12540 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Part 15 

[Docket No. FR–5069–F–02] 

RIN 2501–AD22 

Revisions to the Public Access to HUD 

Records Under the Freedom of 

Information Act (FOIA) Regulations 

AGENCY: Office of the Secretary, HUD. 

ACTION: Final rule. 

SUMMARY: This final rule clarifies and 

explains the procedures to be followed 

by requesters seeking a waiver or a 

reduction of fees under the Freedom of 

Information Act (FOIA). This final rule 

describes the information that must be 

included in a FOIA request and the 

demonstrations that must be made in 

order for a waiver or reduction of fees 

to be granted. This final rule also revises 

the FOIA fee schedule, clarifies the time 

at which HUD will begin processing a 

FOIA request, and modifies HUD’s 

policy on the use of outside contractors 

to fulfill FOIA requests. HUD undertook 

this effort in order to make the 

regulations governing fee waivers more 

informative and helpful in accordance 

with the President’s recently issued 

Executive Order 13392, ‘‘Improving 

Agency Disclosure of Information.’’ This 

final rule also makes technical and 

conforming changes to reflect the 

realignment of FOIA correspondence 

processing functions within HUD, to 

correct HUD’s definition of 

‘‘representative of the news media 

requester’’ to ensure conformance with 

the Office of Management and Budget 

(OMB) Fee Guidelines, and to update a 

cross-reference to time limits applicable 

to HUD for responding to a FOIA 

request. This final rule follows 

publication of an October 5, 2006, 

proposed rule on which HUD received 

one public comment. 

DATES: Effective Date: April 16, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Vicky Lewis, Assistant Executive 

Secretary, Freedom of Information Act 

(FOIA) Office, Office of the Executive 

Secretariat, Office of Administration, 

Department of Housing and Urban 

Development, 451 Seventh Street, SW., 

Room 10139, Washington, DC 20410– 

5000; telephone (202) 708–3054 (this is 

not a toll-free number). Persons with 

hearing or speech impairments may 

access this number via TTY by calling 

the toll-free Federal Information Relay 

Service at 1–(800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 14, 2005, President 

Bush issued Executive Order 13392, 

entitled ‘‘Improving Agency Disclosure 

of Information,’’ which acknowledged 

the importance of participation by an 

informed citizenry in the effective 

functioning of our constitutional 

democracy. Executive Order 13392 was 

published in the Federal Register on 

December 19, 2005 (70 FR 75373). The 

Freedom of Information Act (5 U.S.C. 

552) (FOIA) provides the means by 

which the public can obtain information 

regarding federal agencies. Under FOIA, 

the public can request records from any 

agency, which the agency must provide, 

subject to certain exemptions and 

statutory exclusions. 

HUD’s regulations at 24 CFR part 15, 

entitled ‘‘Public Access to HUD Records 

under the Freedom of Information Act 

and Testimony and Production of 

Information by HUD Employees,’’ 

describe the policies and procedures 

governing public access to HUD records 

under FOIA. Those regulations describe 

how the public is to make a FOIA 

request, what must be included in the 

request, how the request will be 

processed, any applicable fees that will 

be charged, and the process for 

appealing a denial of a request or a fee 

determination. 

II. The October 5, 2006, Proposed Rule 

On October 5, 2006 (71 FR 58994), 

HUD published a proposed rule to 

respond to Executive Order 13392. This 

Executive Order has served as an 

impetus for each agency to review its 

FOIA regulations to determine whether 

its regulations are as helpful as they can 

be, especially since these regulations 

reach out to the public generally and are 

not specific to participants in particular 

government programs. HUD issued the 

proposed rule to amend HUD’s 

regulations at 24 CFR part 15 in order 

to clarify and explain the procedures to 

be followed by requesters seeking a 

waiver or reduction of fees under FOIA. 

HUD also proposed to revise the FOIA 

fee schedule, clarify the time at which 

HUD would begin processing a FOIA 

request, and modify HUD’s policy on 

the use of outside contractors to fulfill 

FOIA requests. For more detailed 

information regarding the regulatory 

changes, please refer to the preamble of 

the October 5, 2006, proposed rule. 

III. This Final Rule; Discussion of 

Public Comments Received on the 

October 5, 2006, Proposed Rule 

This final rule follows publication of 

the October 5, 2006, proposed rule. The 

public comment period on the proposed 

rule closed on December 4, 2006. HUD 

received one public comment in 

response to the proposed rule. The 

commenter expressed support for FOIA 

and for the proposed rule, and stated 

that the proposed changes would allow 

for a better and easier understanding of 

requests for fee waivers or reductions. 

