[Federal Register Volume 65, Number 112 (Friday, June 9, 2000)]
[Proposed Rules]
[Pages 36760-36765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14484]



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Part II





Department of Education





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34 CFR Part 5



The Freedom of Information Act; Proposed Rule

  Federal Register / Vol. 65, No. 112 / Friday, June 9, 2000 / Proposed 
Rules  

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DEPARTMENT OF EDUCATION

34 CFR Part 5


The Freedom of Information Act

AGENCY: Office of the Chief Information Officer, Department of 
Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the Department's regulations 
that implement the Freedom of Information Act (FOIA). These amendments 
are needed to establish new provisions implementing the Electronic 
Freedom of Information Act Amendments of 1996. The regulations have 
been streamlined and condensed, with more user-friendly language 
wherever possible.

DATES: We must receive your comments on or before July 10, 2000.

ADDRESSES: Address all comments about these proposed regulations to 
John Tressler, U.S. Department of Education, 400 Maryland Avenue, SW., 
ROB3, Room 5640, Washington, DC 20202-4110. If you prefer to send your 
comments through the Internet use the following address: 
[email protected]
    You must include the term FOIA in the subject line of your 
electronic message.

FOR FURTHER INFORMATION CONTACT: John Tressler. Telephone: (202) 708-
8900. If you use a telecommunications device for the deaf (TDD), you 
may call the Federal Information Relay Service (FIRS) at 1-800-877-
8339.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 
paragraph.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
take to reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 5640, ROB3, Seventh 
and D Streets, SW., Washington, DC, between the hours of 8:30 a.m. and 
4 p.m., Eastern time, Monday through Friday of each week except Federal 
holidays.

Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid you may call (202) 205-
8113 or (202) 260-9895. If you use a TDD, you may call the Federal 
Information Relay Service at 1-800-877-8339.

Background

    The FOIA generally provides that any person has a right, 
enforceable in court, of access to Federal agency records. However, 
some records (or portions of those records) are protected from 
disclosure by one of nine exemptions or by one of three special law 
enforcement record exclusions.
    The FOIA was amended by the Electronic Freedom of Information Act 
Amendments of 1996 (Public Law 104-231, October 2, 1996). The 
amendments provided specifically for the disclosure of electronic 
records.
    The proposed revisions of part 5 change the language and structure 
of the regulations and would implement the provisions of the Electronic 
Freedom of Information Act Amendments of 1996. The new provisions 
implementing the 1996 amendments are in Sec. 5.11(a)(4) (electronic 
reading rooms) and Sec. 5.20 (How do I make a FOIA request?). Proposed 
revisions of the Department's fee schedule are in Sec. 5.30. Other 
changes would make the regulations easier to understand.

Clarity of the Regulations

    Executive Order 12866 and the President's memorandum of June 1, 
1998 on ``Plain Language in Government Writing'' require each agency to 
write regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (e.g., 
grouping and order of sections, use of headings, paragraphing) improve 
or reduce their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec. '' and a numbered heading; for example, 
Sec. 5.30 What is the schedule of fees?
     Could the description of the proposed regulations in the 
``Supplementary Information'' section of this preamble be more helpful 
in making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    Send any comments concerning how the Department could make these 
proposed regulations easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.
    These proposed regulations involve procedural rights of individuals 
under the Freedom of Information Act. Individuals are not considered to 
be entities under the Regulatory Flexibility Act.

Paperwork Reduction Act of 1995

    These proposed regulations do not contain any information 
collection requirements.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at either of the 
following sites:

http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html

To use the PDF you must have Adobe Acrobat Reader, which is available 
free at either of the previous sites. If you have questions about using 
the PDF, call the U.S. Government Printing Office (GPO) at (202) 512-
1530 or, toll free, at 1-888-293-6498.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http:/www.access.gpo.gov/nara/index.html

(Catalog of Federal Domestic Assistance Number does not apply.)

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List of Subjects in 34 CFR Part 5

    Freedom of Information.

