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[Federal Register: June 14, 2010 (Volume 75, Number 113)]
[Rules and Regulations]               
[Page 33509-33515]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn10-9]                         

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DEPARTMENT OF EDUCATION

34 CFR Part 5

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

 
Availability of Information to the Public

AGENCY: Office of Management, Department of Education.

ACTION: Final regulations.

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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 Sec.  5.2 (General policy), which stated the 
Department's general policy regarding the availability of information 
under FOIA, has been removed and proposed Sec.  5.3 (Definitions) has 
been redesignated as Sec.  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 Sec.  5.2 was 
unnecessary and potentially confusing. Proposed Sec.  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.
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    \1\ The 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.
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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.)

[[Page 33510]]

    Dated: June 7, 2010.
Arne Duncan,
Secretary of Education.

0
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

Sec.  5.1  Purpose.

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

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

Sec.  5.2  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

Sec.  5.10  Public reading room.

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

Sec.  5.11  Business information.

    (a) General. The Department discloses business information it 
obtains from a submitter under the Act in accordance with this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Department from a submitter that may be protected from 
disclosure under 5 U.S.C. 552(b)(4) (Exemption 4 of the Act).
    (2) Submitter means any person or entity (including corporations; 
State, local, and tribal governments; and foreign governments) from 
whom the Department obtains business information.
    (c) Designation of business information.
    (1) A submitter must use good faith efforts to designate, by 
appropriate markings, either at the time of submission or at a 
reasonable time thereafter, any portion of its submission that it 
considers to be business information protected from disclosure under 
Exemption 4 of the Act.
    (2) A submitter's designations are not binding on the Department 
and will expire 10 years after the date of the submission unless the 
submitter requests, and provides justification for, a longer 
designation period.
    (3) A blanket designation on each page of a submission that all 
information contained on the page is protected from disclosure under 
Exemption 4 presumptively will not be considered a good faith effort.
    (d) Notice to submitters. Except as provided in paragraph (g) of 
this section, the Department promptly notifies a submitter whenever a 
FOIA request or administrative appeal is made under the Act seeking 
disclosure of the information the submitter has

[[Page 33511]]

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

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

Sec.  5.12  Creation of agency records not required.

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

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

Sec.  5.13  Preservation of agency records.

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

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

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

Sec.  5.20  Requirements for making FOIA requests.

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

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

Sec.  5.21  Procedures for processing FOIA requests.

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

[[Page 33512]]

consultation with the other agency, or refers the FOIA request to the 
other agency for processing. When the Department refers a FOIA request 
to another agency for processing, the Department will so notify the 
requester.
    (c) Decisions on FOIA requests. The Department determines whether 
to comply with a FOIA request within 20 working days after the 
appropriate component of the Department first receives the request. 
This time period commences on the date that the request is received by 
the appropriate component of the Department, but commences no later 
than 10 calendar days after the request is received by the component of 
the Department designated pursuant to Sec.  5.20(a) to receive FOIA 
requests for agency records. The Department's failure to comply with 
these 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 Sec.  5.40.
    (i) Timing of responses to FOIA requests.
    (1) Multitrack processing.
    The Department may use two or more processing tracks to distinguish 
between simple and more complex FOIA requests based on one or more of 
the following: the time and work necessary to process the FOIA request, 
the volume of agency records responsive to the FOIA request, and 
whether the FOIA request qualifies for expedited processing as 
described in paragraph (i)(2) of this section.
    (2) Expedited processing.
    (i) The Department gives expedited treatment to FOIA requests and 
appeals whenever the Department determines that a FOIA request involves 
one or more of the following:
    (A) A circumstance in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual.
    (B) The urgent need of a person primarily engaged in disseminating 
information to inform the public about an actual or alleged Federal 
Government activity; or
    (C) Other circumstances that the Department determines demonstrate 
a compelling need for expedited processing.
    (ii) A requester may ask for expedited processing at the time of 
the initial FOIA request or at any time thereafter.
    (iii) A request for expedited processing must contain a detailed 
explanation of the basis for the request, and must be accompanied by a 
statement certifying the truth of the circumstances alleged or other 
evidence of the requester's compelling need acceptable to the 
Department.
    (iv) The Department makes a determination whether to grant or deny 
a request for expedited processing within 10 calendar days of its 
receipt by the component of the Department designated pursuant to Sec.  
5.20(a) to receive FOIA requests for agency records, and processes FOIA 
requests accepted for expedited processing as soon as practicable and 
on a priority basis.

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

Subpart D--Fees

Sec.  5.30  Fees generally.

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

[[Page 33513]]

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)

Sec.  5.31  Fee definitions.

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

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

Sec.  5.32  Assessment of fees.

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

[[Page 33514]]

    (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)

Sec.  5.33  Requirements for waiver or reduction of fees.

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

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

Subpart E--Administrative Review

Sec.  5.40  Appeals of adverse determinations.

    (a) In general. A requester may seek an administrative review of an 
adverse

[[Page 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 
Sec.  5.21(c) through (e). The Department's failure to comply with time 
limits set forth in this section constitutes exhaustion of the 
requester's administrative remedies for the purposes of initiating 
judicial action to compel disclosure.
    (2) The Department's determination on an appeal constitutes the 
Department's final action on the FOIA request. Any Department 
determination denying an appeal in whole or in part includes the 
reasons for the denial, including any exemptions asserted under the 
Act, and notice of the requester's right to seek judicial review of the 
determination in accordance with 5 U.S.C. 552(a)(4). Where the 
Department makes a determination to grant an appeal in whole or in 
part, it processes the FOIA request subject to the appeal in accordance 
with the determination on appeal.

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

[FR Doc. 2010-14127 Filed 6-11-10; 8:45 am]
BILLING CODE 4000-01-P
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