HUD appreciates the commenter’s 

interest in the proposed rule. This final 

rule adopts the proposed regulatory 

changes contained in the October 5, 

2006, proposed rule without change. 

IV. Technical and Conforming Changes 

In addition to adopting the revisions 

and amendments outlined in the 

proposed rule, this final rule makes 

technical and conforming changes to 

§§ 15.103, 15.106, and 15.110 to reflect 

the realignment of HUD’s FOIA 

processing functions, to correct HUD’s 

definition of ‘‘representative of the news 

media requester,’’ and to update a crossreference to time limits for HUD to 

respond to a FOIA request. 

Executive Order 13392 required 

Federal agencies to develop agencyspecific plans to ensure the efficient and 

timely administration of FOIA requests. 

Such plans were to include specific 

activities that the agency would 

implement to eliminate or reduce the 

agency’s FOIA backlog, and activities 

that would increase public awareness of 

the agency’s FOIA processing. HUD 

submitted its plan to OMB and the 

Attorney General on June 14, 2006. (See 

http://www.hud.gov/offices/ogc/foia/ 

hudfoiaplanfinal.pdf.) An integral part 

of HUD’s plan is the realignment of 

FOIA processing functions from the 

Office of General Counsel to the Office 

of the Executive Secretariat in the Office 

of Administration. The realignment of 

FOIA processing functions will improve 

the efficiency and consistency of HUD’s 

FOIA operations. This final rule updates 

HUD’s FOIA regulations at § 15.103 

(which describes the procedures for 

obtaining records from HUD) and 

§ 15.106 (which describes how HUD 

will respond to requests for records) by 

replacing outdated references to the 

Office of General Counsel with 

references to the Office of 

Administration. 

In addition to the conforming changes 

described above, HUD has also taken the 

opportunity afforded by this final rule to 

correct two technical errors in its FOIA 

regulations. Section 552(a)(4)(A)(i) of 

FOIA requires federal agencies to 

conform their fee schedules to the 

uniform schedule of fees developed by 

the Office of Management and Budget 

(OMB). (See ‘‘Uniform Freedom of 

Information Act Fee Schedule and 

Guidelines’’ published by OMB in the 


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Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 12541 

Federal Register on March 27, 1987 (52 

FR 10012)). HUD’s definition of 

‘‘representative of the news media 

requester’’ is not in conformance with 

the OMB uniform fee guidelines. 

Specifically, § 15.110(a)(4) defines a 

representative of a news media 

requester as someone who gathers news 

for an entity that is ‘‘primarily’’

organized and operated to publish or 

broadcast news to the public. The OMB 

uniform guidelines, however, do not use 

the word ‘‘primarily’’ in the 

corresponding definition. (See 52 FR 

10018). This final rule makes the 

necessary correction to § 15.110(a)(4) by 

removing the word ‘‘primarily’’ from the 

definition of news media requester. 

This final rule also updates a crossreference in § 15.106(b). Presently, the 

cross-reference in § 15.106(b) is to ‘‘the 

time limit described in § 15.103.’’

However, time limitations are discussed 

in § 15.104. Therefore, the crossreference should be to time limits 

described in § 15.104. 

V. Findings and Certifications 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

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

an agency to conduct a regulatory 

flexibility analysis of any rule subject to 

notice and comment rulemaking 

requirements unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. The regulatory 

amendments made by this final rule are 

procedural and explanatory in nature. 

The FOIA statute establishes criteria by 

which waivers of fees or reduction of 

fees may be obtained for a FOIA request. 

Furthermore, the fees charged under 

this rule are limited by FOIA to direct 

costs of searching for, reviewing, and 

duplicating the records processed for 

requesters and are not economically 

significant. 

Accordingly, the undersigned certifies 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Environmental Impact 

This final rule does not direct, 

provide for assistance or loan and 

mortgage insurance for, or otherwise 

govern or regulate, real property 

acquisition, disposition, leasing, 

rehabilitation, alteration, demolition, or 

new construction, or establish, revise, or 

provide for standards for construction or 

construction materials, manufactured 

housing, or occupancy. Accordingly, 

under 24 CFR 50.19(c)(1), this final rule 

is categorically excluded from the 

requirements of the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.). 

Executive Order 13132, Federalism 

Executive Order 13132 (entitled 

‘‘Federalism’’) prohibits an agency from 

publishing any rule that has federalism 

implications if the rule either imposes 

substantial direct compliance costs on 

state and local governments and is not 

required by statute, or the rule preempts 

state law, unless the agency meets the 

consultation and funding requirements 

of section 6 of the Executive Order. This 

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 Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C.1531–1538) 

(UMRA) establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments, and on the 

private sector. This final rule does not 

impose any Federal mandates on any 

State, local, or tribal governments, or on 

the private sector, within the meaning of 

UMRA. 

