedom-of-information-act_-ensuring-transparency-and-
accountability-in-the-digital-age.pdf.
---------------------------------------------------------------------------

II. Changes and Clarifications Made in This Final Rule

    This final rule follows publication of the May 31, 2013, proposed 
rule and takes into consideration the public comments received on the 
proposed rule. In response to public comment, a discussion of which is 
presented in the following section of this preamble, and in further 
consideration of issues addressed at the proposed rule stage, the 
Department is making the following changes at this final rule:
     HUD is revising Sec.  15.103(c) to state that HUD will 
provide written notice to requesters when the time limits for HUD's 
response will be delayed. HUD will also provide the requester with the 
date by which HUD expects to complete its processing of the request.
     HUD is revising Sec.  15.104(c)(3) to mirror the language 
of the FOIA. Specifically, HUD is removing the requirement that a 
representative of the news media, if not a full-time member of the news 
media, should establish that he or she is a person whose main 
professional activity or occupation is information dissemination.
     HUD is revising Sec.  15.106(c) to reduce the duplication 
costs that HUD will charge for a paper photocopy of a record from $0.18 
per page to $0.10 per page.
     HUD is revising Sec.  15.107(a) to refer to the most 
current Executive order regarding classified information, which is 
Executive Order 13526, issued December 29, 2009.
     HUD is removing proposed Sec.  15.109 from this final 
rule. Upon review HUD has determined that, Sec.  15.109, entitled 
``Mortgage sales,'' directed itself to a specific HUD program rather 
than establish disclosure policy applicable

[[Page 49141]]

throughout the Department. In addition, Sec.  15.109 as proposed did 
not accurately describe the process that HUD uses to address FOIA 
requests for information arising out of HUD's mortgage sales program. 
As a result, HUD is removing Sec.  15.109 as proposed from this final 
rule.
     HUD is revising Sec.  15.110(a) of the proposed rule 
(redesignated as Sec.  15.109(a) in this final rule) to clarify that 
appeals may be submitted electronically.
     HUD is revising Sec.  15.111(a)(2) of the proposed rule 
(redesignated as Sec.  15.110(a)(2) in this final rule) by adding 
paragraph (iii) to provide that HUD will notify requesters of dispute 
resolution services in its FOIA appeal determination response letter.

III. Analysis of Public Comments

    The public comment period for the May 31, 2013, proposed rule 
closed on July 30, 2013, and HUD received three public comments on the 
proposed rule. Comments were submitted by a nonprofit organization 
devoted to issues of effective government and by two members of the 
public. HUD reviewed the comments and considered responses to them. 
This section presents the significant issues, questions, and 
suggestions submitted by the commenters and HUD's responses.
    Comment: HUD should expand online disclosures. One commenter 
recommended that HUD adopt a policy of proactively identifying records 
that are of interest to the public and posting such records online 
without waiting for FOIA requests. Accordingly, the commenter 
recommended that Sec.  15.101 be revised to state that ``HUD will 
proactively identify and disclose additional records of interest to the 
public.'' The commenter added that the E-FOIA Act of 1996 mandates 
agencies to post online any information that has been released in 
response to a FOIA request and ``is likely to become the subject of 
subsequent requests.'' The commenter stated that some agencies have 
adopted the practice of posting all released records and suggested that 
HUD adopt this policy by revising its proposed rule to read: ``HUD will 
post all records released in response to FOIA requests in a searchable 
format on the agency Web site.'' Finally, the commenter stated that HUD 
should also revise Sec.  15.101 by adopting a policy of publishing 
online its indexes of disclosed records.
    Response: Section 15.101 revises HUD's FOIA regulation to reflect 
its current practice of proactively identifying and disclosing 
frequently requested records without waiting for a FOIA request. HUD 
developed the list of documents that it posts without request based on 
its prior experience regarding agency records that generally are of 
interest to the public. This list is not exhaustive and the final rule 
provides HUD the flexibility to post additional records without 
request. Releasing all records requested, along with an index, as 
requested by the commenter, would be excessively burdensome for the 
agency. HUD believes that Sec.  15.101, as drafted, successfully 
balances its commitment to transparency as directed by President 
Obama's memorandum and Attorney General Holder's FOIA Guidance, within 
the scope of HUD's available resources. Accordingly, HUD has determined 
not to revise this section as the commenter recommended.
    Comment: Information about the record sought. A commenter stated 
that clear and open communications between requesters and agency staff 
is vital to an effective, user-friendly FOIA process. Toward this end, 
the commenter recommended that HUD revise Sec.  15.102(d)(2) to delete 
the first sentence that provides that FOIA requests ``include, whenever 
possible, detailed and specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record,'' and substitute simply that FOIA requests should 
``reasonably describe the records sought.'' The commenter also 
recommended that HUD delete the last sentence of this paragraph, which 
reads ``Insufficient descriptions may lead HUD officials to contact the 
requester to seek additional information for their record search.''
    Response: HUD agrees that clear and open communications is vital to 
an effective and user-friendly FOIA process. Based on HUD's experience, 
Sec.  15.102(d)(2) supports this goal by describing the type of 
information that will assist HUD to more promptly and effectively 
respond to a FOIA request. HUD therefore declines to revise Sec.  
15.102(d)(2) as suggested by the commenter.
    Comment: Notification of further clarification needed. A commenter 
stated that HUD should adopt a policy stating that it will contact the 
requester to seek clarification before denying a request on the basis 
of its not reasonably describing the records sought. The commenter 
suggested that HUD revise this section of the rule to state: ``If HUD 
believes that a request may not reasonably describe the records sought, 
HUD will contact the requester to seek clarification. HUD will provide 
at least 30 days for the requester to respond. If the request has not 
been clarified after 30 days, HUD may decide to deny the request for 
not reasonably describing the records sought. If HUD determines that it 
must deny the request for not reasonably describing the records sought, 
it will notify the requester under the procedures in Sec.  
15.105(d)(2).''
    Response: HUD's current policy is to request clarification prior to 
issuing an adverse determination based on a requester's failure to 
reasonably describe the records sought. In addition, depending on the 
specific request, HUD may on a case-by-case basis establish time limits 
for the requester to provide clarification. HUD, therefore, believes 
that imposing a 30-day time period would unnecessarily limit the 
staff's ability to exercise discretion in processing these requests. 
HUD, therefore, declines to revise Sec.  15.105(d)(2) as recommended by 
the commenter.
    Comment: Notification of delayed processing. A commenter 
recommended that HUD revise Sec.  15.103(c) to state that HUD will 
notify requesters in writing as is required by FOIA when processing 
will be delayed.
    Response: HUD agrees with the commenter and revises Sec.  15.103(c) 
of the final rule to mirror the language of the FOIA by providing that, 
in unusual circumstances, the time limits prescribed in the regulation 
may be extended by written notice to the requester making such request. 
The written notice will also set forth the unusual circumstances for 
such extension and the date on which a determination is expected to be 
released.
    Comment: Phrasing of revised language in Sec.  15.104(c)(3). A 
commenter stated that language in proposed Sec.  15.104(c)(3), which 
would require requesters who are not full-time members of the news 
media to submit a statement establishing that the requester ``is a 
person whose main professional activity or occupation is information 
dissemination'' when requesting expedited processing of a request, 
changes the meaning of FOIA. According to the commenter, this 
requirement is not found in FOIA and excludes an entire class of 
individuals, such as bloggers and other participants and thought 
leaders of the digital world who may be well positioned to expedite 
dissemination of information. The commenter recommended that the 
reference to ``main professional activity or occupation'' be removed 
and that Sec.  15.104(c)(3) be revised to mirror FOIA.
    Response: HUD agrees that the language in the final rule should 
mirror the language in the FOIA and therefore revises Sec.  
15.104(c)(3) to require that the

