[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Proposed Rules]
[Pages 71986-71999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28174]


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DEPARTMENT OF EDUCATION

34 CFR Part 5

RIN 1880-AA84
[Docket ID ED-2008-OM-0011]


Availability of Information to the Public

AGENCY: Office of Management, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing the 
Department's compliance with the Freedom of Information Act, as amended 
(FOIA or the Act). The proposed regulations are intended to update the 
Department's current regulations to reflect the changes in the FOIA 
over recent years.

DATES: We must receive your comments on or before December 26, 2008. 
Comments received after this date will not be considered.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
    The Department scans all first-class and priority mail using an 
irradiation process, which can result in lengthy delays in mail 
delivery. Please keep this in mind when submitting your comments and 
consider using the Federal eRulemaking Portal, commercial delivery 
services, or hand delivery.
     Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information 
on using Regulations.gov, including instructions for accessing agency 
documents, submitting comments, and viewing the docket, is available on 
the site under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about these proposed regulations, address 
them to Delores J. Barber, U.S. Department of Education, 400 Maryland 
Avenue, SW., Washington, DC 20202-4536.
    Privacy Note: The Department's policy for comments received from 
members of the public (including those comments submitted by mail, 
commercial delivery, or hand delivery) is to make these submissions 
available for public viewing in their entirety on the Federal 
eRulemaking Portal at http://www.regulations.gov. Therefore, commenters 
should be careful to include, in their comments, only information that 
they wish to make publicly available on the Internet.

FOR FURTHER INFORMATION CONTACT: Delores J. Barber, U.S. Department of 
Education, 400 Maryland Avenue, SW., Washington, DC 20202-4536. 
Telephone: (202) 401-8365 or via Internet: [email protected].
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

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 FOIA 
program.

[[Page 71987]]

    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments, in person, in the FOIA e-Reading 
Room, National Library of Education, 400 Maryland Avenue SW., Plaza 
Level (Level B, Room BE101), Washington, DC 20202-4536 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, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Background

    The regulations proposed in this Notice of proposed rulemaking 
(NPRM) implement changes made to the FOIA (5 U.S.C. 552) in recent 
years and articulate more clearly, to the public, the Department's 
policy for processing FOIA requests for publicly available records in 
the most cost-effective and efficient manner. In developing this NPRM, 
we have rewritten the Department's existing regulations to be 
consistent with the FOIA, including its amendments.\1\
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    \1\ Numerous changes have been made to the FOIA since the 
Department last updated its FOIA regulations in 34 CFR Part 5. Most 
significantly, Congress passed the Electronic Freedom of Information 
Act Amendments of 1996 (E-FOIA Amendments) (Pub. L. 104-231) and the 
OPEN Government Act of 2007 (Pub. L. 110-175), both of which amended 
the FOIA. Under the E-FOIA Amendments, electronic records were 
explicitly made subject to the FOIA and agencies were required to 
make all reading room records created after November 1, 1996 
electronically available. The OPEN Government Act of 2007 made a 
number of amendments to procedural issues affecting FOIA 
administration, including the protection of fee status for news 
media, time limits for agencies to act upon FOIA requests, the 
availability of agency records maintained by a private entity, the 
establishment of a FOIA Public Liaison and FOIA Requester Service 
Center, and the requirement to describe the exemptions authorizing 
the redaction of material provided under the FOIA.
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Significant Proposed Regulations

    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 
effect.

Subpart A--General Provisions

    Statute: Section 552(a)(1) of title 5, United States Code provides 
the general framework for the disclosure of agency records to the 
public, and requires each agency to promulgate rules to effect such 
public disclosures for that agency.
    Current Regulations: Current Sec. Sec.  5.1 (Act), 5.2 
(Department), and 5.5 (Records) define terms that are necessary to 
understand what Department records are covered by the FOIA. Current 
Sec.  5.6 (Statutory definitions) states that the definitions in the 
FOIA and the Office of Management and Budget's (OMB) ``Uniform FOIA Fee 
Schedule and Guidelines'' (OMB Guidelines), 52 FR 10012 (March 27, 
1987) apply to the Department's FOIA regulations. Current Sec. Sec.  
5.11 (Purpose and scope) and 5.12 (General policy) state the purpose 
and scope of the Department's FOIA regulations, as well as the 
Department's general policy regarding public access to agency records. 
Current Sec.  5.74 (Further disclosures) addresses discretionary 
disclosures made by the Department.
    Proposed Regulations: Proposed Sec. Sec.  5.1, 5.2, and 5.3 would 
not substantially alter the regulations in current subpart A.
    Proposed Sec.  5.1 (Purpose) would revise and combine current 
Sec. Sec.  5.1 and 5.11, and would state the Department's purpose in 
promulgating FOIA regulations--that is, to inform the public of the 
regulations that the Department follows for processing FOIA requests. 
In addition, current Sec. Sec.  5.71(a) (Protection of personal 
privacy) and 5.73 (Records not available) would be removed because 
proposed Sec.  5.1 would expressly reference the exemptions to 
disclosure set out in the FOIA, which cover the protection of personal 
privacy and records not publicly available under the FOIA.
    Proposed Sec.  5.2 (General policy) would incorporate current Sec.  
5.12 and would update current Sec.  5.74, and would state the 
Department's general policy to make information publicly available, 
limited only by the obligations of confidentiality and the 
administrative necessities recognized by the Act, or unless otherwise 
exempted from disclosure pursuant to law.
    Proposed Sec.  5.3 (Definitions) would consolidate the definitions 
in current Sec. Sec.  5.1, 5.2, and 5.5, except that proposed Sec.  
5.3(d)(1) and (d)(2) would clarify that agency records include records 
in electronic format and records maintained for the Department by an 
entity under government contract. Proposed Sec.  5.3 would also define 
the terms component and FOIA request.
    Reasons: Proposed Sec. Sec.  5.1 and 5.2 are intended to condense 
and clarify the general purpose of the Department's FOIA regulations 
and the Department's policy for implementation of the FOIA. Proposed 
Sec.  5.1 expressly references the exemptions to disclosure listed in 
the FOIA to ensure public understanding of the bases on which the 
Department may not release information under the FOIA. With this 
specific reference to the FOIA's exemptions, we believe it is 
unnecessary to include in these regulations separate provisions on the 
protection of personal privacy and a description of records not 
available under the FOIA.
    The Department proposes to consolidate the definitions applicable 
to this part in a single section (proposed Sec.  5.3) following the 
statement of the purpose and policy of the regulations to facilitate 
public understanding of the Department's FOIA regulations. In addition, 
we would clarify, in proposed Sec.  5.3(e)(2)(i) and (ii), that agency 
records include records in electronic format and records maintained for 
the Department by a contractor. We propose to make these changes to the 
Department's definition of agency records to ensure that the definition 
conforms with the statutory changes made to the definition of the term 
``record'' under the FOIA.
    Proposed Sec.  5.2 would update the language in current Sec.  5.74 
regarding discretionary disclosures of agency records because the 
Department believes the proposed language would provide the public with 
a clearer understanding of the considerations the Department gives when 
determining whether to disclose agency records under the FOIA.
    Finally, the proposed regulations in subpart A would not include 
the language from current Sec.  5.6, which states that the definitions 
in the FOIA and the OMB Guidelines apply to the Department's 
regulations, because the Department does not believe that this 
statement is necessary, as the proposed regulations incorporate by 
reference definitions in both the FOIA and the OMB Guidelines, where 
appropriate.

Subpart B--Agency Records Available to the Public Statute

    Section 552(a)(2) of title 5, United States Code requires each 
agency to ensure that certain categories of information are available 
for public inspection and copying. These categories of information 
include final opinions and orders made in the adjudication of cases; 
statements of policy and interpretations of policy adopted by the 
agency and not

[[Page 71988]]

