Availability of Information to the Public, 67865-67868 [2019-26705]

Download as PDF Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations Issued in Washington, DC, on November 29, 2019. Rick Domingo, Executive Director, Flight Standards Service. ODPs, effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and AIRAC date State Authority: 49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722. Airport Maverick County Memorial Intl. Hall-Miller Muni .............. Posey Field .................... 2–Jan–20 .......... TX Eagle Pass .................... 2–Jan–20 .......... 2–Jan–20 .......... TX AL Atlanta ........................... Haleyville ....................... 34 CFR Part 5 [Docket ID ED–2019–OS–0083] RIN 1880–AA89 Availability of Information to the Public Office of the Secretary, Department of Education. ACTION: Final rule. AGENCY: The Department of Education (‘‘Department’’) issues a final rule amending its Availability of Information to the Public regulations to reflect amendments to the Freedom of Information Act (‘‘FOIA’’) made by the FOIA Improvement Act of 2016 (‘‘Improvement Act’’) and a minor technical update. Among other things, the Improvement Act requires the Department to amend its FOIA regulations to extend the deadline for administrative appeals for FOIA decisions, add information on dispute resolution services, and amend the way the Department charges fees for FOIA requests. SUMMARY: These final regulations are effective December 12, 2019. DATES: FOR FURTHER INFORMATION CONTACT: Gregory Smith, 400 Maryland Avenue SW, Room 7W104, Washington, DC 20202. Telephone: (202) 401–8365. Email: Gregory.Smith@ed.gov. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877– 8339. 16:05 Dec 11, 2019 Jkt 250001 RNAV (GPS) RWY 13, Amdt 1B. 9/3561 9/5495 11/14/19 11/19/19 RNAV (GPS) RWY 5, Amdt 1B. VOR/DME RWY 18, Amdt 5B. § 5.10 Public Reading Room Statute: The Improvement Act amended 5 U.S.C. 552(a)(2) to require that each agency ensure that certain categories of records are available for public inspection in an electronic format, rather than available in person for copying, as previously required. The amendments also expanded the categories of records that must be made available for public inspection to include records that have been requested under FOIA three or more times. Current Regulations: Current § 5.10(a) requires the Department to maintain a public reading room containing certain agency records required to be made available for public inspection and copying under FOIA. Current § 5.10(b) provides that the public reading room will include certain categories of records, such as final opinions, orders in adjudications, and agency records released to the public pursuant to a FOIA request and that are likely to be the subject of future FOIA requests. Current § 5.10(c) requires the Department to make the reading room records available for inspection electronically. New Regulations: We are amending § 5.10 to reflect the emphasis in 5 U.S.C. 552(a)(2) on electronic inspection for Frm 00039 Fmt 4700 Sfmt 4700 Subject 11/18/19 Subpart B—Agency Records Available to the Public PO 00000 FDC date 9/3424 In this final rule, we are revising sections in 34 CFR part 5 based on statutory amendments to FOIA (5 U.S.C. 552) that were made by the Improvement Act (Pub. Law 114–185) and to make a minor, technical update. The following paragraphs describe the specific statutory changes and the revisions we are making to the regulations. DEPARTMENT OF EDUCATION VerDate Sep<11>2014 FDC No. SUPPLEMENTARY INFORMATION: BILLING CODE 4910–13–P 2. Part 97 is amended to read as follows: By amending: § 97.23 VOR, VOR/ DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows: ■ * * * Effective Upon Publication City [FR Doc. 2019–26611 Filed 12–11–19; 8:45 am] khammond on DSKJM1Z7X2PROD with RULES 1. The authority citation for part 97 continues to read as follows: ■ 67865 agency records created on or after November 1, 1996, including by renaming the section and reorganizing the requirements. Although the new regulations continue to allow the Department to maintain its reading room, we are revising § 5.10 to highlight that the Department is only required to make such records available for public inspection in an electronic format, rather than available in person for copying. In § 5.10(a), we are adding to the list of records required to be made available records requested three or more times under FOIA, and, in § 5.10(c), we have clarified that, for records created before November 1, 1996, the Department will continue to make hard copies available upon request in accordance with 5 U.S.C. 552(a)(3). Reason: We are revising § 5.10 so it aligns with the Improvement Act. Subpart C—Procedures for Requesting Access to Agency Records and Disclosure of Agency Records § 5.20 Requirements for Making FOIA Requests Statute: Under 5 U.S.C. 552(a)(3)(A), a request for records must reasonably describe the records and be made in accordance with published rules stating the time, place, fees, and procedures to be followed. It does not explicitly require a requester to provide contact information upon filing a request. Current Regulations: Under current § 5.20(a), a FOIA request for an agency record must be in writing (via paper, facsimile, or electronic mail) and transmitted to the Department as indicated on the Department’s website. New Regulations: We are adding to § 5.20(a) that each request must include a valid email or physical address, and we are omitting reference to