Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Rules and Regulations 33509 

1The President’s January 21, 2009 memorandum 

on FOIA may be found at http:// 

www.whitehouse.gov/the_press_office/ 

Freedom_of_Information_Act/. FOIA guidance 

issued by the Department of Justice may be found 

at http://www.justice.gov/oip/foiapost/ 

mainpage.htm. 

come within such a distance pursuant to 

paragraph (c)(4) of this section or 

permitted to come within such a 

distance by the cognizant Captain of the 

Port, his or her designated 

representative, or the on-scene Official 

Patrol. 

(4) Vessels are permitted to transit 

through the safety and security zone in 

waterways that do not provide adequate 

navigable waters greater than 100 yards 

from the Tall Ships. Vessels transiting 

such areas must operate at the minimum 

speed necessary to maintain a safe 

course while also maintaining the 

greatest possible distance away from the 

Tall Ships. 

(d) Effective period. This rule is 

effective from 12:01 a.m. on Wednesday, 

June 23, 2010 through 12:01 a.m. on 

Monday September 13, 2010. 

(e) Navigation Rules. The Navigation 

Rules must apply at all times within a 

Tall Ships safety and security zone. 

(f) When a Tall Ship approaches 

within 25 yards of any vessel that is 

moored or anchored, the stationary 

vessel must stay moored or anchored 

while it remains within the tall ship’s 

safety and security zone unless ordered 

by or given permission from the 

cognizant Captain of the Port, his or her 

designated representative, or the onscene official patrol to do otherwise. 

Dated: May 21, 2010. 

M.N. Parks, 

Rear Admiral, U.S. Coast Guard, Commander, 

Ninth Coast Guard District. 

[FR Doc. 2010–14146 Filed 6–11–10; 8:45 am] 

BILLING CODE 9110–04–P 

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: Final regulations. 

SUMMARY: The Secretary amends the 

regulations governing the Department’s 

compliance with the Freedom of 

Information Act, as amended (FOIA or 

the Act) to reflect the changes in the 

FOIA over recent years. 

DATES: These regulations are effective 

July 14, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Angela Arrington, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

Washington, DC 20202–5920. 

Telephone: (202) 401–8365. 

If you use a telecommunications 

device for the deaf (TDD), call the 

Federal Relay Service (FRS), toll free, at 

1–800–877–8339. 

Individuals with disabilities can 

obtain this document in an accessible 

format (e.g., braille, large print, 

audiotape, or computer diskette) on 

request to the contact person listed in 

this section. 

SUPPLEMENTARY INFORMATION: On 

November 26, 2008, the Secretary 

published a notice of proposed 

rulemaking (NPRM) to amend the 

Department’s FOIA regulations in 34 

CFR part 5 in the Federal Register (73 

FR 71986). In the summary to the 

NPRM, on pages 71987 through 71993, 

the Secretary discussed how the 

proposed regulations would amend and 

update the Department’s FOIA 

regulations to implement changes made 

to the FOIA (5 U.S.C. 552) in recent 

years and articulate more clearly, to the 

public, how the Department processes 

FOIA requests for publicly available 

records. 

After the public comment period 

ended, there was further public 

guidance regarding FOIA issued by the 

White House and the Department of 

Justice 1 that we took into account in 

preparing these final regulations. Thus, 

there is one substantive difference 

between the regulations proposed in the 

NPRM and these final regulations. 

Specifically, proposed § 5.2 (General 

policy), which stated the Department’s 

general policy regarding the availability 

of information under FOIA, has been 

removed and proposed § 5.3 

(Definitions) has been redesignated as 

§ 5.2 (Definitions). Upon further internal 

review after the publication of the 

NPRM, and light of the public guidance 

regarding FOIA, we determined that 

proposed § 5.2 was unnecessary and 

potentially confusing. Proposed § 5.2 

did not add any requirements or 

clarification to the Department’s FOIA 

process. Rather, the remaining proposed 

regulations, adopted as final through 

these regulations, comprehensively 

describe how the Department processes 

FOIA requests. 

Analysis of Comments and Changes 

In response to the Secretary’s 

invitation in the NPRM, the Department 

received no comments on the proposed 

regulations. 

Executive Order 12866 

Under Executive Order 12866, the 

Secretary must determine whether the 

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 

entitlement 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. Pursuant to the terms of the 

Executive order, it has been determined 

that this regulatory action is not a 

significant regulatory action subject to 

OMB review under section 3(f) of 

Executive Order 12866. 

We have also determined that this 

regulatory action does not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

We summarized the potential costs 

and benefits of these final regulations in 

the NPRM at 73 FR 71993. 

Paperwork Reduction Act of 1995 

These regulations do not contain any 

information collection requirements. 

Electronic Access to This Document 

You can view this document, as well 

as all other documents of this 

Department 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. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

(Catalog of Federal Domestic Assistance 

Number does not apply.) 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
33510 Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Rules and Regulations 

Dated: June 7, 2010. 

Arne Duncan, 

Secretary of Education. 

■ For the reasons discussed in the 

preamble, the Secretary revises part 5 of 

title 34 of the Code of Federal 

Regulations as follows: 

PART 5—AVAILABILITY OF 

INFORMATION TO THE PUBLIC 

Subpart A—General Provisions 

Sec. 

5.1 Purpose. 

5.2 Definitions. 

Subpart B—Records Available to the Public 

5.10 Public reading room. 

5.11 Business information. 

5.12 Creation of records not required. 

5.13 Preservation of records. 

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 

§ 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) 

§ 5.2 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 record keeping 

system or files. 

