[Federal Register Volume 84, Number 239 (Thursday, December 12, 2019)]
[Rules and Regulations]
[Pages 67865-67868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26705]


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DEPARTMENT OF EDUCATION

34 CFR Part 5

[Docket ID ED-2019-OS-0083]
RIN 1880-AA89


Availability of Information to the Public

AGENCY: Office of the Secretary, Department of Education.

ACTION: Final rule.

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SUMMARY: The Department of Education (``Department'') issues a final 
rule amending its Availability of Information to the Public regulations 
to reflect amendments to the Freedom of Information Act (``FOIA'') made 
by the FOIA Improvement Act of 2016 (``Improvement Act'') and a minor 
technical update. Among other things, the Improvement Act requires the 
Department to amend its FOIA regulations to extend the deadline for 
administrative appeals for FOIA decisions, add information on dispute 
resolution services, and amend the way the Department charges fees for 
FOIA requests.

DATES: These final regulations are effective December 12, 2019.

FOR FURTHER INFORMATION CONTACT: Gregory Smith, 400 Maryland Avenue SW, 
Room 7W104, Washington, DC 20202. Telephone: (202) 401-8365. Email: 
[email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: In this final rule, we are revising sections 
in 34 CFR part 5 based on statutory amendments to FOIA (5 U.S.C. 552) 
that were made by the Improvement Act (Pub. Law 114-185) and to make a 
minor, technical update. The following paragraphs describe the specific 
statutory changes and the revisions we are making to the regulations.

Subpart B--Agency Records Available to the Public

Sec.  5.10 Public Reading Room

    Statute: The Improvement Act amended 5 U.S.C. 552(a)(2) to require 
that each agency ensure that certain categories of records are 
available for public inspection in an electronic format, rather than 
available in person for copying, as previously required. The amendments 
also expanded the categories of records that must be made available for 
public inspection to include records that have been requested under 
FOIA three or more times.
    Current Regulations: Current Sec.  5.10(a) requires the Department 
to maintain a public reading room containing certain agency records 
required to be made available for public inspection and copying under 
FOIA. Current Sec.  5.10(b) provides that the public reading room will 
include certain categories of records, such as final opinions, orders 
in adjudications, and agency records released to the public pursuant to 
a FOIA request and that are likely to be the subject of future FOIA 
requests. Current Sec.  5.10(c) requires the Department to make the 
reading room records available for inspection electronically.
    New Regulations: We are amending Sec.  5.10 to reflect the emphasis 
in 5 U.S.C. 552(a)(2) on electronic inspection for agency records 
created on or after November 1, 1996, including by renaming the section 
and reorganizing the requirements. Although the new regulations 
continue to allow the Department to maintain its reading room, we are 
revising Sec.  5.10 to highlight that the Department is only required 
to make such records available for public inspection in an electronic 
format, rather than available in person for copying. In Sec.  5.10(a), 
we are adding to the list of records required to be made available 
records requested three or more times under FOIA, and, in Sec.  
5.10(c), we have clarified that, for records created before November 1, 
1996, the Department will continue to make hard copies available upon 
request in accordance with 5 U.S.C. 552(a)(3).
    Reason: We are revising Sec.  5.10 so it aligns with the 
Improvement Act.

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

Sec.  5.20 Requirements for Making FOIA Requests

    Statute: Under 5 U.S.C. 552(a)(3)(A), a request for records must 
reasonably describe the records and be made in accordance with 
published rules stating the time, place, fees, and procedures to be 
followed. It does not explicitly require a requester to provide contact 
information upon filing a request.
    Current Regulations: Under current Sec.  5.20(a), a 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 website.
    New Regulations: We are adding to Sec.  5.20(a) that each request 
must include a valid email or physical address, and we are omitting 
reference to the manner

[[Page 67866]]

in which the submission must be made, as the procedures are specified 
on the Department's FOIA web page.
    Reason: The Department has received requests without the 
requester's contact information, which makes it difficult for the 
Department to transmit the responsive records to the requester as well 
as to seek clarification regarding the request, if needed. Further, the 
Department elects to specify the submission procedures on its FOIA web 
page, rather than its regulations, to maintain flexibility to change 
the procedures to adapt to changing circumstances and best serve the 
public.

Sec.  5.21 Procedures for Processing FOIA Requests

    Statute: The Improvement Act amended 5 U.S.C. 552(a)(6) in several 
respects. First, under section 552(a)(6)(B)(ii), if a request is 
extended more than 10 working days from the 20-day processing time 
limit, the requester has the right to seek dispute resolution services 
from the Office of Government Information Services. Second, when a 
requester receives a notice of determination, the requester may seek 
dispute resolution services from the FOIA Public Liaison.
    Current Regulations: The current regulations do not reflect the 
rights and procedures that were created through the Improvement Act.
    New Regulations: We are amending Sec.  5.21 to provide requesters 
with the opportunity to seek dispute resolution assistance from the 
Office of Government Information Services when a processing extension 
is more than 10 days after the 20-day time limit. We are also amending 
Sec.  5.21 to require written notification to the requester of the 
right to seek dispute resolution from the Public FOIA Liaison or the 
Office of Government Information Services regarding issues with the 
processing of the request.
    Reason: We are revising Sec.  5.21 so it aligns with the 
Improvement Act.

