[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 49
Transportation
________________________
Parts 1 to 99
Revised as of October 1, 2020
Containing a codification of documents of general
applicability and future effect
As of October 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 49:
SUBTITLE A--Office of the Secretary of
Transportation 3
Finding Aids:
Table of CFR Titles and Chapters........................ 761
Alphabetical List of Agencies Appearing in the CFR...... 781
List of CFR Sections Affected........................... 791
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 49 CFR 1.1 refers to
title 49, part 1, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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``[RESERVED]'' TERMINOLOGY
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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What if the material incorporated by reference cannot be found? If
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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2020
[[Page ix]]
THIS TITLE
Title 49--Transportation is composed of nine volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, parts
100-177, parts 178-199, parts 200-299, parts 300-399, parts 400-571,
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
177) and the third volume (parts 178-199) contain the current
regulations issued under chapter I--Pipeline and Hazardous Materials
Safety Administration (DOT); the fourth volume (parts 200-299) contains
the current regulations issued under chapter II--Federal Railroad
Administration (DOT); the fifth volume (parts 300-399) contains the
current regulations issued under chapter III--Federal Motor Carrier
Safety Administration (DOT); the sixth volume (parts 400-571) contains
the current regulations issued under chapter IV--Coast Guard (DHS), and
some of chapter V--National Highway Traffic Safety Administration (DOT);
the seventh volume (parts 572-999) contains the rest of the regulations
issued under chapter V--National Highway Traffic Safety Administration
(DOT), and the current regulations issued under chapter VI--Federal
Transit Administration (DOT), chapter VII--National Railroad Passenger
Corporation (AMTRAK), and chapter VIII--National Transportation Safety
Board; the eighth volume (parts 1000-1199) contains some of the current
regulations issued under chapter X--Surface Transportation Board; and
the ninth volume (part 1200 to end) contains the rest of the current
regulations issued under chapter X--Surface Transportation Board,
chapter XI--Research and Innovative Technology Administration (DOT), and
chapter XII--Transportation Security Administration (DHS). The contents
of these volumes represent all current regulations codified under this
title of the CFR as of October 1, 2020.
In the volume containing parts 100-177, see Sec. 172.101 for the
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards
appear in part 571.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 49--TRANSPORTATION
(This book contains parts 1 to 99)
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Part
SUBTITLE A--Office of the Secretary of Transportation....... 1
[[Page 3]]
Subtitle A--Office of the Secretary of Transportation
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Part Page
1 Organization and delegation of powers and
duties.................................. 5
3 Official seal............................... 52
5 Administrative rulemaking, guidance, and
enforcement procedures.................. 52
6 Implementation of Equal Access to Justice
Act in agency proceedings............... 79
7 Public availability of information.......... 85
8 Classified information: Classification/
declassification/access................. 102
9 Testimony of employees of the Department and
production of records in legal
proceedings............................. 107
10 Maintenance of and access to records
pertaining to individuals............... 112
11 Protection of human subjects................ 125
15 Protection of sensitive security information 143
17 Intergovernmental review of Department of
Transportation programs and activities.. 150
18-19 [Reserved]
20 New restrictions on lobbying................ 153
21 Nondiscrimination in federally-assisted
programs of the Department of
Transportation--Effectuation of Title VI
of the Civil Rights Act of 1964......... 165
22 Short-term lending program (STLP)........... 176
23 Participation of disadvantaged business
enterprise in airport concessions....... 185
24 Uniform relocation assistance and real
property acquisition for Federal and
federally-assisted programs............. 206
25 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 253
26 Participation by disadvantaged business
enterprises in Department of
Transportation financial assistance
programs................................ 269
[[Page 4]]
27 Nondiscrimination on the basis of disability
in programs or activities receiving
Federal financial assistance............ 346
28 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Transportation....................... 362
29 Tribal transportation self-governance
program................................. 369
30 Denial of public works contracts to
suppliers of goods and services of
countries that deny procurement market
access to U.S. contractors.............. 405
31 Program fraud civil remedies................ 410
32 Governmentwide requirements for drug-free
workplace (financial assistance)........ 426
33 Transportation priorities and allocation
system.................................. 431
37 Transportation services for individuals with
disabilities (ADA)...................... 457
38 Americans with Disabilities Act (ADA)
accessibility specifications for
transportation vehicles................. 555
39 Transportation for individuals with
disabilities: passenger vessels......... 593
40 Procedures for transportation workplace drug
and alcohol testing programs............ 609
41 Seismic safety.............................. 714
71 Standard time zone boundaries............... 717
79 Medals of honor............................. 722
80 Credit assistance for surface transportation
projects................................ 723
89 Implementation of the Federal Claims
Collection Act.......................... 728
91 International air transportation fair
competitive practices................... 735
92 Recovering debts to the United States by
salary offset........................... 737
93 [Reserved]
95 [Reserved]
98 Enforcement of restrictions on post-
employment activities................... 747
99 Employee responsibilities and conduct....... 750
Appendix to Subtitle A--United States Railway Association--
Employee Responsibilities and Conduct..................... 753
[[Page 5]]
PART 1_ORGANIZATION AND DELEGATION OF POWERS AND DUTIES--
Table of Contents
Subpart A_General
Sec.
1.1 Overview.
1.2 Organization of the Department.
1.3 Exercise of authority.
1.4 Construction.
Subpart B_Office of the Secretary
1.11 Overview.
1.13 OST key responsibilities.
1.15 OST structure.
1.17 OST line of secretarial succession.
OST Officials
1.20 Secretary of Transportation.
1.21 Reservations of Authority to the Secretary of Transportation.
1.22 Deputy Secretary.
1.23 Delegations to the Deputy Secretary.
1.24 Under Secretary of Transportation for Policy.
1.25 Delegations to the Under Secretary of Transportation for Policy.
1.25a Redelegations by the Under Secretary of Transportation for Policy.
1.26 General Counsel.
1.27 Delegations to the General Counsel.
1.27a Delegations to the Career Deputy General Counsel.
1.27b Delegations to the Assistant General Counsel for General Law.
1.30 Assistant Secretaries.
1.31 Assistant Secretary for Transportation Policy.
1.32 Assistant Secretary for Aviation and International Affairs.
1.33 Chief Financial Officer and Assistant Secretary for Budget and
Programs.
1.34 Delegations to the Chief Financial Officer and Assistant Secretary
for Budget and Programs.
1.35 Assistant Secretary for Governmental Affairs.
1.36 Delegations to the Assistant Secretary for Governmental Affairs.
1.37 Assistant Secretary for Administration.
1.38 Delegations to the Assistant Secretary for Administration.
1.38a Redelegations by the Assistant Secretary for Administration.
1.39 Executive Secretariat.
1.40 Departmental Office of Civil Rights.
1.41 Delegations to the Director of the Departmental Office of Civil
Rights.
1.42 Office of Small and Disadvantaged Business Utilization.
1.43 Delegations to the Director of the Office of Small and
Disadvantaged Business Utilization.
1.44 Office of Intelligence, Security and Emergency Response.
1.45 Delegations to the Director of the Office of Intelligence, Security
and Emergency Response.
1.46 Office of Public Affairs.
1.47 Delegations to the Assistant to the Secretary and Director of
Public Affairs.
1.48 Office of the Chief Information Officer.
1.49 Delegations to the Chief Information Officer.
1.50 Office of Drug & Alcohol Policy & Compliance.
1.60 General Authorizations and Delegations to Secretarial Officers.
Subpart C_Office of Inspector General
1.70 Overview.
1.71 Key responsibilities.
1.72 Structure.
1.73 Authority of Inspector General.
1.74 Delegations to Inspector General.
Subpart D_Operating Administrations
1.80 Overview.
1.81 Delegations to all Administrators.
1.81a Redelegation by all Administrators.
1.82 The Federal Aviation Administration.
1.83 Delegations to the Federal Aviation Administrator.
1.84 The Federal Highway Administration.
1.85 Delegations to the Federal Highway Administrator.
1.86 The Federal Motor Carrier Safety Administration.
1.87 Delegations to the Federal Motor Carrier Safety Administrator.
1.88 The Federal Railroad Administration.
1.89 Delegations to the Federal Railroad Administrator.
1.90 The Federal Transit Administration.
1.91 Delegations to the Federal Transit Administrator.
1.92 The Maritime Administration.
1.93 Delegations to the Maritime Administrator.
1.94 The National Highway Traffic Safety Administration.
1.95 Delegations to the National Highway Traffic Safety Administrator.
1.96 The Pipeline and Hazardous Materials Safety Administration.
1.97 Delegations to the Pipeline and Hazardous Materials Safety
Administrator.
1.98 The Research and Innovative Technology Administration.
1.99 Delegations to the Research and Innovative Technology
Administrator.
1.100 The Saint Lawrence Seaway Development Corporation.
1.101 Delegations to the Saint Lawrence Seaway Development Corporation
Administrator.
[[Page 6]]
Appendix A to Part 1--Delegations and Redelegations by Secretarial
Officers
Authority: 49 U.S.C. 322.