[[Page 49142]]

requester be ``primarily engaged in disseminating information.'' 
References to requirements that the requester, ``if not a full-time 
member of the news media, should establish that he or she is a person 
whose main professional activity or occupation is information 
dissemination,'' have been deleted.
    Comment: Notification of rerouting and referrals. Two commenters 
recommended that HUD revise the rule to improve communications with the 
requester. These commenters recommended that HUD notify the requester 
if it reroutes the request to another government agency or second HUD 
office, as is permitted during the 10-day window immediately following 
HUD's receipt of the initial FOIA request. The commenters described 
this change as a modest step that is consistent with the policies of 
other Federal agencies and which would benefit HUD by reducing the 
number of requester inquiries made to the HUD FOIA office.
    Response: HUD's current policy is to notify requesters that their 
request is being rerouted or referred to another Federal agency or a 
second HUD office. Federal agencies to which requests are referred 
follow their own policies to ensure that requesters are notified that 
their FOIA requests have been received. In addition, requesters can 
identify the HUD FOIA office to which their request has been rerouted 
by checking the status of their request online at http://www.hud.gov/FOIA. Because these options are available to requesters, HUD declines 
to revise Sec.  15.105 to adopt the commenters' recommendations.
    Comment: Keeping requesters informed regarding updates on the 
status of their FOIA requests. A commenter recommended that HUD revise 
Sec.  15.105 to include provisions that would require HUD to notify all 
requesters as soon as practicable of the estimated time it will take to 
complete a request and provide requesters with the opportunity to 
reformulate their requests. The commenter also recommended that HUD 
revise the rule to provide on the agency's Web site automated updates 
on the status of FOIA requests and suggested that HUD can implement 
this recommendation by joining the multiagency portal FOIA online, 
which allows requesters to track the status of requests online.
    Response: Section 15.103(a) provides that HUD generally will 
respond to a FOIA request within 20 working days of receipt. As 
discussed in this preamble, HUD is revising this section in the final 
rule to state that it will provide written notice to requesters when it 
extends the time to process a request, and will also provide the 
requester with the date by which HUD expects to complete its processing 
of the request. Given the number, unpredictability, and variability in 
type and scope of FOIA requests that HUD receives, however, it would be 
extremely difficult for HUD to offer specific dates by which it could 
estimate the processing time for any specific FOIA request not subject 
to Sec.  15.103(a). In addition, HUD provides requesters the ability to 
verify the status of their FOIA requests through an online tool that is 
similar to FOIAonline and that is available at http://www.hud.gov/FOIA. 
Finally, HUD believes that the rule already addresses the commenter's 
concern that requesters be granted an opportunity to reformulate 
requests during the process. For example, Sec.  15.103(c) provides that 
HUD will offer the requester the opportunity to limit the scope of a 
request if HUD determines that providing responsive documents will take 
more than the 10 working days established in Sec.  15.103(a). For these 
reasons, HUD declines to revise the rule as recommended by the 
commenter.
    Comment: Electronic communications. A commenter recommended that 
HUD adopt a policy to communicate with requesters by email, where 
appropriate, as digital communications are changing the way government 
connects with citizens, and email communications could result in cost 
savings for the agency.
    Response: The FOIA does not require agencies to use a specific 
means to communicate with requesters. HUD currently communicates with 
requesters by email, when appropriate, and will continue to do so. At 
the same time, HUD requires the discretion to use physical mail when it 
deems necessary. For these reasons, HUD declines to revise the rule as 
recommended by the commenter.
    Comment: Plain communications. A commenter stated that the Plain 
Writing Act of 2010 directs agencies to use ``writing that is clear, 
concise, well-organized, and follows other best practices appropriate 
to the subject or field and intended audience'' in any document that 
``provides information about Federal Government benefit or service.'' 
The commenter recommended that HUD revise Sec.  15.105 to state: ``HUD 
will use plain language in all communications with requesters.''
    Response: HUD's current policy is to use plain language for all 
communications with the public. Some requests, however, require the 
production of records that are inherently technical or drafted for 
audiences with more technical backgrounds or expertise than the general 
public. As a result, HUD concludes that adding the language suggested 
by the commenter would be superfluous and may mislead requesters to 
expect HUD to translate technical documents into plain language. HUD 
therefore declines to amend this section in the final rule as requested 
by the commenter.
    Comment: Release records on a rolling basis. A commenter stated 
that HUD should revise Sec.  15.105 to require HUD to release records 
on a rolling basis, where requests involve a voluminous amount of 
material or searches in multiple locations.
    Response: HUD's existing policy allows individual HUD FOIA offices 
to decide whether to release voluminous amounts of records on a rolling 
basis or all at once, depending on the specific request, the difficulty 
of collecting records responsive to the request, and the effective 
administration of the office's internal FOIA processing. HUD declines 
to revise this section of the rule in order to permit individual HUD 
FOIA offices the continued discretion over the appropriate approach to 
releasing records.
    Comment: Rate of per-page printing. Two commenters stated that 
HUD's fee of $0.18 per page is a potential impediment to requests from 
members of the public, that it is higher than the rate imposed by other 
agencies, and that it does not reflect the amount that it costs HUD to 
print on a page. Both commenters recommended that HUD establish a 
standard fee of $0.10 per page. In addition, one commenter recommended 
that HUD revise the regulation to provide that it will not charge a fee 
if the total fee does not exceed $50, instead of the $25 threshold 
proposed by Sec.  15.106(d)(4). The commenter stated that charging 
requesters the costs for producing small FOIA requests is uneconomical 
and contributes to processing delays. The commenter also stated that 
revising the $25 threshold would streamline the processing of requests 
that cost HUD less than $50.
    Response: HUD appreciates the commenters' recommendations. HUD has 
reviewed its FOIA fee structure and agrees that it should revise its 
longstanding policy of charging $0.18 per page to the standard fee of 
$0.10 per page. Section 15.106(c) is revised to reflect this change. 
HUD's cost of responding to a request, however, has not changed. As a 
result, HUD will continue its practice of not charging the requester 
for processing a request if the total fee does not exceed $25. Based on 
HUD's experience, even at this $25

[[Page 49143]]