published in the Federal Register; administrative staff manuals; copies 
of all records, in any form or format, that have been disclosed and are 
likely to be the subject of future FOIA requests; and an index of such 
commonly-requested records. Moreover, the Electronic Freedom of 
Information Act Amendments of 1996 (Pub. L. 104-231) (E-FOIA 
Amendments) require agencies to make reading room records created after 
November 1, 1996, available to the public in electronic format.
    Current Regulations: The bulk of subpart B and subpart F of the 
current regulations address what agency records of the Department are 
covered by the FOIA and how the Department manages those records.
    Current Sec.  5.13 (Records available) addresses what types of 
records at the Department are publicly available under the FOIA. 
Current Sec.  5.14 (Published documents) establishes that published 
records of the Department are available for examination. Current Sec.  
5.15 (Creation of records) states that the Department is not required 
to create records by compiling requested items from files. Current 
Sec.  5.16 (Deletion of identifying details) allows the Department to 
delete information from records made available pursuant to section 
552(a)(2) of title 5, United States Code if disclosing the information 
would constitute a clearly unwarranted invasion of personal privacy. 
Current Sec.  5.17 (Records in records centers) states that a requester 
may obtain records stored by the Department in the National Archives or 
other record centers of the General Services Administration. Current 
Sec.  5.18 (Destroyed records) addresses the destruction of records 
pursuant to law.
    Current Sec. Sec.  5.70 through 5.74 address the availability and 
unavailability of specific types of records (current Sec. Sec.  5.70, 
5.72, and 5.73), and the protection of personal privacy and proprietary 
information (current Sec.  5.71).
    Proposed Regulations: Proposed Sec.  5.10 (Public reading room) 
would replace current Sec. Sec.  5.13, 5.14, 5.16, and 5.17 by 
consolidating much of the content from these sections and incorporating 
changes made to the FOIA by the E-FOIA Amendments.
    Proposed Sec.  5.11 (Business information) would replace and 
significantly update current Sec.  5.71(b) consistent with Executive 
Order 12600, 52 FR 23781 (June 25, 1987). Executive Order 12600 directs 
agencies to establish procedures to notify submitters if the agency has 
determined that it may be required to disclose the submitter's business 
information under the Act.
    Proposed Sec.  5.12 (Creation of agency records not required) would 
be substantively the same as current Sec.  5.15 (Creation of records) 
in that both sections make clear that the Department is not required to 
create new agency records in response to a FOIA request.
    Proposed Sec.  5.13 (Preservation of records) would, consistent 
with changes in the FOIA, replace current Sec.  5.18 (Destroyed 
records) and clarify that the Department does not destroy records that 
are the subject of a pending FOIA request, appeal, or lawsuit.
    Reasons: Proposed Sec.  5.10 would condense and clarify the 
substance of current Sec. Sec.  5.13(b) and (c), 5.14 and 5.17 by 
focusing on the FOIA reading room requirements. The proposed 
regulations would provide detailed access instructions and would 
identify the agency records available for public inspection and copying 
in the reading rooms, including information required to be made 
available in electronic reading rooms and previously released agency 
records that the Department has determined are likely to be the subject 
of future FOIA requests. The proposed regulations would not include the 
substance of current Sec.  5.13(a) because the Department believes that 
the substance of current Sec.  5.13(a) is addressed sufficiently in the 
FOIA at 5 U.S.C. 552(a). In addition, the proposed regulations would 
not specifically include the substance of current Sec. Sec.  5.14 
(Published documents) and 5.17 (Records in records centers) because we 
believe that questions about these issues are best addressed on a case-
by-case basis. Finally, the proposed regulations would not include the 
substance of current Sec.  5.16 (Deletion of identifying details) 
because we believe that this issue is more appropriately addressed 
through internal Departmental guidance.
    Proposed Sec.  5.11 (Business information) would significantly 
update and replace current Sec.  5.71(b) to describe the process by 
which the Department discloses business information submitted to the 
Department as a result of a FOIA request, consistent with Executive 
Order 12600.
    Whereas current Sec.  5.71(b) only states that business information 
will not be disclosed if it is considered to be confidential, proposed 
Sec.  5.11 would describe in detail the process by which the Department 
would respond to FOIA requests for agency records containing business 
information submitted to the Department.
    Under proposed Sec.  5.11(c), submitters would be required to use 
good faith efforts to designate, at the time of submission, business 
information it considers to be protected from disclosure under 
Exemption 4 of the Act (5 U.S.C. 552(b)(4)). If the Department receives 
a FOIA request for agency records containing information that the 
submitter has designated as ``business information,'' pursuant to 
proposed Sec.  5.11(d), the Department would notify the submitter if 
the Department determines that it may be required to disclose this 
information, unless one of the exceptions in proposed Sec.  5.11(a) 
applies.
    Where the Department notifies a submitter that it may be required 
to disclose information the submitter has designated as ``business 
information,'' the Department would, at that time, give the submitter 
an opportunity under proposed Sec.  5.11(e) to object to the proposed 
disclosure. If the submitter objected to part or all of the disclosure 
within the requisite time period, the Department would, unless one of 
the exceptions in proposed Sec.  5.11(g) applies, consider the 
objections and inform the submitter, in writing, of its final decision 
regarding disclosure under proposed Sec.  5.11(f). Proposed Sec.  
5.11(g) describes the instances when the Department is not required to 
give the submitter notice that it may be required to disclose 
information the submitter has designated as ``business information.'' 
These include the following: (a) If the Department does not disclose 
the information, (b) if the Department has previously lawfully 
published the information, (c) if the information has been made 
publicly available, (d) if the disclosure is required by law (other 
than the FOIA), or (e) if the designations made by the submitter are 
determined by the Department to be frivolous. Moreover, this proposed 
section also ensures that the Department notifies (1) submitters of any 
FOIA lawsuits filed by requesters (proposed Sec.  5.11(h)), (2) 
requesters of submitters' opportunity to object to disclosure (proposed 
Sec.  5.11(i)), and (3) requesters of any reverse FOIA lawsuits filed 
by submitters (proposed Sec.  5.11(j)).
    Proposed Sec.  5.12 (Creation of agency records not required) would 
update, but not make any substantive changes to, current Sec.  5.15. We 
have retained the substance of the current Sec.  5.15 because we 
believe it is important to inform the public that the Department is not 
obligated to create new agency records when responding to FOIA 
requests. The FOIA only requires that the Department produce records 
that exist at the time it receives a FOIA request.
    Proposed Sec.  5.13 (Preservation of records) would replace current 
Sec.  5.18 (Destroyed records), which states that the Department 
destroys records in

[[Page 71989]]

accordance with the requirements in the Records Disposal Act of 1943 
(44 U.S.C. 366 through 380), the Federal Property Management 
Regulations (41 CFR parts 101 through 111), and the Records Control 
Schedules. Proposed Sec.  5.13 more accurately states the requirements 
regarding the limitation on the destruction of agency records.
    We have not included current Sec. Sec.  5.70 (Policy) and 5.72 
(Records available), which address the types of records available under 
the FOIA, in the proposed regulations. Because the scope of the FOIA 
has expanded over the years, current Sec. Sec.  5.70 and 5.72 no longer 
accurately reflect the legal requirements governing the availability of 
records under the FOIA.

Subpart C--Procedures for Requesting Access to Agency Records and 
Disclosure of Agency Records

    Statute: Section 552(a) of title 5, United States Code details the 
basic requirements of the process by which a requester can request 
access to publicly available records and the process by which an agency 
must disclose such records.
    Current Regulations: Current Sec. Sec.  5.19, 5.32, 5.51, 5.52, and 
5.53 address the procedures by which FOIA requests are made and 
procedures used by the Department to respond to FOIA requests.
    Current Sec.  5.19 (Records of other departments and agencies) 
states that FOIA requests for records originating in or concerning 
another agency may be referred to that agency for processing and that 
requesters in those instances will be so notified. Current Sec.  5.51 
(Procedure) addresses the procedure by which a requester should make a 
request. It further states that a determination whether to release or 
to deny access to requested records will be made within 10 working days 
and that the Department may only extend this deadline by an additional 
10 working days. Current Sec.  5.52 (Copies of records) states that the 
Department produces copies of records releasable under the FOIA 
promptly after receipt of fees. Current Sec.  5.53 (Denial of requests 
for records) addresses the procedure by which the Department denies a 
FOIA request for records, specifically indicating that the denial shall 
be in writing and must include the reasons for the denial and notice of 
appeal rights. This section, along with current Sec.  5.32 (Freedom of 
information officer), vests authority to deny a FOIA request in the 
Department's Freedom of Information Officer.
    Proposed Regulations: Proposed Sec. Sec.  5.20 and 5.21 would 
consolidate much of the substance of current Sec.  5.19, 5.32, 5.51, 
and 5.53. The proposed regulations would not only provide more explicit 
instructions to aid in the public's understanding of how to make a FOIA 
request and how the Department processes such FOIA requests, but also 
would update the regulations to make them consistent with changes made 
to the FOIA in recent years.
    Proposed Sec.  5.20 (Requirements for making FOIA requests) would 
replace current Sec.  5.51(a) through (c) and would provide additional 
information regarding the specific requirements that must be met for 
the Department to deem a FOIA request sufficient for processing.
    Proposed Sec.  5.21 (Procedures for processing FOIA requests) would 
substantially incorporate current Sec. Sec.  5.19, 5.32, 5.51, and 
5.53, but would also reflect a number of changes. Current Sec.  5.51(b) 
states that the Department will refer FOIA requesters to the 
appropriate office within the Department in cases when the information 
sought by the requester is not located in the office where the FOIA 
request has been made. Proposed Sec.  5.21 would not include the 
substance of current Sec.  5.51(b); instead, it would allow for the 
Department to handle referrals of FOIA requests received by one 
component to an appropriate component (i.e., the component responsible 
for maintaining the information sought under the FOIA request) within 
the Department. Further, proposed Sec.  5.21 would not incorporate the 
requirement, reflected in current Sec.  5.51(c), that envelopes 
containing written FOIA requests be clearly marked as such. Finally, 
the time limits for processing FOIA requests (in proposed Sec.  
5.21(c)) also have been updated from the time limits in current Sec.  
5.51(d) and Sec.  5.51(e).
    Reasons: We propose to amend the regulatory sections regarding FOIA 
requests for agency records and the Department's process for release of 
publicly available information to clarify the process for the public.
    Proposed Sec.  5.20 would update and expand current Sec.  5.51(a) 
through (c) by stating that a FOIA request must be made in writing and 
must be transmitted to the Department as indicated on the Department's 
Web site. Proposed Sec.  5.20 would require that the request reasonably 
describe the agency records sought and would explain what kinds of 
information about records are helpful to enable the Department to 
identify the requested records and respond to the FOIA request. Under 
proposed Sec.  5.20(c), if a request does not reasonably describe the 
requested records, the Department would either administratively close 
it as insufficient or request clarification from the requester. 
Proposed Sec.  5.20(d) would also cross-reference Departmental 
regulations under the Privacy Act of 1974 that require the verification 
of the requester's identity where the requester seeks records 
pertaining to the requester, a minor, or an individual who is legally 
incompetent.
    We believe that the changes reflected in proposed Sec.  5.20, which 
provide more detail on how to make a FOIA request, would assist the 
public in understanding the requirements for making a FOIA request and 
ultimately alleviate some processing delays resulting from insufficient 
FOIA requests.
    Proposed Sec.  5.21 would describe the process by which the 
Department processes FOIA requests. Whereas current Sec. Sec.  5.19, 
5.32, 5.51, and 5.53 provide limited information on the processes used 
by the Department and do not reflect recent amendments to the Act, 
proposed Sec.  5.21 describes in detail the processes used by the 
Department to respond to FOIA requests.
    Under proposed Sec.  5.21(a) and (b), upon receipt of a FOIA 
request the Department would promptly notify the requester of the 
Department's receipt of the request and make a determination whether to 
grant the request within 20 working days. While current Sec.  5.51 
states that the Department will respond within 10 working days, as was 
originally required by the Act, proposed Sec.  5.21(e) would conform to 
a change in the Act that now provides for determinations to be made 
within 20 working days. See 5 U.S.C. 552(a)(6)(A)(i). The proposed 
section would reflect the language of the Act regarding the 
commencement date of this 20-day time limit. Proposed Sec.  5.21(d) 
also would state, consistent with the Act, that the Department may 
contact the requester to seek additional information concerning the 
FOIA request and may toll the 20-day time limit until it receives the 
requested information. See 5 U.S.C. 552(a)(6)(A)(ii).
    Consistent with current Sec.  5.19, proposed Sec.  5.21(b) provides 
that, if the FOIA request seeks agency records created or maintained by 
another agency, the Department would either respond to the request 
after consultation or refer the request to the other agency for 
processing.
    Proposed Sec.  5.21(e) would substantially incorporate current 
Sec.  5.51(d) by listing examples of the unusual circumstances under 
which the Department could extend the time limit for processing FOIA 
requests and would

