70868 Federal Register / Vol. 69, No. 234 / Tuesday, December 7, 2004 / Proposed Rules 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Part 2004

[Docket No. FR–4942–P–01; HUD–2004–

0018]] 

RIN 2508–AA14

Office of Inspector General (OIG) 

Subpoenas and Production in 

Response to Subpoenas or Demands 

of Courts or Other Authorities

AGENCY: Office of Inspector General, 

HUD.

ACTION: Proposed rule.

SUMMARY: This proposed rule would 

amend HUD’s Office of Inspector 

General’s (OIG’s) regulations to provide 

an appellate review procedure regarding 

the OIG’s responses to subpoenas issued 

to OIG employees requesting documents 

or testimony in legal proceedings where 

the OIG is not a party. The 

establishment of an appellate 

proceeding is designed to ensure both a 

thorough review process by the OIG and 

a complete opportunity for a party or 

person to take formal exception to the 

OIG’s determination.

DATES: Comment Due Date: February 7, 

2005.

ADDRESSES: Interested persons are 

invited to submit comments regarding 

this rule to the Regulations Division, 

Office of General Counsel, Room 10276, 

Department of Housing and Urban 

Development, 451 Seventh Street, SW., 

Washington, DC 20410–0500. Electronic 

comments may be submitted through 

either: 

• The Federal eRulemaking Portal at 

www.regulations.gov; or 

• The HUD electronic Web site at 

www.epa.gov/feddocket. Follow the link 

entitled ‘‘View Open HUD Dockets.’’ 

Commenters should follow the 

instructions provided on that site to 

submit comments electronically. 

Facsimile (FAX) comments are not 

acceptable. In all cases, communications 

must refer to the docket number and 

title. All comments and 

communications submitted will be 

available for public inspection and 

copying between 8 a.m. and 5 p.m. 

weekdays at the above address. Copies 

are also available for inspection and 

downloading at www.epa.gov/

feddocket.

FOR FURTHER INFORMATION CONTACT:

Bryan Saddler, Counsel to the Inspector 

General, Room 8260, Department of 

Housing and Urban Development, 451 

Seventh Street, SW., Washington, DC 

20410–4500; telephone (202) 708–1613 

(this is not a toll-free number). Persons 

with hearing or speech impairments 

may access this number through TTY by 

calling the toll-free Federal Information 

Relay Service at (800) 877–8339.

SUPPLEMENTARY INFORMATION: 

I. Background 

The regulations regarding requests of 

HUD’s Office of Inspector General (OIG) 

employees for testimony and production 

of documents are located at 24 CFR part 

2004. Under § 2004.20, no OIG 

employee may produce official records 

or provide any testimony relating to 

official information in response to a 

demand or request without the prior 

written approval of the Inspector 

General (IG) or the Counsel for Inspector 

General (Counsel). The IG has delegated 

the authority to respond to requests and 

demands for production of OIG records 

and testimony of OIG employees to the 

Counsel. 

Section 2004.21 identifies the factors 

that the OIG will consider in making 

determinations in response to requests 

for OIG documents or testimony, and 

§ 2004.25 provides that the Counsel’s 

decision is the final determination on 

demands and requests of OIG employees 

for the production of official records 

and information or testimony. 

After request or demand of documents 

or testimony, the Counsel will review 

the demand and determine whether the 

OIG employee is authorized to release 

documents or testify. The Counsel will 

notify the requester of the final 

determination and the reasons for the 

grant or denial of the request. 

II. This Proposed Rule 

As the current regulations are written, 

no review process exists for unfavorable 

decisions made by the Counsel. Once 

the Counsel makes a determination 

denying a request for documents or 

testimony, or restricting the release of 

documents or testimony, the decision is 

final. This proposed rule addresses the 

need for a review process by amending 

24 CFR part 2004 to provide for an 

appellate review process regarding the 

Counsel’s responses to subpoenas 

issued to OIG employees in legal 

proceedings where the OIG is not a 

party.

When a party or any person is 

aggrieved by the Counsel’s decision 

denying a request for documents or 

testimony, that party or person may seek 

review of the decision by filing a written 

Notice of Intention to Petition for 

Review (Notice). After filing this Notice, 

the party or person must also file a 

Petition for Review (Petition) detailing 

the issues and reasons why a review of 

the Counsel’s decision is appropriate. 