threshold, most requesters will still not be charged a processing fee.
    Comment: Fee Waivers. A commenter stated that the proposed Sec.  
15.106(k)(5), which would give HUD discretion to consider ``the cost 
effectiveness of its investment of administrative resources'' when 
deciding whether to grant requests for a fee waiver or reduction, 
contradicts the plain language of FOIA. The commenter asserted that 
FOIA provides that agencies do not have authority to consider 
additional factors when deciding to waive or reduce fees if the 
statutory conditions are met. Accordingly, the commenter recommended 
that Sec.  15.106(k)(5) be struck from the final rule.
    Response: Section 552(a)(4)(A)(i) of the FOIA states that, ``[i]n 
order to carry out the provisions of this section, each agency shall 
promulgate regulations . . . establishing procedures and guidelines for 
determining when such fees should be waived or reduced.'' Accordingly, 
HUD is properly exercising its statutorily granted discretion in 
establishing that it will consider additional factors in deciding 
whether to grant requests for a fee waiver or reduction. HUD therefore 
declines to remove Sec.  15.106(k)(5) from the final rule.
    Comment: Applying ``foreseeable harm'' standard for withholding. A 
commenter stated that HUD should adopt a policy of applying a 
presumption of openness in processing requests and of only withholding 
information if it reasonably foresees that disclosure would harm an 
interest protected by one of the statutory exemptions. According to the 
commenter, applying this ``foreseeable harm'' standard would help to 
ensure that HUD does not improperly withhold information. The commenter 
recommends that HUD revise Sec.  15.107 to add that ``HUD will conduct 
a foreseeable harm analysis, which clearly identifies the harm that 
would occur with disclosure.''
    Response: HUD withholds documents according to the nine FOIA 
statutory exemptions that protect various records from disclosure (see 
5 U.S.C. 552(b)), in conjunction with existing case law and publicly 
available guidance issued by the Department of Justice. When the 
request is one that appropriately raises questions of foreseeable harm, 
HUD staff analyzes the request in light of this standard. Not all 
requests require this level of review. Accordingly, HUD declines to 
amend the regulation to incorporate a standard that is not currently 
reflected in the FOIA.
    Comment: Technical amendment to source reference. A commenter 
recommended that Sec.  15.107(a) be updated to refer to the most 
current Executive order regarding classified information, which is 
Executive Order 13526, issued December 29, 2009.
    Response: HUD agrees with the commenter and updates this reference 
in the final rule.
    Comment: Avoiding frivolous claims of confidential business 
information. A commenter suggested that HUD require that submitters of 
confidential business information use good faith efforts to designate 
any information that such submitters consider exempt from disclosure 
under FOIA Exemption 4, and that HUD indicate in this final rule what 
constitutes a ``good faith effort.'' Specifically, the commenter 
suggested editing Sec.  15.108(b) to read: ``A blanket designation on 
each page of a submission that all information contained on the page is 
protected from disclosure under Exemption 4 presumptively will not be 
considered a good faith effort.''
    Response: Section 15.108(b) of the rule already requires submitters 
of business information to ``use good faith efforts to designate . . . 
any portion of its submission that it considers to be protected from 
disclosure under Exemption 4.'' Furthermore, the commenter's suggested 
language could create undue processing delays by creating the 
presumption that entire pages marked as ``business information'' are 
not marked as such in good faith. In practice, the determination of 
what constitutes a good faith effort does not hinge on the number of 
submitted pages entirely marked as ``business information.'' HUD 
therefore declines to amend this provision.
    Comment: Decreased notifications to submitters of ``business 
information.'' The commenter also suggested that in the interest of 
avoiding undue delays, HUD establish that it is unnecessary to notify 
submitters of business information if HUD determines that the claim of 
confidential business information is obviously frivolous. The commenter 
also recommended that HUD provide specific time limits, generally 5 
working days, for submitters to object to the release of submitted 
information and this proposed change be incorporated in Sec.  
15.108(e).
    Response: HUD's current policy regarding the obligation to notify 
submitters of business information is to provide all of the basic 
procedural protections that HUD is required to give submitters under 
Executive Order 12600. It currently is already HUD's practice to grant 
submitters a reasonable number of days to object to the release of 
submitted information, as is required by Executive Order 12600, and to 
require that such objections be justified. HUD therefore declines to 
amend this provision in the final rule.
    Comment: Copies of the original request and adverse determination. 
A commenter stated that requiring requesters to provide a copy of their 
original request is unnecessary and unfair because original requests 
might be difficult to locate after years pass between the time of 
submission and the appeal. The commenter added that HUD should remove 
this requirement, as well as the requirement for a copy of the adverse 
determination, from the proposed rule because many individuals do not 
have access to a scanner or a photocopier. The commenter suggested that 
HUD instead ``encourage'' appellants to provide these two copies.
    Response: Because HUD often processes multiple requests from the 
same requester, provision of a copy of the original request and of the 
original adverse determination helps HUD's reviewing staff to ensure 
that they issue accurate responses to the original concern or request. 
Requesting the submission of these copies with an appeal does not pose 
an unnecessary and unfair burden upon requesters. HUD believes that 
most requesters have several tools available to make photocopies of 
important documents, with no exceptional inconvenience to them. In 
exceptional circumstances, however, requesters might be able to obtain 
a scanned or printed copy of their original request by contacting the 
HUD FOIA office handling the request. HUD, therefore, declines to amend 
Sec.  15.110 of the proposed rule as recommended.
    Comment: Providing a longer time period to submit appeals. A 
commenter suggested that HUD provide requesters with a minimum of 60 
days to submit their administrative appeals, instead of the 30 days 
provided under the rule. The commenter added that this would provide 
requesters adequate time to gather the necessary information and to 
formulate any arguments they wish to make in the appeal.
    Response: The FOIA provides agencies discretion in setting forth 
deadlines by which requesters must file their administrative appeals of 
adverse determinations. HUD's current policy of allowing a requester 30 
days to submit an appeal is intended to ensure that FOIA requests and 
disputes are resolved as promptly as possible. Because an extension of 
this filing period would defeat this policy goal, HUD declines to amend 
this provision to, instead, grant requesters 60 days to file appeals to

[[Page 49144]]

adverse determinations as recommended.
    Comment: Electronic process for appeal submissions. A commenter 
recommended that HUD provide requesters the option to submit their 
administrative appeals by email or through the HUD Web site, as opposed 
to the current process, which requires the submission of appeals ``in 
writing to the address specified in HUD's notice responding to a FOIA 
request.''
    Response: HUD does not believe that Sec.  15.110 of the proposed 
rule (redesignated as Sec.  15.109 in this final rule) precludes the 
submission of an appeal electronically. Nevertheless, HUD has clarified 
that appeals may be submitted electronically by stating, ``If the 
letter of appeal is transmitted electronically or by a means other than 
the U.S. Postal Service, it must be received in the appropriate office 
by the close of business on the 30th calendar day after the date of 
HUD's letter of determination.'' HUD agrees with the commenter, 
however, that the public should have the option of submitting their 
appeals electronically. As a result, HUD has recently expanded its FOIA 
management system (FMS2), to accommodate the receipt of FOIA appeals 
electronically. HUD's FOIA management system includes a public access 
link that allows members of the public to submit FOIA requests 
electronically and track the status of their requests. HUD agrees that 
extending these capabilities to the submission of appeals will expedite 
the review of appeals and ensure that the public is better informed 
regarding the status of their appeals.
    Comment: Notifying requesters of dispute resolution services 
available for appeal determinations. A commenter stated that HUD should 
adopt a policy of notifying requesters of dispute resolution services 
in appeal determination letters. The commenter added that HUD should 
revise the language at Sec.  15.111(a)(2)(ii) of the proposed rule to 
add: ``HUD will provide the requester with the name and contact 
information of the Office of Government Information Services, which 
offers mediation services to resolve disputes between FOIA requesters 
and Federal agencies as a non-exclusive alternative to litigation.''
    Response: HUD has considered the commenter's suggestion and agrees 
to provide requesters notification of dispute resolution services in 
the appeal determination letters. In addition, HUD will post the 
contact information for the Office of Government Information Services 
on its FOIA Web site. See Sec.  15.110(a)(2)(iii).

IV. Findings and Certifications

Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if the 
regulation is necessary, to select the regulatory approach that 
maximizes net benefits. Because this final rule incorporates changes 
enacted by the OPEN Government Act of 2007 and otherwise updates and 
streamlines HUD's current FOIA regulation, the rule was determined to 
not be a significant regulatory action under section 3(f) of Executive 
Order 12866, Regulatory Planning and Review, and therefore was not 
reviewed by the Office of Management and Budget.

Environmental Impact

    This final rule is categorically excluded from environmental review 
under the National Environmental Policy Act (42 U.S.C. 4321). The 
revision of 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 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 establishes the process by which HUD will respond to 
requests for information under the FOIA. Costs assessed by HUD for 
search, review, and duplication required to process the information 
requested by a requester are limited by the FOIA to direct costs and 
are not economically significant. As a result, the final rule will not 
have a significant economic impact on a substantial number of small 
entities.

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 final 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

    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 on the private sector. This final rule does not impose 
any Federal mandates on any state, local, or tribal governments, or on 
the private sector, within the meaning of the 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 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

Subpart A--General Provisions

0
1. The authority for 24 CFR part 15 continues to read as follows:

    Authority:  42 U.S.C. 3535(d), 5 U.S.C. 552.