Subpart D--Fees

Sec.  5.32 Assessment of Fees

    Statute: Under 5 U.S.C. 552(a)(4)(A)(viii)(I), an agency may not 
generally charge search fees (or, in certain instances, duplication 
fees) if it has failed to reply to a request within the time limit 
under section 552(a)(6), except in two instances. First, if unusual 
circumstances (as described in section 552(a)(4)(A)(viii)(II)(aa) and 
(bb)) exist, section 552(a)(4)(A)(viii)(II) authorizes an agency to 
charge search fees (or duplication fees) if it provides timely written 
notice to the requester in accordance with section 
552(a)(4)(A)(viii)(II)(aa) and it complies with the request within 10 
days of the end of the 20-day processing period. Second, an agency may 
charge search fees (or duplication fees) if more than 5,000 pages are 
necessary to respond to the request and the agency has discussed with 
the requester via written mail, electronic mail, or telephone (or made 
at least three good-faith attempts to do so) how the requester could 
effectively limit the scope of the request in accordance with section 
552(a)(4)(A)(viii)(II)(bb).
    Current Regulations: The current regulations allow the Department 
to charge fees without regard to whether the Department has exceeded 
the processing time (or a negotiated extension).
    New Regulations: We are amending Sec.  5.32 so that search fees or 
duplication fees can be assessed in the event the Department exceeds 
the processing time only if the requester has been timely advised of 
unusual circumstances and either: (1) the Department complies with the 
request within 10 days of the end of the 20-day processing period; or 
(2) more than 5,000 pages are necessary to respond to the request, and 
the Department has contacted the requester (or made at least three 
good-faith attempts) about ways to narrow or revise the scope of the 
request.
    Reason: We are revising Sec.  5.32 so it aligns with the 
Improvement Act.

Subpart E--Administrative Review

Sec.  5.40 Appeals of Adverse Determinations

    Statute: The Improvement Act amended 5 U.S.C. 
552(a)(6)(A)(i)(III)(aa) to require agencies to provide at least 90 
days to appeal an adverse determination.
    Current Regulations: The current regulations provide a requester 
with 35 calendar days from the date of an adverse determination letter, 
issued by the Department, to submit an appeal.
    New Regulations: We are amending Sec.  5.40 so requesters can file 
an appeal within 90 calendar days of the date on the adverse 
determination letter issued by the Department.
    Reason: We are revising Sec.  5.40 so it aligns with the 
Improvement Act.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of FOIA, 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 stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to review by OMB under section 3(f)(1) of Executive Order 
12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866 and 
that imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2020, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. Because this final rule is 
not a significant regulatory action, Executive Order 13771 does not 
apply.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things, and to the extent practicable--the costs 
of cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety,

[[Page 67867]]

and other advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on the analysis that follows, the 
Department believes that these final regulations are consistent with 
the principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.
    In accordance with the Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The final regulations are not 
expected to have a significant impact because they are designed to 
merely implement statutory changes to the FOIA process. These changes 
relate to the procedures we use for administering the FOIA program, and 
the additional burden they impose on our stakeholders or the 
Department, if any, is minor.

Waiver of Proposed Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, the APA provides that an 
agency is not required to conduct notice and comment rulemaking when 
the agency for good cause finds that notice and public comment thereon 
are impracticable, unnecessary, or contrary to the public interest. 5 
U.S.C. 553(b)(B). Rulemaking is ``unnecessary'' when ``the 
administrative rule is a routine determination, insignificant in nature 
and impact, and inconsequential to the industry and to the public.'' 
Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (DC Cir. 
2001), quoting U.S. Department of Justice, Attorney General's Manual on 
the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 
558 F. Supp. 1004, 1016 (D.S.C. 1983). These regulations merely reflect 
statutory changes or make minor changes to agency procedure and do not 
establish or affect substantive policy. Therefore, under 5 U.S.C. 
553(b)(B), the Secretary has determined that proposed regulations are 
unnecessary.
    The APA generally requires that regulations be published at least 
30 days before their effective date, unless the agency has good cause 
to implement its regulations sooner (5 U.S.C. 553(d)(3)). As previously 
stated, because the final regulations merely reflect statutory changes 
and minor changes to agency procedure, there is good cause to waive the 
delayed effective date in the APA and make the final regulations 
effective upon publication..

Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act does not apply to this rulemaking 
because there is good cause to waive notice and comment under 5 U.S.C. 
553.

