[Federal Register Volume 84, Number 98 (Tuesday, May 21, 2019)]
[Rules and Regulations]
[Pages 22943-22947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10212]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 
 ========================================================================
 

  Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules 
and Regulations  

[[Page 22943]]



NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

Institute of Museum and Library Services

2 CFR Part 3187

45 CFR Parts 1181, 1182 and 1184

RIN 3137-AA25


Freedom of Information Act Regulations and Additional Incidental 
Technical Amendments to Other IMLS Regulations

AGENCY: Institute of Museum and Library Services (IMLS or Institute), 
National Foundation on the Arts and the Humanities (NFAH).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the regulations the Institute of Museum and 
Library Services (IMLS) follows in processing records under the Freedom 
of Information Act, in part in compliance with the FOIA Improvement Act 
of 2016, and otherwise also revises all current IMLS regulations to 
reflect the agency's change of address and update outdated information. 
The revisions to IMLS FOIA regulations clarify and update procedures 
for requesting information from IMLS and procedures that IMLS follows 
in responding to requests from the public. The revisions to other IMLS 
regulations would revise the citation to the Age Discrimination Act of 
1975, reflect the agency's change of address, and update outdated 
information.

DATES: This rule is effective May 20, 2019.

FOR FURTHER INFORMATION CONTACT: Susan B. Gerson, Associate General 
Counsel, Institute of Museum and Library Services, (202) 653-4712.

SUPPLEMENTARY INFORMATION: 

I. Background Information--FOIA and Technical Amendments

    On December 26, 2018 (83 FR 66163), the Institute published a 
proposed rule to revise its FOIA regulations in accordance with the 
FOIA Improvement Act of 2016 and otherwise reflect the agency's change 
of address and update outdated information. IMLS also proposed to make 
minor technical amendments to all other IMLS regulations to reflect the 
agency's change of physical address, update contact information, and 
otherwise facilitate readability. In the interests of economy of 
administration, and because all of the regulations proposed to be 
removed are outdated and the technical amendments are minor, they are 
included in this one rulemaking.

II. Discussion of the Final Rule

A. Non-Discretionary Changes Required by the FOIA Improvement Act of 
2016

    In compliance with the FOIA Improvement Act of 2016, the Institute 
has made changes to its regulatory amendments to update information and 
otherwise make technical amendments to improve the clarity of the 
Institute's regulations.

B. Response to Comment and Changes From the Proposed Rule

    In total, the Institute received one public submission to its 
proposed rule. The Institute has given due consideration to the comment 
received and has made one modification to the rule, as discussed below.
    1. Comments on Proposed 45 CFR 1184.1(b) (the purpose and scope of 
these IMLS regulations) and 1184.2(c) (IMLS's general policies with 
respect to FOIA).
    The commenter suggested that IMLS remove all reference to the OMB 
Guidelines, including such references made in proposed 45 CFR 1184.1(b) 
and 45 CFR 1184.2(c), because the commenter submits that the OMB 
Guidelines are no longer authoritative. The Institute has considered 
this suggestion and determined that proposed 45 CFR 1184.1(b) and 45 
CFR 1184.2(c) adequately replaces the language in the original 45 CFR 
1184.1(b) and 45 CFR 1184.2(c).
    The revised language's reference to the OMB Guidelines are general 
references to the overall guidelines; and such guidelines remain in 
force, continuing to generally apply to agency FOIA regulations. These 
references to the OMB Guidelines in IMLS's general FOIA regulation 
provisions at proposed 45 CFR 1184.1(b) and 45 CFR 1184.2(c) also are 
consistent with the Justice Department's Office of Information Policy 
Template for Agency FOIA Regulations and consistent with the language 
used by many other government agencies, including the Department of 
Justice, which provides interagency leadership on FOIA matters. See 28 
CFR 16.1.
    2. Comments on Proposed 45 CFR 1184.2(c)(8) (Definitions; 
Representative of the News Media).
    The commenter suggested that the Institute revise its definition of 
Representative of the News Media at 45 CFR 1184.2(c)(8), to remove the 
outdated ``organized and operated'' definition and replace it with an 
updated one tracking the statutory language. The Institute has 
considered this suggestion and determined that it will revise the 
language in current 45 CFR 1184.2(c)(8) to comport with a definition of 
Representative of the News Media which more squarely comports with the 
FOIA, as amended. More specifically, the Institute will adopt the model 
definition of Representative of the News Media as delineated in the 
Justice Department's Office of Information Policy Template for Agency 
FOIA Regulations. Because this change is in line with the language used 
by many other government agencies, including the Department of Justice, 
the Institute implements this revision without the need of formal 
notice and comment. See 28 CFR 16.10(b)(6).
    The commenter further suggested that the Institute supplement its 
regulations definition of Representative of the News Media to include 
that: (a) A requester's eligibility as a Representative of the News 
Media should be assessed with a focus on the requester rather than the 
nature of the information requested, (b) distinct works should include, 
as an example, a substantive press release, which applies editorial 
skills to raw material, and (c) examples of news media entities should 
be non-exhaustive, to include evolving news media formats. The 
Institute has considered these suggestions and determined that the 
revised 45 CFR 1184.2(c)(8) defining a Representative of the News Media 
is sufficiently detailed,