[[Page 71990]]

provide for notification to the requester of the extended time limit. 
Proposed Sec.  5.21(e) would not include the language from current 
Sec.  5.51(d) that limits the Department's ability to extend the time 
period for processing FOIA requests to ``no longer than an additional 
10 working days,'' as this limitation does not accurately reflect the 
requirements of the Act. See 5 U.S.C. 552(a)(6)(B)(ii). In addition, 
proposed Sec.  5.21(e) would specifically explain that this 
notification is made to afford the requester the opportunity to modify 
the FOIA request or to arrange an alternate time limit for the 
Department to respond to the FOIA request. The Department believes that 
providing this information to the requester would facilitate 
communication with the requester about the scope of FOIA requests that 
constitute ``unusual circumstances'' and that, ultimately, this would 
speed the processing of those FOIA requests.
    Proposed Sec.  5.21(f) would also provide contact information for 
the Department's FOIA Public Liaison and FOIA Requester Service Center, 
as set forth in the Act. We propose to add these provisions to conform 
the Department's FOIA regulations with sections 552(a)(6)(B)(ii) and 
552(a)(7)(B) of title 5, United States Code, which were amended on 
December 31, 2007, to require that agencies provide contact information 
for their respective FOIA Public Liaisons and FOIA Requester Service 
Centers.
    Proposed Sec.  5.21(h) would substantially incorporate and expand 
upon current Sec. Sec.  5.32 and 5.53, by identifying who is authorized 
to deny a FOIA request on behalf of the Department, by describing the 
process by which the requester is given notification of the denial, and 
by providing examples of determinations that constitute a denial of a 
FOIA request. Specifically, proposed Sec.  5.21(h) would differ from 
current Sec.  5.53 in that it would state that denials of FOIA 
requests, in whole or in part, must not only be made in writing and 
include the name and title or position of the denying employee or 
officer, a statement of the reasons for the denial, and a statement of 
appeal rights, but also include an estimate of the volume of records 
denied and an indication of the exemption under which any deletions 
have been made. The Department believes that by providing additional 
information regarding denials of FOIA requests the Department will 
eliminate much of the confusion experienced by requesters whose FOIA 
requests are denied in whole or in part.
    Finally, proposed Sec.  5.21(i) (Timing of responses to FOIA 
requests) is a new section that describes the Department's processing 
of FOIA requests. Specifically, proposed Sec.  5.21(i)(1) describes the 
Department's use of multitrack processing of FOIA requests, pursuant to 
section 552(a)(6)(D) of title 5, United States Code, and proposed Sec.  
5.21(i)(2) would describe the Department's use of expedited processing, 
pursuant to section 552(a)(6)(E) of title 5, United States Code. Under 
proposed Sec.  5.21(i)(2)(iii) and (i)(2)(iv), a request for expedited 
processing must contain a detailed explanation of the basis for such 
request, and the Department would make a determination on such request 
within 10 calendar days of receipt. Expedited processing would only 
occur if the Department determines that the FOIA request involves one 
or more of the following: (1) A circumstance in which the lack of 
expedited treatment could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual; (2) a 
circumstance in which an urgent need of a person primarily engaged in 
disseminating information exists to inform the public about an actual 
or alleged Federal Government activity; or (3) other circumstances that 
the Department determines demonstrate a compelling need for expedited 
processing.
    These proposed regulations would not include the substance of 
current Sec.  5.52, as we believe that issues regarding multiple 
duplications and the provision of copies of agency records published or 
available for sale are best addressed on a case-by-case basis.
    We believe that adding specificity to the Department's current 
regulations regarding its process for responding to FOIA requests will 
result in the public having a better understanding of this process. We 
also believe that the requirements for requesting expedited processing 
of FOIA requests, reflected in proposed Sec.  5.21(i)(2), will 
alleviate delays resulting from insufficient FOIA requests for 
expedited processing of FOIA requests.

Subpart D--Fees

    Statute: Section 552(a)(4)(A) of title 5, United States Code 
requires agencies to promulgate regulations specifying the fee schedule 
and establishing the procedures and guidelines for waiver or reduction 
of fees. Specifically, the FOIA requires each agency's fee schedule to 
conform to the OMB Guidelines. The FOIA further states that agency 
records are provided at a reduced fee or without a fee if disclosure is 
in the public interest. Moreover, an agency may require advance payment 
of fees where fees are determined or expected to exceed $250 or where a 
requester has previously failed to timely pay fees. Lastly, the FOIA 
limits fees to direct costs of search, duplication, and review.
    Current Regulations: Current subpart E establishes the fees and 
charges assessed by the Department when processing a FOIA request.
    Current Sec.  5.60 (Schedule of fees) establishes the manner in 
which fees are charged for agency records searches, review of agency 
records, duplication of agency records, certification of agency 
records, and other charges established for services provided in 
response to a FOIA request. Current Sec.  5.61 (Notification of 
estimated fees) provides for notification to the requester when the 
estimated fees for the FOIA request exceed $25 or the maximum amount 
specified in the FOIA request, whichever is greater. Current Sec.  5.62 
(Advance payment of fees) addresses the circumstances under which the 
Department requires advance payment of estimated fees from FOIA 
requesters. Current Sec.  5.63 (Payment of fees and interest) allows 
the Department to assess interest on FOIA request fees that remain 
outstanding 30 days after the date the billing was sent, provides for 
the collection of FOIA request fees under the Debt Collection Act of 
1982, as amended and states the form and manner in which FOIA fees must 
be paid. Current Sec.  5.64 (Waiver or reduction of fees) states the 
circumstances under which FOIA request fees may be reduced or waived.
    Proposed Regulations: Proposed Sec.  5.30 (Fees generally) would 
provide the general basis by which the Department will assess fees, and 
would partially incorporate the substance of current Sec.  5.63(b), 
establishing the form of payment required but omitting the address to 
which fee payments must be sent and the requirement that payment made 
by personal check or bank draft be drawn on a bank in the United 
States.
    Proposed Sec.  5.31 (Fee definitions) is new and would define 
various activities applicable to the Department's processing of FOIA 
requests (i.e., ``duplication'' (proposed Sec.  5.31(c)), ``review'' 
(proposed Sec.  5.31(g)), and ``search'' (proposed Sec.  5.31(h))). 
This section would also define the terms ``commercial use request'' 
(proposed Sec.  5.31(a)), ``direct costs'' (proposed Sec.  5.31(b)), 
``educational institution'' (proposed Sec.  5.31(d)), ``noncommercial 
scientific institution'' (proposed Sec.  5.31(e)), and ``representative 
of the news media'' or ``news media requester'' (proposed Sec.  
5.31(f)).
    Proposed Sec.  5.32 (Assessment of fees) would incorporate language 
from

