[Federal Register Volume 72, Number 50 (Thursday, March 15, 2007)]
[Rules and Regulations]
[Pages 12540-12543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4682]



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Part IV





Department of Housing and Urban Development





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24 CFR Part 15



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

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

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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.

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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 Sec. Sec.  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 cross-reference to time limits for HUD to respond to a FOIA 
request.
    Executive Order 13392 required Federal agencies to develop agency-
specific 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 Sec.  15.103 (which 
describes the procedures for obtaining records from HUD) and Sec.  
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 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, Sec.  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 Sec.  15.110(a)(4) by removing the word ``primarily'' 
from the definition of news media requester.
    This final rule also updates a cross-reference in Sec.  15.106(b). 
Presently, the cross-reference in Sec.  15.106(b) is to ``the time 
limit described in Sec.  15.103.'' However, time limitations are 
discussed in Sec.  15.104. Therefore, the cross-reference should be to 
time limits described in Sec.  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.

0
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

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

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


0
2. In Sec.  15.103, revise the first sentence of paragraph (c) and 
paragraph (d)(4) to read as follows:


Sec.  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 Sec.  15.110(h));
* * * * *

0
3. In Sec.  15.106, revise paragraph (a), paragraph (b) introductory 
text, and the second sentence of paragraph (b)(2) to read as follows:


Sec.  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 Sec.  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. * * *
* * * * *

0
4. Amend Sec.  15.110 as follows:
0
a. Revise paragraph (b)(4)(i);
0
b. Revise the chart captioned ``FOIA Fee Schedule'' in paragraph (c);
0
c. Revise paragraphs (h) and (i); and
0
d. In paragraph (k), remove the first three sentences and add two new 
sentences in their place to read as follows:


Sec.  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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    (c) * * *

                                                FOIA Fee Schedule
----------------------------------------------------------------------------------------------------------------
                                                                              News media,
                                                                              educational
            Activity                     Rate           Commercial use       research, or       Other requester
                                                           requester          scientific
                                                                          research requester
----------------------------------------------------------------------------------------------------------------
(1) Professional search.........  Actual salary rate  Applies...........  Does not apply....  Applies. No charge
                                   of employee                                                 for first two
                                   involved, plus 16                                           hours of
                                   percent of salary                                           cumulative search
                                   rate.                                                       time.
(2) Professional review.........  Actual salary rate  Applies...........  Does not apply....  Does not apply.
                                   of employee
                                   involved, plus 16
                                   percent of salary
                                   rate.
(3) Clerical search.............  Actual salary rate  Applies...........  Does not apply....  Applies. No charge
                                   of employee                                                 for first two
                                   involved, plus 16                                           hours of
                                   percent of salary                                           cumulative search
                                   rate.                                                       time.
(4) Clerical review.............  Actual salary rate  Applies...........  Does not apply....  Does not apply.
                                   of employee
                                   involved, plus 16
                                   percent of salary
                                   rate.
(5) Programming services........  $35 per hour......  Applies...........  Does not apply....  Applies.
(6) Computer run time (includes   The direct cost of  Applies...........  Does not apply....  Applies.
 only mainframe search time not    conducting the
 printing).                        search.
(7) Duplication costs...........  $0.18 per page....  Applies...........  Applies. No charge  Applies. No charge
                                                                           for first 100       for first 100
                                                                           pages.              pages.
(8) Duplication costs--tape, CD   Actual cost.......  Applies...........  Applies...........  Applies.
 ROM or diskette.
----------------------------------------------------------------------------------------------------------------

* * * * *
    (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 cost-
effectiveness of its investment of administrative resources in deciding 
whether to grant waivers or reductions of fees, in consultation with 
appropriate offices as needed. Requests for the waiver or reduction of 
fees must be submitted with the request.
    (3) When only some of the requested records satisfy the 
requirements for a waiver of fees, a waiver will be granted for only 
those records.
    (4) When a fee waiver request is denied, HUD will do no further 
work on the request until it receives an assurance

[[Page 12543]]

of payment, or an appeal of the fee waiver adverse determination is 
filed and HUD has made a final appeal determination pursuant to Sec.  
15.112.
    (i) When do I pay the fee? HUD will bill you when it responds to 
your request. You must pay within 31 calendar days. If the estimated 
fee is more than $250.00 or you have a history of failing to pay FOIA 
fees to HUD in a timely manner, HUD will ask you to remit the estimated 
amount and any past due charges before processing and sending you the 
records.
* * * * *
    (k) Contract services. HUD will contract with private sector 
sources to locate, reproduce, and disseminate records in response to 
FOIA requests when that is the most efficient and least costly method. 
HUD will ensure that the ultimate cost to the requester is no greater 
than it would be if the agency itself had performed these tasks.
    * * *

    Dated: March 7, 2007.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E7-4682 Filed 3-14-07; 8:45 am]
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