[[Page 22944]]

focuses on the person or entity rather than the information requested, 
and provides examples in a manner that is non-exhaustive. The Institute 
therefore has determined that the model language set forth in the 
revised 45 CFR 1184.2(c)(8) adequately replaces the language in the 
original 45 CFR 1184.2(c)(8).

III. Regulatory Analyses

Regulatory Planning and Review (E.O. 12866)

    Under Executive Order 12866, the Institute must determine whether 
the regulatory action is ``significant'' and therefore subject to OMB 
review and the requirements of the Executive Order. The Order defines a 
``significant regulatory action'' as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    This rule updates outdated information and makes technical 
amendments to the Institute's regulations. As such, it does not impose 
a compliance burden on the economy generally or on any person or 
entity. Accordingly, this rule is not a ``significant regulatory 
action'' from an economic standpoint, and it does not otherwise create 
any inconsistences or budgetary impacts to any other agency or Federal 
Program.

Regulatory Flexibility Act

    Because this rule would amend outdated regulations and make certain 
technical amendments, the Institute has determined in Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) review that this rule will not 
have a significant economic impact on a substantial number of small 
entities because it simply makes technical amendments and amends 
outdated regulations.

Paperwork Reduction Act

    This rule is exempt from the requirements of the Paperwork 
Reduction Act (44 U.S.C. 3501-3521), since it amends existing outdated 
regulations and makes only technical amendments. An OMB form 83-1 is 
not required.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1501-1571), this rule will not significantly or uniquely affect small 
governments and will not result in increased expenditures by State, 
local, or tribal governments, or by the private sector, of $100 million 
or more as adjusted for inflation) in any one year.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), of the Small 
Business Regulatory Enforcement Fairness Act. This rule will not have 
an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises in domestic and export markets.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. No rights, property or compensation 
has been, or will be, taken. A takings implication assessment is not 
required.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this rule does not have 
federalism implications that warrant the preparation of a federalism 
assessment.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Institute has 
determined that this rule does not unduly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Consultation and Coordination With Indian Tribes (E.O. 13175)

    In accordance with Executive Order 13175, the Institute has 
evaluated this rule and determined that it has no potential negative 
effects on federally recognized Indian tribes.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment.

List of Subjects

2 CFR Part 3187

    Federal awards, Nondiscrimination.

45 CFR Part 1181

    Accessibility, Employment, Nondiscrimination.

45 CFR Part 1182

    Privacy Act.

45 CFR Part 1184

    Freedom of Information Act.

    For the reasons stated in the preamble and under the authority of 
20 U.S.C. 9101 et seq., the Institute of Museum and Library Services 
amends 2 CFR part 3187 and 45 CFR parts 1181, 1182, and 1184 as 
follows:

Title 2--Grants and Agreements

PART 3187--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, 
AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS

0
1. The authority citation for part 3187 continues to read as follows:

    Authority: 20 U.S.C. 9101-9176, 9103(h); 20 U.S.C. 80r-5; 2 CFR 
part 200.