[[Page 71991]]

current Sec. Sec.  5.60, 5.61, 5.62, and 5.63. First, the proposed 
regulations would outline the types of fees and the process by which 
they are assessed. Current Sec.  5.60 (Schedule of fees) distinguishes 
between manual and computer search fees, which are calculated using the 
basic rate of pay of the employee(s) doing the search plus 16 percent, 
with an additional charge of $287 per hour for computer searches. 
Proposed Sec.  5.32 would specify that search fees include only the 
time spent searching for the requested responsive agency records and 
consist of the direct costs of the search. Thus, the proposed 
regulations do not include the additional $287 fee per hour for 
computer searches, but rather establishes that FOIA requesters are 
charged the direct costs of the computer search. Proposed Sec.  
5.32(a)(2) would incorporate the substance of Sec.  5.60(a)(2), which 
states that review fees include the actual costs of the initial review 
of the responsive records and that review fees are charged only for 
commercial use FOIA requests. However, proposed Sec.  5.32 would 
clarify that review costs are assessed at the administrative appeal 
level unless the review includes records not reviewed, or exemptions 
not asserted, initially.
    Second, under proposed Sec.  5.32(a)(3), once the search and review 
are completed, duplication costs would be assessed at $0.20 per page, 
an increase from the $0.10 per page fee reflected in current Sec.  
5.60(a)(3). Proposed Sec.  5.32(a)(3) would also include a fee of $3.00 
per CD for documents recorded on CD, which would provide requesters 
with an additional FOIA request processing option that is not available 
under the current regulations.
    Third, proposed Sec.  5.32(b) would describe certain limitations on 
the fees charged by the Department for responding to FOIA requests. 
Specifically, proposed Sec.  5.32(b)(1) would incorporate current Sec.  
5.60(a)(1), which states that fees assessed for non-commercial use FOIA 
requests made by an educational or noncommercial scientific institution 
or the news media are limited to duplication costs only. Moreover, 
consistent with current Sec.  5.60(a)(1), proposed Sec.  5.32(b)(2) 
would establish that the Department would not assess fees for the first 
two hours of search time and the first 100 pages of copying for any 
FOIA request other than commercial use requests. Proposed Sec.  
5.32(b)(3) would update current Sec.  5.60(c) by increasing from $5 to 
$25 the threshold amount of fees a FOIA request must accumulate before 
the Department charges a FOIA requester for those fees.
    Fourth, proposed Sec.  5.32(c) would state that if the Department 
anticipates the fees for a request to be in excess of $25 and the 
requester has not stated a willingness to pay such fees, the Department 
would notify the requester of the fees before processing. Proposed 
Sec.  5.32(c) substantially incorporates current Sec.  5.61 and would 
clarify that such FOIA requests would not be deemed received by the 
Department until the requester agrees to the payment of fees or pays 
such fees.
    Fifth, proposed Sec.  5.32(d) would update current Sec.  5.60(a)(4) 
by reserving to the Department the right to provide special services 
(e.g., certification of records) to a requester at the direct cost of 
such services.
    Sixth, proposed Sec.  5.32(e) would incorporate the substance of 
current Sec.  5.63(a), but would indicate that interest is charged on 
unpaid fees, pursuant to the Debt Collection Act of 1982, as amended 
(Pub. L. 97-365), beginning on the 31st day after the billing date.
    Seventh, proposed Sec.  5.32(f) would incorporate without 
substantial alteration current Sec.  5.60(d) by stating that the 
Department may aggregate FOIA requests for purposes of assessing fees 
when the FOIA requests are related in purpose and the Department 
reasonably believes that FOIA requests were submitted separately to 
avoid or reduce applicable fees.
    Eighth, proposed Sec.  5.32(g) would describe when and how the 
Department requests advance payment before processing a FOIA request. 
Proposed Sec.  5.32(g)(2) would incorporate current Sec.  5.62(a), 
which states that if a fee is more than $250, the Department notifies 
the requester of the cost and obtains payment assurance from requesters 
with a history of prompt payment or requires advance payment of fees if 
the requester has no history of payment. Proposed Sec.  5.32(g)(3) 
would substantially incorporate current Sec.  5.62(b), which provides 
that when a requester has previously failed to timely pay a fee, the 
Department does not process the request until the payment is received 
in full. Consistent with current Sec.  5.62(c), proposed Sec.  
5.32(g)(4) clarifies that when the Department requires advance payment 
of fees for a FOIA request, the request is not considered received 
until payment is received by the Department.
    Ninth, proposed Sec.  5.32(h) would add, consistent with section 
552(a)(6)(A)(iii)(II) of title 5, United States Code, a provision that 
the time limit for responding to a FOIA request would be tolled where 
it is necessary for the Department to clarify issues regarding fee 
assessment with the requester.
    Lastly, proposed Sec.  5.32(i) would state that the fee schedule 
described in this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for producing particular types of agency records.
    Proposed Sec.  5.33 (Requirements for waiver or reduction of fees) 
would update current Sec.  5.64 (Waiver or reduction of fees) by 
providing more detail as to what factors the Department considers to 
determine whether a waiver or reduction of fees is warranted and 
whether applicable fee waiver criteria have been met. First, proposed 
Sec.  5.33(a) would state the two requirements for a reduction or 
waiver of fees, i.e. when disclosure is (1) in the public interest and 
(2) not primarily in the commercial interest of the requester. Second, 
proposed Sec.  5.33(b) would detail the factors taken into account to 
determine if the disclosure is in the public interest and proposed 
Sec.  5.33(c) would detail the factors taken into account to determine 
whether disclosure is primarily in the commercial interest of the 
requester. Third, proposed Sec.  5.33(d) would clarify that if a fee 
waiver requirement is met only for a portion of a FOIA request, the 
Department waives or reduces fees only for that portion of the request. 
Fourth, proposed Sec.  5.33(e) would clarify that a requester seeking a 
fee waiver or reduction must submit evidence demonstrating that the 
FOIA request meets the criteria set forth in current Sec.  5.33(a) 
through (c). Finally, proposed Sec.  5.33(f) would clarify that the 
Department does not grant standing fee waivers, but rather considers 
each waiver request on a case by case basis.
    Reasons: The amended fee provisions are intended to update the fee 
assessment and waiver processes to be consistent with the current law 
and government practice, as well as the OMB Guidelines, and to clarify 
them for the public. We believe that clarifying the Department's 
current regulations and providing additional information are necessary 
to ensure public understanding of the processes by which fees are 
assessed and by which the Department may waive or reduce these fees.
    Proposed Sec.  5.30, which partially incorporates current Sec.  
5.63(b), would omit the address to which fee payments must be sent. 
Proposed Sec.  5.30 would no longer require that payments made by 
personal check or bank draft be drawn on a bank in the United States. 
We removed these requirements in current Sec.  5.63(b) in order to 
permit the

[[Page 71992]]