    Dated: June 2, 2000.
Richard W. Riley,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary proposes 
to amend title 34 of the Code of Federal Regulations by revising part 5 
to read as follows:

PART 5--THE FREEDOM OF INFORMATION ACT

Subpart A--General
Sec.
5.1   What is the purpose of these regulations?
5.2   What definitions apply?
Subpart B--Records Available to the Public
5.10   What is the Department's general policy regarding disclosure 
of agency records?
5.11   How does the Department make agency records publicly 
available?
5.12   Does the FOIA require the Department to create new records?
Subpart C--Procedures for Requesting Access to Records
5.20   How do I make a FOIA request?
5.21   What procedures does the Department follow for requests for 
business information?
5.22   Who may deny a FOIA request?
Subpart D--Fees and Charges
5.30   What is the schedule of fees?
5.31   Will I be notified of my estimated fees?
5.32   How are fee payments made?
5.33   Under what circumstances must fees be paid in advance?
5.34   What happens if fees are not paid?
5.35   Under what circumstances may fees be waived?
Subpart E--Administrative Appeals
5.40   How do I appeal the denial of a FOIA request or an adverse 
fee determination?
5.41   Who decides administrative appeals?
5.42   What is the review process for appeals?
Appendix A to Part 5--Summary of Current U.S. Department of 
Education Fees for Processing FOIA Requests

    Authority: 5 U.S.C. 552.

Subpart A--General


Sec. 5.1  What is the purpose of these regulations?

    This part contains the rules that the Department of Education 
(Department or ``we'') follows in processing requests for records under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552. These regulations 
inform you of the Department's FOIA policies and procedures.


Sec. 5.2  What definitions apply?

    As used in this part:
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
    Agency records. (1) The term means documentary materials, 
regardless of physical form or characteristics, including those in 
electronic form, made or received by the Department under Federal law 
in connection with the transaction of public business and in the 
Department's possession and control at the time a FOIA request is 
received.
    (2) These records include all documentary materials either 
preserved by the Department or appropriate for preservation as evidence 
of its organization, functions, policies, decisions, procedures and 
operations, or because of the informational value of the data contained 
in the records.
    (3) Records do not include the following:
    (i) Tangible, evidentiary objects or equipment;
    (ii) Library or museum materials made or acquired and preserved 
solely for reference or exhibition purposes;
    (iii) Extra copies of documents preserved only for convenience of 
reference; and
    (iv) Stocks of publications.
    FOIA request means a written request for agency records that 
reasonably describes the records sought, made by any individual, 
organization or business.

Subpart B--Records Available to the Public


Sec. 5.10  What is the Department's general policy regarding disclosure 
of agency records?

    The Department's policy is one of full disclosure limited only by 
the obligations of confidentiality and the administrative necessities 
recognized by the Act. Thus, the Department makes agency records 
available for public inspection and copying, subject to the exemptions 
in 5 U.S.C. 552 (b)(1)-(9). As a matter of policy, the Department makes 
discretionary disclosures of records exempt under the FOIA if it is not 
foreseeable that disclosure would harm an interest protected by the 
FOIA. This policy, however, does not create any right enforceable in 
court.


Sec. 5.11  How does the Department make agency records publicly 
available?

    (a)(1) The Department maintains a FOIA Reading Room containing a 
wide variety of agency records, including Department publications, 
whether available for purchase or not.
    (2) The FOIA Reading Room currently contains the following agency 
records:
    (i) All final opinions (including concurring and dissenting 
opinions) and all orders made in the adjudication of cases (initial 
decisions and reconsiderations in matters that are not the result of 
administrative proceedings such as hearings or formal appeals are not 
opinions and orders in the adjudication of cases).
    (ii) Those statements of policy and interpretations that have been 
adopted by the agency and are not published in the Federal Register.
    (iii) Administrative staff manuals and instructions to staff that 
affect any member of the public.
    (iv) Copies of all records that have been released to any person 
under 5 U.S.C. 552(a)(3) and that, because of the nature of their 
subject matter, the Department determines have become (or are likely to 
become) the subject of subsequent requests for substantially the same 
records.
    (v) An index of the records referred to under paragraph (a)(2)(iv) 
of this section.
    (3) The FOIA Reading Room is located at the National Library of 
Education, 400 Maryland Avenue, SW., Washington, DC, Levels B and SB, 
and is open to the public between 9 a.m. and 5 p.m., Eastern time, 
Monday through Friday, except Federal holidays.
    (4) Reading room records created after November 1, 1996 are 
available on the Department's Web site at http://www.ed.gov/offices/ocio/infocall/info9.html
    (b) The Department publishes the following records in the Federal 
Register:
    (1) Descriptions of the Department's central and field organization 
and established locations, including Department contacts and methods by 
which the public can obtain information or decisions, or make 
submissions or requests.
    (2) Statements of the general course and method the Department uses 
to channel and determine functions, including the nature and 
requirements of all formal and informal procedures available.
    (3) Rules of procedures, descriptions of forms available and 
locations where forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations.
    (4) Substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by the Department.
    (5) Every amendment, revision, or repeal of the materials described 
in paragraphs (b)(1) through (4) of this section.
    (c)(1) You may seek access to agency records not available as 
described in

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paragraphs (a) and (b) of this section by submitting a written request 
to the Department, in accordance with the procedures in Sec. 5.20.
    (2) The Department may deny access to agency records or portions of 
records under one or more of the FOIA exemptions listed at 5 U.S.C. 
552(b)(1)-(9).