Source: 81 FR 19819, Apr. 5, 2016, unless otherwise noted.
Subpart A_General
Sec.1.1 Overview.
This part describes the organization of the United States Department
of Transportation and provides for the performance of duties imposed
upon, and the exercise of powers vested in, the Secretary of
Transportation by law.
Sec.1.2 Organization of the Department.
(a) The Secretary of Transportation is the head of the Department.
(b) The Department comprises the Office of the Secretary of
Transportation (OST), the Office of the Inspector General (OIG), and the
following Operating Administrations, each headed by an Administrator who
reports directly to the Secretary:
(1) The Federal Aviation Administration (FAA).
(2) The Federal Highway Administration (FHWA).
(3) The Federal Motor Carrier Safety Administration (FMCSA).
(4) The Federal Railroad Administration (FRA).
(5) The Federal Transit Administration (FTA).
(6) The Maritime Administration (MARAD).
(7) The National Highway Traffic Safety Administration (NHTSA).
(8) The Pipeline and Hazardous Materials Safety Administration
(PHMSA).
(9) The Research and Innovative Technology Administration (RITA).
(10) The Saint Lawrence Seaway Development Corporation (SLSDC).
Sec.1.3 Exercise of authority.
(a) In exercising powers and performing duties delegated by this
part or redelegated pursuant thereto, officials of the Department of
Transportation are governed by applicable laws, Executive Orders and
regulations and by policies, objectives, plans, standards, procedures,
and limitations as may be issued from time to time by or on behalf of
the Secretary, or, with respect to matters under their jurisdictions, by
or on behalf of the Deputy Secretary, the Under Secretary, the General
Counsel, an Assistant Secretary, the Inspector General, or an
Administrator. This includes, wherever specified, the requirement for
advance notice to, prior coordination with, or prior approval by an
authority other than that of the official proposing to act.
(b) Subject to the reservations of authority to the Secretary of
Transportation in Sec.1.21, the Deputy Secretary, the Under Secretary,
the General Counsel, the Assistant Secretaries, the Inspector General,
and the Administrators exercise the powers and perform the duties
delegated to them under this part.
(c) For delegations of authority vested in the Secretary by
Executive Order 13526 (see also Executive Orders 12958 and 12065)
originally to classify documents as secret and confidential, see Sec.
8.11 of this subtitle. Previous delegations of authority to Department
of Transportation officials to originally classify information as secret
and confidential are hereby rescinded.
Sec.1.4 Construction.
For the purposes of this part:
(a) ``Federal Aviation Administrator'' is synonymous with
``Administrator of the Federal Aviation Administration.''
(b) ``Federal Highway Administrator'' is synonymous with
``Administrator of the Federal Highway Administration.''
(c) ``Federal Motor Carrier Safety Administrator'' is synonymous
with ``Administrator of the Federal Motor Carrier Safety
Administration.''
(d) ``Federal Railroad Administrator'' is synonymous with
``Administrator of the Federal Railroad Administration.''
(e) ``Federal Transit Administrator'' is synonymous with
``Administrator of the Federal Transit Administration.''
(f) ``Maritime Administrator'' is synonymous with ``Administrator of
the Maritime Administration.''
(g) ``National Highway Traffic Safety Administrator'' is synonymous
with ``Administrator of the National Highway Traffic Safety
Administration.''
[[Page 7]]
(h) ``Pipeline and Hazardous Materials Safety Administrator'' is
synonymous with ``Administrator of the Pipeline and Hazardous Materials
Safety Administration.''
(i) ``Saint Lawrence Seaway Development Corporation Administrator''
is synonymous with ``Administrator of the Saint Lawrence Seaway
Development Corporation.''
Subpart B_Office of the Secretary
Sec.1.11 Overview.
This subpart sets forth the OST's key responsibilities, its basic
organizational structure, and the line of Secretarial succession in time
of need. It also describes the key responsibilities of OST officials,
and sets forth delegations and reservations of authority to those
officials.
Sec.1.13 OST key responsibilities.
(a) The OST is responsible for:
(1) Providing leadership in formulating and executing well-balanced
national and international transportation objectives, policies, and
programs to ensure the Nation has safe, economically competitive
transportation systems that support U.S. interests, that are maintained
in a state of good repair, that foster environmental sustainability, and
that support livable communities;
(2) Chairing the Department's Safety Council;
(3) Stimulating and promoting research and development in all modes
and types of transportation, with special emphasis on transportation
safety;
(4) Coordinating the various transportation programs of the Federal
Government;
(5) Encouraging maximum private development of transportation
services;
(6) Providing responsive, timely, and effective liaison with
Congress and public and private organizations on transportation matters;
(7) Providing innovative approaches to urban transportation and
environmental enhancement programs;
(8) Overseeing the Department's multimodal freight policy;
(9) Providing effective management of the Department as a whole to
ensure it achieves organizational excellence;
(10) Leading Department-wide efforts for greater transparency and
accountability;
(11) Administering the Department's Livable Communities initiative
to increase access to convenient and affordable transportation choices
and improve transportation networks that accommodate pedestrians and
bicycles;
(12) Coordinating the Department's credit and financial assistance
programs by leading the Credit Council to ensure responsible financing
for the Nation's transportation projects;
(13) Formulating and executing policies to ensure effective
operation of the Department's aviation economic program including
functions related to consumer protection and civil rights, domestic
airline licensing matters, competition oversight, airline data
collection, and review of international route negotiations and route
awards to carriers; and
(14) Leading and coordinating Federal Government transportation
fringe benefit programs.
(b) [Reserved]
Sec.1.15 OST structure.
(a) Secretary and Deputy Secretary. The Secretary and Deputy
Secretary are assisted by the following, all of which report directly to
the Secretary:
(1) The Chief of Staff;
(2) The Executive Secretariat;
(3) The Departmental Office of Civil Rights;
(4) The Office of Small and Disadvantaged Business Utilization;
(5) The Office of Intelligence, Security and Emergency Response;
(6) The Office of Public Affairs;
(7) The Office of the Chief Information Officer; and
(8) The Office of Drug & Alcohol Policy & Compliance.
(b) The Under Secretary of Transportation for Policy, the General
Counsel, and the Assistant Secretaries for Administration, Budget and
Programs, and Governmental Affairs also report directly to the
Secretary.
(c) Office of the Under Secretary of Transportation for Policy. This
Office is composed of:
[[Page 8]]
(1) The Office of the Assistant Secretary for Transportation Policy,
which includes:
(i) The Office of Policy Development, Strategic Planning and
Performance;
(ii) The Office of Infrastructure Finance and Innovation; and
(iii) The Office of the Chief Economist.
(2) The Office of the Assistant Secretary for Aviation and
International Affairs, which includes:
(i) The Office of International Transportation and Trade;
(ii) The Office of International Aviation; and
(iii) The Office of Aviation Analysis.
(d) Office of the General Counsel. This Office is composed of:
(1) The Office of General Law;
(2) The Office of International Law;
(3) The Office of Litigation;
(4) The Office of Legislation;
(5) The Office of Regulation and Enforcement;
(6) The Office of Operations, which includes the Freedom of
Information Act (FOIA) Office;
(7) The Office of Aviation Enforcement and Proceedings, which
includes the Aviation Consumer Protection Division; and
(8) The Center for Alternative Dispute Resolution.
(e) Office of the Chief Financial Officer and Assistant Secretary
for Budget and Programs. This Office is composed of:
(1) The Office of Budget and Program Performance;
(2) The Office of Financial Management;
(3) The Office of the Chief Financial Officer for the Office of the
Secretary; and
(4) The Office of Credit Oversight and Risk Management.
(f) Office of the Assistant Secretary for Governmental Affairs. This
Office contains the following functional areas: Congressional Affairs
and Intergovernmental Affairs; and includes a Deputy Assistant Secretary
for Tribal Government Affairs.
(g) Office of the Assistant Secretary for Administration. This
Office is composed of:
(1) The Office of Audit Relations;
(2) The Office of Human Resource Management;
(3) The Office of Hearings;
(4) The Office of Security;
(5) The Office of the Senior Procurement Executive;
(6) The Office of Financial Management and Transit Benefit Programs;
and
(7) The Office of Facilities, Information and Asset Management.
Sec.1.17 OST line of secretarial succession.
(a) The following officials, in the order indicated, shall act as
Secretary of Transportation, in case of the absence or disability of the
Secretary, until the absence or disability ceases, or in the case of a
vacancy, until a successor is appointed. Notwithstanding the provisions
of this section, the President retains discretion, to the extent
permitted by the law, to depart from this order in designating an acting
Secretary of Transportation.
(1) Deputy Secretary.
(2) Under Secretary of Transportation for Policy.
(3) General Counsel.
(4) Chief Financial Officer and Assistant Secretary for Budget and
Programs.
(5) Assistant Secretary for Transportation Policy.
(6) Assistant Secretary for Governmental Affairs.
(7) Assistant Secretary for Aviation and International Affairs.
(8) Assistant Secretary for Administration.
(9) Administrator of the Federal Highway Administration.
(10) Administrator of the Federal Aviation Administration.
