[Federal Register Volume 60, Number 42 (Friday, March 3, 1995)]
[Rules and Regulations]
[Pages 11901-11906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5274]



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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Secretary

24 CFR Part 15

[Docket R-95-1682; FR-3282-F-01]
RIN 2501-AB47


Freedom of Information Act Procedures

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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SUMMARY: This rule amends 24 CFR part 15, which implements the Freedom 
of Information Act and sets forth the procedures to be followed by the 
Department in responding to requests from the public for documents. The 
rule fashions certain in-house administrative and procedural changes in 
the processing of requests for documents and appeals from denials of 
requests for documents, and is necessary to reflect current 
organizational responsibilities of the various offices within the 
Department. The rule also implements the Department's FOIA Handbook 
procedures for notifying business submitters and affording them an 
opportunity to object to disclosure of their business information.

EFFECTIVE DATE: April 3, 1995.

FOR FURTHER INFORMATION CONTACT: Yvette Magruder, Assistant Director, 
Freedom of Information Unit, Room 10139, Department of Housing and 
Urban Development, 451 Seventh Street SW., Washington DC 20410; 
telephone (202) 708-3054, or 1-800-877-8339 (TDD). (Only the ``800'' 
TDD number is toll-free.)

SUPPLEMENTARY INFORMATION:

Justification for Final Rulemaking

    In general, the Department publishes a rule for public comment 
before issuing a rule for effect, in accordance with its own 
regulations on rulemaking in 24 CFR part 10. However, part 10 does 
provide for an exception for rules governing the Department's 
organization or its own internal practices or procedures. Because the 
provisions contained in this rule relate to the manner in which the 
Department will administer its responsibilities under the Freedom of 
Information Act and related technical amendments, notice-and-comment 
rulemaking would not benefit the public and is not required.

Background

    The Department's regulations implementing the Freedom of 
Information Act (5 U.S.C. 552) (FOIA) were published at 40 FR 48123 
(October 14, 1975), and were amended at 52 FR 12160 (April 15, 1987) 
and 53 FR 37549 (September 27, 1988). This rule is being issued to 
reflect organizational changes relating to the manner in which the 
Department administers the disclosure of public documents.
    Under Exemption 4 of the FOIA (5 U.S.C. 552(b)(4)) Federal agencies 
have a responsibility to protect sensitive business information from 
disclosure. Under Executive Order 12600 (3 CFR, 1987 Comp., p. 235), in 
meeting this responsibility agencies must notify business submitters 
that their information has been requested under the FOIA and must 
afford them an opportunity to object to disclosure of the requested 
information. By this rule, a new Sec. 15.54, updating the Department's 
current business submitter notification procedures in HUD Handbook 
1327.1 REV-1, Freedom of Information Act, is being added to title 24 of 
the Code of Federal Regulations (CFR).
    In addition, the rule updates language in Sec. 15.21 on the 
protections available for law enforcement records. The new language 
duplicates statutory language in the Freedom of Information Reform Act 
of 1986 (Pub. L. 99-570, subtitle N, approved October 27, 1986; 100 
Stat. 3207-48), which modified the terms of the exemption as provided 
in the FOIA.

