Freedom of Information Act Procedures

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