0
2. In Sec.  3187.12, in the table in paragraph (a), revise the entry 
for ``Discrimination on the basis of age'' to read as follows:


Sec.  3187.12  Federal statutes and regulations on nondiscrimination.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
             Subject                                                  Statute
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Discrimination on the basis of     The Age Discrimination Act of 1975 (42 U.S.C. 6101-6107).
 age.
----------------------------------------------------------------------------------------------------------------

* * * * *

[[Page 22945]]

Title 45--Public Welfare

PART 1181--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF 
HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE INSTITUTE OF 
MUSEUM AND LIBRARY SERVICES

0
3. The authority citation for part 1181 continues to read as follows:

    Authority: 29 U.S.C. 794.


0
4. Amend Sec.  1181.170 by revising the second sentence of paragraph 
(c) to read as follows:


Sec.  1181.170  Compliance procedures.

* * * * *
    (c) * * * Complaints may be sent to Director, Institute of Museum 
and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, 
Washington, DC, 20024-2135.
* * * * *

PART 1182--IMPLEMENTATION OF THE PRIVACY ACT OF 1974

0
5. The authority citation for part 1182 continues to read as follows:

    Authority:  5 U.S.C. 552a(f).


0
6. Revise Sec.  1182.3 to read as follows:


Sec.  1182.3   Inquiries about the Institute's systems of records or 
implementation of the Privacy Act.

    Inquiries about the Institute's systems of records or 
implementation of the Privacy Act should be sent to the following 
address: Institute of Museum and Library Services; Office of the 
General Counsel, 955 L'Enfant Plaza North SW, Suite 4000, Washington, 
DC 20024-2135.


Sec.  1182.5   [Amended]

0
7. Amend Sec.  1182.5 by removing ``Committee on Government Reform of 
the House of Representatives'' and adding in its place ``United States 
House Committee on Oversight and Government Reform'' and by removing 
``Committee on Governmental Affairs of the Senate'' and adding in its 
place ``United States Senate Committee on Homeland Security and 
Governmental Affairs.''


Sec.  1182.13  [Amended]

0
8. Amend Sec.  1182.13 by:
0
a. In paragraph (a) introductory text, adding the word ``will'' between 
the words ``Institute'' and ``not;'' and
0
b. In paragraph (a)(2), removing ``45 CFR part 1100'' and adding in its 
place ``45 CFR part 1184''.


Sec.  1182.15   [Amended]

0
9. In Sec.  1182.15, amend paragraph (a)(3) by removing ``1182.1'' and 
adding in its place ``1182.2''.

0
10. Revise the heading for Sec.  1182.16 to read as follows:


Sec.  1182.16  Procedures to ensure that Institute employees involved 
with its systems of records are familiar with the requirements of the 
Privacy Act.

PART 1184--IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT

0
11. The authority citation for part 1184 continues to read as follows:

    Authority: 5 U.S.C. 552.

0
12. Revise Sec.  1184.1 to read as follows:


Sec.  1184.1   What are the purpose and scope of this part?

    (a) This part describe how the Institute of Museum and Library 
Services (IMLS) processes requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552 as amended. The regulations in 
this part apply only to records that are both:
    (1) Created or obtained by IMLS; and
    (2) Under the agency's control at the time of the FOIA request.
    (b) The rules in this part should be read in conjunction with the 
text of the FOIA and the Uniform Freedom of Information Fee Act 
Schedule and Guidelines published by the Office of Management and 
Budget (the ``OMB Guidelines''). Requests made by individuals for 
records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, 
are processed under 45 CFR part 1182 as well as under this part.

0
13. Amend Sec.  1184.2 by revising paragraphs (a) and (b), (c) 
introductory text, (c)(8) and (10), the second sentence of (c)(11), and 
(c)(12) to read as follows:


Sec.  1184.2  What are IMLS's general policies with respect to FOIA?