Section-by-Section Analysis

    Section 15.1(f) currently defines ``information center'' as any 
place, reading room, desk, or other area or facility, established and 
maintained by the Department where the public may request and obtain 
information and records concerning the Department's operations and 
business. This rule clarifies the means by which the public may obtain 
access to those resources that are maintained in a combination of 
locations within the Department. The rule corrects any perception that 
all records are maintained in a single location within the Department.
    Section 15.13(b) currently provides that the Department will 
request records that have been stored in the National Archives or other 
record centers of the General Services Administration. This rule 
deletes reference to the General Services Administration, because the 
Federal Record Centers are now administered by the National Archives 
and Records Administration. The rule establishes that records that have 
been accessioned by the National Archives and Records Administration 
may be requested directly from the National Archives and Records 
Administration.
    Section 15.14 addresses the payment of fees for search time and the 
copying of documents. Those fees currently established in Sec. 15.14(a) 
are inadequate to defray the Government's own reasonable direct costs 
in processing requests and copying documents. Accordingly, this rule 
increases those fees. In addition, Sec. 15.14(c) currently does not 
include a separate schedule of fees for computer search time. This rule 
provides for charges to be assessed on the basis of the direct cost of 
running the computer, plus the programming cost attributable to the 
search. Section 15.14(e) places restrictions on the assessment of fees 
against noncommercial requesters. The rule simplifies those 
restrictions by eliminating confusing language. Section 15.14(f) 
currently provides that fees may be paid in cash, by check, or by money 
order. This rule removes approval of cash payments, except when a cash 
payment is made in person, and identifies to whom the fees should be 
directed.
    The changes to Sec. 15.14 will help defray the direct reasonable 
cost to the Government of compliance with the FOIA and will simplify 
fee projections for certain computer searches.
    Section 15.21 currently reflects the statutory exemptions to the 
Freedom of Information Act, with the exception of 
[[Page 11902]] Exemption 7, which was substantially amended in 1986, 
but was not previously incorporated into the Department's regulations. 
This rule incorporates statutory language with regard to Exemption 7, 
setting forth the circumstances under which the exemption may provide 
authority for withholding documents from the public.
    Section 15.31 currently establishes that the Department maintains a 
Central Information Center at its Headquarters location. This rule 
deletes the designation ``Central''; cross-references Sec. 15.1(f), 
which, as amended, describes ``Information Center'' as a combination of 
places, rather than one place within the Headquarters location; and 
updates the addresses of referenced offices.
    Section 15.32 currently authorizes the Director of the Office of 
Public Affairs to designate the FOIA information officer in 
Headquarters, and requires the Director's concurrence in the selection 
by the Regional Administrator and by Directors of Field Offices of 
information officers in the Regional or Field Offices. This rule 
substitutes the Director, Office of the Executive Secretariat, for 
Director, Office of Public Affairs, and eliminates the requirement for 
the Director's concurrence in the Secretary's Representatives' 
designees, or designees of the State or Area Coordinators.
    Section 15.33 currently provides, in paragraph (a)(6), that the 
Central Information Center shall contain or have ready access to an 
index of all Departmental regulations, opinions and adjudicated orders, 
staff and program manuals, and precedential interpretations. This rule 
deletes the reference to a ``Central'' information center, to provide 
consistency with Secs. 15.1(f) and 15.31, as amended; provides that the 
enumerated records are available in a compilation of indices rather 
than in a single index; and eliminates other obsolete or unnecessary 
references. Thus, the rule corrects any public perception that the 
Department maintains a single index containing all records required by 
the FOIA to be made available to the public, and simplifies the 
regulatory language.
    Section 15.41 clarifies the parameters for the Department's 
exercise of its discretion to require payment in advance.
    Section 15.42 currently sets forth time limits applicable to 
requests for documents and appeals from adverse determinations, and 
provides for the General Counsel to make appeal determinations and 
approve time extensions, when appropriate. This rule adds authorization 
for Field Assistant General Counsel to make appeal determinations with 
respect to denials issued by Field Offices within their geographical 
jurisdiction and to grant extensions of time, under certain 
circumstances, for the Department's response.
    Section 15.51 currently authorizes the head of each organizational 
unit within the Department to release records within his or her area of 
responsibility. This rule provides that only the Office of the 
Executive Secretariat (in Headquarters) and designated FOIA liaisons 
(in Field Offices) are authorized to release records to the public. The 
amendment consolidates the FOIA process under the supervision of a 
designated officer, which assures more consistent and prompt responses 
to FOIA requests.
    Section 15.52 concerns the authority to deny requests for records. 
To be consistent with the statutory language, this rule substitutes the 
word ``appeal'' for the word ``review'' wherever it appears in this 
section. The rule permits program counsel in Headquarters to concur in 
the denial of a request for a record and authorizes Field Assistant 
General Counsel to make appeal determinations with respect to denials 
issued by Field Offices within their geographical jurisdictions. The 
rule also requires the Department to list the documents withheld when 
they number fewer than 21. In addition, the rule eliminates language 
that terminated the authority of an officer or the officer's designee 
to release records after the officer or designee has denied the release 
of those records; therefore, reconsideration by the issuing official of 
a denial is permitted.
    Section 15.54 provides procedures for notifying a submitter when a 
FOIA request has been made for business information provided by the 
submitter. The rule provides for designation of business information by 
the submitter at the time of submission or at a reasonable time 
thereafter (see Sec. 15.54(h) (4) and (5)). The rule allows business 
submitters an opportunity to object to disclosure of their information 
and provides for notice to business submitters about the Department's 
decision to disclose the information under the FOIA.
    Section 15.61 currently provides for administrative review by the 
General Counsel of a denial of a request for a record, when requested 
in writing and addressed to the Assistant General Counsel for Training 
and Administrative Law at HUD Headquarters. To be consistent with the 
statutory language and Sec. 15.52, as amended, this rule substitutes 
the word ``appeal'' for the word ``review'' wherever it appears in this 
section. The rule also reiterates the authority, provided elsewhere in 
the rule, of the Field Assistant General Counsel to make appeal 
determinations with respect to Field Office denials of requests for 
records, and changes the official to whom appeals from decisions by 
Headquarters and by offices containing a Field Assistant General 
Counsel should be addressed.