the manner E:\FR\FM\12DER1.SGM 12DER1 67866 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations in which the submission must be made, as the procedures are specified on the Department’s FOIA web page. Reason: The Department has received requests without the requester’s contact information, which makes it difficult for the Department to transmit the responsive records to the requester as well as to seek clarification regarding the request, if needed. Further, the Department elects to specify the submission procedures on its FOIA web page, rather than its regulations, to maintain flexibility to change the procedures to adapt to changing circumstances and best serve the public. § 5.21 Procedures for Processing FOIA Requests Statute: The Improvement Act amended 5 U.S.C. 552(a)(6) in several respects. First, under section 552(a)(6)(B)(ii), if a request is extended more than 10 working days from the 20day processing time limit, the requester has the right to seek dispute resolution services from the Office of Government Information Services. Second, when a requester receives a notice of determination, the requester may seek dispute resolution services from the FOIA Public Liaison. Current Regulations: The current regulations do not reflect the rights and procedures that were created through the Improvement Act. New Regulations: We are amending § 5.21 to provide requesters with the opportunity to seek dispute resolution assistance from the Office of Government Information Services when a processing extension is more than 10 days after the 20-day time limit. We are also amending § 5.21 to require written notification to the requester of the right to seek dispute resolution from the Public FOIA Liaison or the Office of Government Information Services regarding issues with the processing of the request. Reason: We are revising § 5.21 so it aligns with the Improvement Act. Subpart D—Fees khammond on DSKJM1Z7X2PROD with RULES § 5.32 Assessment of Fees Statute: Under 5 U.S.C. 552(a)(4)(A)(viii)(I), an agency may not generally charge search fees (or, in certain instances, duplication fees) if it has failed to reply to a request within the time limit under section 552(a)(6), except in two instances. First, if unusual circumstances (as described in section 552(a)(4)(A)(viii)(II)(aa) and (bb)) exist, section 552(a)(4)(A)(viii)(II) authorizes an agency to charge search fees (or duplication fees) if it provides timely written notice to the requester in VerDate Sep<11>2014 16:05 Dec 11, 2019 Jkt 250001 accordance with section 552(a)(4)(A)(viii)(II)(aa) and it complies with the request within 10 days of the end of the 20-day processing period. Second, an agency may charge search fees (or duplication fees) if more than 5,000 pages are necessary to respond to the request and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made at least three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with section 552(a)(4)(A)(viii)(II)(bb). Current Regulations: The current regulations allow the Department to charge fees without regard to whether the Department has exceeded the processing time (or a negotiated extension). New Regulations: We are amending § 5.32 so that search fees or duplication fees can be assessed in the event the Department exceeds the processing time only if the requester has been timely advised of unusual circumstances and either: (1) the Department complies with the request within 10 days of the end of the 20-day processing period; or (2) more than 5,000 pages are necessary to respond to the request, and the Department has contacted the requester (or made at least three good-faith attempts) about ways to narrow or revise the scope of the request. Reason: We are revising § 5.32 so it aligns with the Improvement Act. Subpart E—Administrative Review § 5.40 Appeals of Adverse Determinations Statute: The Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i)(III)(aa) to require agencies to provide at least 90 days to appeal an adverse determination. Current Regulations: The current regulations provide a requester with 35 calendar days from the date of an adverse determination letter, issued by the Department, to submit an appeal. New Regulations: We are amending § 5.40 so requesters can file an appeal within 90 calendar days of the date on the adverse determination letter issued by the Department. Reason: We are revising § 5.40 so it aligns with the Improvement Act. Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis Under Executive Order 12866, it must be determined whether this regulatory action is ‘‘significant’’ and, therefore, subject to the requirements of the Executive order and subject to review by PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a ‘‘significant regulatory action’’ as an action likely to result in a rule that may— (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an ‘‘economically significant’’ rule); (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impacts of FOIA, the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles stated in the Executive order. This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f)(1) of Executive Order 12866. Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because this final rule is not a significant regulatory action, Executive Order 13771 does not apply. We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency— (1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify); (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things, and to the extent practicable— the costs of cumulative regulations; (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES and other advantages; distributive impacts; and equity); (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices. Executive Order 13563 also requires an agency ‘‘to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include ‘‘identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.’’ We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these final regulations are consistent with the principles in Executive Order 13563. We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions. In accordance with the Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The final regulations are not expected to have a significant impact because they are designed to merely implement statutory changes to the FOIA process. These changes relate to the procedures we use for administering the FOIA program, and the additional burden they impose on our stakeholders or the Department, if any, is minor. Waiver of Proposed Rulemaking and Delayed Effective Date Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice and comment rulemaking when the agency for good cause finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). VerDate Sep<11>2014 16:05 Dec 11, 2019 Jkt 250001 Rulemaking is ‘‘unnecessary’’ when ‘‘the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.’’ Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (DC Cir. 2001), quoting U.S. Department of Justice, Attorney General’s Manual on the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). These regulations merely reflect statutory changes or make minor changes to agency procedure and do not establish or affect substantive policy. Therefore, under 5 U.S.C. 553(b)(B), the Secretary has determined that proposed regulations are unnecessary. The APA generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). As previously stated, because the final regulations merely reflect statutory changes and minor changes to agency procedure, there is good cause to waive the delayed effective date in the APA and make the final regulations effective upon publication.. Regulatory Flexibility Act Certification The Regulatory Flexibility Act does not apply to this rulemaking because there is good cause to waive notice and comment under 5 U.S.C. 553. Paperwork Reduction Act of 1995 The final regulations do not create any new information collection requirements. Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 67867 your search to documents published by the Department. List of Subjects in 34 CFR Part 5 Freedom of information. Dated: December 6, 2019. Betsy DeVos, Secretary of Education. For the reasons discussed in the preamble, the Secretary amends part 5 of title 34 of the Code of Federal Regulations as follows: PART 5—AVAILABILITY OF INFORMATION TO THE PUBLIC 1. The authority citation for part 5 is revised to read as follows: ■ Authority: 5 U.S.C. 552, 20 U.S.C. 1221e3, and 20 U.S.C. 3474. 2. Section 5.10 is amended by revising paragraphs (a) through (c) to read as follows: ■ § 5.10 Agency records. (a) Electronic inspection. (1) Pursuant to 5 U.S.C. 552(a)(2), the Department makes available for public inspection in an electronic format the following records created on or after November 1, 1996: (i) Final opinions and orders in adjudications; (ii) Statements of policy and interpretations adopted by the Department and not published in the Federal Register; (iii) Administrative staff manuals and instructions affecting the public; and (iv) Copies of all agency records regardless of form or format released to the public pursuant to a FOIA request that the Department determines are likely to be the subject of future FOIA requests or have been requested three or more times. (2) The Department currently makes the agency records described in paragraph (a)(1) of this section available for public inspection in an electronic format through its electronic reading room located on the Department’s FOIA website at http://www2.ed.gov/policy/ gen/leg/foia/readingroom.html. (b) Public reading room. The Department may maintain a public reading room containing the agency records described in paragraph (a)(1) of this section. The Department’s public reading room is currently located at the National Library of Education, 400 Maryland Avenue SW, Plaza Level (Level B), Washington, DC 20202–0008. To visit the public reading room, members of the public can contact the Department’s FOIA Service Center via email at EDFOIAManager@ed.gov. (c) Hard copies. For any agency records that are not made available for E:\FR\FM\12DER1.SGM 12DER1 67868 Federal Register / Vol. 84, No. 239 / Thursday, December 12, 2019 / Rules and Regulations public inspection in the Federal Register or pursuant to paragraph (a) of this section, the Department will, upon request, provide hard copies in accordance with 5 U.S.C. 552(a)(3). * * * * * ■ 3. Section 5.20 is amended by revising paragraph (a) to read as follows: § 5.20 Requirements for making FOIA requests. (a) Making a FOIA request. Any FOIA request for an agency record must be in writing, must include a valid electronic mail or physical address, and must be transmitted to the Department as indicated on the Department’s website. See www.ed.gov/policy/gen/leg/foia/ request_foia.html. * * * * * ■ 4. Section 5.21 is amended by: ■ a. Revising paragraphs (e) introductory text and (g). ■ b. Redesignating paragraph (h)(2)(ii)(E) as paragraph (h)(2)(ii)(G). ■ c. Adding new paragraphs (h)(2)(ii)(E) and (F). The revisions