Paperwork Reduction Act of 1995

    The final regulations do not create any new information collection 
requirements.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Portable Document Format (PDF). To 
use PDF, you must have Adobe Acrobat Reader, which is available free at 
the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects in 34 CFR Part 5

    Freedom of information.

    Dated: December 6, 2019.
Betsy DeVos,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends 
part 5 of title 34 of the Code of Federal Regulations as follows:

PART 5--AVAILABILITY OF INFORMATION TO THE PUBLIC

0
1. The authority citation for part 5 is revised to read as follows:

    Authority:  5 U.S.C. 552, 20 U.S.C. 1221e-3, and 20 U.S.C. 3474.

0
2. Section 5.10 is amended by revising paragraphs (a) through (c) to 
read as follows:


Sec.  5.10  Agency records.

    (a) Electronic inspection. (1) Pursuant to 5 U.S.C. 552(a)(2), the 
Department makes available for public inspection in an electronic 
format the following records created on or after November 1, 1996:
    (i) Final opinions and orders in adjudications;
    (ii) Statements of policy and interpretations adopted by the 
Department and not published in the Federal Register;
    (iii) Administrative staff manuals and instructions affecting the 
public; and
    (iv) 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 or have 
been requested three or more times.
    (2) The Department currently makes the agency records described in 
paragraph (a)(1) of this section available for public inspection in an 
electronic format through its electronic reading room located on the 
Department's FOIA website at http://www2.ed.gov/policy/gen/leg/foia/readingroom.html.
    (b) Public reading room. The Department may maintain a public 
reading room containing the agency records described in paragraph 
(a)(1) of this section. The Department's public reading room is 
currently located at the National Library of Education, 400 Maryland 
Avenue SW, Plaza Level (Level B), Washington, DC 20202-0008. To visit 
the public reading room, members of the public can contact the 
Department's FOIA Service Center via email at [email protected].
    (c) Hard copies. For any agency records that are not made available 
for

[[Page 67868]]

public inspection in the Federal Register or pursuant to paragraph (a) 
of this section, the Department will, upon request, provide hard copies 
in accordance with 5 U.S.C. 552(a)(3).
* * * * *

0
3. Section 5.20 is amended by revising paragraph (a) to read as 
follows:


Sec.  5.20  Requirements for making FOIA requests.

    (a) Making a FOIA request. Any FOIA request for an agency record 
must be in writing, must include a valid electronic mail or physical 
address, and must be transmitted to the Department as indicated on the 
Department's website. See www.ed.gov/policy/gen/leg/foia/request_foia.html.
* * * * *

0
4. Section 5.21 is amended by:
0
a. Revising paragraphs (e) introductory text and (g).
0
b. Redesignating paragraph (h)(2)(ii)(E) as paragraph (h)(2)(ii)(G).
0
c. Adding new paragraphs (h)(2)(ii)(E) and (F).
    The revisions and additions read as follows:


Sec.  5.21  Procedures for processing FOIA requests.

* * * * *
    (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 (3) of this section, in which case the Department notifies the 
requester of the extension in writing. For extensions of more than 10 
additional working days, the Department must also notify the requester, 
in writing, of the right to seek dispute resolution services from the 
Office of Government Information Services. 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:
* * * * *
    (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 and of the right to seek 
assistance from the Department's FOIA Public Liaison.
    (h) * * *
    (2) * * *
    (ii) * * *
    (E) A statement notifying the requester of the right to seek 
assistance from the Department's FOIA Public Liaison.
    (F) A statement notifying the requester of the right to seek 
dispute resolution services from the Department's FOIA Public Liaison 
or the Office of Government Information Services.
* * * * *

0
5. Section 5.32 is amended by adding paragraph (b)(4) to read as 
follows:


Sec.  5.32   Assessment of fees.

* * * * *
    (b) * * *
    (4) If the Department has failed to comply with any time limit in 5 
U.S.C. 552(a)(4)(A)(viii)(I), the Department may not assess search 
fees, except as otherwise provided in this paragraph. If the Department 
has determined that unusual circumstances (as described in Sec.  
5.21(e)) apply, it may assess search fees (or, for requesters with 
preferred fee status, it may assess duplication fees) if the Department 
gives the requester timely written notice under Sec.  5.21(e) and 
responds to the FOIA request within 10 additional working days. If 
unusual circumstances apply and more than 5,000 pages are necessary to 
respond to the request, the Department may assess search fees (or, for 
requesters with preferred fee status, duplication fees) if the 
Department gives the requester timely written notice under Sec.  
5.21(e) and the Department discussed with the requester via written 
mail, electronic mail, or telephone (or made not less than three good-
faith attempts to do so) how the requester could effectively limit the 
scope of the request.
* * * * *


Sec.  5.40   [Amended]

0
6. Section 5.40 is amended by removing the number ``35'' and adding 
``90'' in its place in the first sentence of paragraph (b).

[FR Doc. 2019-26705 Filed 12-11-19; 8:45 am]
 BILLING CODE 4000-01-P