Other Matters

Executive Order 12866

    This rule has been reviewed by the Office of Management and Budget 
under Executive Order 12866. Any changes made in the rule as a result 
of this review are identified in the docket file of the rule maintained 
by the Department and available for review at the above address.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this rule before publication and by 
approving it certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. This final 
rule merely implements certain in-house procedural changes in the 
processing of FOIA requests, and conforms regulatory language relating 
to FOIA Exemption 7 to current statutory language.

Environmental Review

    In accordance with 40 CFR 1508.4 of the regulations of the Council 
on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations, 
the policies and procedures contained in this rule relate only to 
internal administrative procedures and, therefore, are categorically 
excluded from the requirements of the National Environmental Policy 
Act.

Executive Order 12612, Federalism

    The General Counsel, as the Designated Official under section 6(a) 
of Executive Order 12612, Federalism, has determined that the policies 
contained in this rule will not have substantial direct effects on 
states or their political subdivisions, or the relationship between the 
federal government and the states, or on the distribution of power and 
responsibilities among the various levels of government. As a result, 
the rule is not subject to review under the Order. This final rule 
implements certain housekeeping provisions relating to the Department's 
regulations on the release of requested documents.

Executive Order 12606, The Family

    The General Counsel, as the Designated Official under Executive 
[[Page 11903]] Order 12606, The Family, has determined that this rule 
does not have potential for significant impact on family formation, 
maintenance, and general well-being, and, thus, is not subject to 
review under the Order. No significant change in existing HUD policies 
or programs will result from promulgation of this rule, as those 
policies and programs relate to family concerns. The final rule updates 
administrative regulations relating to the processing of requests for 
documents maintained by the Department.

Regulatory Agenda

    This rule was listed as Item No. 1731 in the Department's 
Semiannual Agenda of Regulations published on November 14, 1994 (59 FR 
57632, 57642), in accordance with Executive Order 12866 and the 
Regulatory Flexibility Act.

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, part 15 of Title 24 of the 
Code of Federal Regulations is amended as follows.

PART 15--TESTIMONY, PRODUCTION AND DISCLOSURE OF MATERIAL OR 
INFORMATION BY HUD EMPLOYEES

    1. The authority citation for part 15 is revised to read as 
follows:

    Authority: 5 U.S.C. 552; Freedom of Information Reform Act of 
1986 (Pub. L. 99-570); 42 U.S.C. 3535(d).

    2. In Sec. 15.1, the paragraph designations (a) through (i) are 
removed, and the definition for ``Information center'' is revised to 
read as follows:


Sec. 15.1  Definitions.

* * * * *
    Information center means library, reading room, desk, or other 
facility, or any combination of places established and maintained by 
the Department, where the public may request and obtain information and 
records concerning the Department's operations and business.
 * * * * *
    3. In Sec. 15.13, paragraph (b) is revised to read as follows:


Sec. 15.13  Records produced upon request when reasonably described.