Department to adapt to technological changes that would enable us to 
collect fees via other methods.
    Proposed Sec.  5.31 (Fee definitions) is a new section and is 
intended to promote transparency and public understanding by defining 
key terms that are used to assess fees for different types of FOIA 
requests (e.g., commercial use FOIA requests, FOIA requests made by 
educational institutions, FOIA requests made by noncommercial 
scientific institutions, and FOIA requests made by a representative of 
a news media). The amount of fees charged, if any, depends on the type 
of request (commercial or non-commercial), whether the request is made 
by an educational institution, noncommercial scientific institution or 
representative of the news media, and the nature of the request (e.g., 
FOIA requests requiring one or more of the following: the search, 
review and duplication of copies of agency records). The proposed 
regulations would define terms (e.g., ``commercial use request,'' 
``direct costs,'' ``duplication,'' ``educational institution,'' 
``representative of the news media,'' ``review'' and ``search'') that 
are essential to understanding when fees are assessed for a FOIA 
request and what those fees will be.
    Proposed Sec.  5.32 (Assessment of fees) would provide to the 
public a comprehensive breakdown of fees charged when the Department 
responds to a FOIA request, consistent with the OMB Guidelines. 
Proposed Sec.  5.32(a)(1) establishes that FOIA requesters will be 
charged the direct costs of the computer search and eliminates the 
specified $287 hourly search charge in current Sec.  5.60(a)(1)(iii) to 
account for changes in technology that have occurred since the current 
regulations were drafted. Proposed Sec.  5.32(a)(1) also would clarify 
that, for purposes of calculating fees, time spent searching for agency 
records in response to a FOIA request includes time spent searching for 
the records, regardless of whether the search results in finding the 
requested records and regardless of whether the Department releases the 
records under the Act. We believe this language is necessary to assist 
the public in better understanding the costs associated with a search 
in response to a FOIA request.
    Proposed Sec.  5.32(a)(2) largely tracks current Sec.  5.60(a)(2), 
which states that review fees include the actual costs of the initial 
review of the responsive records and that review fees are charged only 
for commercial use FOIA requests. However, proposed Sec.  5.32 would 
clarify that review costs are assessed at the administrative appeal 
level where the review includes records not reviewed, or exemptions not 
asserted, initially. We propose to make this clarification to assist 
the public in better understanding the costs associated with an 
administrative appeal of an initial FOIA request decision.
    Proposed Sec.  5.32(a)(3) would increase the fees for duplication 
from $0.10 per page to $0.20 per page, and proposed Sec.  5.32(b)(3) 
would increase the threshold amount of total fees a FOIA request must 
accumulate from $5 to $25 before the Department charges a FOIA 
requester for those fees. Proposed Sec.  5.32(a)(3) also would 
establish a $3.00 fee per CD for documents recorded on CD, and at the 
direct cost for duplication for electronic copies and other forms of 
duplication. The Department proposes to make these changes in the 
regulations to address inflation in the years since the current 
regulations were issued and to account for new technology in the 
reproduction of copies in electronic formats, including CD.
    Proposed Sec.  5.32(c) would also establish that if the Department 
estimates or determines that the fees for a FOIA request exceed $25, 
the FOIA requester must agree in writing to pay these fees before the 
Department will consider the FOIA request received. We believe this 
provision is necessary to allow the Department to avoid spending time 
and resources processing FOIA requests that will not be completed due 
to the requester's refusal to pay the assessed fees. In addition, 
proposed Sec.  5.32(d) (Charges for other services) would update 
current Sec.  5.60(a)(4), which specifies that the cost of 
certification of records is $5, and consolidate it with current Sec.  
5.60(a)(5) by establishing that the Department will charge the FOIA 
requester the direct costs of other services, including the 
certification of agency records. We believe this expansion is necessary 
to allow for flexibility in pricing in accordance with standard rates.
    Proposed Sec.  5.32(e) (Charging interest) would incorporate 
current Sec.  5.63, with no substantive changes.
    Proposed Sec.  5.32(g) substantially tracks Sec.  5.62, but with 
one minor clarification. Current Sec.  5.62(b) states that if a 
requester has previously failed to pay a fee in a timely fashion, the 
Department does not process the FOIA request until the requester pays 
the arrears in full and makes an advance payment of the estimated fees 
for the new request. Proposed Sec.  5.32(g)(3) would clarify what is 
meant by paying a fee in a ``timely fashion.'' Specifically, it would 
provide the Department with the ability to require a requester who has 
previously failed to pay a properly assessed FOIA fee within 30 
calendar days of the billing date to pay in advance the full amount of 
estimated or actual fees before it further processes a new or pending 
FOIA request from that requester.
    Proposed Sec.  5.32(h) would establish that the time limit for 
responding to a FOIA request is tolled where it is necessary for the 
Department to clarify issues regarding fee assessment with the 
requester. We propose to add this provision because we believe it is 
necessary to comply with section 552(a)(6)(A)(iii)(II) of title 5, 
United States Code.
    We have included proposed Sec.  5.32(i) to clarify for the public 
that the fee schedule in this part would not apply to fees charged 
under any statute that specifically requires an agency to set and 
collect fees for producing particular types of agency records, 
consistent with the Act. See 5 U.S.C. 552(a)(4)(A)(vi).
    Proposed Sec.  5.33 would incorporate the requirements of current 
Sec.  5.64, but would provide additional information regarding the 
factors considered by the Department to determine whether applicable 
fee waiver criteria have been met. We believe this information is 
necessary to provide requesters with a clear understanding of the 
criteria they must meet to qualify for a fee waiver and reduction.

Subpart E--Administrative Review

    Statute: Section 552(a)(6)(A) through (C) of title 5, United States 
Code require agencies to make determinations on appeal within 20 
working days, although this deadline may be extended under ``unusual 
circumstances.'' These provisions of the FOIA also provide a right to 
judicial review after the exhaustion of administrative remedies.
     Current Regulations: Current subpart G establishes the procedure 
used by the Department to conduct administrative reviews of FOIA 
requests.
    Current Sec.  5.80 (Review of denial of a record) provides for the 
review of a denial of a written FOIA request.
    Current Sec. Sec.  5.81 (Time for initiation of request for review) 
and 5.82 (By whom review is made) state that a requester whose FOIA 
request has been denied may initiate an administrative review of the 
denial by filing a written request addressed to the Secretary within 30 
days of receipt of the full or partial denial.
    Current Sec.  5.83 (Contents of request for review) states that 
requests for review must include a copy of the written FOIA request and 
the denial. Current Sec.  5.84 (Consideration on review) provides that 
administrative reviews will be limited to the written record, including 
any

[[Page 71993]]

written argument submitted by the requester.
    Current Sec.  5.85 (Decisions on review) details the process by 
which the Department makes a decision on review, providing for the 
Department's issuance of a written determination within 20 working days 
from receipt of the appeal, with a 10-day extension of the deadline 
permitted where no extension was granted during the initial review. 
Under this provision, the Department's decision must state the reasons 
for the decision and, where an appeal is denied in whole or in part, it 
must also notify the requester of the right to judicial review of the 
decision. Failure to comply with the applicable time limits constitutes 
exhaustion of the FOIA requester's administrative remedies.
     Proposed Regulations: The proposed regulation for Sec.  5.40 would 
provide a more condensed and user-friendly version of the regulations 
reflected in current subpart G. Proposed Sec.  5.40(b) would change the 
time period within which an administrative review of a denial of a FOIA 
request must be made from 30 days of receipt of the determination to 
deny (as stated in current Sec.  5.81) to 35 calendar days of the date 
on the determination letter to deny the FOIA request. No other 
substantive changes have been made to this section.
     Reasons: We believe that establishing a 35-day time period from 
the date of the determination letter to deny a FOIA request will allow 
both the Department and the FOIA requester to determine more clearly 
the deadline by which an appeal must be filed. The Department proposes 
to establish a 35-day time period from the date on the determination 
letter because we believe that a period of 35 days from the date of the 
letter is consistent with the time afforded under the current 
regulations (i.e., 30 days from the date of receipt of the 
determination letter). We have added 5 more days to the time period to 
allow adequate time for delivery of the determination letter.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those we have 
determined to be necessary for implementing the FOIA effectively and 
efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this regulatory action, we have determined that the 
benefits would justify the costs.
    Elsewhere in the preamble, under the heading SIGNIFICANT PROPOSED 
REGULATIONS, we discuss the potential costs and benefits of these 
proposed regulations.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum 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 (grouping and 
order of sections, use of headings, paragraphing, etc.) aid 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.  5.1 Purpose.)
     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?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section of this 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.
    The proposed regulations would reduce the burden on FOIA 
requesters, including small entities as defined by the Regulatory 
Flexibility Act of 1980, as amended, by providing detailed information 
and instruction on obtaining access to publicly available Department 
records and by ensuring that the Department's regulations conform to 
the current FOIA.

Paperwork Reduction Act of 1995

    These proposed regulations do not contain any information 
collection requirements.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Assessment of Educational Impact

    In accordance with section 411 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether these proposed regulations would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

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 the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF, you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498, or in 
the Washington, DC area at (202) 512-1530.

    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: www.gpoaccess.gov/nara/index.html.


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

List of Subjects in 34 CFR Part 5

    Freedom of information.

    Dated: November 17, 2008.
Margaret Spellings,
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--AVAILABILITY OF INFORMATION TO THE PUBLIC

Subpart A--General Provisions

Sec.

5.1 Purpose.
5.2 General policy.
5.3 Definitions.

Subpart B--Agency Records Available to the Public

5.10 Public reading room.
5.11 Business information.
5.12 Creation of agency records not required.
5.13 Preservation of agency records.

[[Page 71994]]

Subpart C--Procedures for Requesting Access to Records and Disclosure 
of Records

5.20 Requirements for making FOIA requests.
5.21 Procedure for processing FOIA requests.

Subpart D--Fees

5.30 Fees generally.
5.31 Fee definitions.
5.32 Assessment of fees.
5.33 Requirements for waiver or reduction of fees.

Subpart E--Administrative Review

5.40 Appeals of adverse determinations.

    Authority: 5 U.S.C. 552.

Subpart A--General Provisions


Sec.  5.1  Purpose.

    This part contains the regulations that the United States 
Department of Education follows in processing requests for records 
under the Freedom of Information Act, as amended, 5 U.S.C. 552. These 
regulations must be read in conjunction with the FOIA, including its 
exemptions to disclosure, and, when appropriate, in conjunction with 
the Privacy Act of 1974, as amended, 5 U.S.C. 552a, and its 
implementing regulations in 34 CFR part 5b.

(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)

Sec.  5.2  General policy.

    The Department's policy is to make information publicly available, 
limited only by the obligations of confidentiality and the 
administrative necessities recognized by the Act, as defined in Sec.  
5.3(a), or unless otherwise exempted from disclosure pursuant to law. 
As a matter of policy, the Department makes discretionary disclosures 
of agency records or information exempt under the Act only after full 
and deliberate consideration of the institutional, commercial, law 
enforcement, and personal privacy interests that could be implicated by 
disclosure of the information. This policy does not, however, create 
any right or benefit, substantive or procedural, enforceable by any 
person against the Department. Information routinely provided to the 
public in the ordinary course of the Department's official business 
(e.g., press releases) is not subject to the requirements in this part.
    (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)


Sec.  5.3  Definitions.