Sec. 5.12  Does the FOIA require the Department to create new records?

    We are not required to create records by compiling selected items 
from the files, or by creating data such as ratios, proportions, 
percentages, per capitas, frequency distributions, trends, 
correlations, and comparisons. If these data have been compiled and are 
available as an existing agency record, we make the record available as 
provided in Sec. 5.11.

Subpart C--Procedures for Requesting Access to Records


Sec. 5.20  How do I make a FOIA request?

    (a)(1) In order to seek access to agency records you must submit 
your request in writing by one of the following methods:
    (i) U.S. mail or its equivalent to FOIA Officer, Department of 
Education, 400 Maryland Avenue, SW., Washington, DC 20202-4651.
    (ii) Fax transmitted to FOIA Officer, Department of Education at 
(202) 708-9346.
    (iii) An e-mail message submitted to [email protected].
    (2) Be sure to clearly mark your submission as a ``FOIA Request'' 
and include your name, address, and telephone number or numbers with 
your request.
    (b) Your request must reasonably describe the records sought and 
may include additional information that would assist the Department in 
locating the responsive records. In some instances, we may require you 
to submit additional information in order to clarify the nature of your 
request. In those situations, your request is not considered to be 
received for the purposes of 5 U.S.C. 552(a)(6) until we have received 
the necessary information from you.
    (c) Your request may also specify that the records be provided in a 
specific form or format. We make reasonable efforts to comply with 
those requests.
    (d) We process requests for electronic records and retrieve those 
records if retrieval can be achieved through reasonable efforts (in 
terms of both time and resources), and these efforts would not 
significantly interfere with the operation of an automated information 
system.
    (e) Your request must also indicate whether you are willing to pay 
the fees associated with processing the request or if you are seeking a 
fee waiver.
    (f) Once the office that maintains the records sought in your 
request has received your request, and you have provided us with any 
necessary clarifications, we make every reasonable effort to process 
your request within the twenty working day statutory requirement. Where 
unusual circumstances arise as defined in 5 U.S.C. 552(a)(6)(B)(iii), 
the Department may grant an extension of up to ten (10) additional 
working days.


Sec. 5.21  What procedures does the Department follow for requests for 
business information?

    (a) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Department from a submitter that may be protected from 
disclosure under 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity from whom the Department 
obtains business information, directly or indirectly. The term includes 
corporations and state, local, tribal, and foreign governments.
    (b) Designation of business information. A submitter of business 
information must use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable later 
time, any portions of its submission that it considers to be protected 
from disclosure under 5 U.S.C. 552(b)(4). These designations expire ten 
years after the date of the submission unless the submitter requests, 
and provides justification for, a longer designation period.
    (c) Notice to submitters. The Department provides a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information if required under paragraph (d) of this 
section, except as provided in paragraph (g) of this section, in order 
to give the submitter an opportunity to object to disclosure of any 
specified portion of that information under paragraph (e) of this 
section. If the Department must notify a voluminous number of 
submitters, we may post or publish the notice in a place reasonably 
likely to accomplish notification.
    (d) If notice is required. The Department notifies a submitter if--
    (1) The submitter in good faith has designated the information as 
information considered protected from disclosure under 5 U.S.C. 
552(b)(4); or
    (2) The Department has reason to believe that the information may 
be protected from disclosure under 5 U.S.C. 552(b)(4).
    (e) Opportunity to object to disclosure. We allow a submitter a 
reasonable time to respond to the notice described in paragraph (c) of 
this section and specify that time period within the notice. If a 
submitter has any objection to disclosure, it must submit a detailed 
written statement. The statement must specify all grounds for 
withholding any portion of the information under any exemption of the 
FOIA and, in the case of objecting to disclosure under 5 U.S.C. 
552(b)(4), it must show why the information is a trade secret or 
commercial or financial information that is privileged or confidential. 
If a submitter fails to respond to the notice within the time specified 
in it, the submitter may not object to disclosure of the information. 
The Department only considers information provided by the submitter 
that we receive before we make a disclosure decision. Information 
provided by a submitter under this paragraph may itself be subject to 
disclosure under the FOIA.
    (f) Notice of intent to disclose. We consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. If we decide to disclose business 
information over the objection of a submitter, we give the submitter 
written notice, which includes the following:
    (1) A statement of the reason or reasons why each of the 
submitter's disclosure objections was not sustained.
    (2) A description of the business information to be disclosed.
    (3) A specified disclosure date that is a reasonable time after the 
notice of intent to disclose.
    (g) Exceptions to notice requirements. The notice requirements of 
paragraphs (c) and (f) of this section do not apply if--
    (1) The Department determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous--except that, in such a case, 
the Department, within a reasonable time before a specified disclosure 
date, gives