(11) Administrator of the Federal Motor Carrier Safety
Administration.
(12) Administrator of the Federal Railroad Administration.
(13) Administrator of the Federal Transit Administration.
(14) Administrator of the Maritime Administration.
(15) Administrator of the Pipeline and Hazardous Materials Safety
Administration.
(16) Administrator of the National Highway Traffic Safety
Administration.
[[Page 9]]
(17) Administrator of the Research and Innovative Technology
Administration.
(18) Administrator of the Saint Lawrence Seaway Development
Corporation.
(19) Regional Administrator, Southern Region, Federal Aviation
Administration.
(20) Director, Resource Center, Lakewood, Colorado, Federal Highway
Administration.
(21) Regional Administrator, Northwest Mountain Region, Federal
Aviation Administration.
(b) Without regard to the foregoing, a person directed to perform
the duties of the Secretary pursuant to 5 U.S.C. 3347 (the Vacancies
Act) shall act as Secretary of Transportation.
OST Officials
Sec.1.20 Secretary of Transportation.
The Secretary is the head of the Department. The Secretary exercises
oversight of all of the OST components, as well as each of the Operating
Administrations, and overall planning, direction, and control of the
Department's agenda.
Sec.1.21 Reservations of Authority to the Secretary of Transportation.
(a) All powers and duties that are not delegated by the Secretary in
this part, or otherwise vested in officials other than the Secretary,
are reserved to the Secretary. Except as otherwise provided, the
Secretary may exercise powers and duties delegated or assigned to
officials other than the Secretary.
(b) The delegations of authority in subpart C (Office of the
Inspector General) and subpart D (Operating Administrations) of this
part do not extend to the following actions, authority for which is
reserved to the Secretary or the Secretary's delegatee within the Office
of the Secretary:
(1) General transportation matters.
(i) Transportation leadership authority pursuant to 49 U.S.C. 301
(Duties of the Secretary of Transportation: Leadership, consultation,
and cooperation).
(ii) Functions relating to transportation activities, plans, and
programs under 49 U.S.C. 304 (Joint activities with the Secretary of
Housing and Urban Development).
(iii) Authority to develop, prepare, coordinate, transmit, and
revise transportation investment standards and criteria under 49 U.S.C.
305 (Transportation investment standards and criteria).
(iv) Authority relating to standard time zones and advanced
(daylight) time (15 U.S.C. 260 et seq.).
(2) Legislation, rulemakings, and reports. (i) Submission to the
President, the Director of the Office of Management and Budget, or
Congress of proposals or recommendations for legislation, significant
rulemakings and related documents as authorized by law, Executive
Orders, proclamations or reorganization plans, or other Presidential
action.
(ii) Submission to the President or Congress of any report or any
proposed transportation policy or investment standards or criteria,
except with the prior written approval of the Secretary.
(iii) Submission of the annual statement on systems of internal
accounting and administrative control under the Federal Managers'
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
(3) Budget and finance. (i) Approval and submission to the Office of
Management and Budget of original or amended budget estimates or
requests for allocations of personnel ceiling (31 U.S.C. 1108).
(ii) Approval of requests for legislation which, if enacted, would
authorize subsequent appropriations for the Department (31 U.S.C. 581b).
(iii) Transfer of the balance of an appropriation from one operating
element to another within the Department (31 U.S.C. 581c).
(iv) Submission to the Director of the Office of Management and
Budget of requests for the transfer of the balance or portions of an
appropriation from one element to another within the Department (31
U.S.C. 665).
(4) Personnel. (i) Recommendations to the Office of Personnel
Management regarding the allocation of a position to the Senior
Executive Service (SES) or Senior Level (SL), or Scientific and
[[Page 10]]
Professional Positions (ST) (5 U.S.C. 5108).
(ii) Recommendations to the Office of Personnel Management of
approval of the qualifications of any candidate for a position in the
SES or SL.
(iii) Recommendations to the Office of Personnel Management of a
Lump-Sum Incentive Award in Excess of $10,000 (5 U.S.C. 4502).
(iv) Approval of the following actions relating to Schedules A, B,
C, or D (5 CFR part 213) and noncareer executive assignment positions or
incumbents, except for actions under Schedules A and B limited to one
year or less at grade GS-9 or lower, or an equivalent level:
(A) Establishment or abolition of positions;
(B) Hires;
(C) Promotions other than quality and periodic within-grade
promotions;
(D) Transfer of personnel to Schedule A, B, C, or D positions or
non-career executive assignment positions, either permanently or on
detail; and
(E) Transfer of personnel from Schedule A, B, C, or D or non-career
executive assignment positions to career Civil Service positions.
(v) Approval of employment of experts or consultants.
(vi) Authority to determine the maximum limit of age for appointment
of air traffic controllers as provided by 5 U.S.C. 3307(b).
(vii) Authority to develop, coordinate, and issue wage schedules
under the Federal Wage system.
(5) Security. (i) Authorizing the filling of a critical-sensitive
position for a limited period by a person on whom a preappointment full
field investigation has not been completed (Executive Order 10450) as
amended and Executive Order 12968 as amended by Executive Order 13467.
(ii) Requesting Presidential approval of a claim of executive
privilege with respect to information requested by a Congressional
committee or Member of Congress.
(iii) Making determinations prescribed by Executive Order 12968 as
amended by Executive Order 13467 and 32 CFR part 147 relating to the
adjudication and final denial of access to classified information to
industry personnel.
(iv) Making those determinations or delegations prescribed by
Executive Order 13526 that are reserved to the head of the Department.
(6) Procurement. Exercising the extraordinary authority for defense
contracts provided for in Pub. L. 85-804 [(50 U.S.C. 1431-1435)].
(7) Printing. Requesting approval of the Joint Committee on Printing
for any procurement or other action requiring Committee approval.
(8) Interagency agreements. Executing any written interdepartmental
or interagency agreement with the head of another executive department
or agency.
(9) Withholding of funds. Withholding or suspension of Federal-Aid
Highway funds on a state-wide basis and the waiver or compromise of such
withholding or suspension, except for the administration of 23 U.S.C.
141, 158, 159, 161, and 163 which are specifically delegated in
Sec. Sec.1.85 (FHWA) and 1.95 (NHTSA).
(10) National Highway Safety Advisory Committee. Directing the
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
(11) Maritime Subsidy Board. Reviewing decisions, reports, orders
and other actions of the Maritime Subsidy Board.
(12) Cash purchases of passenger transportation. The authority under
41 CFR 301-51.100 to authorize and approve cash purchases for emergency
passenger transportation services costing more than $100.
(13) Solicitation of gifts. The implied authority to solicit gifts
associated with 49 U.S.C. 326(a).
(14) Foreign travel. Approving official travel outside of the United
States.
(15) United States Merchant Marine Academy. Pursuant to 49 U.S.C.
51303, the authority to appoint each year without competition as cadets
at the United States Merchant Marine Academy not more than 40 qualified
individuals with qualities the Secretary considers to be of special
value to the Academy.
(16) Challenges and competitions. Approving any challenge or
competition
[[Page 11]]
administered by any office or Operating Administration of the
Department.
(17) Committees. Approving the establishment, modification,
extension, or termination of all advisory committees (including industry
advisory committees) subject to the Federal Advisory Committee Act (Pub.
L. 92-463; 5 U.S.C. App.), and the designation of Departmental
representatives to those committees.
(18) Credit assistance approval. Granting final approval of
applications for credit assistance under the Transportation
Infrastructure Finance and Innovation Act (TIFIA), 23 U.S.C. 601-609.
Sec.1.22 Deputy Secretary.
Along with the Secretary, the Deputy Secretary exercises oversight
of all of the OST components, as well as each of the Operating
Administrations, and overall planning, direction, and control of the
Department's agenda. The Deputy Secretary:
(a) May exercise the authority of the Secretary, except where
specifically limited by law, order, regulation, or instructions of the
Secretary;
(b) Serves as the Chief Operating Officer; and
(c) Serves as the Chief Acquisition Officer.
Sec.1.23 Delegations to the Deputy Secretary.
The Deputy Secretary may exercise the authority of the Secretary,
except where specifically limited by law, order, regulations, or
instructions of the Secretary. In addition, the Deputy Secretary is
delegated authority to:
(a) Exercise executive control over Departmental Budgeting and
Program Evaluation.
(b) Serve as Chairman of the Departmental Executive Resources Board
and its Executive Committee.
(c) Serve as the Chair of the Department's Safety Council.
(d) Serve as the Chair of the Department's Credit Council.
(e) Approve the establishment, modification, extension, or
termination of:
(1) Department-wide (intra-department) committees affecting more
than one program.
(2) OST-sponsored interagency committees.
(f) Approve the designation of:
(1) Departmental representatives and the chairman for interagency
committees sponsored by the Office of the Secretary.
(2) Departmental members for international committees.
(g) Serve as the representative of the Secretary on the board of
directors of the National Railroad Passenger Corporation and carry out
the functions vested in the Secretary as a member of the board by 49
U.S.C. 24302.
