[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