* * * * *
    (b) When a request is made that reasonably describes a record of 
the Department that has been stored in a record center of the National 
Archives and Record Administration, this record will be requested from 
the Records Center by the Department and made available to the 
requester if the record would otherwise be available under this part. 
Records accessioned by the National Archives will not be made available 
by the Department, but may be requested directly from the National 
Archives.
* * * * *
    4. In Sec. 15.14, paragraphs (a), (b), (c), (e), and (f) are 
revised to read as follows:


Sec. 15.14  Fees.

    (a) Copies of records. HUD will charge $0.15 per page for 
photocopies of documents. For copies prepared by computer, HUD will 
charge the actual cost of the tape or disk plus $25.00 per minute for 
central processing unit (CPU) time, so as to recoup reasonable direct 
costs of duplicating. For other methods of reproduction or duplication 
of documents, HUD will charge the actual direct costs of producing the 
documents.
    (b) Manual searches for records. HUD will charge $16.35 per hour 
per person for searches/reviews performed by clerical staff, and $37.00 
per hour per person for searches/reviews performed by professional 
staff. Charges for search/review time will be billed in 1/2 hour 
segments.
    (c) Computer searches for records. HUD will charge $35.00 per hour 
for computer programming relating to a search, plus $25.00 per minute 
for central processing unit (CPU) time.
* * * * *
    (e) Restrictions on assessing fees. HUD will provide the first 100 
pages of duplication and the first two hours of search time, manual or 
computer, free of charge to noncommercial use requesters. There is no 
charge to noncommercial use requesters for time needed for review, as 
defined in paragraph (g)(4) of this section. Review time is chargeable 
only to commercial use requesters. HUD will only assess fees for 
amounts in excess of $25.00.
    (f) Payment of fees. Payment of fees under this section and under 
Sec. 15.16(a) shall be made by check or money order, payable to the 
Treasurer of the United States. Cash payments may be made in person at 
Headquarters or the Field Offices. The fees shall be sent to the Office 
of Executive Secretariat at Headquarters or to the appropriate Field 
Office.
* * * * *
    5. In Sec. 15.21, paragraph (a)(7) is revised to read as follows:


Sec. 15.21  Exemptions authorized by 5 U.S.C. 552.

* * * * *
    (a) * * *
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a state, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of a 
criminal investigation or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
* * * * *
    6. In section 15.31, paragraphs (a) and (b)(1) are revised and 
paragraph (b)(2) is removed and reserved, to read as follows:


Sec. 15.31  Information centers.

    (a) The Department maintains an information center as described in 
Sec. 15.1(f) at Headquarters, 451 Seventh Street SW., Washington, DC 
20410.
    (b) * * *
    (1) In each of its Secretary Representatives' Offices, as follows:

New England, Boston Office--Room 375, Thomas P. O'Neill, Jr. Federal 
Building, 10 Causeway Street, Boston, Massachusetts 02222-1092.
New York/New Jersey, New York Office--26 Federal Plaza, New York, 
New York 10278-0068.
Mid-Atlantic, Philadelphia Office--Liberty Square Building, 105 
South 7th Street, Philadelphia, Pennsylvania 19106-3392.
Southeast/Caribbean, Atlanta Office--Richard B. Russell Federal 
Building, 75 Spring Street, S.W., Atlanta, Georgia 30303-3388.
Midwest, Chicago Office--Ralph Metcalfe Federal Building, 77 West 
Jackson Boulevard, Chicago, Illinois 60604-3507. [[Page 11904]] 
Southwest, Fort Worth Office--1600 Throckmorton, P.O. Box 2905, Fort 
Worth, Texas 76113-2905.
Great Plains, Kansas City Office--Room 200, Gateway Tower II, 400 
State Avenue, Kansas City, Kansas 66101-2406.
Rocky Mountain, Denver Office--633 17th Street, Denver, Colorado 
80202-3607. Pacific/Hawaii, San Francisco Office--Philip Burton 
Federal Building & U.S. Courthouse, 450 Golden Gate Avenue, P.O. Box 
36003, San Francisco, California 94102-3448.
Northwest/Alaska, Seattle Office--Suite 200, Seattle Federal Office 
Building, 909 First Avenue, Seattle, Washington 98104-1000.