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

Subpart B—Agency Records Available 

to the Public 

§ 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://www2.ed.gov/policy/gen/ 

leg/foia/readingroom.html. 

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

552(a)(2), 20 U.S.C. 3474) 

§ 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 

notifies a submitter whenever a FOIA 

request or administrative appeal is made 

under the Act seeking disclosure of the 

information the submitter has 


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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 

§ 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) 

§ 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) 

§ 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 

§ 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) 

§ 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 


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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 § 5.20(a) to 

receive FOIA requests for agency 

records. The Department’s failure to 

comply with these time 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 another 

agency or two or more 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 § 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 § 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 

§ 5.30 Fees generally. 

The Department assesses fees for 

processing FOIA requests in accordance 

with § 5.32(a), except where fees are 

limited under § 5.32(b) or where a 

waiver or reduction of fees is granted 

under § 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. 


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The Department retains full discretion 

to limit or adjust fees. 

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

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

§ 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 pageby-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) 

§ 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 § 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 

§ 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 § 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. 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
33514 Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Rules and Regulations 

(1) Fees are limited to charges for 

document duplication when agency 

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), 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) 

§ 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 § 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 

§ 5.40 Appeals of adverse determinations. 

(a) In general. A requester may seek 

an administrative review of an adverse 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Rules and Regulations 33515 

determination on the FOIA request 

made by the requester by submitting an 

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 

§ 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. 2010–14127 Filed 6–11–10; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2010–0021] 

RIN 2127–AK05 

Federal Motor Vehicle Safety 

Standards; Electric-Powered Vehicles; 

Electrolyte Spillage and Electrical 

Shock Protection 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: In response to a petition for 

rulemaking from the Alliance of 

Automobile Manufacturers, NHTSA is 

issuing this final rule to facilitate the 

development and introduction of fuel 

cell vehicles, a type of electric-powered 

vehicle, and the next generation of 

hybrid and battery electric powered 

vehicles. It does so by revising the 

agency’s standard regulating electrolyte 

spillage and electrical shock protection 

for electric-powered vehicles to align it 

more closely with the April 2005 

version of the Society of Automotive 

Engineers (SAE) Recommended Practice 

for Electric and Hybrid Electric Vehicle 

Battery Systems Crash Integrity Testing 

(SAE J1766). 

The standard currently requires 

manufacturers to design their vehicles 

so that, in the event of a crash, a 

vehicle’s propulsion battery system will 

be electrically isolated from the 

vehicle’s electricity-conducting 

structure. As amended, this rule 

provides greater flexibility, requiring 

manufacturers to design their 

electrically powered vehicles so that, in 

the event of a crash, the electrical 

energy storage, conversion, and traction 

systems are either electrically isolated 

from the vehicle’s chassis or their 

voltage is below specified levels 

considered safe from electric shock 

hazards. 

Since the physiological impacts of 

direct current (DC) are less than those of 

alternating current (AC), this rule 

specifies lower electrical isolation 

requirements for certain DC components 

than for AC components. The current 

standard does not recognize the 

difference in safety risk between DC and 

AC components, requiring both types of 

components to meet the same 

requirements. As requested by the 

petitioners, this final rule specifies the 

following electrical isolation 

requirements: 500 ohms/volt for AC and 

DC high voltage sources and 100 ohms/ 

volt for DC high voltage sources with 

continuous monitoring of electrical 

isolation. 

DATES: Effective Date: This rule is 

effective September 1, 2011, with 

optional early compliance. 

ADDRESSES: Petitions: Petitions for 

reconsideration should refer to the 

docket number above and be submitted 

to: Administrator, National Highway 

Traffic Safety Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues, you may contact Mr. 

Charles Hott, Office of Rulemaking, by 

telephone at (202) 366–0247, or by fax 

at (202) 493–2990. For legal issues, you 

may contact Ms. Rebecca Yoon, Office 

of Chief Counsel, by telephone at (202) 

366–2992, or by fax at (202) 366–3820. 

You may send mail to these officials at 

the National Highway Traffic Safety 

Administration, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Standard No. 305 and the Alliance 

Petition for Rulemaking To Upgrade It 

B. The NPRM 

C. Summary of Public Comments Received 

D. How The Final Rule Differs From the 

NPRM 

II. Public Comments on the NPRM and 

Agency Responses 

A. Multiple Options for Providing 

Electrical Safety in Electric-Powered 

Vehicles 

1. Electrical Isolation 

(a) Requirements for Electrical Isolation of 

AC and DC Systems 

(b) Continuous Monitoring Requirement for 

Electrical Isolation 

(c) Timing of Measurements for Electrical 

Isolation 

2. Voltage Level 

3. Energy Limit (0.2 Joules) 

B. Other Issues Relating to the Electrical 

Isolation Requirement 

C. Comments Regarding Test Procedures 

D. Regulatory Text Wording 

E. Physical Barriers as an Additional 

Option for Providing Electrical Safety 

F. Effective Date 

G. Hyundai Request for Interpretation on 

S5.2 Battery Retention 

H. Preemption 

III. Rulemaking Analyses and Notices 

IV. Regulatory Text 

I. Background 

A. Standard No. 305 and the Alliance 

Petition for Rulemaking To Upgrade It 

The purpose of Federal Motor Vehicle 

Safety Standard (FMVSS) No. 305, 

Electric-Powered Vehicles: Electrolyte 

Spillage and Electrical Shock 

Protection, is to reduce deaths and 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1