0
2. Revise subpart A to read as follows:

Subpart A--General Provisions

Sec.
15.1 General provisions.
15.2 Definitions.


Sec.  15.1  General provisions.

    (a) Scope. Requests for material from HUD will be processed as set 
forth in this part. The Federal Housing Administration and the 
Government National Mortgage Association are components of HUD and are 
also covered by this part.
    (b) Subpart B. Subpart B of this part contains the rules that HUD 
follows in processing requests for records under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552). These rules should be read 
together with the FOIA, which provides additional information about 
access to records maintained by HUD.

[[Page 49145]]

Information routinely provided to the public as part of a regular 
Department activity may be provided to the public without following 
this subpart.
    (c) Subpart C. Subpart C of this part describes the procedures to 
be followed and standards to be applied in processing demands for the 
production of material or provision of testimony in legal proceedings 
among private litigants.
    (d) Subpart D. Subpart D of this part describes the procedures to 
be followed and standards to be applied in processing demands for the 
production of material or provision of testimony in legal proceedings 
in which the United States is a party.
    (e) Inspector General. Subparts B and C of this part do not apply 
to the Office of Inspector General. The procedures that apply to the 
Office of Inspector General are described in parts 2002 and 2004 of 
this title.


Sec.  15.2  Definitions.

    (a) The following definitions apply to this part.
    Agency record means any documentary material that is either created 
or obtained by an agency in the transaction of agency business and is 
under agency control. ``Agency record'' does not include records that 
are not already in existence and which would have to be created 
specifically to meet a request.
    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 the FOIA.
    FOIA means the Freedom of Information Act (5 U.S.C. 552).
    HUD means the Department of Housing and Urban Development.
    Review means the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure 
(for example, doing all that is necessary to redact it and prepare it 
for disclosure). Review costs are recoverable even if a record 
ultimately is not disclosed. Review time includes time spent 
considering any formal objection to disclosure, made by a business 
submitter under Sec.  15.108, but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    Search means the process of looking for and retrieving records or 
information responsive to a request. It includes page-by-page or line-
by-line identification of information within records and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format.
    Secretary means the Secretary of Housing and Urban Development.
    Submitter means any person or entity that provides business 
information, directly or indirectly, to HUD. The term includes, but is 
not limited to, corporations, State governments, and foreign 
governments.
    (b) The following definitions apply to subparts C and D of this 
part.
    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 
General Counsel 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.
    Demand means a subpoena, order, or other demand of a court or other 
authority that is issued in a legal proceeding and any accompanying 
submissions.
    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.
    Good cause means necessary to prevent a miscarriage of justice or 
to promote a significant interest of the Department.
    Legal proceeding includes any proceeding before a court of law or 
other authority; e.g., an administrative board or commission, a hearing 
officer, an arbitrator, or other body conducting a quasi-judicial or 
legislative proceeding.
    Legal proceeding among private litigants means any legal proceeding 
in which the United States is not a party.
    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, any other Federal 
executive or administrative agency or department, or any official 
thereof in his official capacity.
    Material means either documents or information contained in, or 
relating to contents of, the files of the Department, or documents or 
information acquired by any person, while such person was an employee 
of the Department, as a part of the performance of his or her official 
duties or because of his or her official status.
    Production means to produce material by any means other than 
through the provision of oral testimony.
    Testimony means any oral or written statements made in litigation 
under oath or penalty of perjury.
    United States means the Federal Government of the United States 
(including the Department), the Secretary, and any employees of the 
Department in their official capacities.

0
3. Revise subpart B to read as follows:

Subpart B. Procedures for Disclosure of Records Under the FOIA

Sec.
15.101 roactive disclosures of department records.
15.102 Requirements for making requests for records.
15.103 Timing of responses to requests.
15.104 Procedures for processing FOIA requests.
15.105 Responses to requests.
15.106 Fees.
15.107 Documents generally protected from disclosure.
15.108 Business information.
15.109 Appeals.
15.110 HUD response to appeals.


Sec.  15.101  Proactive disclosures of department records.

    (a) In General. Records that are required to be made available for 
public inspection and copying are accessible on the Department's Web 
site at http://www.hud.gov/FOIA. Published agency records, whether or 
not they are available for purchase, are made available for 
examination. Each HUD office (headquarters and field) has a FOIA Public 
Liaison that can assist individuals in locating records. A list of the 
Department's FOIA Public Liaisons is available at http://www.hud.gov/FOIA.
    (b) Electronic FOIA reading room. As required by 5 U.S.C. 
552(a)(2), HUD makes records created on or after November 1, 1996, 
available through its electronic FOIA Reading Room, located on HUD's 
FOIA Web site at http://www.hud.gov/FOIA. These records include:
    (1) Final opinions and orders.
    (2) Public access to high-value, machine readable datasets via 
http://www/data/gov.
    (3) Statements of policy and interpretation, including:
    (i) HUD's Client and Information Policy Systems (HUDCLIPS);
    (ii) Housing policy;

[[Page 49146]]

    (iii) Public and Indian Housing policy and regulations;
    (iv) Public and Indian Housing policy and guidance (PHA Plans); and
    (v) Community Planning and Development policy and guidance.
    (4) Administrative staff manuals.
    (5) HUD's online library.
    (6) Fair housing information.
    (c) Frequently requested materials. HUD also makes frequently 
requested materials available on its FOIA Web site at http://www.hud.gov/FOIA. These frequently requested materials include 
information related to:
    (1) Highest-scoring funding grant applications.
    (2) Purchase charge cardholders.
    (3) FHA refunds.
    (4) FHA-approved lenders.
    (5) Homes for sale.
    (6) How to buy a HUD home.
    (7) How to apply for public housing and Section 8 housing.
    (8) Housing for the elderly.
    (9) Housing for individuals with disabilities.
    (10) HUD contracting home page.
    (11) FHA mortgage insurance programs.
    (12) HUD handbooks.
    (13) HUD programs.
    (14) HUD telephone directory.
    (15) HUD homes listing.
    (16) HUD's organization.
    (17) Multifamily housing data.
    (18) Public housing authority contact information.
    (19) Weekly listing of multifamily properties for sale.
    (20) Catalog of Federal Domestic Assistance (CFDA) materials.
    (21) Grants.
    (22) FOIA request logs.


Sec.  15.102  Requirements for making requests for records.