    As used in this part:
    (a) Act or FOIA means the Freedom of Information Act, as amended, 5 
U.S.C. 552.
    (b) Department means the United States Department of Education.
    (c) Component means each separate bureau, office, board, division, 
commission, service, administration, or other organizational entity of 
the Department.
    (d) FOIA request means a written request for agency records that 
reasonably describes the agency records sought, made by any person, 
including a member of the public (U.S. or foreign citizen/entity), 
partnership, corporation, association, and foreign or domestic 
governments (excluding Federal agencies).
    (e)(1) Agency records are documentary materials regardless of 
physical form or characteristics that--
    (i) Are either created or obtained by the Department; and
    (ii) Are under the Department's control at the time it receives a 
FOIA request.
    (2) Agency records include--
    (i) Records created, stored, and retrievable in electronic format;
    (ii) Records maintained for the Department by a private entity 
under a records management contract with the Federal Government; and
    (iii) Documentary materials preserved by the Department as evidence 
of the organization, functions, policies, decisions, procedures, 
operations or other activities of the Department or because of the 
informational value of data contained therein.
    (3) Agency records do not include tangible, evidentiary objects or 
equipment; library or museum materials made or acquired and preserved 
solely for reference or exhibition purposes; extra copies of documents 
preserved only for convenience of reference; stocks of publications; 
and personal records created for the convenience of an individual and 
not used to conduct Department business or incorporated into the 
Department's recordkeeping system or files.
    (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)

Subpart B--Agency Records Available to the Public


Sec.  5.10  Public reading room.

    (a) General. Pursuant to 5 U.S.C. 552(a)(2), the Department 
maintains a public reading room containing agency records that the FOIA 
requires to be made regularly available for public inspection and 
copying. Published records of the Department, whether or not available 
for purchase, are made available for examination. The Department's 
public reading room is located at the National Library of Education, 
400 Maryland Avenue, SW., Plaza Level (Level B), Washington, DC 20202-
0008. The hours of operation are 9:00 a.m. to 5:00 p.m., Monday through 
Friday (except Federal holidays).
    (b) Reading room records. Agency records maintained in the public 
reading room include final opinions and orders in adjudications, 
statements of policy and interpretations adopted by the Department and 
not published in the Federal Register, administrative staff manuals and 
instructions affecting the public, and copies of all agency records 
regardless of form or format released to the public pursuant to a FOIA 
request that the Department determines are likely to be the subject of 
future FOIA requests.
    (c) Electronic access. The Department makes reading room records 
created on or after November 1, 1996, available through its electronic 
reading room, located on the Department's FOIA Web site at http://www.ed.gov/policy/gen/leg/foia/foiatoc.html.
    (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(2), 20 U.S.C. 3474)


Sec.  5.11  Business information.

    (a) General. The Department discloses business information it 
obtains from a submitter under the Act in accordance with this section.
    (b) 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) (Exemption 4 of the Act).
    (2) Submitter means any person or entity (including corporations; 
State, local, and tribal governments; and foreign governments) from 
whom the Department obtains business information.
    (c) Designation of business information. (1) A submitter must use 
good faith efforts to designate, by appropriate markings, either at the 
time of submission or at a reasonable time thereafter, any portion of 
its submission that it considers to be business information protected 
from disclosure under Exemption 4 of the Act.
    (2) A submitter's designations are not binding on the Department 
and will expire 10 years after the date of the submission unless the 
submitter requests, and provides justification for, a longer 
designation period.
    (3) A blanket designation on each page of a submission that all 
information contained on the page is protected from disclosure under 
Exemption 4 presumptively will not be considered a good faith effort.
    (d) Notice to submitters. Except as provided in paragraph (g) of 
this section, the Department promptly

[[Page 71995]]

notifies a submitter whenever a FOIA request or administrative appeal 
is made under the Act seeking disclosure of the information the 
submitter has designated in good faith as business information 
protected from disclosure under paragraph (c) of this section, or the 
Department otherwise has reason to believe that it may be required to 
disclose information sought to be designated by the submitter as 
business information protected from disclosure under Exemption 4 of the 
Act. This notice includes either a description of the business 
information requested or copies of the requested agency records or 
portions of agency records containing the requested business 
information as well as a time period, consistent with Sec.  5.21(c), 
within which the submitter can object to the disclosure pursuant to 
paragraph (e) of this section.
    (e) Opportunity to object to disclosure. (1) If a submitter objects 
to disclosure, it must submit to the Department a detailed written 
statement specifying all grounds under Exemption 4 of the Act for 
denying access to the information, or a portion of the information 
sought.
    (2) A submitter's failure to object to the disclosure by the 
deadline established by the Department in the notice provided under 
paragraph (d) of this section constitutes a waiver of the submitter's 
right to object to disclosure under paragraph (e) of this section.
    (3) A submitter's response to a notice from the Department under 
paragraph (d) of this section may itself be subject to disclosure under 
the Act.
    (f) Notice of intent to disclose. The Department considers a 
submitter's objections and submissions made in support thereof in 
deciding whether to disclose business information sought to be 
protected by the submitter. Whenever the Department decides to disclose 
information over a submitter's objection, the Department gives the 
submitter written notice, which includes:
    (1) A statement of the reasons why the submitter's objections to 
disclosure were not sustained.
    (2) A description of the information to be disclosed.
    (3) A specified disclosure date that is a reasonable time 
subsequent to the notice.
    (g) Exceptions to notice requirements. The notice requirements of 
paragraph (d) of this section do not apply if--
    (1) The Department does not disclose the business information of 
the submitter;
    (2) The Department has previously lawfully published the 
information;
    (3) The information has been made available to the public by the 
requester or by third parties;
    (4) Disclosure of the information is required by statute (other 
than the Act) or regulation issued in accordance with the requirements 
of Executive Order 12600 (52 FR 23781, 3 CFR, 1987 Comp., p. 235); or
    (5) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, except that, in such case, 
the Department must provide the submitter with written notice of any 
final administrative disclosure determination in accordance with 
paragraph (f) of this section.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of a submitter's business information, 
the Department promptly notifies the submitter.
    (i) Corresponding notice to requester. The Department notifies the 
requester whenever it notifies a submitter of its opportunity to object 
to disclosure, of the Department's intent to disclose requested 
information designated as business information by the submitter, or of 
the filing of a lawsuit.
    (j) Notice of reverse FOIA lawsuit. Whenever a submitter files a 
lawsuit seeking to prevent the disclosure of the submitter's 
information, the Department promptly notifies the requester, and 
advises the requester that its request will be held in abeyance until 
the lawsuit initiated by the submitter is resolved.

(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)

Sec.  5.12  Creation of agency records not required.

    In response to a FOIA request, the Department produces only those 
agency records that are not already publicly available and that are in 
existence at the time it receives a request. The Department does not 
create new agency records in response to a FOIA request by, for 
example, extrapolating information from existing agency records, 
reformatting available information, preparing new electronic programs 
or databases, or creating data through calculations of ratios, 
proportions, percentages, trends, frequency distributions, 
correlations, or comparisons.

(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)

Sec.  5.13  Preservation of agency records.

    The Department does not destroy agency records that are the subject 
of a pending FOIA request, appeal, or lawsuit.

(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)

Subpart C--Procedures for Requesting Access to Agency Records and 
Disclosure of Agency Records


Sec.  5.20  Requirements for making FOIA requests.

    (a) Making a FOIA request. Any FOIA request for an agency record 
must be in writing (via paper, facsimile, or electronic mail) and 
transmitted to the Department as indicated on the Department's Web 
site. See http://www.ed.gov/policy/gen/leg/foia/request_foia.html.
    (b) Description of agency records sought. A FOIA request must 
reasonably describe the agency record sought, to enable Department 
personnel to locate the agency record or records with a reasonable 
amount of effort. Whenever possible, a FOIA request should describe the 
type of agency record requested, the subject matter of the agency 
record, the date, if known, or general time period when it was created, 
and the person or office that created it. Requesters who have detailed 
information that would assist in identifying and locating the agency 
records sought are urged to provide this information to the Department 
to expedite the handling of a FOIA request.
    (c) FOIA request deemed insufficient. If the Department determines 
that a FOIA request does not reasonably describe the agency record or 
records sought, the FOIA request will be deemed insufficient under the 
Act. In that case, the Department informs the requester of the reason 
the FOIA request is insufficient and, at the Department's option, 
either administratively closes the FOIA request as insufficient without 
determining whether to grant the FOIA request or provides the requester 
an opportunity to modify the FOIA request to meet the requirements of 
this section.
    (d) Verification of identity. In compliance with the Privacy Act of 
1974, as amended, 5 U.S.C. 552a, FOIA requests for agency records 
pertaining to the requester, a minor, or an individual who is legally 
incompetent must include verification of the requester's identity 
pursuant to 34 CFR 5b.5.
    (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)


Sec.  5.21  Procedures for processing FOIA requests.

