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(b) Either party may seek reconsideration of the decision on the fee application in accordance with Rule 29, 24 CFR 20.10.

§ 14.340 Judicial review.

Judicial review of final departmental decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).

8 14.330 Decision.

The adjudicative officer shall issue an initial decision on the application within 30 days after completion of proceedings on the application. The decision shall include written findings and conclusions on such of the following as are relevant to the decision:

(a) The applicant's status as a prevailing party;

(b) The applicant's qualification as a party under 5 U.S.C. 504(b)(1)(B);

(c) Whether the agency's position was substantially justified;

(d) Whether special circumstances make an award unjust;

(e) Whether the applicant during the course of the proceedings engaged in conduct that unduly and unreasonably protracted the final resolution of the matter in controversy; and

(f) The amounts, if any, awarded for fees and other expenses, with reasons for any difference between the amount requested and the amount awarded. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made.

g 14.345 Payment of award.

An applicant seeking payment of an award shall submit a copy of the final decision granting the award to: Director, Office of Finance and Accounting, Room 2202, Department of Housing and Urban Development, Washington, DC 20410, with a copy to: Associate General Counsel for Equal Opportunity and Administrative Law, Room 10244, Department of Housing and Urban Develop ment, Washington, DC 20410. A statement that review of the underlying decision is not being sought in the United States courts, or that the process for seeking review of the award, if initiated, has been completed, must also be included. The agency will pay the amount awarded to the applicant within 60 days, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding.

PART 15–TESTIMONY, PRODUC

TION AND DISCLOSURE OF MATERIAL OR INFORMATION BY HUD EMPLOYEES

Subpart A-Purpose and Policy

8 14.335 Departmental review.

(a) Either the applicant or agency counsel may seek review of the initial decision on the fee application, or the Secretary (or his or her delegate, if any) may decide to review the decision on his or her own initiative, in accordance with the Department's review or appeals procedures applicable to the underlying proceeding. If neither the applicant nor agency counsel seeks review and the Secretary (or his or her delegate, if any) does not take review on his or her own initiative, the initial decision on the application shall become a final decision of the Department in the same manner as a decision in the underlying proceeding becomes final. Whether to review a decision is a matter within the discretion of the Secretary (or his or her delegate, if any). If review is taken, the Department will issue a final decision on the application or remand the application to the adjudicative officer for further proceedings.

Sec. 15.1 Definitions. 15.2 Purpose and applicability. 15.3 Statement of policy.

Subpart B-Production and Disclosure of

Records

15.11 Publication in the FEDERAL REGISTER. 15.12 Materials not published in FEDERAL

REGISTER. 15.13 Records produced upon request when

reasonably described.

Subpart C-Exemptions

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15.14 Fees. 15.15 Fees to be charged-categories of re

questers.

15.16 Review of records, aggregating re

quests and waiving or reducing fees. 15.17 Charges for interest and for unsuccess

ful searches; Utilization of Debt Collec

tion Act. 15.18 Advance payments. 15.21 Exemptions authorized by 5 U.S.C. 552.

Subpart D-[Reserved)

Subpart E-Procedures for Requesting

Access to Records

15.41 Requests for records. 15.42 Time limitations.

Subpart F-Disclosure of Records and

Refusal to Disclose

15.51 Authority to release records or copies. 15.52 Authority to deny requests for

records. 15.54 Business information.

Subpart G-Administrative Review of

Denial of Requests for Records 15.61 Administrative appeal.

Subpart A-Purpose and Policy 8 16.1 Definitions.

As used in this part. EDITORIAL NOTE: At 61 FR 5203, Feb. 9, 1996, in $ 15.1, the following introductory text was added; however, introductory text already exists.

The terms Department, Secretary, and Organizational unit are defined in 24 CFR part 5.

Act means section 552 of title 5 U.S.C., as amended by Pub. L. 90–23, 81 Stat. 54, June 5, 1967, and Pub. L. 93– 502, 88 Stat. 1561, November 21, 1974.

Person means person as defined in 5 U.S.C. 551(2) to include corporations and organizations as well as individuals.

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.

Legal proceeding includes any proceeding before a court of law or other authority, i.e., administrative board or commission, hearing officer, arbitrator or other body conducting a quasi-judicial or legislative proceeding.

Legal proceeding in which the United States is a party means any legal proceeding including as a named party the United States, the Department of Housing and Urban Development, or any other Federal executive or administrative agency or department, or any official thereof in his official capacity.

Legal proceeding among private litigants means any legal proceeding in which the United States is not a party. (40 FR 48123, Oct. 14, 1975, as amended at 52 FR 12160, Apr. 15, 1987; 60 FR 11903, Mar. 3, 1995; 61 FR 5203, Feb. 9, 1996)

Subpart H-Production in Response to Sub

penas or Demands of Courts or Other Authorities

15.71 Purpose and scope. 15.72 Production or disclosure prohibited

unless approved by the Secretary. 15.73 Procedure in the event of a demand for

production or disclosure. 15.74 Procedure in the event of an adverse

ruling.

Subpart I-Testimony of Employees of the

Department in Legal Proceedings

15.81 Purpose. 15.82 Testimony in proceedings in which the

United States is a party. 15.83 Legal proceedings among private liti

gants; general rule. 15.84 Legal proceedings among private liti

gants; subpoenas. 15.85 Legal proceedings among private liti

gants; expert or opinion testimony.