    (a) In general. Any request for HUD records must be made in writing 
and submitted to the FOIA Public Liaison in the HUD field office where 
the records are located or to the Office of the Executive Secretariat 
in HUD Headquarters if the request is for records located in HUD 
Headquarters.
    (b) HUD field office records. Requests for records located in a HUD 
field office may be submitted by mail (including courier or delivery 
service), email, or facsimile to the FOIA Public Liaison at the field 
office.
    (c) HUD headquarters records. Requests for records located in HUD 
Headquarters may be submitted via an electronic request form on HUD's 
FOIA Web site at http://www.hud.gov/FOIA. Requests can also be 
submitted in person or by mail (including courier or delivery service), 
email, or facsimile to the Office of the Executive Secretariat in HUD 
Headquarters.
    (d) Form of requests. FOIA requests should:
    (1) Be in writing and clearly identifiable as a FOIA request. To 
facilitate identification, the requester should place the phrase ``FOIA 
Request'' on the front of the envelope or on the cover sheet or other 
transmittal document used when submitting the request in person or by 
mail, email, facsimile, or electronic request form;
    (2) Include, whenever possible, detailed and specific information 
about each record sought, such as the date, title or name, author, 
recipient, and subject matter of the record. The more specific the FOIA 
request for records, the more likely HUD officials will be able to 
locate the records requested. Requests for categories of information 
should be for specific and well-defined categories. Insufficient 
descriptions may lead HUD officials to contact the requester to seek 
additional information for their record search;
    (3) Indicate the form or format in which the requester would like 
the record made available, if the requester has a preference;
    (4) Specify the fee amount the requester is willing to pay. In 
general, HUD provides records at no cost up to $25. Requesters are 
required to agree to pay for any costs that exceed $25. Requesters may 
also request a dollar amount above which HUD should consult with them 
before they agree to pay the fee. If a requester seeks a fee waiver or 
reduction, the requester should include this request with the FOIA 
disclosure request and should describe, consistent with Sec.  
15.106(k), how the disclosure of the requested information 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;
    (5) Indicate the fee category that the requester believes applies 
to each of his or her requests (fee categories are defined in Sec.  
15.106(b));
    (6) Include verification information of the requester's identity, 
if the requester requests agency records pertaining to the requester, a 
minor, or an individual who is legally incompetent. Information about 
what constitutes acceptable verification information can be found in 
HUD's Privacy Act regulations in 24 CFR part 16;
    (7) Contain signed authorization from the other person, if the 
requester makes a request on another person's behalf for information 
about that person. If necessary, HUD will inform the requester of the 
authorization needed from the other person and give the requester an 
opportunity to provide such authorization. Requests for information 
about another person should be accompanied by either written, notarized 
authorization or proof that the individual is deceased (for example, a 
copy of a death certificate or an obituary), or the request will be 
deemed insufficient; and
    (8) Contain a detailed explanation of the basis for the request, if 
the requester makes a request for expedited processing as provided by 
Sec.  15.104(c). The requester should also include a statement 
certifying the truth of the circumstances alleged or other evidence, 
acceptable to HUD, of the requester's compelling need.


Sec.  15.103  Timing of responses to requests.

    (a) In general. HUD will generally respond to a FOIA request within 
20 working days, depending on the size of the request. The 20-day 
period will begin on the day the request is received by the appropriate 
component of HUD, but in any event not later than 10 working days after 
the request is received by any component of HUD designated to receive 
FOIA requests.
    (b) Tolling the 20-day time period. Under the OPEN Government Act 
of 2007, HUD may toll the 20-day period:
    (1) One time to make a reasonable request for additional 
information from the requester; or
    (2) As many times as necessary to clarify issues regarding fee 
assessment with the requester. The agency's receipt of the requester's 
response to the agency's request for information or resolution of all 
fee assessment issues ends the tolling period.
    (c) Extension of time periods for processing a request. In unusual 
circumstances, as defined in this paragraph, HUD may extend the time 
period for processing a FOIA request. In such circumstances, HUD will 
provide the requester with written notice setting forth the unusual 
circumstances for the extension and the date on which a determination 
is expected to be dispatched. This date will not exceed 10 working days 
beyond the general time limit established in paragraph (a) of this 
section. If processing a request would require more than 10 working 
days beyond the general time limit established in paragraph (a) of this 
section, HUD will offer the requester an opportunity to limit the scope 
of the request so that HUD may process it within the extra 10-day 
working period or arrange an alternative time period within which the 
FOIA request will be processed. For purposes of this section, unusual 
circumstances include:

[[Page 49147]]

    (1) The need to search for and collect records not located in the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records; or
    (3) The need to consult with another agency or two or more HUD 
components having a substantial interest in the determination of the 
FOIA request.
    (d) Aggregating multiple requests. (1) HUD may aggregate multiple 
requests in cases where unusual circumstances exist and HUD determines 
that:
    (i) Certain requests from the same requester or from a group of 
requesters acting in concert actually constitute a single request; and
    (ii) The requests involve clearly related matters.
    (2) Aggregation of requests for this purpose will be conducted 
independent of aggregation of requests for fee purposes under Sec.  
15.106(h).


Sec.  15.104  Procedures for processing FOIA requests.

    (a) In general. HUD will ordinarily respond to FOIA requests 
according to their order of receipt.
    (b) Tracking number. FOIA requests will be logged in the order that 
they are received and be assigned a tracking number. A requester should 
use the tracking number to identify his or her request when contacting 
FOIA office for any reason.
    (c) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever it is determined 
that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person primarily engaged in 
disseminating information; or
    (iii) The loss of substantial due process rights.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing should be received by 
the proper office designated to receive FOIA requests as provided in 
Sec.  15.102.
    (3) A requester who seeks expedited processing should submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. For example, a requester who makes a 
request under paragraph (c)(1)(ii) of this section, if not a full-time 
member of the news media, should establish that he or she is a person 
primarily engaged in disseminating information, though it need not be 
his or her sole occupation. A requester making a request under 
paragraph (c)(1)(ii) of this section also should establish a particular 
urgency to inform the public about the government activity involved in 
the request, beyond the public's right to know about government 
activity generally. The formality of certification may be waived as a 
matter of administrative discretion.
    (4) HUD will make a determination within 10 calendar days of 
receipt by the appropriate component of HUD, as provided in Sec.  
15.103, whether to grant or deny a request for expedited processing and 
notify the requester of HUD's determination. FOIA requests accepted for 
expedited processing will be processed as soon as practicable and on a 
priority basis.
    (d) Multitrack processing. (1) For requests that do not qualify for 
expedited processing, HUD may use two or more processing tracks by 
distinguishing between simple and complex FOIA requests based on the 
following: The time and work necessary to process the FOIA request and 
the volume of agency records responsive to the FOIA request.
    (2) When HUD uses multitrack processing, it may provide requesters 
in its slower track an opportunity to limit the scope of their requests 
in order to qualify for faster processing within the specified limits 
of HUD's faster track. When HUD chooses to provide this option, HUD 
will contact the requester by telephone, letter, or email, whichever is 
more efficient in each case.


Sec.  15.105  Responses to requests.

    (a) Acknowledgements of requests. The FOIA office in the Office of 
the Executive Secretariat in HUD Headquarters and FOIA Public Liaison 
in each HUD field office will ordinarily send an acknowledgement letter 
to the requester that will confirm receipt of the request by the 
appropriate HUD office and provide an assigned tracking number, as 
provided by Sec.  15.104(b), for further reference.
    (b) Consultations, coordination, and referrals. When HUD receives a 
request for a record in its possession, it shall determine whether 
another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under the FOIA or whether 
it should be disclosed as a matter of administrative discretion. If HUD 
determines that it is best able to determine whether the record is 
exempt from disclosure, then it shall do so. If HUD determines that it 
is not best able to make that determination, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the agency best able to determine whether to disclose it and with 
any other agency that has a substantial interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the agency that originated the record, but 
only if that agency is subject to the FOIA. Ordinarily, the agency with 
which the record originated will be presumed to be best able to 
determine whether to disclose it.
    (c) Fee estimates. HUD will notify the requester if HUD's estimate 
of the fee is more than the requester has agreed to pay. Consistent 
with Sec.  15.106(e), the requester shall have 15 working days to agree 
to pay the higher fee.
    (d) Forms of response. (1) Granting requests in whole or in part. 
Once HUD makes a determination to grant a request in whole or in part, 
it will notify the requester in writing. HUD will make a record 
available in the form or format requested, if the record is readily 
reproducible in that format. HUD will inform the requester in the 
notice of any fee charged under Sec.  15.106 and disclose records to 
the requester promptly upon payment of any applicable fee. Records 
disclosed in part will be marked or annotated to show the amount of 
information deleted and the exemption(s) under which each deletion is 
made, unless doing so would harm an interest protected by an applicable 
FOIA exemption. The location of the information deleted and the 
exemption(s) under which the deletion is made will be indicated 
directly on the record itself, if technically feasible.
    (2) Adverse determination of requests. If a determination is made 
to deny a request in any respect, HUD shall notify the requester of 
that determination in writing. Adverse determinations, or denials of 
requests, include: A determination to withhold any requested record, in 
whole or in part; a determination that a requested record does not 
exist, cannot be located, or has not been retained; a determination 
that a record is not readily reproducible in the form or format sought 
by the requester; a determination that what has been requested is not a 
record subject to the FOIA; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver or reduction; and a 
denial of a request for expedited treatment. The denial letter shall be 
signed by the Director of the Office of the Executive Secretariat, or a

[[Page 49148]]

designee of the Director, in HUD Headquarters or the FOIA Public 
Liaison for the HUD field office where the adverse determination was 
made, and shall include:
    (i) The name and title or position of the person responsible for 
the denial;
    (ii) A brief statement of the reason(s) for the denial, including 
any FOIA exemption applied by HUD in denying the request;
    (iii) An estimate of the volume of records or information withheld, 
when appropriate, in number of pages or in some other reasonable form 
of estimation. This estimate does not need to be provided if the volume 
is otherwise indicated through deletions on records disclosed in part, 
or if providing an estimate would harm an interest protected by an 
applicable exemption; and
    (iv) A statement that the denial may be appealed as provided by 
Sec.  15.109 and a description of the requirements for appeal.