    (a) Presumption of openness. IMLS administers the FOIA with a 
presumption of openness. Under this presumption, IMLS makes 
discretionary disclosures of records whenever such disclosure would not 
foreseeably harm an interest protected by a FOIA exemption or otherwise 
be prohibited by law.
    (b) Records available at the IMLS FOIA Electronic Reading Room. 
IMLS makes records available on its website Reading Room in accordance 
with 5 U.S.C. 552(a)(2), as amended, as well as other records that have 
been requested three or more times or that, because of the nature of 
their subject matter, are likely to be the subject of FOIA requests. 
IMLS establishes categories of records that can be disclosed regularly 
and proactively identifies and discloses additional records of interest 
to the public. To save time and money, and maximize efficiency, IMLS 
strongly urges individuals who seek information from IMLS to review 
documents available at the IMLS FOIA Electronic Reading Room before 
submitting a FOIA request.
    (c) Definitions. For purposes of this part, IMLS adopts all of the 
terms defined in the Freedom of Information Act, and the OMB 
Guidelines, unless otherwise defined in this part.
* * * * *
    (8) Representative of the news media. Representative of the news 
media is 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. The term ``news'' means information that is about current 
events or that would be of current interest to the public. Examples of 
news media entities include television or radio stations that broadcast 
``news'' to the public at large and publishers of periodicals that 
disseminate ``news'' and make their products available through a 
variety of means to the general public, including news organizations 
that disseminate solely on the internet. A request for records 
supporting the news-dissemination function of the requester will not be 
considered to be for a commercial use. ``Freelance'' journalists who 
demonstrate a solid basis for expecting publication through a news 
media entity will be considered as a representative of the news media. 
A publishing contract would provide the clearest evidence that 
publication is expected; however, agencies can also consider a 
requester's past publication record in making this determination. 
Agencies will advise requesters of their placement in this category.
* * * * *
    (10) Review. The examination of a record located in response to a 
request to determine whether any portion of it is exempt from 
disclosure. Review time includes all of the processing that is 
necessary to prepare any record for disclosure, including, as 
applicable, redacting portions of the record and marking the 
appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential business information

[[Page 22946]]

submitter under Sec.  1184.9 but it does not include time spent 
resolving general legal or policy issues regarding the applicability of 
exemptions.
    (11) * * * Search time includes page-by-page or line-by-line 
identification of information within records; and the reasonable 
efforts expended to locate and retrieve information from both hard copy 
and electronic records.
    (12) Working day. A regular Federal work day constitutes a working 
day. It does not include Saturdays, Sundays, or Federal holidays.

0
14. Amend Sec.  1184.3 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  1184.3  How do I request records?

    (a) Where to send a request. You may make a FOIA request for IMLS 
records by completing the online prompts in the FOIA Online Portal via 
FOIA.gov or via https://www.imls.gov/about/foia-request/form or by 
sending an email to [email protected] or by submitting a request in writing 
via regular U.S. Mail addressed directly to the FOIA Public Liaison, 
Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, 
Suite 4000, Washington, DC 20024-2135. Requests may also be sent in 
writing via facsimile to the FOIA Officer at (202) 653-4625.
    (b) Form of request. Your FOIA request need not be in any 
particular format, but it must be in writing, include your name and 
mailing address, and should be clearly identified as a Freedom of 
Information Act or ``FOIA'' request. You must describe the records you 
seek with sufficient specificity to enable the agency to identify and 
locate the records, including, if possible, dates, subjects, titles, or 
authors of the records requested. Before submitting a request, you may 
contact IMLS's FOIA contact or FOIA Officer to discuss the records you 
seek and to receive assistance in describing the records. If upon 
receiving your request IMLS determines that it does not reasonably 
describe the requested records, IMLS will advise you what additional 
information is required to perfect your request, or why your request is 
otherwise insufficient. You should also indicate if you have a 
preferred form or format in which you would like to receive the 
requested records.
* * * * *

0
15. Amend Sec.  1184.4 by adding paragraph (c) to read as follows:


Sec.  1184.4   When will I receive a response to my request?