All filings must be served on the 

Counsel in accordance with § 2004.23. 

Either the Counsel or the IG will review 

the Petition, and the decision on the 

Petition will become the final decision 

of the OIG. 

If the party or person is not satisfied 

with the OIG’s decision, the party or 

person may seek judicial review. 

However, as noted in the current 

regulations, if the Counsel declines to 

approve a demand for records or 

testimony, and a court or other authority 

rules that the demand must be complied 

with regardless of OIG instructions not 

to release the material or information 

sought, the OIG employee or former OIG 

employee upon whom the demand has 

been made shall respectfully decline to 

comply with the demand. 

This rule amendment sets forth a 

review process where Counsel can 

thoroughly and timely consider the 

party’s or person’s petition prior to 

issuing a final decision on the release of 

documents or testimony. 

III. Findings and Certifications 

Information Collection Requirements 

The information collection 

requirements contained in this proposed 

rule have been submitted to the Office 

of Management and Budget (OMB) 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3520). In 

accordance with the Paperwork 

Reduction Act, an agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless the collection 

displays a currently valid OMB control 

number. 

The burden of the information 

collections in this proposed rule is 

estimated as follows:

Federal Register / Vol. 69, No. 234 / Tuesday, December 7, 2004 / Proposed Rules 70869

REPORTING AND RECORDKEEPING BURDEN

Section reference Number of 

parties 

Number of responses per 

respondent 

Estimated average time for 

requirement

(in hours) 

Estimated annual burden

(in hours) 

§ 2004.28(c) ..................................................................................................... 8 2 5 80 

In accordance with 5 CFR 

1320.8(d)(1), HUD is soliciting 

comments from members of the public 

and affected agencies concerning this 

collection of information to: 

(1) Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond; including through the 

use of appropriate automated collection 

techniques or other forms of information 

technology (e.g., permitting electronic 

submission of responses). 

Interested persons are invited to 

submit comments regarding the 

information collection requirements in 

this rule. Under the provisions of 5 CFR 

part 1320, OMB is required to make a 

decision concerning this collection of 

information between 30 and 60 days 

after today’s publication date. Therefore, 

a comment on the information 

collection requirements is best assured 

of having its full effect if OMB receives 

the comment within 30 days of today’s 

publication. This time frame does not 

affect the deadline for comments to the 

agency on the proposed rule, however. 

Comments must refer to the proposal by 

name and docket number (FR–4942–P–

01) and must be sent to:

Mark Menchik, HUD Desk Officer, 

Office of Management and Budget, 

New Executive Office Building, 

Washington, DC 20503, Fax number: 

(202) 395–6947, E-mail: Mark_D._

Menchik@omb.eop.gov;

and

Reports Liaison Officer, Office of 

Inspector General, Department of 

Housing and Urban Development, 451 

Seventh Street, SW, Room 8170, 

Washington, DC 20410–4500. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601 et seq.), generally requires 

an agency to conduct a regulatory 

flexibility analysis of any rule subject to 

notice and comment rulemaking 

requirements unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. This rule 

would provide those persons aggrieved 

by an OIG decision denying a request 

for production of documents or 

testimony the opportunity to seek 

review of the decision. This rule would 

impose no additional economic or other 

burdens. Rather, this rule provides 

small entities with the benefit of a 

review process for unfavorable OIG 

decisions. Accordingly, this proposed 

rule would not have a significant 

economic impact on a substantial 

number of small entities. Therefore, the 

undersigned certifies that this proposed 

rule will not have a significant 

economic impact on a substantial 

number of small entities, and an initial 

regulatory flexibility analysis is not 

required. Notwithstanding HUD’s 

determination that this rule will not 

have a significant economic effect on a 

substantial number of small entities, 

HUD specifically invites comments 

regarding any less burdensome 

alternatives to this rule that will meet 

HUD’s objectives as described by this 

preamble. 

Environmental Impact 

In accordance with 24 CFR 50.19(c)(1) 

of the Department’s regulations, this 

proposed rule does not direct, provide 

for assistance or loan and mortgage 

insurance for, or otherwise govern or 

regulate, real property acquisition, 

disposition, leasing, rehabilitation, 

alteration, demolition, or new 

construction, or establish, revise, or 

provide for standards for construction or 

construction materials, manufactured 

housing, or occupancy. Therefore, this 

proposed rule is categorically excluded 

from the requirements of the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.). 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (2 U.S.C. 