and additions read as follows: § 5.21 Procedures for processing FOIA requests. khammond on DSKJM1Z7X2PROD with RULES * * * * * (e) Extension of time period for processing a FOIA request. The Department may extend the time period for processing a FOIA request only in unusual circumstances, as described in paragraphs (e)(1) through (3) of this section, in which case the Department notifies the requester of the extension in writing. For extensions of more than 10 additional working days, the Department must also notify the requester, in writing, of the right to seek dispute resolution services from the Office of Government Information Services. A notice of extension affords the requester the opportunity either to modify its FOIA request so that it may be processed within the 20-day time limit, or to arrange with the Department an alternative time period within which the FOIA request will be processed. For the purposes of this section, unusual circumstances include: * * * * * (g) Notification of determination. Once the Department makes a determination to grant a FOIA request in whole or in part, it notifies the requester in writing of its decision and of the right to seek assistance from the Department’s FOIA Public Liaison. (h) * * * (2) * * * (ii) * * * (E) A statement notifying the requester of the right to seek assistance VerDate Sep<11>2014 16:05 Dec 11, 2019 Jkt 250001 from the Department’s FOIA Public Liaison. (F) A statement notifying the requester of the right to seek dispute resolution services from the Department’s FOIA Public Liaison or the Office of Government Information Services. * * * * * ■ 5. Section 5.32 is amended by adding paragraph (b)(4) to read as follows: § 5.32 Assessment of fees. * * * * * (b) * * * (4) If the Department has failed to comply with any time limit in 5 U.S.C. 552(a)(4)(A)(viii)(I), the Department may not assess search fees, except as otherwise provided in this paragraph. If the Department has determined that unusual circumstances (as described in § 5.21(e)) apply, it may assess search fees (or, for requesters with preferred fee status, it may assess duplication fees) if the Department gives the requester timely written notice under § 5.21(e) and responds to the FOIA request within 10 additional working days. If unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the Department may assess search fees (or, for requesters with preferred fee status, duplication fees) if the Department gives the requester timely written notice under § 5.21(e) and the Department discussed with the requester via written mail, electronic mail, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request. * * * * * § 5.40 [Amended] 6. Section 5.40 is amended by removing the number ‘‘35’’ and adding ‘‘90’’ in its place in the first sentence of paragraph (b). ■ [FR Doc. 2019–26705 Filed 12–11–19; 8:45 am] BILLING CODE 4000–01–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 51 RIN 2900–AO57 Contracts and State Home Care Agreements for State Home Nursing Home Care Department of Veterans Affairs. Final rule. AGENCY: ACTION: This rulemaking adopts as final, with minor changes, an interim SUMMARY: PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 final rule amending the Department of Veterans Affairs (VA) regulations governing payments under contracts or State home care agreements between VA and State homes for the nursing home care of certain disabled veterans. The minor changes include revising the authority citation to be consistent with the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks (VA MISSION) Act of 2018. DATES: This rule is effective on January 13, 2020. FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director of Policy and Planning, Office of Community Care (10D), Veterans Health Administration, Department of Veterans Affairs, Ptarmigan at Cherry Creek, Denver, CO 80209, (303) 372–4629. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: On December 6, 2012, VA published an interim final rule in the Federal Register, 77 FR 72738, implementing VA’s authority to use contracts and provider agreements to pay for certain State nursing home care under section 105 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (the Act), Public Law 112– 154, 126 Stat. 1165, which was enacted on August 6, 2012. The interim final rule became effective on February 2, 2013, in accordance with the statutory deadline to implement this authority. Interested persons were invited to submit comments on or before February 4, 2013. VA received 13 comments. Subsequently, section 103 of the VA MISSION Act of 2018, Public Law 115– 182 (conforming amendments for State veterans homes), amended 38 U.S.C. 1745(a), which authorizes VA agreements for State home nursing home care. The amendments require non-substantive changes to § 51.41. In addition to finalizing the interim final rule and implementing section 103 of the VA MISSION Act of 2018, we are also correcting a patent error in paragraph (e) and making other nonsubstantive changes to bring the section current with amendments to 38 CFR part 51 since publication of the interim final rule, to include updating a United States Code citation in paragraph (g). We are also renaming the agreements VA enters with State homes to ensure the name is not confused with the name of another type of agreement VA may enter under the authority of a different section of title 38 United States Code. We discuss these below, following the responses to the public comments. E:\FR\FM\12DER1.SGM 12DER1