(h) Approve the initiation of regulatory action, as defined in
Executive Order 12866, by Secretarial offices and Operating
Administrations.
Sec.1.24 Under Secretary of Transportation for Policy.
The Under Secretary provides leadership in the Department's
development of policies and programs to protect and enhance the safety,
adequacy, and efficiency of the transportation system and services. The
Office of the Under Secretary serves as the focal point within the
Federal Government for coordination of intermodal transportation policy,
which brings together departmental intermodal perspectives, advocates
intermodal interests, and provides secretarial leadership and visibility
on issues that involve or affect more than one Operating Administration.
Sec.1.25 Delegations to the Under Secretary of Transportation for Policy.
The Under Secretary is delegated the following authorities:
(a) Lead the development of transportation policy and serve as the
principal adviser to the Secretary on all transportation policy matters.
(b) Establish policy and ensure uniform departmental implementation
of the National Environmental Policy Act of 1969, Pub. L. 91-190, as
amended (42 U.S.C. 4321-4347) within the Department of Transportation.
(c) Oversee the implementation of 49 U.S.C. 303 (Policy on lands,
wildlife and waterfowl refuges, and historic sites).
(d) Represent the Secretary of Transportation on various interagency
boards, committees, and commissions
[[Page 12]]
to include the Architectural and Transportation Barriers Compliance
Board and the Advisory Council on Historic Preservation and the Trade
Policy Review Group and the Trade Policy Staff Committee.
(e) Serve as the Department's designated principal conservation
officer pursuant to section 656 of the Department of Energy Organization
Act, Pub. L. 94-91 [42 U.S.C. 7266], and carry out the functions vested
in the Secretary by section 656 of the Act, which pertains to planning
and implementing energy conservation matters with the Department of
Energy.
(f) Carry out the functions of the Secretary pertaining to aircraft
with respect to Transportation Order T-1 (44 CFR chapter IV) under the
Defense Production Act of 1950, as amended, Pub. L. 81-774, 64 Stat. 798
[50 U.S.C. App. 2061 et seq.] and Executive Order 10480, as amended (see
also Executive Order 10773 and 12919).
(g) Serve as Department of Transportation member of the Interagency
Group on International Aviation, and pursuant to Executive Order 11382,
as amended, serve as Chair of the Group.
(h) Serve as second alternate representing the Secretary of
Transportation to the Trade Policy Committee as mandated by
Reorganization Plan No. 3 of 1979 (5 U.S.C. App. at 1381), as amended,
and Executive Order 12188, as amended.
(i) As supplemented by 14 CFR part 385, and except as provided in
Sec. Sec.1.99(j) (RITA), and 1.27 (General Counsel) of this part,
carry out the functions transferred to the Department from the Civil
Aeronautics Board and other related functions and authority vested in
the Secretary under the following:
(1) Sections 40103(a)(2) (relating to the consultation with the
Architectural and Transportation Barriers Compliance Board before
prescribing regulations or procedures that will have a significant
impact on accessibility of commercial airports for handicapped
individuals), and (c) (relating to foreign aircrafts); 40105 (relating
to international negotiations, agreements, and obligations); 40109(a),
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the
authority to exempt certain air carriers) and (h); 40113(a) and (c);
40114(a) (relating to reports and records); 40115 (relating to the
withholding of information from public disclosure) of Chapter 401 of 49
U.S.C.; and 40116 (relating to the Anti-Head Tax Act);
(2) The following chapters of title 49, U.S.C., except as related to
departmental regulation of airline consumer protection and civil rights
which is delegated to the General Counsel at Sec.1.27:
(i) Chapter 411 of title 49, U.S.C., relating to air carrier
certification;
(ii) Chapter 413 of title 49, U.S.C., relating to foreign air
transportation;
(iii) Chapter 415 of title 49, U.S.C., relating to pricing;
(iv) Chapter 417 of title 49, U.S.C., relating to the operations of
air carriers, except sections 41721-41723;
(v) Chapter 419 of title 49, U.S.C. and 39 U.S.C. 5402, relating to
the transportation of mail; and
(vi) Section 42303 of 49 U.S.C., relating to the management of the
Web site regarding the use of insecticides in passenger aircraft.
(3) Section 42111 of title 49, U.S.C. with respect to mutual aid
agreements as it relates to foreign air transportation;
(4) Chapters 461 and 463 of title 49, U.S.C., relating to aviation
investigations, proceedings, and penalties under Part A of Subtitle VII
of title 49, U.S.C. except for those sections delegated to the General
Counsel under Sec.1.27, and to the Federal Aviation Administrator
under Sec.1.83;
(5) Chapter 473 of title 49, U.S.C., relating to international
airport facilities.
(6) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21],
relating to air carriers and foreign air carriers.
(7) Section 3 of An Act to Encourage Travel in the United States,
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
(8) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of the
Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C. 1607(a)(4),
1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
(j) Carry out the functions vested in the Secretary by 49 U.S.C.
44907(b)(1), (c), and (e) related to the security of foreign airports in
coordination with
[[Page 13]]
the General Counsel, the Federal Aviation Administrator, and the
Assistant Secretary for Administration.
(k) Carry out section 101(a)(2) of the Air Transportation Safety and
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as
delegated to the Secretary of Transportation by the President pursuant
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001
Comp., p. 911.
(l) Exercise the authority vested in the Secretary by section 11143
of the Safe, Accountable, Flexible, Efficient Transportation Equity Act:
A Legacy for Users, Pub. L. 109-59, 119 Stat. 1144 (SAFETEA-LU), to
manage the day-to-day activities associated with implementation of
section 11143 regarding private activity bonds and tax-exempt financing
of highway projects and rail-truck facilities.
(m) In coordination with the General Counsel, carry out the duties
of the Secretary under Executive Orders 12866 and 13563 to establish the
values of time and statistical life in connection with assessing the
costs and benefits of Departmental regulatory action.
(n) Carry out the functions vested in the Secretary by 49 U.S.C.
47129, relating to resolution of disputes over the reasonableness of
fees imposed upon air carriers.
(o) Carry out the functions and exercise the authority vested in the
Secretary by 23 U.S.C. 167(f) (National Freight Strategic Plan).
Sec.1.25a Redelegations by the Under Secretary of Transportation
for Policy.
(a) The Assistant Secretary for Transportation Policy is redelegated
authority to:
(1)(i) Redelegate and authorize successive redelegation of authority
granted in this paragraph (a) to officials within the Office of the
Assistant Secretary for Transportation Policy, except as limited by law
or specific administrative reservation.
(ii) Publish, in appendix A of this part, redelegations made under
paragraph (a)(1)(i) of this section.
(2) Establish policy and maintain oversight of implementation of the
National Environmental Policy Act of 1969, Pub. L. 91-190, as amended
(42 U.S.C. 4321-4347) within the Department of Transportation.
(3) Oversee the implementation of 49 U.S.C. 303 (Policy on lands,
wildlife and waterfowl refuges, and historic sites).
(4) Represent the Secretary of Transportation on various interagency
boards, committees, and commissions to include the Architectural and
Transportation Barriers Compliance Board and the Advisory Council on
Historic Preservation and the Trade Policy Review Group and the Trade
Policy Staff Committee.
(5) Serve as the Department's designated principal conservation
officer pursuant to section 656 of the Department of Energy Organization
Act, Pub. L. 94-91 [ 42 U.S.C. 7266], and carry out the functions vested
in the Secretary by section 656 of the Act, which pertains to planning
and implementing energy conservation matters with the Department of
Energy.
(6) Carry out the functions of section 42303 of 49 U.S.C., relating
to the management of the Web site regarding the use of insecticides in
passenger aircraft.
(7) In coordination with the General Counsel, carry out the duties
of the Secretary under Executive Orders 12866 and 13563 to establish the
value of statistical life in connection with assessing the costs and
benefits of Departmental regulatory action.
(8) Carry out the duties of the Secretary under Executive Orders
12866 and 13563 to establish the value of time in connection with
assessing the costs and benefits of Departmental regulatory action.
(b) The Assistant Secretary for Aviation and International Affairs
is redelegated authority to:
(1)(i) Redelegate and authorize successive redelegation of authority
granted in this paragraph (b) to officials within the Office of the
Assistant Secretary for Aviation and International Affairs, except as
limited by law or specific administrative reservation.
(ii) Publish, in appendix A of this part, redelegations made under
paragraph (b)(1)(i) of this section.
(2) Carry out the functions of the Secretary pertaining to aircraft
with respect to Transportation Order T-1 (44
[[Page 14]]
CFR chapter IV) under the Defense Production Act of 1950, as amended,
Pub. L. 81-774, 64 Stat. 798 [50 U.S.C. App. 2061 et seq.] and Executive
Order 10480, as amended (see also Executive Order 10773 and 12919).
(3) Serve as Department of Transportation member of the Interagency
Group on International Aviation, and pursuant to Executive Order 11382,
serve as Chair of the Group.
(4) Serve as second alternate representing the Secretary of
Transportation to the Trade Policy Committee as mandated by
Reorganization Plan No. 3 of 1979 (5 U.S.C. App. at 1381), as amended,
and Executive Order 12188.