Sec.  15.106  Fees.

    (a) In general. HUD will charge for processing requests under the 
FOIA in accordance with paragraph (c) of this section, except where 
fees are limited under paragraph (d) of this section or where a waiver 
or reduction of fees is granted under paragraph (k) of this section. 
HUD shall collect all applicable fees before sending copies of 
requested records to a requester. In order to resolve any fee issues 
that arise under this section, HUD may contact a requester for 
additional information. Requesters shall pay fees by check or money 
order made payable to the United States Treasury.
    (b) Definitions. For purposes of this section:
    Commercial use means a request from or on behalf of a person who 
seeks information for a use or purpose that furthers his or her 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation. HUD shall determine, whenever 
reasonably possible, the use to which a requester will put the 
requested records. When it appears that the requester will put the 
records to a commercial use, either because of the nature of the 
request itself or because HUD has reasonable cause to doubt a 
requester's stated use, HUD shall provide the requester a reasonable 
opportunity to submit further clarification.
    Direct costs means those expenses that HUD actually incurs in 
searching for and duplicating and, in the case of commercial use 
requests, reviewing records to respond to a FOIA request. Direct costs 
include, for example, the salary of the employee performing the work 
and the cost of operating computers and other electronic equipment, 
such as for mainframe computer run time. Not included in direct costs 
are overhead expenses such as the costs of space and heating or 
lighting a facility.
    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, audiovisual materials, or machine readable documentation 
(e.g., diskette), among others. HUD shall honor a requester's specified 
preference of form or format of disclosure if the record is readily 
reproducible with reasonable efforts in the requested form or format by 
the office responding to the request.
    Educational institution means:
    (i)(A) A preschool;
    (B) A public or private elementary or secondary school;
    (C) An institution of graduate higher education;
    (D) An institution of undergraduate higher education;
    (E) An institution of professional education; or
    (F) An institution of vocational education, that primarily (or 
solely) operates a program or programs of scholarly research.
    (ii) To be in this category, a requester should show that the 
request is authorized by, and is made under the auspices of, a 
qualifying institution and that the records are not sought for a 
commercial use but are sought to further scholarly research. Records 
requested for the intention of fulfilling credit requirements are not 
considered to be sought for a scholarly purpose.
    Other requester means any requester that does not fall within the 
categories of requesters described in this section.
    Noncommercial scientific institution means an institution that is 
not operated on a ``commercial'' basis, as defined in this section, and 
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. To be in this category, a requester 
should show that the request is authorized by, and is made under the 
auspices of, a qualifying institution and that the records are not 
sought for a commercial use but are sought to further scientific 
research.
    Representative of the news media, or news media requester, means 
any person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
that work to an audience. The term news means information that is about 
current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large and publishers of periodicals that 
disseminate news and make their products available to the general 
public through a variety of means. For freelance journalists to be 
regarded as working for a news media entity, they should demonstrate a 
solid basis for expecting publication through a news media entity. A 
publication contract would be the clearest proof, but HUD will also 
look to the past publication record of a requester in making this 
determination. To be in this category a requester should not be seeking 
the requested records for a commercial use. However, a request for 
records supporting the news dissemination function of the requester 
shall not be considered to be for a commercial use.
    (c) Fees--(1) Schedule. In responding to FOIA requests, HUD will 
use the fee schedule set out in the following table, unless a waiver or 
reduction of fees has been granted under paragraph (k) of this section.

                                                FOIA Fee Schedule
----------------------------------------------------------------------------------------------------------------
                                                                              News media,
                                                                              educational
                                                                            institution, or
            Activity                     Rate           Commercial use       noncommercial      Other requester
                                                           requester          scientific
                                                                              institution
                                                                               requester
----------------------------------------------------------------------------------------------------------------
(i) Professional search.........  $13 per quarter     Applies...........  Does not apply....  Applies. No charge
                                   hour.                                                       for first 2 hours
                                                                                               of cumulative
                                                                                               search time.
(ii) Professional review........  $13 per quarter     Applies...........  Does not apply....  Does not apply.
                                   hour.

[[Page 49149]]

 
(iii) Clerical search...........  $6 per quarter      Applies...........  Does not apply....  Applies. No charge
                                   hour.                                                       for first 2 hours
                                                                                               of cumulative
                                                                                               search time.
(iv) Clerical review............  $6 per quarter      Applies...........  Does not apply....  Does not apply.
                                   hour.
(v) Programming services          Direct costs        Applies...........  Does not apply....  Applies.
 required.                         associated with
                                   search.
(vi) Duplication costs..........  $0.10 per page....  Applies...........  Applies. No charge  Applies. No charge
                                                                           for first 100       for first 100
                                                                           pages.              pages.
(vii) Duplication costs--tape,    Actual cost.......  Applies...........  Applies...........  Applies.
 CD ROM or diskette.
----------------------------------------------------------------------------------------------------------------

    (2) Search. (i) Search fees will be charged for all requests other 
than requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media, subject 
to the limitations of paragraph (d) of this section. HUD may charge for 
time spent searching even if HUD does not locate any responsive record 
or if HUD withholds the record(s) located as entirely exempt from 
disclosure.
    (ii) For each hour spent by personnel searching for requested 
records, including electronic searches that do not require new 
programming, the fees will be $13 per quarter hour for professional 
personnel and $6 per quarter hour for clerical personnel.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new program to 
locate the requested records.
    (iv) For requests requiring the retrieval of records from any 
Federal records center, certain additional costs may be incurred in 
accordance with the Transactional Billing Rate Schedule established by 
the National Archives and Records Administration.
    (3) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (d) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee will be $0.10 per page. For copies in 
digital format, HUD will charge the direct costs, including operator 
time, of producing the copy. Where paper documents must be scanned in 
order to comply with a requester's preference to receive the records in 
an electronic format, the requester shall pay the direct costs 
associated with scanning those materials. For other forms of 
duplication, HUD will charge the direct costs.
    (4) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the 
initial record review (the review done where HUD determines whether an 
exemption applies to a particular record or record portion, at the 
initial request level). No charge will be made for review at the 
administrative appeal level for an exemption already applied. However, 
records or portions of records withheld under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
whether any other exemption not previously considered applies. The cost 
of that review is chargeable where it is made necessary by such a 
change of circumstances. Fees for the review time will be $13 per 
quarter hour for professional personnel and $6 per quarter hour for 
clerical personnel.
    (d) Restrictions on charging fees. (1) No search fee will be 
charged for requests by educational institutions, noncommercial 
scientific institutions, or representatives of the news media. In 
addition, when HUD fails to comply with the applicable time limits in 
which to respond to a request and no unusual or exceptional 
circumstance, as those terms are defined by the FOIA, apply to the 
processing of the request, HUD will not charge search fees, or in the 
instances of requests from educational institutions, noncommercial 
scientific institutions, or representatives of the news media, as 
defined by paragraph (b) of this section, HUD will not charge 
duplication fees.
    (2) Search and review fees will be charged in quarter-hour 
increments. HUD will round up a quarter hour when professional and 
clerical search and review time exceeds a quarter-hour increment.
    (3) Except for requesters seeking records for a commercial use, HUD 
will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); 
and
    (ii) The first 2 hours of search (or the cost equivalent).
    (4) No fee will be charged whenever a total fee calculated under 
paragraph (c) of this section is less than HUD's cost to process the 
payment. Currently, whenever a total fee calculated is $25 or less, no 
fee will be charged.
    (e) Notice of anticipated fees in excess of $25. When HUD 
determines or estimates that the fees to be charged under this section 
will amount to more than $25, HUD will notify the requester of the 
actual or estimated amount of the fees, unless the requester has 
indicated a willingness to pay fees as high as the amount anticipated. 
If only a portion of the fee can be readily estimated, HUD shall advise 
the requester that the estimated fee may be only a portion of the total 
fee. In cases in which a requester has been notified that actual or 
estimated fees amount to more than $25, the request will be held in 
abeyance for 15 working days. Further work will not be done on that 
request until the requester has either made a firm commitment to pay 
the anticipated total fee, or has made payment in advance if the total 
fee exceeds $250. Any such agreement should be memorialized by the 
requester in writing, should indicate a given dollar amount, and should 
be received by HUD within the time period specified by HUD in its 
notice to the requester. If the requester does not provide a firm 
commitment to pay the anticipated fee within the time period specified 
by HUD, the request will be closed. A notice under this paragraph will 
offer the requester an opportunity to discuss the matter of fees with 
HUD personnel in order to reformulate the request to meet the 
requester's needs at a lower cost. HUD is not required to accept 
payments in installments.