Agencies

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


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DEPARTMENT OF EDUCATION

34 CFR Part 5

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


Availability of Information to the Public

AGENCY: Office of the Secretary, Department of Education.

ACTION: Final rule.

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

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

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

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

Subpart B--Agency Records Available to the Public

Sec.  5.10 Public Reading Room

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

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

Sec.  5.20 Requirements for Making FOIA Requests

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

[[Page 67866]]

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

Sec.  5.21 Procedures for Processing FOIA Requests

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

Subpart D--Fees

Sec.  5.32 Assessment of Fees

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

Subpart E--Administrative Review

Sec.  5.40 Appeals of Adverse Determinations

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

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

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

[[Page 67867]]

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

Waiver of Proposed Rulemaking and Delayed Effective Date

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

Regulatory Flexibility Act Certification

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

Paperwork Reduction Act of 1995

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

List of Subjects in 34 CFR Part 5

    Freedom of information.

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

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

PART 5--AVAILABILITY OF INFORMATION TO THE PUBLIC

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

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

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


Sec.  5.10  Agency records.

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

[[Page 67868]]

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

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


Sec.  5.20  Requirements for making FOIA requests.

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

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


Sec.  5.21  Procedures for processing FOIA requests.

* * * * *
    (e) Extension of time period for processing a FOIA request. The 
Department may extend the time period for processing a FOIA request 
only in unusual circumstances, as described in paragraphs (e)(1) 
through (3) of this section, in which case the Department notifies the 
requester of the extension in writing. For extensions of more than 10 
additional working days, the Department must also notify the requester, 
in writing, of the right to seek dispute resolution services from the 
Office of Government Information Services. A notice of extension 
affords the requester the opportunity either to modify its FOIA request 
so that it may be processed within the 20-day time limit, or to arrange 
with the Department an alternative time period within which the FOIA 
request will be processed. For the purposes of this section, unusual 
circumstances include:
* * * * *
    (g) Notification of determination. Once the Department makes a 
determination to grant a FOIA request in whole or in part, it notifies 
the requester in writing of its decision and of the right to seek 
assistance from the Department's FOIA Public Liaison.
    (h) * * *
    (2) * * *
    (ii) * * *
    (E) A statement notifying the requester of the right to seek 
assistance from the Department's FOIA Public Liaison.
    (F) A statement notifying the requester of the right to seek 
dispute resolution services from the Department's FOIA Public Liaison 
or the Office of Government Information Services.
* * * * *

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


Sec.  5.32   Assessment of fees.

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


Sec.  5.40   [Amended]

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

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