    (2) [Reserved]
* * * * *
    7. Section 15.32 is revised to read as follows:


Sec. 15.32   Information officer and FOIA liaisons.

    There shall be an information officer in Headquarters and a FOIA 
liaison in each of the information centers described in Sec. 15.31(b), 
who shall be responsible for making information and records available 
to the public in accordance with this part. The information officer in 
Headquarters shall be designated by the Director, Office of the 
Executive Secretariat. The FOIA liaisons in each Field Office shall be 
designated by the Secretary's Representative, State Coordinator, or 
Area Coordinator.
    8. In Sec. 15.33, paragraphs (a) introductory text, (a)(6), (b), 
and (c) are revised to read as follows:


Sec. 15.33   Material in department information centers.

    (a) The information center at Headquarters shall contain or have 
access to the following:
* * * * *
    (6) Current indices of the foregoing materials.
    (b) The information center in each Regional Office shall contain or 
have access to such of the above records that pertain to the activities 
of that office.
    (c) Facilities shall be available in each information center for 
the copying of available records.
    9. In Sec. 15.41, paragraph (c) is revised to read as follows:


Sec. 15.41   Requests for records.

* * * * *
    (c) The request shall be accompanied by an agreement to pay a fee 
to be determined in accordance with Sec. 15.14. Under the circumstances 
enumerated in Sec. 15.18, the Department may refuse to furnish records 
before receipt of the appropriate fee. A requester may specify a limit 
for fees, above which the requester is not willing to pay without 
advance consultation with the Department.
* * * * *
    10. Section 15.42 is revised to read as follows:


Sec. 15.42   Time limitations.

    (a) Upon receipt of a request for records, the appropriate office 
will determine within ten working days whether to comply with such 
requests. The office will either agree to provide the requested 
documents, or will notify the requester, in writing, of an adverse 
determination, the reasons therefor, and the right to appeal the denial 
to the:
    (1) General Counsel, with respect to a denial issued by the Office 
of the Executive Secretariat or by the offices in which there is a 
Field Assistant General Counsel; or
    (2) Field Assistant General Counsel, with respect to a denial 
issued by the Field Offices.
    (b) When a request for records is misdirected by the requester, the 
office receiving the request shall:
    (1) Promptly refer it to the appropriate office; and
    (2) Advise the requester that the time of receipt by the 
appropriate office will be the time of receipt for processing purposes.
    (c) A determination by the General Counsel or the Field Assistant 
General Counsel with respect to an appeal under Sec. 15.61 shall be 
made within 20 working days after receipt of the appeal, and shall be 
communicated to the appellant, in writing.
    (d) In unusual circumstances, the General Counsel, or the 
appropriate Field Assistant General Counsel, may extend the time limits 
prescribed in paragraphs (a) and (c) of this section, by written notice 
to the requester setting forth the reasons for the extension and the 
date on which a determination is expected to be dispatched. An 
extension shall not exceed ten working days. As used in this paragraph, 
unusual circumstances means that there is a need:
    (1) To search for and collect the requested records from field 
facilities or other establishments that are separate from the office 
processing the request;
    (2) To search for, collect, and examine appropriately a voluminous 
amount of separate and distinct records that are demanded in a single 
request; or
    (3) For consultation, which shall be conducted with all practicable 
speed, with another agency having a substantial interest in the 
determination of the request, or among two or more organizational units 
of the Department having a substantial interest in the subject matter 
of the request.
    11. Section 15.51 is revised to read as follows:


Sec. 15.51   Authority to release records or copies.

    The Office of the Executive Secretariat in Headquarters and the 
FOIA liaisons in each Field Office are authorized to release copies of 
any Department records upon written request unless disclosure is 
clearly not appropriate under this part.
    12. Section 15.52 is revised to read as follows:


Sec. 15.52   Authority to deny requests for records.