Subpart J-Processing Request for Declas

sification and Release of Classified Material

15.91 Authority for release or denial of clas

sified material. AUTHORITY: 5 U.S.C. 552; 42 U.S.C. 3535(d).

SOURCE: 40 FR 48123, Oct. 14, 1975, unless otherwise noted.

§ 15.2 Purpose and applicability.

(a) This part contains the regulations of the Department implementing 5 U.S.C. 552 and prescribing the Department's policies and procedures with respect to testimony of its employees as witnesses in legal proceedings. It informs the public about where and how the Department's records and information may be obtained from its organizational units as defined in $ 15.1(d), and about the Department's policy concerning allowing its employees to testify in legal proceedings.

(b) All subparts of part 15, other than subpart I, apply to all organizational units, except that their applicability to the Office of Inspector General is subject to the provisions of parts 2002 and 2004 of this title, and their applicability to the Office of Interstate Land Sales Registration is subject to the provisions of $1700.30 of this title. Subpart I applies to all organizational units other than the Office of Inspector General. (52 FR 12160, Apr. 15, 1987)

bility formulated and adopted by the Department; and

(e) Each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, no person shall in any manner be required to resort to or be adversely affected by any matter required to be published in the FEDERAL REGISTER and not so published. For purposes of this section, matter which is reasonably available to the class of persons affected thereby shall be deemed published in the FEDERAL REGISTER when incorporated by reference therein with the approval of the Director of the Office of the Federal Register, as provided in 1 CFR part 51.

$ 15.3 Statement of policy.

The Department's policy is one of full and responsible disclosure of its identifiable records and information consistent with such competing public interests concerning the national security, personal privacy, and obligations of confidentiality as are recognized by 5 U.S.C. 552.

Subpart B-Production and

Disclosure of Records

8 16.11 Publication in the Federal Reg.

ister. Subject to the exemptions in $ 15.21, the Department shall separately state and currently publish in the FEDERAL REGISTER for the guidance of the public:

(a) Descriptions of its central and field organization and the established places at which, the employees from whom and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(b) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applica

8 15.12 Materials not published in Fed.

eral Register. (a) Subject to the exemptions in $15.21, the Department, in accordance with this part, shall make available for public inspection and copying:

(1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(2) Statements of policy and interpretations which have been adopted by the Department and are not published in the FEDERAL REGISTER; and

(3) Administrative staff manuals and instructions to staff that affect a member of the public.

(b) To prevent a clearly unwarranted invasion of personal privacy, the Department may delete identifying details when it makes available or publishes any material. Whenever such deletions are required, the record or copy will be made available with the space formerly occupied by such identifying details left blank, and the justification for the deletion shall be explained fully in writing.

(c) The Department shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this section to be made available or published. The Department shall promptly publish quarterly and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the FEDERAL REGISTER that the publication would be unnecessary and impracticable, in which case the Department shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. 8 15.13 Records produced upon request

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when reasonably described. (a) The procedures for requesting access to records are set forth in subpart E of this part.

(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.

(c) Every effort will be made to make a record in use by the staff of the Department available when requested, and such availability will be deferred only to the extent necessary to avoid serious interference with the business of the Department.

(d) Copies of a requested record need not be furnished if the record is published in the FEDERAL REGISTER or is available for purchase from the Superintendent of Documents of the Government Printing Office. Such records may, however, be examined in one of the Department's information centers. [40 FR 48123, Oct. 14, 1975, as amended at 60 FR 11903, Mar. 3, 1995)

(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.

(d) Contract services. HUD will contract with private sector sources to locate, reproduce and disseminate records in response to FOIA requests when that is the most efficient and least costly method. When doing so, however, HUD will ensure that the ultimate cost to the requester is no greater than it would be if HUD itself had performed these tasks. In no case will HUD contract out responsibilities which the FOIA provides that HUD alone may discharge, such as determining the applicability of an exemption, or determining whether to waive or reduce fees. HUD will ensure that when documents that would be responsive to a request are maintained for distribution by agencies operating statutorybased fee schedule programs such as the National Technical Information Service, HUD will inform requesters of the steps necessary to obtain records from those sources. Information provided routinely in the normal course of business will be provided at no charge.

(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 $ 15.16(a)

Subpart C-Exemptions

$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

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.

(g) Definitions. As used in this subpart:

(1) Direct costs means those expenditures which HUD actually incurs in searching for and duplicating (and, in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.

(2) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. Such activity is distinguished from review of material in order to determine whether the material is exempt from disclosure.

(3) Duplication means the process of making a copy of a document necessary to respond to a FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others.

(4) Review means the process of examining a document located in response to a request that is for a commercial use to determine whether any portion of it may be withheld, excising portions to be withheld and otherwise preparing the document for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions. (53 FR 37547, Sept. 27, 1988, as amended at 60 FR 11903, Mar. 3, 1995)

educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. Specific levels of fees are prescribed for each of these categories:

(a) Commercial use requesters. (1) HUD will assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating records sought for commercial use. Requesters must reasonably describe the records sought. Commercial use requesters are not entitled to two hours of free search time or 100 free pages of reproduction of documents.

(2) Commercial use refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, HUD must determine the use to which a requester will put the documents requested. Moreover, where HUD has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, HUD will seek additional clarification before assigning the request to a specific category.

(b) Educational and non-commercial scientific institution requesters. (1) HUD will provide documents to educational and non-commercial scientific institutions for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought for furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commerical scientific institution) research. Requesters must reasonably describe the records sought.

(2) Educational institution means preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a

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