1531–1538) establishes requirements for 

federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments and the private 

sector. This proposed rule does not 

impose any federal mandates on any 

state, local, or tribal government or the 

private sector within the meaning of 

UMRA.

Executive Order 13132, Federalism 

Executive Order 13132 (entitled 

‘‘Federalism’’) prohibits, to the extent 

practicable and permitted by law, an 

agency from publishing any rule that 

has federalism implications and either 

imposes substantial direct compliance 

costs on state and local governments 

and is not required by statute, or the 

rule preempts state law, unless the 

agency meets the consultation and 

funding requirements of section 6 of the 

Executive Order. This rule does not 

have federalism implications and does 

not impose substantial direct 

compliance costs on state and local 

governments or preempt state law 

within the meaning of the Executive 

Order.

List of Subjects in 24 CFR Part 2004

Administrative practice and 

procedure, Courts.

For the reasons stated in the 

preamble, HUD proposes to amend 24 

CFR part 2004 as follows:

PART 2004—SUBPOENAS AND 

PRODUCTION IN RESPONSE TO 

SUBPOENAS OR DEMANDS OF 

COURTS OR OTHER AUTHORITIES 

1. The authority citation for 24 CFR 

part 2004 continues to read as follows:

Authority: Inspector General Act of 1978, 

as amended (5 U.S.C. app.) and 42 U.S.C. 

3535(d).

2. Revise § 2004.28 to read as follows:

§ 2004.28 Procedure in the event of an 

adverse ruling. 

(a) Opportunity to review adverse 

ruling. Any person aggrieved by a 

decision made by the Counsel under 

this part denying a request for 

documents or testimony, or restricting 

the release of documents or testimony, 

may seek review of that decision 

pursuant to paragraph (c) of this section. 

(b) Procedure in the event of 

conflicting court order. If the Inspector 

General or Counsel declines to approve 

a demand for records or testimony and 

a court or other authority rules that the 

70870 Federal Register / Vol. 69, No. 234 / Tuesday, December 7, 2004 / Proposed Rules 

demand must be complied with 

irrespective of the instructions from the 

OIG not to produce the material or 

disclose the information sought, the 

employee or former employee upon 

whom the demand has been made shall 

respectfully decline to comply with the 

demand, citing United States ex rel. 

Touhy v. Ragen, 340 U.S. 462 (1951). 

(c) Procedure. (1) Notice of intention 

to petition for review. A party or any 

person aggrieved by the decision made 

pursuant to this part denying or 

restricting the release of documents or 

testimony may seek review of the 

decision by filing a written Notice of 

Intention to Petition for Review (Notice) 

within five business days of the date of 

this decision. The Notice shall identify 

the petitioner, the adverse decision, and 

any dates (such as deposition, hearing, 

or court dates) that are significant to the 

party. The Notice shall be served in 

accordance with § 2004.23. 

(2) Petition for review. Within five 

business days of the filing of a Notice, 

the person or party seeking review shall 

file a Petition for Review (Petition) 

containing a clear and concise statement 

of the issues to be reviewed and the 

reasons why the review is appropriate. 

The petition shall include exceptions to 

any findings of fact or conclusions of 

law made, together with supporting 

reasons and arguments for such 

exceptions based on appropriate 

citations to such record or law as may 

exist. These reasons may be stated in 

summary form. Decisions on the 

Petition may be made by either the 

Inspector General or the Counsel and 

shall become the final decisions of the 

OIG. The Petition will be served in 

accordance with § 2004.23. 

(d) Prerequisite to judicial review.

Pursuant to Section 704 of the 

Administrative Procedure Act, 5 U.S.C. 

704, a petition to the agency for review 

of a decision made under the authority 

of this part is a prerequisite to the 

seeking of judicial review of the final 

decision.

Dated: November 3, 2004. 

Kenneth M. Donohue, Sr., 

Inspector General.

[FR Doc. 04–26769 Filed 12–6–04; 8:45 am] 

BILLING CODE 4210–78–P