List of Subjects in 24 CFR Part 15 

Classified information, Courts, 

Freedom of information, Government 

employees, Reporting and 

recordkeeping requirements. 

■ Accordingly, for the reasons discussed 

in the preamble, HUD amends 24 CFR 

part 15 to read as follows: 

PART 15—PUBLIC ACCESS TO HUD 

RECORDS UNDER THE FREEDOM OF 

INFORMATION ACT AND TESTIMONY 

AND PRODUCTION OF INFORMATION 

BY HUD EMPLOYEES 

■ 1. The authority citation for part 15 

continues to read as follows: 

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

■ 2. In § 15.103, revise the first sentence 

of paragraph (c) and paragraph (d)(4) to 

read as follows: 

§ 15.103 How can I get other records from 

HUD? 

* * * * * 

(c) Records located in HUD 

headquarters. If you are submitting a 

request for records located in HUD 

Headquarters, you should deliver or 

mail your request to the FOIA Office, 

Office of the Executive Secretariat in the 

Office of Administration. * * * 

(d) * * * 

(4) State your agreement to pay the 

fee. You may specify a dollar amount 

above which you want HUD to consult 

with you before you will agree to pay 

the fee. If you are seeking a waiver or 

reduction of fees, you must include 

such a request at the same time as your 

request for disclosure, and you must 

describe how the disclosure of the 

requested information is in the public 

interest and not primarily in the 

commercial interest of the requester (see 

§ 15.110(h)); 

* * * * * 

■ 3. In § 15.106, revise paragraph (a), 

paragraph (b) introductory text, and the 

second sentence of paragraph (b)(2) to 

read as follows: 

§ 15.106 How will HUD respond to my 

request? 

(a) Who will respond to my request? 

(1) The FOIA Office of the Office of the 

Executive Secretariat in the Office of 

Administration in HUD Headquarters 

and the FOIA liaisons in each HUD 

Field Office are authorized to release 

copies of any HUD records unless 

disclosure is clearly not appropriate 

under FOIA. 

(2) The FOIA Office of the Office of 

the Executive Secretariat in the Office of 

Administration in HUD Headquarters 

and the FOIA liaisons in each HUD 

Field Office may deny a request for a 

record in accordance with the 

provisions of FOIA and this part. 

(b) What type of response will I 

receive? Within the time limit described 

in § 15.104, HUD will either: 

* * * * * 

(2) * * *Any denial or partial denial 

of a requested record must be concurred 

in by the FOIA Office of the Office of 

the Executive Secretariat in the Office of 

Administration in HUD Headquarters, 

by counsel in the Field Offices, or by 

counsel in HUD’s Departmental 

Enforcement Center Satellite Offices. 

* * * 

* * * * * 

■ 4. Amend § 15.110 as follows: 

■ a. Revise paragraph (b)(4)(i); 

■ b. Revise the chart captioned ‘‘FOIA 

Fee Schedule’’ in paragraph (c); 

■ c. Revise paragraphs (h) and (i); and 

■ d. In paragraph (k), remove the first 

three sentences and add two new 

sentences in their place to read as 

follows: 

§ 15.110 What fees will HUD charge? 

* * * * * 

(b) * * * 

(4) * * * 

(i) You are a representative of the 

news media requester if you actively 

gather news for an entity that is 

organized and operated to publish or 

broadcast news to the public. 

* * * * * 


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12542 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 

(c) * * * 

FOIA FEE SCHEDULE

Activity Rate Commercial use requester 

News media, educational 

research, or scientific research requester Other requester 

(1) Professional search ..... Actual salary rate of employee involved, plus 16 

percent of salary rate.

Applies .............................. Does not apply .................. Applies. No charge for first 

two hours of cumulative 

search time. 

(2) Professional review ...... Actual salary rate of employee involved, plus 16 

percent of salary rate.

Applies .............................. Does not apply .................. Does not apply. 

(3) Clerical search ............. Actual salary rate of employee involved, plus 16 

percent of salary rate.

Applies .............................. Does not apply .................. Applies. No charge for first 

two hours of cumulative 

search time. 

(4) Clerical review ............. Actual salary rate of employee involved, plus 16 

percent of salary rate.

Applies .............................. Does not apply .................. Does not apply. 

(5) Programming services $35 per hour ..................... Applies .............................. Does not apply .................. Applies. 

(6) Computer run time (includes only mainframe 

search time not printing).

The direct cost of conducting the search.Applies .............................. Does not apply .................. Applies. 

(7) Duplication costs .......... $0.18 per page .................. Applies .............................. Applies. No charge for first 

100 pages.