[[Page 49150]]

    (f) Charges for other services. Although not required to provide 
special services, if HUD chooses to do so as a matter of administrative 
discretion, HUD will charge the direct costs of providing these 
services. Examples of such services include certifying that records are 
true copies, providing multiple copies of the same document, or sending 
documents by means other than ordinary mail.
    (g) Charging interest. HUD may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 
3717 and will accrue from the date of the billing until payment is 
received by HUD. HUD will follow the provisions of the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (h) Aggregating requests. If HUD reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, HUD may aggregate those requests and charge accordingly. HUD may 
presume that multiple requests of this type made within a 30-day period 
have been made in order to avoid fees. Where requests are separated by 
a longer period, HUD will aggregate them only where there is a 
reasonable basis for determining that aggregation is warranted under 
all the circumstances involved. Multiple requests involving unrelated 
matters will not be aggregated. Aggregation of requests for fee 
purposes under this paragraph will be conducted independent of 
aggregation of requests under Sec.  15.103(d).
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) and (3) of this section, HUD will not require the 
requester to make an advance payment before work is begun or continued 
on a request. Payment owed for work already completed, such as 
prepayment before copies are sent to a requester, is not an advance 
payment.
    (2) If HUD determines or estimates that a total fee to be charged 
under this section will be more than $250, it may require the requester 
to make an advance payment of an amount up to the amount of the entire 
anticipated fee before beginning to process the request, except where 
it receives a satisfactory assurance of full payment from a requester 
who has a history of prompt payment.
    (3) If a requester has previously failed to pay a properly charged 
FOIA fee to HUD within 30 days of the date of billing, before HUD 
begins to process a new request or continues to process a pending 
request from that requester, HUD will require the requester to pay the 
full amount due, plus any applicable interest, and to make an advance 
payment of the full amount of any anticipated fee. If HUD has a 
reasonable basis to believe that a requester has misrepresented his or 
her identity in order to avoid paying outstanding fees, HUD may require 
that the requester provide proof of identity.
    (4) When HUD requires advance payment, the request will be held in 
abeyance for 15 working days to allow the requester an opportunity to 
make payment in advance and/or modify the scope of the request. If the 
requester does not pay the advance payment or modify the scope of the 
request within the allotted time frame, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule in this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. Where records responsive to requests 
are maintained for distribution by agencies operating such statutorily 
based fee schedule programs, HUD will inform requesters of the contact 
information for that source.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under paragraph (c) of this section if 
HUD determines, based on all available information, that the requester 
has demonstrated the following:
    (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 government; and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
HUD will consider the following factors:
    (i) The subject of the requested records should concern 
identifiable operations or activities of the Federal Government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The disclosable portions of the requested records should be 
meaningfully informative about government operations or activities and 
``likely to contribute'' to an increased public understanding of those 
operations or activities. The disclosure of information that already is 
in the public domain, in either a duplicative or a substantially 
identical form, would not be as likely to contribute to such increased 
understanding, where nothing new would be added to the public's 
understanding.
    (iii) The disclosure should contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area and ability and intention to effectively 
convey information to the public will be considered. It will be 
presumed that a representative of the news media will satisfy this 
consideration.
    (iv) The public's understanding of the subject in question, as 
compared to the level of public understanding existing prior to the 
disclosure, should be enhanced by the disclosure to a significant 
extent. However, HUD will not make value judgments about whether 
information at issue is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
HUD will consider the following factors:
    (i) HUD will identify any commercial interest of the requester as 
defined in paragraph (b) of this section, or of any person on whose 
behalf the requester may be acting, that would be furthered by the 
requested disclosure. Requesters shall be given an opportunity in the 
administrative process to provide explanatory information regarding 
this consideration.
    (ii) A fee waiver or reduction is justified where the public 
interest standard is satisfied and that public interest is greater than 
that of any identified commercial interest in disclosure. HUD 
ordinarily will presume that where a news media requester has satisfied 
the public interest standard, the public interest will be the interest 
primarily served by disclosure to that requester. 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.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (3) of this section, insofar as 
they apply to each request. In deciding to grant waivers or reductions 
of fees, HUD will exercise its discretion to consider the cost 
effectiveness of its investment of administrative resources.

[[Page 49151]]

Sec.  15.107  Documents generally protected from disclosure.

    The FOIA contains nine exemptions (5 U.S.C. 552(b)) that authorize 
agencies to withhold various records from disclosure. With regard to 
certain types of records, HUD generally applies the exemptions as 
follows:
    (a) Classified documents. Exemption 1 (5 U.S.C. 552(b)(1)) protects 
classified national defense and foreign relations information. HUD 
seldom relies on this exception to withhold documents. However, where 
applicable, HUD will refer a request for records classified under 
Executive Order 13526 and the pertinent records 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 the existence of the information itself is classified.
    (b) Internal agency rules and practices. Exemption 2 (5 U.S.C. 
552(b)(2)) protects records relating to internal personnel rules and 
practices.
    (c) Information prohibited from disclosure by another statute. 
Exemption 3 (5 U.S.C. 552(b)(3)) protects information that is 
prohibited from disclosure by another Federal law. HUD generally will 
not disclose competitive proposals prior to contract award, competitive 
proposals that are not set forth or incorporated by reference into the 
awarded contract, (see 41 U.S.C. 4702), or, during the selection 
process, any covered selection information regarding such selection, 
either directly or indirectly (see 42 U.S.C. 3537a).
    (d) Commercial or financial information. Exemption 4 (5 U.S.C. 
552(b)(4)) protects trade secrets and commercial or financial 
information obtained from a person that is privileged and confidential. 
HUD will handle this type of information as provided by Sec.  15.108.
    (e) Certain interagency or intra-agency communications. Exemption 5 
(5 U.S.C. 552(b)(5)) protects interagency or intra-agency 
communications that are protected by legal privileges, such as the 
attorney-client privilege, attorney work-product privilege, or 
communications reflecting the agency's deliberative process.
    (f) Personal privacy. Exemption 6 (5 U.S.C. 552(b)(6)) protects 
information involving matters of personal privacy. This information may 
include personnel, medical, and similar files the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy. 
Names, addresses, telephone numbers, and email addresses of persons 
residing in public or assisted housing or of borrowers in FHA-insured 
single family mortgage transactions generally will not be disclosed.
    (g) Law enforcement records. Exemption 7 (5 U.S.C. 552(b)(7)) 
protects certain records or information compiled for law enforcement 
purposes. This exemption protects records where the production could 
reasonably be expected to interfere with enforcement proceedings; for 
example, the names of individuals who have filed fair housing 
complaints. The protection of this exemption also encompasses, but is 
not limited to, information in law enforcement files that could 
reasonably be expected to constitute an unwarranted invasion of 
personal privacy; the names of confidential informants; and techniques 
and procedures for law enforcement investigations, or guidelines for 
law enforcement investigations if such disclosure could reasonably be 
expected to risk circumvention of the law.
    (h) Supervision of financial institutions. Exemption 8 (5 U.S.C. 
552(b)(8)) protects information relating to the supervision of 
financial institutions. For purposes of Exemption 8, HUD is an ``agency 
responsible for the regulation and supervision of financial 
institutions'' for purposes of monitoring fair housing compliance.
    (i) Wells. Exemption 9 (5 U.S.C. 552(b)(9)) protects geological 
information on wells.