(5) Represent the Department of Transportation at the Trade Policy
Committee Review Group and the Trade Policy Staff Committee, which were
established at 15 CFR part 2002 as subordinate bodies of the Trade
Policy Committee.
(6) As supplemented by 14 CFR part 385, and except as provided in
Sec. Sec.1.99 (RITA), and 1.27 (General Counsel), carry out the
functions transferred to the Department from the Civil Aeronautics Board
and other related functions and authority vested in the Secretary under
the following provisions of Title 49, U.S.C.:
(i) Sections 40103(a)(2) (relating to the consultation with the
Architectural and Transportation Barriers Compliance Board before
prescribing regulations or procedures that will have a significant
impact on accessibility of commercial airports for handicapped
individuals), and (c) (relating to foreign aircrafts); 40105 (relating
to international negotiations, agreements, and obligations); 40109(a),
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the
authority to exempt certain air carriers) and (h); 40113(a) and (c);
40114(a) (relating to reports and records); 40115 (relating to the
withholding of information from public disclosure; and 40116 (relating
to the Anti-Head Tax Act);
(ii) The following chapters of title 49, U.S.C., except as related
to departmental regulation of airline consumer protection and civil
rights which is delegated to the General Counsel at Sec.1.27:
(A) Chapter 411, relating to air carrier certification;
(B) Chapter 413, relating to foreign air transportation;
(C) Chapter 415, relating to pricing;
(D) Chapter 417, relating to the operations of air carriers, except
section 41721-41723;
(E) Chapter 419, and 39 U.S.C. 5402, relating to the transportation
of mail;
(iii) Section 42111 of title 49, U.S.C. with respect to mutual aid
agreements as it relates to foreign air transportation;
(iv) Chapters 461 and 463 of title 49, U.S.C., relating to aviation
investigations, proceedings, and penalties under Part A of 49 U.S.C.
Subtitle VII except for those sections delegated to the General Counsel
under Sec.1.27, and to the Federal Aviation Administrator under Sec.
1.83;
(v) Chapter 473 of title 49, U.S.C., relating to international
airport facilities.
(vi) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21],
relating to air carriers and foreign air carriers.
(vii) Section 3 of An Act to Encourage Travel in the United States,
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
(viii) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of
the Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C.
1607(a)(4), 1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
(7) Carry out the functions vested in the Secretary by 49 U.S.C.
44907(b)(1), (c), and (e) related to the security of foreign airports in
coordination with the General Counsel, the Federal Aviation
Administrator, and the Assistant Secretary for Administration.
(8) Carry out section 101(a)(2) of the Air Transportation Safety and
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as
delegated to the Secretary of Transportation by the President pursuant
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001
Comp., p. 911.
(9) Carry out the functions vested in the Secretary by 49 U.S.C.
47129, relating to resolution of disputes over the reasonableness of
fees imposed upon air carriers.
Sec.1.26 General Counsel.
The General Counsel is the chief legal officer of the Department,
legal
[[Page 15]]
advisor to the Secretary, and final authority within the Department on
questions of law. The Office of the General Counsel provides legal
advice to the Secretary and secretarial offices, and supervision,
coordination, and review of the legal work of the Chief Counsel Offices
in the Department. The General Counsel participates with each Operating
Administrator in the performance reviews of Chief Counsel. The General
Counsel is responsible for retention of outside counsel, and for the
approval of the hiring and promotion of departmental attorneys (other
than in the Federal Aviation Administration). The General Counsel is
also responsible for departmental regulation under statutes including
the Air Carrier Access Act, statutes prohibiting unfair and deceptive
practices in air transportation, the Americans with Disabilities Act,
the Disadvantaged Business Enterprise program, and the Uniform Time Act.
The General Counsel coordinates all international legal matters, and
departmental participation in proceedings before other federal and state
agencies. The General Counsel provides oversight of departmental
litigation, regulation, legislation, Freedom of Information Act
compliance, and administrative enforcement.
Sec.1.27 Delegations to the General Counsel.
The General Counsel is delegated authority to:
(a) Conduct all rulemaking proceedings under the Americans with
Disabilities Act, the Disadvantaged Business Enterprise program, and the
Uniform Time Act, as amended (15 U.S.C. 260 et seq.).
(b) Determine the practicability of applying the standard time of
any standard time zone to the movements of any common carrier engaged in
interstate or foreign commerce and issue operating exceptions in any
case in which the General Counsel determines that it is impractical to
apply the standard time (49 CFR 71.1).
(c) Issue regulations making editorial changes or corrections to the
regulations of the Office of the Secretary.
(d) Grant permission, under specific circumstances, to deviate from
a policy or procedure prescribed by the regulations of the Office of the
Secretary (49 CFR part 9) with respect to the testimony of OST employees
as witnesses in legal proceedings, the serving of legal process and
pleadings in legal proceedings involving the Secretary or his Office,
and the production of records of that Office pursuant to subpoena.
(e) Respond to petitions for rulemaking or petitions for exemptions
in accordance with 49 CFR 5.13(c)(2) (Processing of petitions), and
notify petitioners of decisions in accordance with 49 CFR 5.13(c)(4)(v).
(f) Provide counsel to employees on questions of conflict of
interest covered by departmental regulations on employee responsibility
and conduct.
(g) Coordinate the issuance of proposed Executive Orders and
proclamations for transmittal to the Office of Management and Budget for
action by the White House.
(h) Except with respect to proceedings relating to safety fitness of
an applicant (49 U.S.C. 307), decide on requests to intervene or appear
before courts (with the consent of the Department of Justice) or
agencies to present the views of the Department, subject to the
concurrence of the Secretary.
(i) Exercise the authority delegated to the Department by the
Assistant Attorney General, Land and Natural Resources Division, in his
order of October 2, 1970, to approve the sufficiency of the title to
land being acquired by purchase or condemnation by the United States for
the use of the Department. (See also Appendix 1 relating to delegations
to Operating Administration Chief Counsel).
(j) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28
CFR part 14, related to the administrative disposition of federal tort
claims, for claims involving the Office of the Secretary.
(k) Compromise, suspend collection action on, or terminate claims of
the United States that are referred to, or arise out of the activities
of the Office of the Secretary of Transportation.
(l) Conduct coordination with foreign governments under section 118
of the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1428).
(m) Exercise review authority under 49 U.S.C. 41307 (related actions
about
[[Page 16]]
foreign air transportation) delegated to the Secretary by the President
in Executive Order 12597.
(n) Assist and protect consumers in their dealings with the air
transportation industry and conduct all departmental regulation of
airline consumer protection and civil rights pursuant to chapters 401
(General Provisions), 411 (Air Carrier Certificates), 413 (Foreign Air
Transportation), 417 (Operations of Carriers), and 423 (Passenger Air
Service Improvements) of title 49 U.S.C.
(o) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b) (Security and research and development activities), as
implemented by 49 CFR part 15 (Protection of Sensitive Security
Information), in consultation and coordination with the Office of
Intelligence, Security and Emergency Response.
(p) Appear on behalf of the Department on the record in hearing
cases, and initiate and carry out enforcement actions on behalf of the
Department, under the authority transferred to the Department from the
Civil Aeronautics Board as described in Sec. Sec.1.25 and 1.25a
(delegations to and redelegations by the Under Secretary), and 1.99
(RITA). This includes the authority to compromise penalties under 49
U.S.C. 46301 (civil penalties); to issue appropriate orders, including
cease and desist orders, under 49 U.S.C. 46101 (complaints and
investigations); and to require the production of information, under 49
U.S.C. 41708, enter carrier property and inspect records, under 49
U.S.C. 41709, and inquire into the management of the business of a
carrier under 49 U.S.C. 41711 (Air carrier management inquiry and
cooperation with other authorities), as appropriate to the enforcement
responsibilities. In the event that such an enforcement matter comes
before the Secretary of Transportation for adjudication, the Deputy
General Counsel shall advise the Secretary.
(q) Initiate and carry out enforcement actions relating to:
(1) Foreign airport security on behalf of the Department under 49
U.S.C. 44907; and
(2) The Consumer Credit Protection Act under section 4(a)(5) of the
Civil Aeronautics Board Sunset Act of 1984 (Pub. L. 98-443) [15 U.S.C.
1607(a)(4), 1681s(b)(5), 1691c(a)(5) and 1692l(b)(5)].
(r) Administer 5 U.S.C. 552 (FOIA) and 49 CFR part 7 (Public
Availability of Information) in connection with the records of the
Office of the Secretary and issue procedures to ensure uniform
departmental implementation of statutes and regulations regarding public
access to records.
(s) Prepare reports by carriers on incidents involving animals
during air transport pursuant to 49 U.S.C. 41721.
(t) Exercise authority vested in the Secretary by the Federal Civil
Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat.
890), as amended by the Debt Collection Improvement Act of 1996 (Pub. L.
104-134, 110 Stat. 1321), to promulgate rules that adjust civil
penalties with respect to aviation enforcement.