Applies. No charge for first 

100 pages. 

(8) Duplication costs— 

tape, CD ROM or diskette.

Actual cost ........................ Applies .............................. Applies .............................. Applies. 

* * * * * 

(h) Waiver or reduction of fees in the 

public interest. If HUD determines that 

disclosure of the information you seek 

is in the public interest because it is 

likely to contribute significantly to 

public understanding of the operations 

or activities of the Federal Government, 

and that you are not seeking the 

information primarily for your own 

commercial interests, HUD may waive 

or reduce the fee. 

(1) In order to qualify for a waiver or 

a reduction of fees, a requester must 

make the following demonstrations in 

the FOIA request: 

(i) Disclosure of the requested 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

Federal Government. 

(A) The subject of the request pertains 

to the operations or activities of the 

Federal Government. Requesters must 

be seeking documents and records that 

contain information regarding 

identifiable operations or activities of 

the Federal Government. The 

connection between the content of the 

records and Federal governmental 

operations or activities must be direct 

and clear. 

(B) The informative value of the 

information to be disclosed is 

consequential. The disclosable portions 

of the requested records must be 

meaningfully informative about Federal 

Governmental operations or activities in 

order to be ‘‘likely to contribute’’ to an 

increased public understanding of those 

operations or activities. The disclosure 

of information that is already in the 

public domain, in either a duplicative or 

substantially identical form, would not 

be as likely to contribute to the public’s 

understanding of Federal governmental 

operations or activities. 

(C) The disclosure is likely to 

contribute to an understanding of the 

subject by the public. The disclosure 

must contribute to the understanding of 

a reasonably broad audience of persons 

interested in the subject, as opposed to 

the individual understanding of the 

requester, in order to provide a great 

benefit to the public at large. A 

requester’s expertise in the subject area 

and ability and intention to effectively 

convey the information will be 

considered. 

(D) The contribution to public 

understanding is significant. The 

public’s understanding of the subject in 

question, as compared to the level of 

public understanding existing prior to 

the disclosure, must be enhanced by the 

disclosure to a substantial degree. HUD 

will not make value judgments about 

whether the information to be disclosed 

is worthy or important enough to be 

made public, but rather whether it 

would contribute substantially to public 

understanding of the operations or 

activities of the government. 

(ii) Disclosure of the information is 

not primarily in the commercial interest 

of the requester. 

(A) The existence and magnitude of a 

commercial interest. The requester must 

describe and explain any commercial 

interest that would be furthered by the 

requested disclosure, whether 

personally benefiting the requester or 

any person on whose behalf the 

requester may be acting. See the 

definition of a ‘‘commercial use 

requester’’ in paragraph (b)(1) of this 

section for further explanation. 

(B) Primary interest in disclosure. A 

fee waiver or reduction in fees is 

justified where the requester has 

demonstrated that the public interest in 

disclosure is greater in magnitude than 

that of any identified commercial 

interest in disclosure. However, 

disclosure to data brokers or others who 

merely compile and market government 

information for direct economic return 

will not be presumed to primarily serve 

the public interest. 

(2) Requests for waivers must address 

the elements listed in paragraph (h)(1) 

of this section, insofar as they apply to 

each request. HUD will exercise its 

discretion in considering the costeffectiveness of its investment of 

administrative resources in deciding 

whether to grant waivers or reductions 

of fees, in consultation with appropriate 

offices as needed. Requests for the 

waiver or reduction of fees must be 

submitted with the request. 

(3) When only some of the requested 

records satisfy the requirements for a 

waiver of fees, a waiver will be granted 

for only those records. 

(4) When a fee waiver request is 

denied, HUD will do no further work on 

the request until it receives an assurance 


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of payment, or an appeal of the fee 

waiver adverse determination is filed 

and HUD has made a final appeal 

determination pursuant to § 15.112. 

(i) When do I pay the fee? HUD will 

bill you when it responds to your 

request. You must pay within 31 

calendar days. If the estimated fee is 

more than $250.00 or you have a history 

of failing to pay FOIA fees to HUD in 

a timely manner, HUD will ask you to 

remit the estimated amount and any 

past due charges before processing and 

sending you the records. 

* * * * * 

(k) Contract services. HUD will 

contract with private sector sources to 

locate, reproduce, and disseminate 

records in response to FOIA requests 

when that is the most efficient and least 

costly method. HUD will ensure that the 

ultimate cost to the requester is no 

greater than it would be if the agency 

itself had performed these tasks. 

* * * 

Dated: March 7, 2007. 

Roy A. Bernardi, 

Deputy Secretary. 

[FR Doc. E7–4682 Filed 3–14–07; 8:45 am] 

BILLING CODE 4210–67–P 


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