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the submitter written notice of any final decision to disclose the 
information.
    (h) Notice of FOIA lawsuit. If a requester files a lawsuit seeking 
to compel the disclosure of business information, we promptly notify 
the submitter.
    (i) Corresponding notice to requesters. If we provide a submitter 
with notice and an opportunity to object to disclosure under paragraph 
(c) of this section, we also notify the requester or requesters. If we 
notify a submitter of our intent to disclose requested information 
under paragraph (f) of this section, we also notify the requester or 
requesters. If a submitter files a lawsuit seeking to prevent the 
disclosure of business information, we notify the requester or 
requesters.


Sec. 5.22  Who may deny a FOIA request?

    The Department's FOIA Officer, the Inspector General or designee, 
and the Regional FOIA Review Officers may deny a FOIA request. Denials 
of requests--
    (a) Are in writing;
    (b) Contain a statement of the reasons for the denial and 
information on how to file an appeal under subpart E of this part; and
    (c) Identify the person to whom an appeal should be submitted.

Subpart D--Fees and Charges


Sec. 5.30  What is the schedule of fees?

    (a) Fees under this part are assessed in accordance with the Office 
of Management and Budget's ``Uniform FOIA Fee Schedule and 
Guidelines,'' 52 FR 10012 (March 27, 1987), as follows:
    (1) Search for records--(i) General. We charge full search fees for 
records requested for commercial use. We do not charge a search fee for 
requests made by representatives of the news media or by educational or 
noncommercial scientific institutions whose purpose is scholarly or 
scientific research and whose request is not for commercial use. For 
any other non-commercial requests, we provide the first two hours of 
search time without charge, except as provided in paragraph (a)(1)(iii) 
of this section. We calculate and assess search fees to the nearest 
quarter hour.
    (ii) Manual search. We calculate the charge for a manual search by 
multiplying the search time (to the nearest quarter hour) by the sum of 
the basic rate of pay per hour of the employee conducting the search 
plus 16 percent of that rate.
    (iii) Computer search. The charge for a computer search is the 
actual direct cost of providing the service, including the cost of 
operating the central processing unit (CPU) for the operating time that 
is directly attributable to searching for records responsive to a FOIA 
request, and the operator's or programmer's salary apportionable to the 
search.
    (2) Review of records. If records are requested for commercial use, 
we charge fees for the initial examination of a record to determine 
whether it should be disclosed. We calculate review fees by multiplying 
the review time (to the nearest quarter hour) by the sum of the basic 
rate of pay per hour of the employee conducting the review plus 16 
percent of that rate. If you request records that are stored outside 
Washington, DC, we add the mailing and handling costs of transporting 
records for review.
    (3) Duplication of records. We do not charge a duplication fee for 
the first 100 pages, except in the case of commercial use requests. 
Duplication charges for paper copy reproduction of documents on 
photocopy machines is 15 cents per page.
    (4) Certification of records. The charge for certifying records is 
$5 per record certified.
    (5) Other. If we have not established a specific fee for a service, 
or you request a service that does not fall under one of the categories 
in paragraphs (a)(1) through (a)(4) of this section, the FOIA Officer 
may establish an appropriate fee, based on direct costs, on a case-by-
case basis.
    (b) If we award a contract for the search or duplication of records 
responsive to FOIA requests, the fees charged are the actual costs 
under the contract.
    (c) We do not charge a fee if the total amount of the fee would be 
less than $10. If the total amount of the fee is $10 or more, we charge 
applicable search and review costs even if no records are located or 
disclosed.
    (d) If the Department determines that a requester, or a group of 
requesters, is attempting to break down a request into multiple 
requests for the purpose of avoiding fee assessment, we combine the 
requests for the purposes of charging fees.


Sec. 5.31  Will I be notified of my estimated fees?

    If the estimated fees total more than $25, or more than the amount 
specified in the request if that amount exceeds $25, we--
    (a) Promptly notify you of the amount of the estimated fee or that 
portion of the fee that can readily be estimated; and
    (b) Offer you the opportunity to modify your request.


Sec. 5.32  How are fee payments made?