    The officers described in Sec. 15.51, or other official designated 
by the Secretary's Representative, may deny a request for a record only 
with the concurrence of the appropriate program counsel in Headquarters 
or counsel in the Field Offices. Any denial shall:
    (a) Be made in writing, describing the documents denied and, if 
fewer than 21, listing them specifically;
    (b) Contain a simple reason for the denial, stating the appropriate 
exemption used; and
    (c) Advise of the right to appeal the adverse determination, in 
accordance with Sec. 15.61, to the:
    (1) General Counsel, with respect to a denial issued by the Office 
of Executive Secretariat or by offices in which there is a Field 
Assistant General Counsel; and
    (2) Field Assistant General Counsel, with respect to a denial 
issued by Field Offices.
    13. A new section 15.54 is added to read as follows:


Sec. 15.54   Business information.

    (a) In general. Business information provided to the Department by 
a submitter shall not be disclosed pursuant to a FOIA request except in 
accordance with this section.
    (b) Definitions. As used in this section:
    Business information means commercial or financial information 
provided to the Department by a submitter that arguably is protected 
from disclosure under Exemption 4 (42 U.S.C. 552(b)(4)) of the Act.
    Submitter means any person or entity who provides business 
information, directly or indirectly, to the Department. The term 
includes, but is not limited to, corporations, State governments, and 
foreign governments.
    (c) Designation of business information. A submitter's claim that 
certain information is confidential or proprietary should be supported 
by a statement or certification by an officer [[Page 11905]] or 
authorized representative of the submitter that the information is, in 
fact, confidential or proprietary and has not been disclosed to the 
public. All information considered confidential or proprietary by a 
submitter should be clearly designated with a prominent stamp, typed 
legend, or other suitable form of notice, stating ``Confidential 
Treatment Requested by [insert name of submitter]'', which should 
appear on each page or segregable portion of the page. If such marking 
is impractical, a cover sheet prominently marked ``Confidential 
Treatment Requested by [insert name of submitter]'' should be securely 
attached to the information for which confidential treatment is 
requested. These designations shall be deemed to have expired 10 years 
after the date of the submission, unless the submitter requests, and 
provides reasonable justification for, a longer period of designation.
    (d) Notice to submitter. To the extent permitted by law, the 
Department shall provide a submitter with prompt written notice of a 
FOIA request or administrative appeal encompassing its business 
information, unless notice is excused under paragraph (h) of this 
section. Such notice shall afford the submitter an opportunity to 
object to disclosure pursuant to paragraph (f) of this section. The 
notice shall either describe the exact nature of the business 
information requested or provide copies of the records or portions 
thereof containing the business information. The Department will 
provide this notice whenever:
    (1) The information has been designated in good faith by the 
submitter as information deemed protected under Exemption 4; or
    (2) The Department has reason to believe that the information may 
be protected from disclosure under Exemption 4.
    (e) Notice to requester. At the same time the Department notifies 
the submitter, the Department shall also notify the requester that the 
request is subject to the provisions of this section and that the 
submitter is being afforded an opportunity to object to disclosure of 
the information.
    (f) Opportunity to object to disclosure. Through the notice 
described in paragraph (d) of this section, the Department shall afford 
a submitter or its designee 10 Federal working days to provide the 
Department a detailed written statement of the submitter's objection to 
disclosure of any portion of the information it submitted to the 
Department. Such statement shall specify all grounds for withholding 
any of the information and shall demonstrate why the information is a 
trade secret or commercial or financial information that is privileged 
or confidential. Conclusory statements that particular information 
would be useful to competitors or would impair sales, or similar 
statements, generally will not be considered sufficient to justify 
confidential treatment. Information provided by a submitter or its 
designee pursuant to this paragraph may itself be subject to disclosure 
under the FOIA.
    (g) Notice of intent to disclose. The Department shall consider 
carefully a submitter's objections and specific grounds for 
nondisclosure, before determining whether to disclose business 
information. If the Department decides to disclose business information 
over the objection of a submitter, the Department shall forward to both 
the submitter and the requester a written notice of intent to disclose. 
The written notice shall be forwarded 10 Federal working days before 
the specified disclosure date and shall include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date.
    (h) Exceptions to the notice requirement. The notice requirements 
of paragraphs (d) and (g) of this section shall not apply if:
    (1) The Department determines that the information should not be 
disclosed;
    (2) The information has been published lawfully or has been made 
available officially to the public;
    (3) Disclosure of the information is required by law (other than 
the Act);
    (4) Disclosure of the information is required by a departmental 
regulation that:
    (i) Was adopted pursuant to notice and public comment;
    (ii) Specifies narrow classes of records submitted to the 
Department that are to be released under the FOIA; and
    (iii) Provides for notice in exceptional circumstances when the 
submitter provides, at the time the information is submitted or a 
reasonable time thereafter, written justification that disclosure of 
the information could reasonably be expected to cause substantial 
competitive harm;
    (5) The information requested was not designated by the submitter 
as exempt from disclosure in accordance with paragraph (c) of this 
section at the time of the submission of the information or a 
reasonable time thereafter, unless the Department has substantial 
reason to believe that the disclosure of the information would cause 
competitive harm; or
    (6) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous. In such 
circumstances, the Department shall forward to the submitter, 10 
Federal working days before a specified disclosure date, written notice 
of any final administrative decision to disclose business information.
    (i) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information, the Department 
shall promptly notify the submitter.
    (j) Determination of confidentiality. HUD will make no 
determination as to the validity of any request for confidentiality 
until a request for disclosure of the information is received.
    (k) Current mailing address for the submitter. Each submitter shall 
provide to the Department:
    (1) A mailing address for receipt of any notices under this 
section; and
    (2) Notice of any change of address.
    (l) Treatment of confidential information by HUD employees. (1) HUD 
officers and employees shall not, directly or indirectly, use or allow 
the use of business information obtained through or in connection with 
Government employment that has not been made available to the general 
public.
    (2) Except as otherwise provided in this section, HUD officers and 
employees may not disclose business information, except to other HUD 
officers or employees who are properly entitled to such information for 
the performance of their official duties.
    14. Section 15.61 is revised to read as follows:


Sec. 15.61   Administrative appeal.

    (a) Appeal shall be available only from a written denial of a 
request issued under Sec. 15.52, and only when the appeal is filed 
within 30 days of issuance of the denial. An appeal from a denial 
issued by the Office of Executive Secretariat or by offices in which 
there is a Field Assistant General Counsel must be mailed to the 
Assistant General Counsel for Training and Administrative Law, Room 
10246, 451 Seventh Street, SW, Washington, DC, 20410. An appeal from a 
denial issued by a Field Office must be mailed to the appropriate Field 
Assistant General Counsel. An appeal must include a copy of the 
original request for records; a copy of the written denial of access to 
those records, and a statement of the reasons, circumstances, or 
arguments advanced in support of, or in opposition to, disclosure of 
the records. The [[Page 11906]] envelope containing the appeal should 
be clearly marked as a Freedom of Information Act appeal, so that the 
Department can comply with the time limitations set forth in 
Sec. 15.42.
    (b) When an appeal is misdirected by the requester, the Office 
receiving the appeal shall:
    (1) Promptly refer it to the:
    (i) Assistant General Counsel for Training and Administrative Law, 
if the denial was issued by the Office of Executive Secretariat or by 
an office in which there is a Field Assistant General Counsel, or
    (ii) Appropriate Field Assistant General Counsel, if the denial was 
issued by a Field Office; and
    (2) Advise the appellant that the time of receipt for processing 
purposes will be the time the appeal is received by the appropriate 
office.
    (c) The appeal determination shall be in writing; constitute final 
administrative action by the Department; and, if the denial is upheld 
in full or in part, include notification of the right to judicial 
review.

    Dated: December 27, 1994.
Henry G. Cisneros,
Secretary.
[FR Doc. 95-5274 Filed 3-2-95; 8:45 am]
BILLING CODE 4210-32-P