    (a) Acknowledgements of FOIA requests. The Department promptly 
notifies the requester when it receives a FOIA request.
    (b) Consultation and referrals. When the Department receives a FOIA 
request for a record or records created by or otherwise received from 
another agency of the Federal Government, it either responds to the 
FOIA request after

[[Page 71996]]

consultation with the other agency, or refers the FOIA request to the 
other agency for processing. When the Department refers a FOIA request 
to another agency for processing, the Department will so notify the 
requester.
    (c) Decisions on FOIA requests. The Department determines whether 
to comply with a FOIA request within 20 working days after the 
appropriate component of the Department first receives the request. 
This time period commences on the date that the request is received by 
the appropriate component of the Department, but commences no later 
than 10 calendar days after the request is received by the component of 
the Department designated pursuant to Sec.  5.20(a) to receive FOIA 
requests for agency records. The Department's failure to comply with 
these times limits constitutes exhaustion of the requester's 
administrative remedies for the purposes of judicial action to compel 
disclosure.
    (d) Requests for additional information. The Department may make 
one request for additional information from the requester and toll the 
20-day period while awaiting receipt of the additional information.
    (e) Extension of time period for processing a FOIA request. The 
Department may extend the time period for processing a FOIA request 
only in unusual circumstances, as described in paragraphs (e)(1) 
through (e)(3) of this section, in which case the Department notifies 
the requester of the extension in writing. A notice of extension 
affords the requester the opportunity either to modify its FOIA request 
so that it may be processed within the 20-day time limit, or to arrange 
with the Department an alternative time period within which the FOIA 
request will be processed. For the purposes of this section, unusual 
circumstances include:
    (1) The need to search for and collect the requested agency records 
from field facilities or other establishments that are separate from 
the office processing the request.
    (2) The need to search for, collect, and review and process 
voluminous agency records responsive to the FOIA request.
    (3) The need to consult with other agencies or agency components 
having a substantial interest in the determination on the FOIA request.
    (f) FOIA Public Liaison and FOIA Requester Service Center. The 
Department's FOIA Public Liaison assists in the resolution of disputes 
between the requester and the Department. The Department provides 
information about the status of a FOIA request to the requester through 
the Department's FOIA Requester Service Center. Contact information for 
the Department's FOIA Public Liaison and FOIA Requester Service Center 
may be found at http://www.ed.gov/policy/gen/leg/foia/contacts.html.
    (g) Notification of determination. Once the Department makes a 
determination to grant a FOIA request in whole or in part, it notifies 
the requester in writing of its decision.
    (h) Denials of FOIA requests. (1) Only Departmental officers or 
employees delegated the authority to deny a FOIA request may deny a 
FOIA request on behalf of the Department.
    (2)(i) The Department notifies the requester in writing of any 
decision to deny a FOIA request in whole or in part. Denials under this 
paragraph can include the following: A determination to deny access in 
whole or in part to any agency record responsive to a request; a 
determination that a requested agency record does not exist or cannot 
be located in the Department's records; a determination that a 
requested agency record is not readily retrievable or reproducible in 
the form or format sought by the requester; a determination that what 
has been requested is not a record subject to the FOIA; a determination 
on any disputed fee matter, including a denial of a request for a fee 
waiver; and a denial of a request for expedited processing.
    (ii) All determinations denying a FOIA request in whole or in part 
are signed by an officer or employee designated under paragraph (h)(1) 
of this section, and include:
    (A) The name and title or position of the denying officer or 
employee.
    (B) A brief statement of the reason or reasons for the denial, 
including any exemptions applicable under the Act.
    (C) An estimate of the volume of agency records or information 
denied, by number of pages or other reasonable estimate (except where 
the volume of agency records or information denied is apparent from 
deletions made on agency records disclosed in part, or providing an 
estimate would harm an interest protected by an applicable exemption 
under the Act).
    (D) Where an agency record has been disclosed only in part, an 
indication of the exemption under the Act justifying the redaction in 
the agency record (unless providing this information would harm an 
interest protected by an applicable exemption under the Act).
    (E) A statement of appeal rights and a list of requirements for 
filing an appeal under Sec.  5.40.
    (i) Timing of responses to FOIA requests--(1) Multitrack 
processing. The Department may use two or more processing tracks to 
distinguish between simple and more complex FOIA requests based on one 
or more of the following: The time and work necessary to process the 
FOIA request, the volume of agency records responsive to the FOIA 
request, and whether the FOIA request qualifies for expedited 
processing as described in paragraph (i)(2) of this section.
    (2) Expedited processing. (i) The Department gives expedited 
treatment to FOIA requests and appeals whenever the Department 
determines that a FOIA request involves one or more of the following:
    (A) A circumstance in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual.
    (B) The urgent need of a person primarily engaged in disseminating 
information to inform the public about an actual or alleged Federal 
Government activity; or
    (C) Other circumstances that the Department determines demonstrate 
a compelling need for expedited processing.
    (ii) A requester may ask for expedited processing at the time of 
the initial FOIA request or at any time thereafter.
    (iii) A request for expedited processing must contain a detailed 
explanation of the basis for the request, and must be accompanied by a 
statement certifying the truth of the circumstances alleged or other 
evidence of the requester's compelling need acceptable to the 
Department.
    (iv) The Department makes a determination whether to grant or deny 
a request for expedited processing within 10 calendar days of its 
receipt by the component of the Department designated pursuant to Sec.  
5.20(a) to receive FOIA requests for agency records, and processes FOIA 
requests accepted for expedited processing as soon as practicable and 
on a priority basis.

(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)

Subpart D--Fees


Sec.  5.30  Fees generally.

    The Department assesses fees for processing FOIA requests in 
accordance with Sec.  5.32(a), except where fees are limited under 
Sec.  5.32(b) or where a waiver or reduction of fees is granted under 
Sec.  5.33. Requesters must pay fees by check or money order made 
payable to the U.S. Department of Education, and must include the FOIA 
request number on the check or money order. The Department retains full 
discretion to limit or adjust fees.

[[Page 71997]]


(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474)

Sec.  5.31  Fee definitions.

    (a) Commercial use request means a request from or on behalf of a 
FOIA requester seeking information for a use or purpose that furthers 
the requester's commercial, trade, or profit interests, which can 
include furthering those interests through litigation. For the purpose 
of assessing fees under the Act, the Department determines, whenever 
reasonably possible, the use to which a requester will put the 
requested agency records.
    (b) Direct costs mean those expenses that an agency actually incurs 
in searching for and duplicating (and, in the case of commercial use 
FOIA requests, reviewing) agency records to respond to a FOIA request. 
Direct costs include, for example, the pro rata salary of the 
employee(s) performing the work (i.e., basic rate of pay plus 16 
percent) and the cost of operating duplication machinery. The 
Department's other overhead expenses are not included in direct costs.
    (c) Duplication means making a copy of the agency record, or of the 
information in it, as necessary to respond to a FOIA request. Copies 
can be made in several forms and formats, including paper and 
electronic records. The Department honors a requester's specified 
preference as to form or format of disclosure, provided that the agency 
record is readily reproducible with reasonable effort in the requested 
form or format.
    (d) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To qualify as an 
educational institution under this part, a requester must demonstrate 
that an educational institution authorized the request and that the 
agency records are not sought for individual or commercial use, but are 
instead sought to further scholarly research. A request for agency 
records for the purpose of affecting a requester's application for, or 
prospect of obtaining, new or additional grants, contracts, or similar 
funding is presumptively a commercial use request.
    (e) Noncommercial scientific institution means an institution that 
is operated solely for the purpose of conducting scientific research, 
the results of which are not intended to promote any particular product 
or industry. A noncommercial scientific institution does not operate 
for a ``commercial use'', as the term is defined in paragraph (a) of 
this section. To qualify as a noncommercial scientific institution 
under this part, a requester must demonstrate that a noncommercial 
scientific institution authorized the request and that the agency 
records are sought to further scientific research and not for a 
commercial use. A request for agency records for the purpose of 
affecting a requester's application for, or prospect of obtaining, new 
or additional grants, contracts, or similar funding is presumptively a 
commercial use request.
    (f) Representative of the news media, or news media requester, 
means any person or entity that gathers information of potential 
interest to a segment of the public, uses its editorial skills to turn 
the raw materials into a distinct work, and distributes that work to an 
audience. For the purposes of this section, the term ``news'' means 
information about current events or information that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals that qualify as disseminators of news and 
make their products available for purchase by, subscription by, or free 
distribution to the general public. To be regarded as a representative 
of the news media, a ``freelance'' journalist must demonstrate a solid 
basis for expecting publication, such as a publication contract or a 
past publication record. For inclusion in this category, a requester 
must not be seeking the requested agency records for a commercial use.
    (g) Review means the examination of an agency record located in 
response to a FOIA request to determine whether any portion of the 
record is exempt from disclosure under the Act. Reviewing the record 
includes processing the agency record for disclosure and making 
redactions and other preparations for disclosure. Review costs are 
recoverable even if an agency record ultimately is not disclosed. 
Review time includes time spent considering any formal objection to 
disclosure but does not include time spent resolving general legal or 
policy issues regarding the application of exemptions under the Act.
    (h) Search means the process of looking for and retrieving agency 
records or information responsive to a FOIA request. Searching includes 
page-by-page or line-by-line identification of information within 
agency records and reasonable efforts to locate and retrieve 
information from agency records maintained in electronic form or 
format, provided that such efforts do not significantly interfere with 
the operation of the Department's automated information systems.