    You must make fee payments by personal check or bank draft drawn on 
a bank in the United States, postal money order, or credit card (once 
necessary procedures are established). You must make fee payments 
payable to the U.S. Department of Education, and mail your payment to 
the FOIA Officer, Department of Education, 400 Maryland Avenue, SW., 
Washington, DC 20202-4651. On request, we give you a receipt for fees 
paid.


Sec. 5.33  Under what circumstances must fees be paid in advance?

    (a) If the estimated fee for processing a request exceeds $250, the 
FOIA Officer--
    (1) Notifies you of anticipated fees and obtains satisfactory 
assurance of payment; or
    (2) Requires advance payment before records are released.
    (b) If you have previously failed to pay a fee, we require that the 
previous charges plus any accrued interest be paid before we process 
any subsequent requests. In addition, we require advance payment of 
estimated fees for your current request.
    (c) Requests under this part are not deemed to have been received 
for purposes of 5 U.S.C. 552(a)(6) until we receive satisfactory 
assurance of payment or advance payment.


Sec. 5.34  What happens if fees are not paid?

    If you do not pay a fee within 30 days after we send you a bill, we 
charge you interest at the rate designated at 31 U.S.C. 3717. The FOIA 
Officer may take other steps permitted by Federal debt collection 
statutes, including the use of collection agencies or disclosure to 
consumer-reporting organizations.


Sec. 5.35  Under what circumstances may fees be waived?

    (a) The FOIA provides for a fee waiver if disclosure of the 
information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial 
interest of the requester.
    (b)(1) You must apply to the FOIA Officer for a fee waiver and 
address in detail each of the factors in paragraphs (b)(2)(i) through 
(b)(2)(vi) of this section. Simply stating that the fee waiver criteria 
have been satisfied is insufficient for a fee waiver. In evaluating the 
fee waiver request, the FOIA Officer may ask for clarification or 
additional information.

[[Page 36764]]

    (2) The FOIA Officer will grant a fee waiver only if each of the 
following six fee waiver criteria have been met:
    (i) The subject of the requested records concerns the operations or 
activities of the Government.
    (ii) The disclosure is likely to contribute to an understanding of 
government operations or activities.
    (iii) The disclosure of the requested information will contribute 
to the understanding of the public at large, as opposed to an 
individual's understanding of government operations or activities.
    (iv) The disclosure is likely to contribute significantly to public 
understanding of government operations or activities.
    (v) The requester either does not have a commercial interest that 
would be furthered by the requested disclosure.
    (vi) Any commercial interest of the requester is outweighed by the 
public interest in disclosure.
    (c) You must ask for a fee waiver for each request to which the 
waiver may apply. We do not grant a standing fee waiver. We consider 
the merit of each fee waiver request.

Subpart E--Administrative Appeals


Sec. 5.40  How do I appeal the denial of a FOIA request or an adverse 
fee determination?

    (a) Appeal of denials. If we deny your FOIA request in whole or in 
part under Sec. 5.21, or when we advise you that we are unable to 
locate responsive records, you may file an appeal seeking 
administrative review of the denial, within 30 calendar days of your 
receipt of the denial letter.
    (b) Appeal of adverse fee determinations. If we issue an adverse 
fee determination, you may file an appeal seeking administrative review 
of the adverse determination, within 30 calendar days from receipt of 
the denial letter. You may appeal any of the following:
    (1) Our estimate of fees to be charged.
    (2) Our calculation of fees.
    (3) Our denial of a request for a fee waiver, in whole or in part.
    (c) Contents of an appeal letter. Your appeal must be in writing 
and must include--
    (1) Copies of the request and the denial;
    (2) A statement of all legal and factual bases for the appeal; and
    (3) Any evidence or argument you wish us to consider in deciding 
the appeal.


Sec. 5.41  Who decides administrative appeals?

    The Secretary delegates authority to serve as the Department's FOIA 
Appeals Officer to a specific position or person. We provide the name 
and address of that person to the requester in a denial issued under 
Sec. 5.21.


Sec. 5.42  What is the review process for appeals?

    (a) An appeal determination is in writing. A determination denying 
an appeal in whole or in part states the reasons for the adverse 
decision, and advises you of the right to judicial review of the 
decision.
    (b) Once the FOIA Appeals Officer has received your appeal for a 
denial of a FOIA request, we make every reasonable effort to process it 
within the twenty working day statutory requirement. Where unusual 
circumstances arise as defined in 5 U.S.C. 552(a)(6)(B)(iii), the 
Department may grant an extension of up to ten (10) additional working 
days.
    (c) Failure to comply with time limits stated in 5 U.S.C. 552(a)(6) 
constitutes an exhaustion of your administrative remedies.
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