[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Rules and Regulations]
[Pages 5097-5098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01517]


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DEPARTMENT OF EDUCATION

34 CFR Part 5

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


Availability of Information to the Public; Correction

AGENCY: Office of the Secretary, Department of Education.

ACTION: Final rule; correction.

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SUMMARY: On June 14, 2010, the Department of Education (Department) 
published in the Federal Register a final rule amending the 
Department's Freedom of Information Act (FOIA) regulations. The 2010 
final rule implemented amendments made to the FOIA statute and 
clarified how the Department processes FOIA requests for agency 
records. We are correcting the administrative exhaustion provisions 
related to the Appeals of Adverse Determinations section in the FOIA 
regulations. All other provisions in the FOIA regulations remain the 
same.

DATES: This correction is effective January 26, 2024.

FOR FURTHER INFORMATION CONTACT: Deborah O. Moore, Department of 
Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone: 
(202) 381-1414. Email: [email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION: On June 14, 2010, the Department published a 
final rule amending the Department's FOIA regulations in 34 CFR part 5. 
Section 5.40(b) (Appeals of Adverse Determinations) erroneously states 
that a requester's, as opposed to the Department's, failure to comply 
with the applicable time limits constitutes exhaustion of the 
requester's administrative remedies for the purposes of initiating 
judicial action to compel disclosure. This current language is contrary 
to the Federal statute at 5 U.S.C. 552(a)(6)(C)(i) and case law. See 
Citizens for Responsibility and Ethics in Washington v. Federal 
Election Com'n, 711 F.3d 180, 184 (D.C. Cir. 2013). Additionally, 
similar language (without the error) is contained in current Sec.  
5.40(c)(1) of the FOIA regulations. Therefore, we are correcting the 
provision to strike the erroneous language from Sec.  5.40(b). 
Specifically, we are removing the last sentence of Sec.  5.40(b), which 
reads: ``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.''
    All other information in the 2010 final rule remains the same, 
except for the provisions that were amended on December 12, 2019 (84 FR 
67865).

Waiver of Rulemaking

    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 are 
impracticable, unnecessary, or contrary to the public interest (5 
U.S.C. 553(b)(B)).
    Rulemaking is ``unnecessary'' in those situations in which ``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 (D.C. 
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).
    There is good cause to waive rulemaking here, because rulemaking is 
unnecessary. The actions in this document merely correct an inadvertent 
inconsistency with the FOIA statute and a similar provision in 34 CFR 
5.40(c)(1) and are not an exercise of the Department's discretion. 
Thus, the Secretary has determined that publication of a proposed rule 
is unnecessary under 5 U.S.C. 553(b)(B).
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal

[[Page 5098]]

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

    Administrative practice and procedure, Investigations.

    Accordingly, part 5 of title 34 of the Code of Federal Regulations 
is corrected by making the following correcting amendments:

PART 5--AVAILABILITY OF INFORMATION TO THE PUBLIC

0
1. The authority citation for part 5 continues 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 5.40 is amended by revising paragraph (b) to read as 
follows:


Sec.  5.40  Appeals of Adverse Determinations.

* * * * *
    (b) A requester must submit an appeal within 90 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.
* * * * *

Alexis Barrett,
Chief of Staff, Office of the Secretary, Department of Education.
[FR Doc. 2024-01517 Filed 1-25-24; 8:45 am]
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