(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474)

Sec.  5.32  Assessment of fees.

    (a) Fees. In responding to FOIA requests, the Department charges 
the following fees (in accordance with the Office of Management and 
Budget's ``Uniform FOIA Fee Schedule and Guidelines,'' 52 FR 10012 
(March 27, 1987)), unless it has granted a waiver or reduction of fees 
under Sec.  5.33 and subject to the limitations set forth in paragraph 
(b) of this section:
    (1) Search. The Department charges search fees, subject to the 
limitations of paragraph (b) of this section. Search time includes time 
spent searching, regardless of whether the search results in the 
location of responsive agency records and, if so, whether such agency 
records are released to the requester under the Act. The requester will 
be charged the direct costs, as defined in Sec.  5.31(b), of the 
search. In the case of computer searches for agency records, the 
Department charges the requester for the direct cost of conducting the 
search, subject to the limitations set forth in paragraph (b) of this 
section.
    (2) Review. (i) The Department charges fees for initial agency 
record review at the same rate as for searches, subject to the 
limitations set forth in paragraph (b) of this section.
    (ii) No fees are charged for review at the administrative appeal 
level except in connection with--
    (A) The review of agency records other than agency records 
identified as responsive to the FOIA request in the initial decision; 
and
    (B) The Department's decision regarding whether to assert that an 
exemption exists under the Act that was not cited in the decision on 
the initial FOIA request.
    (iii) Review fees are not assessed for FOIA requests other than 
those made for a ``commercial use,'' as the term is defined in Sec.  
5.31(a).
    (3) Duplication. The Department charges duplication fees at the 
rate of $0.20 per page for paper photocopies of agency records, $3.00 
per CD for documents recorded on CD, and at the direct cost for 
duplication for electronic copies and other forms of duplication, 
subject to the limitations of paragraph (b) of this section.
    (b) Limitations on fees.
    (1) Fees are limited to charges for document duplication when 
agency

[[Page 71998]]

records are not sought for commercial use and the request is made by--
    (i) An educational or noncommercial scientific institution, whose 
purpose is scholarly or scientific research; or
    (ii) A representative of the news media.
    (2) For FOIA requests other than commercial use FOIA requests, the 
Department provides the first 100 pages of agency records released (or 
the cost equivalent) and the first two hours of search (or the cost 
equivalent) without charge, pursuant to 5 U.S.C. 552(a)(4)(A)(iv)(II).
    (3) Whenever the Department calculates that the fees assessable for 
a FOIA request under paragraph (a) of this section total $25.00 or 
less, the Department processes the FOIA request without charge to the 
requester.
    (c) Notice of anticipated fees in excess of $25. When the 
Department estimates or determines that the fees for processing a FOIA 
request will total more than $25 and the requester has not stated a 
willingness to pay such fees, the Department notifies the requester of 
the anticipated amount of fees before processing the FOIA request. If 
the Department can readily anticipate fees for processing only a 
portion of a request, the Department advises the requester that the 
anticipated fee is for processing only a portion of the request. When 
the Department has notified a requester of anticipated fees greater 
than $25, the Department does not further process the request until the 
requester agrees in writing to pay the anticipated total fee.
    (d) Charges for other services. When the Department chooses as a 
matter of administrative discretion to provide a special service, such 
as certification of agency records, it charges the requester the direct 
cost of providing the service.
    (e) Charging interest. The Department charges interest on any 
unpaid bill assessed at the rate provided in 31 U.S.C. 3717. In 
charging interest, the Department follows the provisions of the Debt 
Collection Act of 1982, as amended (Pub. L. 97-365, 96 Stat. 1749), and 
its administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (f) Aggregating FOIA requests. When the Department reasonably 
believes that a requester, or a group of requesters acting together, is 
attempting to divide a FOIA request into a series of FOIA requests for 
the purpose of avoiding or reducing otherwise applicable fees, the 
Department may aggregate such FOIA requests for the purpose of 
assessing fees. The Department does not aggregate multiple FOIA 
requests involving unrelated matters.
    (g) Advance payments. (1) For FOIA requests other than those 
described in paragraphs (g)(2) and (g)(3) of this section, the 
Department does not require the requester to pay fees in advance.
    (2) Where the Department estimates or determines that fees for 
processing a FOIA request will total more than $250, it may require the 
requester to pay the fees in advance, except where the Department 
receives a satisfactory assurance of full payment from a requester with 
a history of prompt payment of FOIA fees.
    (3) The Department may require a requester who has previously 
failed to pay a properly assessed FOIA fee within 30 calendar days of 
the billing date to pay in advance the full amount of estimated or 
actual fees before it further processes a new or pending FOIA request 
from that requester.
    (4) When the Department requires advance payment of estimated or 
assessed fees, it does not consider the FOIA request received and does 
not further process the FOIA request until payment is received.
    (h) Tolling. When necessary for the Department to clarify issues 
regarding fee assessment with the FOIA requester, the time limit for 
responding to the FOIA request is tolled until the Department resolves 
such issues with the requester.
    (i) Other statutory requirements. The fee schedule of this section 
does not apply to fees charged under any statute that specifically 
requires an agency to set and collect fees for producing particular 
types of agency records.
    (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 
3474)


Sec.  5.33  Requirements for waiver or reduction of fees.

    (a) The Department processes a FOIA request for agency records 
without charge or at a charge less than that established under Sec.  
5.32(a) when the Department determines that--
    (1) Disclosure of the requested 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
    (2) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (b) To determine whether a FOIA request is eligible for waiver or 
reduction of fees pursuant to paragraph (a)(1) of this section, the 
Department considers the following factors:
    (1) Whether the subject of the request specifically concerns 
identifiable operations or activities of the government.
    (2) Whether the disclosable portions of the requested information 
will be meaningfully informative in relation to the subject matter of 
the request.
    (3) The disclosure's contribution to public understanding of 
government operations, i.e., the understanding of the public at large, 
as opposed to an individual or a narrow segment of interested persons 
(including whether the requester has expertise in the subject area of 
the FOIA request as well as the intention and demonstrated ability to 
disseminate the information to the public).
    (4) The significance of the disclosure's contribution to public 
understanding of government operations or activities, i.e., the 
public's understanding of the subject matter existing prior to the 
disclosure must be likely to be enhanced significantly by the 
disclosure.
    (c) To determine whether a FOIA request is eligible for waiver or 
reduction of fees pursuant to paragraph (a)(2) of this section, the 
Department considers the following factors:
    (1) The existence of the requester's commercial interest, i.e., 
whether the requester has a commercial interest that would be furthered 
by the requested disclosure.
    (2) If a commercial interest is identified, whether the commercial 
interest of the requester is sufficiently large in comparison with the 
public interest in disclosure, that disclosure is primarily in the 
commercial interest of the requester.
    (d) When the fee waiver requirements are met only with respect to a 
portion of a FOIA request, the Department waives or reduces fees only 
for that portion of the request.
    (e) A requester seeking a waiver or reduction of fees must submit 
evidence demonstrating that the FOIA request meets all the criteria 
listed in paragraphs (a) through (c) of this section.
    (f) A requester must seek a fee waiver for each FOIA request for 
which a waiver is sought. The Department does not grant standing fee 
waivers but considers each fee waiver request independently on its 
merits.

(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474)

Subpart E--Administrative Review


Sec.  5.40  Appeals of adverse determinations.

    (a) In general. A requester may seek an administrative review of an 
adverse determination on the FOIA request made by the requester by 
submitting an

[[Page 71999]]

appeal of the determination to the Department. Adverse determinations 
include denials of access to agency records, in whole or in part; ``no 
agency records'' responses; and adverse fee decisions, including 
denials of requests for fee waivers, and all aspects of fee 
assessments.
    (b) Appeal requirements. A requester must submit an appeal within 
35 calendar days of the date on the adverse determination letter issued 
by the Department or, where the requester has received no 
determination, at any time after the due date for such determination. 
An appeal must be in writing and must include a detailed statement of 
all legal and factual bases for the appeal. The requester's failure to 
comply with time limits set forth in this section constitutes 
exhaustion of the requester's administrative remedies for the purposes 
of initiating judicial action to compel disclosure.
    (c) Determination on appeal. (1) The Department makes a written 
determination on an administrative appeal within 20 working days after 
receiving the appeal. The time limit may be extended in accordance with 
Sec.  5.21(c) through (e). The Department's failure to comply with time 
limits set forth in this section constitutes exhaustion of the 
requester's administrative remedies for the purposes of initiating 
judicial action to compel disclosure.
    (2) The Department's determination on an appeal constitutes the 
Department's final action on the FOIA request. Any Department 
determination denying an appeal in whole or in part includes the 
reasons for the denial, including any exemptions asserted under the 
Act, and notice of the requester's right to seek judicial review of the 
determination in accordance with 5 U.S.C. 552(a)(4). Where the 
Department makes a determination to grant an appeal in whole or in 
part, it processes the FOIA request subject to the appeal in accordance 
with the determination on appeal.

(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(6), 20 U.S.C. 3474)


[FR Doc. E8-28174 Filed 11-25-08; 8:45 am]
BILLING CODE 4000-01-P