Sec.  15.108  Business information.

    (a) In general. Business information obtained by HUD from a 
submitter will be disclosed under the FOIA only under this section. In 
making final confidentiality determinations under this section, HUD 
relies to a large extent upon the information furnished by the affected 
business to substantiate its claim of confidentiality. HUD may be 
unable to verify the accuracy of much of the information submitted by 
the affected business. HUD will comply with Executive Order 12600 and 
follow the procedure in this section by giving notice to the affected 
business and an opportunity for the business to present evidence of its 
confidentiality claim. If HUD is sued by a requester under the FOIA for 
nondisclosure of confidential business information, HUD expects the 
affected business to cooperate to the fullest extent possible in 
defending such a decision.
    (b) Designation of business information. A submitter of business 
information will use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire 10 years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (c) Notice to submitters. HUD will provide a submitter with prompt 
written notice of a FOIA request or administrative appeal that seeks 
business information, wherever required under paragraph (d) of this 
section, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information under paragraph 
(e) of this section. The notice will either describe the business 
information requested or include copies of the requested records or 
portions of records containing the information. When notification of a 
voluminous number of submitters is required, notification may be made 
by posting or publishing the notice in a place reasonably likely to 
accomplish notification.
    (d) Where notice is required. Notice will be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) HUD has reason to believe that the information may be protected 
from disclosure under Exemption 4.
    (e) Opportunity to object to disclosure. HUD will allow a submitter 
a reasonable time to respond to the notice described in paragraph (c) 
of this section and will specify that time period within the notice. If 
a submitter has any objection to disclosure, the submitter should 
submit a detailed written statement specifying the grounds for 
withholding any portion of the information under any exemption of the 
FOIA and, in the case of Exemption 4, the submitter should show why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential. 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. In the event that a 
submitter fails to respond to the notice within the time specified, the 
submitter will be considered to have no objection to the disclosure of 
the information. Information provided by the submitter that is not 
received until after the disclosure decision has been made will not be 
considered by HUD. Information provided by a submitter under this 
paragraph may itself be subject to disclosure under the FOIA.

[[Page 49152]]

    (f) Notice of intent to disclose. HUD will consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. Whenever HUD decides to disclose 
business information over the objection of a submitter, HUD will give 
the submitter written notice, which will include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (g) Exceptions to notice requirements. The notice requirements of 
paragraphs (c) and (f) of this section will not apply if:
    (1) HUD determines that the information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public; or
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600.
    (h) Notice of a FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, HUD will 
promptly notify the submitter.
    (i) Corresponding notice to requesters. Whenever HUD provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (f) of this section, HUD will also notify the requester(s). 
Whenever a submitter files a lawsuit seeking to prevent the disclosure 
of business information, HUD will notify the requester(s).


Sec.  15.109  Appeals.

    (a) In general. A requester may appeal an adverse determination 
denying a request, in any respect, in writing. The letter of appeal 
should clearly identify the determination that is being appealed and 
the assigned tracking number. The appeal letter and envelope should be 
marked ``Freedom of Information Act Appeal'' for the quickest possible 
handling. If mailed, the requester's letter of appeal must be 
postmarked within 30 calendar days of the date of HUD's letter of 
determination. If the letter of appeal is transmitted electronically or 
by a means other than the United States Postal Service, it must be 
received in the appropriate office by the close of business on the 30th 
calendar day after the date of HUD's letter of determination.
    (b) Time frames--(1) Expedited processing. HUD will decide an 
appeal of a denial of a request to expedite processing of a FOIA 
request within 10 working days of receipt of the appeal.
    (2) All other appeals. HUD will make a determination on appeals 
within 20 working days of receipt, unless unusual circumstances require 
HUD to extend the time for an additional 10 working days.
    (3) Exceptions. An appeal ordinarily will not be acted upon if the 
subject of the appeal is simultaneously being litigated in an 
applicable Federal court.
    (c) Content of appeals. An appeal letter should include the 
following:
    (1) A copy of the original request;
    (2) A copy of the adverse determination;
    (3) A statement of facts and legal arguments supporting the appeal; 
and
    (4) Any additional information the appellant wishes to include.
    (d) When appeal is required. Before seeking a court review of HUD's 
adverse determination, a requester generally must have exhausted their 
administrative remedies.


Sec.  15.110  HUD response to appeals.

    (a) In general. (1) The appellate official will conduct a de novo 
review of the entire record and applicable law when making a decision.
    (2) The decision on the appeal will be made in writing and will be 
considered the final action of HUD.
    (i) A decision affirming an adverse determination, in whole or in 
part, will contain a statement of the reason(s) for the affirmation, 
including any FOIA exemption(s) applied, and will inform the appellant 
of the FOIA provisions for potential court review of the decision.
    (ii) If the adverse determination is modified on appeal, in whole 
or in part, a written decision will be sent to the appellant and the 
FOIA request will be reprocessed in accordance with the appeal 
decision.
    (iii) Adverse decisions will include the name and contact 
information of dispute resolution services that offer mediation 
services to resolve disputes between FOIA requesters and Federal 
agencies as a nonexclusive alternative to litigation.
    (b) Appeal of a denial of record request. Upon appeal of a denial 
of a record request, the appellate official will issue a decision that 
either:
    (1) Overturns the adverse determination, in whole or in part, and 
remands the request to the appropriate office. The requester will be 
notified of the rationale for the determination in writing. The 
original office will then reprocess the request in accordance with the 
appeal determination and respond directly to the requester; or
    (2) Affirms the adverse determination and declines to provide the 
requested records to the appellant.
    (c) Appeal of a fee determination. Upon appeal of a fee 
determination, the appellate official will issue a decision that 
either:
    (1) Waives the fee or charges the fee that the appellant requested;
    (2) Modifies the original fee charged and explains why the modified 
fee is appropriate; or
    (3) Advises the appellant that the original fee charged was 
appropriate and gives the reason behind this determination.
    (d) Appeal of a denial of expedited processing. Upon appeal of a 
denial of an expedited processing request, the appellate official will 
issue a decision that either:
    (1) Overturns the adverse determination and grants the expedited 
processing request; or
    (2) Affirms the decision to deny expedited processing.

    Date: August 7, 2015.
Nani A. Coloretti,
Deputy Secretary.
[FR Doc. 2015-20226 Filed 8-14-15; 8:45 am]
 BILLING CODE 4210-67-P