(u) In coordination with the Under Secretary, to carry out the
duties of the Secretary under Executive Orders 12866 and 13563 to
establish the value of statistical life in connection with assessing the
costs and benefits of Departmental regulatory action.
(v) Approve the initiation of regulatory action, as defined in
Executive Order 12866, by Secretarial offices and Operating
Administrations in the event that the Deputy Secretary is absent or
otherwise unavailable to exercise such authority (see Sec.1.23(h)).
(w) Approve requests to reclassify rulemakings as non-significant
under DOT procedures.
[81 FR 19819, Apr. 5, 2016, as amended at 84 FR 71717, Dec. 27, 2019]
Sec.1.27a Delegations to the Career Deputy General Counsel.
The career Deputy General Counsel is delegated authority to:
(a) Serve as the Department's Designated Agency Ethics Official in
accordance with 5 CFR 2638.202;
(b) Serve as the Department's Dispute Resolution Specialist pursuant
to section 3(b) of the Alternative Dispute Resolution Act of 1996, Pub.
L. 104-320, 5 U.S.C. App.; and
(c) Serve as the Department's Chief FOIA Officer under 5 U.S.C.
552(j).
[[Page 17]]
Sec.1.27b Delegations to the Assistant General Counsel for General
Law.
The Assistant General Counsel for General Law is delegated authority
to serve as the Department's Alternate Agency Ethics Official in
accordance with 5 CFR 2638.202.
Sec.1.30 Assistant Secretaries.
(a) In performing their functions, the Assistant Secretaries are
responsible for continuing liaison and coordination among themselves and
with the Operating Administrations to:
(1) Avoid unnecessary duplication of effort by or in conflict with
the performance of similar activities by the Operating Administrations
and the other Assistant Secretaries pursuant to their Secretarial
delegations of authority or other legal authorities; and
(2) Assure that the views of the Operating Administrations are
considered in developing departmental policies, plans, and proposals.
The Assistant Secretaries are also available to assist, as appropriate,
the Operating Administrations in implementing departmental policy and
programs. As primary staff advisors to the Secretary, the Assistant
Secretaries are concerned with transportation matters of the broadest
scope, including modal, intermodal, and other matters of Secretarial
interest.
(b) There are exceptions to the normal staff role described in
paragraph (a) of this section. In selected instances, the Secretary has
specifically delegated to Assistant Secretaries authority which they may
exercise on the Secretary's behalf.
Sec.1.31 Assistant Secretary for Transportation Policy.
The Assistant Secretary for Transportation Policy provides policy
advice to the Secretary, the Deputy Secretary, and the Under Secretary.
The Office of the Assistant Secretary for Transportation Policy is
responsible for: Public policy development, coordination, and evaluation
for all aspects of transportation, except in the areas of aviation and
international affairs, with the goal of making the Nation's
transportation resources function as an integrated national system;
evaluation of private transportation sector operating and economic
issues; evaluation of public transportation sector operating and
economic issues; regulatory and legislative initiatives and review;
energy, environmental, disability, and safety policy and program
development and review; and transportation infrastructure assessment and
review. For delegations to the Assistant Secretary for Transportation
Policy, see Sec.1.25a(a).
Sec.1.32 Assistant Secretary for Aviation and International Affairs.
The Office of the Assistant Secretary for Aviation and International
Affairs is responsible for policy development, coordination, and
evaluation of issues involving aviation, as well as international issues
involving all areas of transportation; private sector evaluation;
international transportation and transport-related trade policy and
issues; regulatory and legislative initiatives and review of maritime/
shipbuilding policies and programs; transport-related trade promotion;
coordination of land transport relations with Canada and Mexico;
economic regulation of the airline industry while placing maximum
reliance on market forces and on actual and potential competition; the
essential air service program and other rural air service programs; and,
in coordination with the FAA, promotion of the aerospace industry. For
delegations to the Assistant Secretary for Aviation and International
Affairs, see Sec.1.25a(b).
Sec.1.33 Chief Financial Officer and Assistant Secretary for Budget
and Programs.
(a) The Chief Financial Officer (CFO) is the principal budget and
financial advisor to the Secretary and serves as Assistant Secretary for
Budget and Programs. The CFO and Assistant Secretary for Budget and
Programs provides oversight and policy guidance for all budget,
financial management, program performance, and internal control
activities of the Department and its Operating Administrations.
(b) The CFO and Assistant Secretary for Budget and Programs concurs
in the appointment and promotion of Chief Financial Officers, Budget
Officers, and Directors of Finance of the
[[Page 18]]
Department and its Operating Administrations, and participates with each
Administrator in the performance reviews of Chief Financial Officers,
Budget Officers, and Directors of Finance in each of the Operating
Administrations.
(c) The CFO and Assistant Secretary for Budget and Programs, in
consultation with the Chief Information Officer, may designate any
information technology system as a financial management system under the
CFO's policy and oversight area of responsibility.
(d) The CFO and Assistant Secretary for Budget and Programs serves
as the Vice Chair of the Department's Credit Council. The Office of the
Assistant Secretary supports the Department's Credit Council by
analyzing applications for the Department's various credit programs. The
CFO also oversees the TIFIA program and the TIFIA Joint Program Office
on behalf of the Secretary, including the evaluation of individual
projects, and provides overall policy direction and program decisions
for the TIFIA program.
(e) The CFO and Assistant Secretary for Budget and Programs is
responsible for preparation, review, and presentation of Department
budget estimates; liaison with the Office of Management and Budget and
Congressional Budget and Appropriations Committees; preparation of the
Department's annual financial statements; departmental financial plans,
apportionments, reapportionments, reprogrammings, and allotments;
program and systems evaluation and analysis; program evaluation
criteria; program resource plans; analysis and review of legislative
proposals and one-time reports and studies required by Congress; and
budget and financial management relating to the Office of the Secretary.
Sec.1.34 Delegations to the Chief Financial Officer and Assistant
Secretary for Budget and Programs.
The Chief Financial Officer and Assistant Secretary for Budget and
Programs is delegated authority to:
(a) Serve as the Department's Chief Financial Officer pursuant to 31
U.S.C. 901 (Establishment of Agency Chief Financial Officers).
(b) Exercise day-to-day operating management responsibility over the
Office of Budget and Program Performance, the Office of the OST Chief
Financial Officer, the Office of Financial Management, and the Office of
Credit Oversight and Risk Management.
(c) Direct and manage the Departmental planning, evaluation, budget,
financial management, and internal control activities.
(d) Exercise oversight and provide exclusive policy guidance to the
Enterprise Services Center (ESC) regarding all financial management
activities conducted by ESC and financial systems operated by ESC. This
authority includes concurrence with any organizational changes within
the Federal Aviation Administration that may affect financial management
operations of the ESC.
(e) Request apportionment or reapportionment of funds by the Office
of Management and Budget, provided that no request for apportionment or
reapportionment which anticipates the need for a supplemental
appropriation shall be submitted to the Office of Management and Budget
without appropriate certification by the Secretary.
(f) Issue allotments or allocations of funds to components of the
Department.
(g) Authorize and approve official travel and transportation for
staff members of the Immediate Office of the Secretary including
authority to sign and approve related travel orders and travel vouchers,
but not including requests for overseas travel.
(h) Issue monetary authorizations for use of reception and
representation funds.
(i) Except as otherwise delegated, establish or operate or both, any
special funds that are required by statute or administrative
determination.
(j) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of, the Office of the Secretary (excluding claims pertaining
to the Working Capital Fund), subject to the limits on that authority
[[Page 19]]
imposed by 31 U.S.C. 3711 and the Federal Claims Collection Standards,
31 CFR chapter IX.
(k) Exercise the Secretary's authority under the Improper Payments
Elimination and Recovery Act of 2010 (Pub. L. 111-204) (33 U.S.C. 3301
note).
(l) Exercise the Secretary's authority under the Improper Payments
Information Act of 2002 (Pub. L. 107-300) (31 U.S.C. 3321 note).
(m) Exercise the Secretary's authority under the Recovery Auditing
Act (Section 831, Defense Authorization Act for FY 2002 (Pub. L. 107-
107)).
(n) Exercise the Secretary's authority under the Federal Financial
Management Improvement Act of 1996 (31 U.S.C. 3512 note).
(o) Exercise the Secretary's authority under Federal Managers'
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
(p) Exercise the Secretary's authority under the Accounting and
Auditing Act of 1950 (31 U.S.C. 3512), as amended by FMFIA.
(q) Exercise the Secretary's authority under the Government
Performance and Results Act (GPRA) (Pub. L. 103-623).
(r) Exercise the Secretary's authority under the Accountability of
Tax Dollars Act of 2002, 31 U.S.C. 3515.
(s) Exercise the Secretary's authority under the Government
Management Reform Act of 1994 (GMRA) (Pub. L. 103-356).
(t) Exercise the Secretary's authority under 5 U.S.C. 5584 and the
OMB memorandum, ``Determination with Respect to Transfer of Functions
Pursuant to Public Law 104-316'' (December 17, 1996) to waive claims of
the United States arising out of an erroneous payment to an employee of
pay or allowances, or travel, transportation, or relocation expenses and
allowances, and deny requests for waiver of such claims.