* * * * *
    (c) Expedited processing. (1) IMLS must process requests and 
appeals on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information.
    (2) A request for expedited processing may be made at any time. 
When making a request for expedited processing of an administrative 
appeal, the request should be submitted as required by Sec.  1184.6.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (c)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. As a matter of administrative discretion, IMLS may waive the 
formal certification requirement.
    (4) IMLS must notify the requester within 10 calendar days of the 
receipt of a request for expedited processing of its decision whether 
to grant or deny expedited processing. If expedited processing is 
granted, the request must be given priority, placed in the processing 
track for expedited requests, and must be processed as soon as 
practicable. If a request for expedited processing is denied, IMLS must 
act on any appeal of that decision expeditiously.
* * * * *

0
16. Amend Sec.  1184.5 by:
0
a. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), 
and (f);
0
b. Adding a new paragraph (c); and
0
c. In newly redesignated paragraph (f):
0
i. Removing ``FOIA Officer'' and adding in its place ``FOIA Public 
Liaison;'' and
0
ii. Adding a sentence at the end of the paragraph.
    The additions read as follows:


Sec.  1184.5  How will my request be processed?

* * * * *
    (c) Estimated dates of completion and interim responses. Upon 
request, IMLS will provide an estimated date by which the agency 
expects to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, IMLS 
may provide interim responses, releasing the records on a rolling 
basis.
* * * * *
    (f) * * * In addition, IMLS will provide information about the 
mediation services provided by the Office of Government Information 
Services of the National Archives and Records Administration.

0
17. Amend Sec.  1184.6 by:
0
a. Revising paragraph (a); and
0
b. In paragraph (b), removing the term ``Office of Government Services 
(OGIS)'' and adding in its place ``Office of Government Information 
Services.''
    The revision reads as follows:


Sec.  1184.6  How can I appeal a denial of my request?

    (a) Submission of an appeal. If your FOIA request has been denied 
in whole or in part, or if the agency has not found any records in 
response to your request, you may file an appeal no later than ninety 
(90) calendar days following the date of the notification of denial. 
Your appeal must include a description of the initial request, the 
reason for the appeal, and why you believe the agency's response was 
incorrect. Your appeal must be in writing, signed, and filed with the 
IMLS Director, c/o Office of the General Counsel, 955 L'Enfant Plaza 
North SW, Suite 4000, Washington, DC 20024-2135. Appeals may also be 
sent via email to [email protected], or via facsimile to (202) 653-4625.
* * * * *

0
18. Amend Sec.  1184.7 by revising paragraphs (f)(3)(ii) and (g) to 
read as follows:


Sec.  1184.7   How will fees be charged?

* * * * *
    (f) ***
    (3) ***
    (ii) When IMLS requests an advance payment, the time limits 
described in section (a)(6) of the FOIA will begin only after IMLS has 
received advanced full payment in full.
    (g) Failure to comply. In the absence of unusual or exceptional 
circumstances, IMLS will not assess fees if the agency fails to comply 
with any time limit set forth in this part, unless

[[Page 22947]]

the agency has determined that unusual circumstances apply and more 
than 5,000 pages are necessary to respond to the request.
* * * * *

0
19. Amend Sec.  1184.8 by revising the second sentence of paragraph (b) 
to read as follows:


Sec.  1184.8  How can I address concerns regarding my request?

* * * * *
    (b) * * * If you seek information regarding OGIS and/or the 
services it offers, please contact OGIS directly at Office of 
Government Information Services, National Archives and Records 
Administration, 8601 Adelphi Road-OGIS, College Park, MD 20740-6001, 
Email: [email protected], Phone: (202) 741-5770 or toll free (877) 684-
6448, Fax: (202) 741-5769. * * *


Sec.  1184.9  [Amended]

0
20. Amend Sec.  1184.9(b)(2) by adding a comma after ``local''.

    Dated: May 13, 2019.
Kim Miller,
Grants Management Specialist, Institute of Museum and Library Services.
[FR Doc. 2019-10212 Filed 5-20-19; 8:45 am]
 BILLING CODE 7036-01-P