(u) Serve as the Department's Performance Improvement Officer under
31 U.S.C. 1124.
Sec.1.35 Assistant Secretary for Governmental Affairs.
The Assistant Secretary for Governmental Affairs serves as the
Department's primary point of contact for Congressional offices, as well
as State and locally elected officials; works with other departmental
offices to ensure that Congressional mandates are fully implemented by
the Department; and works with the White House, other Federal agencies,
and Congress to fulfill the Department's legislative priorities. The
Assistant Secretary coordinates congressional and intergovernmental
activities with governmental affairs offices in the Operating
Administrations and is the final authority on governmental affairs
issues within the Department. The Assistant Secretary participates with
each Administrator in the hiring decisions (other than in the Federal
Aviation Administration) and performance reviews of all of the Operating
Administrations' Directors of Governmental Affairs. The Assistant
Secretary supervises the Deputy Assistant Secretary for Tribal
Government Affairs who plans and coordinates the Department's policies
and programs with respect to Indian tribes and tribal organizations.
[82 FR 19192, Apr. 26, 2017]
Sec.1.36 Delegations to the Assistant Secretary for Governmental
Affairs.
The Assistant Secretary for Governmental Affairs is delegated
authority to:
(a) Establish procedures for responding to Congressional
correspondence; and
(b) Supervise the Deputy Assistant Secretary for Tribal Government
Affairs.
Sec.1.37 Assistant Secretary for Administration.
The Assistant Secretary for Administration is the principal advisor
to the Secretary and Deputy Secretary on Department-wide administrative
matters and is the final authority on these matters within the
Department. The Assistant Secretary for Administration serves as the
Designated Agency Safety and Health Official. The Office of the
Assistant Secretary for Administration's responsibilities include:
Strategic management of human capital; monitoring the progress of
departmental offices related to sustainability goals; controls and
standards to ensure that procurement and financial assistance programs
are in accord with good
[[Page 20]]
business practice; follow-up and resolution of Government Accountability
Office and Inspector General audit reviews; information resource
management; property management information; facilities; and security.
The Assistant Secretary for Administration is responsible for
recommending performance objectives for the Operating Administrations'
Directors of Human Resources. The Assistant Secretary for Administration
participates with each Administrator in the hiring decisions (other than
in the Federal Aviation Administration) and performance reviews of all
of the Operating Administrations' Associate Administrators for
Administration.
[82 FR 19192, Apr. 26, 2017]
Sec.1.38 Delegations to the Assistant Secretary for Administration.
The Assistant Secretary for Administration is delegated authority
for the following:
(a) Acquisition. (1) Exercise procurement authority with respect to
requirements of the Office of the Secretary or an Operating
Administration, if requested under an agreement with that Operating
Administration.
(2) Make the required determinations with respect to mistakes in
bids relative to sales of personal property conducted by the Office of
the Secretary without power of redelegation.
(3) Except as delegated to the National Highway Traffic Safety
Administrator by Sec.1.95, carry out the functions vested in the
Secretary by section 3 of Executive Order 11912 (``Delegation of
Authorities Relating to Energy Policy and Conservation''), as amended.
(4) Carry out the functions delegated to the Secretary from time to
time by the Administrator of General Services to lease real property for
Department use.
(5) Carry out the duties and responsibilities of agency head for
departmental procurement within the meaning of the Federal Acquisition
Regulation. This authority as agency head for departmental procurement
excludes duties, responsibilities, and powers expressly reserved for the
Secretary of Transportation.
(6) Serve as Deputy Chief Acquisition Officer.
(7) Provide departmental guidance on grants, cooperative agreements,
and other financial assistance transactions, but not including loans,
loan guarantees, interest subsidies, or insurance.
(8) Issue departmental procurement regulations, subject to
coordination with the General Counsel and interested Operating
Administrations. In commenting upon proposed provisions for the
procurement regulations, the Operating Administrations will indicate the
nature and purpose of any additional implementing or supplementing
policy guidance which they propose to issue at the Operating
Administration level.
(b) Personnel. (1) Conduct a personnel management program for the
Office of the Secretary of Transportation, with authority to take,
direct others to take, recommend or approve any personnel action with
respect to such authority.
(2) Serve as Vice Chair of the Departmental Executive Resources
Board.
(3) Exercise emergency authority to hire without the prior approval
of the Deputy Secretary normally required by departmental procedures
implementing general employment limitations when in the judgment of the
Assistant Secretary immediate action is necessary to effect the hire and
avoid the loss of a well-qualified job applicant, and for similar
reasons.
(4) Review proposals of the Office of the Secretary for each new
appointment or transfer to verify the essentiality of the position.
(5) Approve employment of experts and consultants in accordance with
5 U.S.C. 3109.
(6) Provide policy and overall direction in the execution of the DOT
Labor-Management Relations Program.
(7) Develop and operate the Federal Employee Workplace Drug and
Alcohol Testing Program in accordance with Executive Order 12564 and The
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143,
Title V.
(8) Serve as the Chief Human Capital Officer:
(i) Oversee, direct, and execute all authorities included in the
Chief
[[Page 21]]
Human Capital Officers Act of 2002 (5 U.S.C. 1401 et seq.); and
(ii) Advise the Secretary on the Department's human capital needs
and obligations, and implement all related rules and regulations of the
President and the Office of Personnel Management, and all laws governing
human resource management.
(9) Serve as the Telework Managing Officer under 5 U.S.C. 6505.
(c) Sustainability. (1) Responsible for ensuring that the Department
meets its sustainability goals pursuant to the Energy Independence and
Security Act (EISA) of 2007 (Pub. L. 110-140); the Energy Policy Act of
2005 (Pub. L. 109-58); and Executive Order 13693 (``Planning for Federal
Sustainability in the Next Decade'').
(2) Serve as the Chief Sustainability Officer under Executive Order
13693.
(d) Finance. (1) Settle and pay claims by employees of the Office of
the Secretary for personal property losses as provided by 31 U.S.C.
3721.
(2) Oversee the Working Capital Fund for the Office of the
Secretary, established by 49 U.S.C. 327.
(3) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of the Working Capital Fund, subject to the limits on that
authority imposed by 31 U.S.C. 3711 and the Federal Claims Collection
Standards, 31 CFR chapter IX.
(e) Security. (1) Serves as the agency representative appointed by
the Secretary of Transportation to participate on the Interagency
Security Committee in accordance with Executive Order 12977, to
establish policies for the security in and protection of Federal
facilities.
(2) Represents the department on the White House Communications
Agency Principal Communications Working Group and the Department of
State Overseas Security Policy Board.
(3) Conducts an internal security management program for the
Department of Transportation with authority to take, direct others to
take, recommend, or approve security actions with respect to such
authorities related to personnel security, physical security, technical
security, and classified and sensitive information management.
(4) Issues identification media as directed by Homeland Security
Presidential Directive 12, ``Policy for Common Identification Standard
for Federal Employees and Contractors'' and other identification media
(including credentials, passports and visas) by direction of the
Secretary.
(5) Manages the Department's classified information program as
directed by Executive Order 13526 (``Classified National Security
Information'').
(6) Takes certain classified actions on behalf of the Department in
connection with technical counter-surveillance programs as required by
Executive Order 13526 (``Classified National Security Information'').
(7) In conjunction with the Office of Security, Intelligence and
Emergency Response, and the Office of the General Counsel, carries out
the functions vested in the Secretary by 49 U.S.C. 40119(b), as
implemented by 49 CFR part 15, related to the protection of information
designated as Sensitive Security Information.
(8) Ensure Department-wide compliance with Executive Orders 12968 as
amended, 13467, 13488, 13526, 13556, and related regulations and
issuances.
(f) Printing. Request approval of the Joint Committee on Printing,
Congress of the United States, for any procurement or other action
requiring Committee approval.
(g) Hearings. Provide logistical and administrative support to the
Department's Office of Hearings.
(h) Federal real property management. Carry out the functions
assigned to the Secretary with respect to Executive Order 13327, as
amended.
(i) The Uniform Act. Carry out the functions vested in the Secretary
to implement the Uniform Relocation Assistance and Real Property
Acquisition Act of 1970 (Uniform Act), 42 U.S.C. Chapter 61, with
respect to programs administered by the Office of the Secretary. The
Assistant Secretary may prescribe additional Uniform Act guidance that
is appropriate to those particular programs, provided that such
additional guidance must be consistent with the Uniform Act and 49 CFR
part
[[Page 22]]
24. The lead agency for Uniform Act matters is the Federal Highway
Administration (see Sec.1.85 and 49 CFR part 24).
(j) Designated Agency Safety and Health Official. Serve as the
Designated Agency Safety and Health Official under 29 CFR 1960.6(a) to
represent the interest of, and support, the Department's occupational
safety and health program.
(k) Senior Real Property Officer. Serve as the Senior Real Property
Officer for the Department pursuant to Executive Order 13327 (``Federal
Real Property Asset Management'') (as amended), and chair the
Departmental Real Property Planning Council.
(l) Transportation fringe benefits. (1) Oversee the Department's
transportation fringe benefit program under 5 U.S.C. 7905 and 26 U.S.C.
132(f).
(2) Consult with and provide guidance to other Federal agencies on
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C.
132(f).
(3) Establish and maintain uniform Federal Government standards for
developing and supporting Federal agencies' transportation fringe
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).
Sec.1.38a Redelegations by the Assistant Secretary for
Administration.
(a) The Director, Office of the Senior Procurement Executive is
redelegated the authority to:
(1) Carry out the duties and responsibilities of agency head for
departmental procurement within the meaning of the Federal Acquisition
Regulation except for those duties expressly reserved for the Secretary
of Transportation.
(2) Carry out the functions of the Chief Acquisition Officer (CAO)
except for those functions specifically reserved for the Deputy
Secretary. In carrying out these functions and in support of
requirements under Services Acquisition Reform Act (SARA), enacted as
part of the National Defense Authorization Act for 2004--Public Law 108-
136, the Senior Procurement Executive (SPE) is expected to interact
directly, and without intervening authority, with the CAO on issues
related to strategic acquisition policy, implementation, and management.
The nature and frequency of interactions with the CAO will be determined
mutually between the SPE and the CAO.
(3) Procure and authorize payment for property and services for the
Office of the Secretary, with power to re-delegate and authorize
successive re-delegations.
(b) The Director of Human Resources Management is redelegated the
authority to:
(1) Develop departmental human capital policies and objectives, and
monitor and oversee the implementation of those policies.
(2) Establish departmental human capital performance objectives and
metrics.
(3) Conduct a personnel management program for the Office of the
Secretary with authority to take, direct others to take, recommend or
approve any personnel action with respect to such authority.
(4) Concur in the appointment and promotion of all Human Resources
(HR) Directors in each Operating Administration and participate in the
performance reviews of HR Directors.
(5) Provide policy and overall direction in the execution of the DOT
Labor-Management Relations Program.
(6) Develop and operate the Federal Employee Workplace Drug and
Alcohol Testing Program in accordance with Executive Order 12564 and The
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143,
Title V.
(7) Develop, coordinate, and issue wage schedules for Department
employees under the Federal Wage System.
(c) The Director of Financial Management within the Office of the
Assistant Secretary for Administration is redelegated the authority to:
(1) Settle and pay claims by Working Capital Fund employees for
personal property losses as provided by 31 U.S.C. 3721 if the amount of
the payment does not exceed $500.
(d) The Director, Transit Benefit Program is redelegated the
authority to:
(1) Oversee the Department's transportation fringe benefit program
under 5 U.S.C. 7905 and 26 U.S.C. 132(f).
[[Page 23]]
(2) Consult with and provide guidance to other Federal agencies on
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C.
132(f).
(3) Establish and maintain uniform Federal Government standards for
developing and supporting Federal agencies' transportation fringe
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).
Sec.1.39 Executive Secretariat.
The Executive Secretariat provides organized staff services to the
Secretary and Deputy Secretary to assist them in carrying out their
management functions and their responsibilities for formulating,
coordinating and communicating major policy decisions. The Office
controls and coordinates internal and external material directed to the
Secretary and Deputy Secretary and ensures that their decisions and
instructions are implemented.
Sec.1.40 Departmental Office of Civil Rights.
The Departmental Office of Civil Rights serves as the Department's
Equal Employment Opportunity (EEO) Officer and Title VI Coordinator. The
Director also serves as principal advisor to the Secretary and the
Deputy Secretary on the civil rights and nondiscrimination statutes,
regulations, and Executive Orders applicable to the Department,
including titles VI and VII of the Civil Rights Act of 1964, as amended,
the Age Discrimination in Employment Act of 1967, as amended, the Age
Discrimination Act of 1975, as amended, section 504 of the
Rehabilitation Act of 1973, as amended, the Americans with Disabilities
Act of 1990, the Equal Pay Act of 1963, the ADA Amendments Act of 2008,
and the Genetic Information Nondiscrimination Act of 2008. The
Departmental Office of Civil Rights provides guidance to the Operating
Administrations and Secretarial officers on these matters. The Office
periodically reviews and evaluates the civil rights programs of the
Operating Administrations to ensure that recipients of financial
assistance meet applicable Federal civil rights requirements.
Sec.1.41 Delegations to the Director of the Departmental Office
of Civil Rights.
The Director of the Departmental Office of Civil Rights is delegated
authority to conduct all stages of the formal employment discrimination
complaints process (including acceptance/dismissal, investigation, and
final adjudication); to provide guidance to the Operating
Administrations and Secretarial officers concerning the implementation
and enforcement of all civil rights laws, regulations and Executive
Orders for which the Department is responsible; to otherwise perform
activities to ensure compliance with external civil rights programs; and
to review and evaluate the Operating Administrations' enforcement of
these authorities. These authorities include:
(a) Title VI and VII of the Civil Rights Act of 1964, 42 U.S.C.
2000d et seq. and 2000e et seq.
(b) Sections 501 and 504 of the Rehabilitation Act of 1973, 29
U.S.C. 791 and 794-794a.
(c) Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et
seq.
(d) Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq.
(e) Americans with Disabilities Act of 1990, 42 U.S.C. 12101-121213.
(f) ADA Amendments Act of 2008 (Pub. L. 110-325) [42 U.S.C. 12101
Note].
(g) Genetic Information Nondiscrimination Act of 2008, 42 U.S.C.
2000ff et seq.
(h) Equal Pay Act of 1963, 29 U.S.C. 206(d).
(i) Alcohol, Drug Abuse, and Mental Health Administration
Reorganization Act (Pub. L. 102-321)
(j) Chapter XIV of subtitle B, of title 29 of the CFR (Equal
Employment Opportunity Commission Regulations).
(k) Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-284) [42
U.S.C. 3601 et seq.].
(l) 40 U.S.C. 476 (prohibition on sex discrimination).
(m) Title IX of the Education Amendments of 1972, 20 U.S.C. 1681.
(n) In coordination with the Assistant Secretary for Transportation
Policy, Executive Order 12898 (``Federal Actions to Address
Environmental Justice in Minority Populations and Low-
[[Page 24]]
Income Populations'') (See also Executive Order 12948).
(o) 49 U.S.C. 306 (prohibition on discrimination in programs
receiving financial assistance), 5310 (transportation for elderly
persons and persons with disabilities), 5332 (nondiscrimination in mass
transportation), 41705 (discrimination by air carriers against
handicapped persons), 47113 (minority and disadvantaged business
participation), and 47123 (nondiscrimination in airport improvement
programs).
(p) 23 U.S.C. 324 and 402(b)(1)(D) (nondiscrimination in highway
programs).
(q) The Intermodal Surface Transportation Efficiency Act of 1991,
Public Law 102-240, 105 Stat. 1919, section 1003.
Sec.1.42 Office of Small and Disadvantaged Business Utilization.
The Director of the Office of Small and Disadvantaged Business
Utilization ensures that the Department's small and disadvantaged
business policies and programs are developed in a fair, efficient, and
effective manner. The Office is responsible for the Department's
implementation and execution of the functions and duties under the Small
Business Act, and providing opportunities, technical assistance, and
financial services to the small and disadvantaged business community.
Sec.1.43 Delegations to the Director of the Office of Small and
Disadvantaged Business Utilization.
The Director of Small and Disadvantaged Business Utilization is
delegated authority to:
(a) Exercise departmental responsibility for the implementation and
execution of functions and duties under sections 2[8] and 2[15] of the
Small Business Act (Pub. L. 85-836) [15 U.S.C. 637 and 644].
(b) Carry out the functions vested in the Secretary by 49 U.S.C. 332
(Minority Resource Center).
Sec.1.44 Office of Intelligence, Security and Emergency Response.
The Director of the Office of Intelligence, Security and Emergency
Response is responsible for the development, coordination, and execution
of plans and procedures for the Department to balance transportation
security requirements with the safety, mobility and economic needs of
the Nation through effective intelligence, security, preparedness and
emergency response programs. The Director is the Department's principal
Emergency Coordinator for the implementation of these programs.
Sec.1.45 Delegations to the Director of the Office of Intelligence,
Security and Emergency Response.
The Director of Intelligence, Security, and Emergency Response is
delegated authority to:
(a) Carry out the functions related to emergency preparedness and
response vested in the Secretary by the following authorities: 49 U.S.C.
101 and 301; Executive Order 12148, as amended (``Federal Emergency
Management''); Executive Order 12656 (``Assignment of Emergency
Preparedness Responsibilities'') (as amended; see Executive Order
13286); Executive Order 12742 (``National Security Industrial
Responsiveness''); Executive Order 13434 (``National Security
Professional Development''); Reorganization Plan No. 3 of 1978 (5 U.S.C.
app at 235 (2012); and such other statutes, executive orders, and other
directives as may pertain to emergency preparedness and response.
(b) Serve as the Department's Continuity Coordinator in accordance
with National Security Presidential Directive 51/Homeland Security
Presidential Directive 20, National Continuity Policy, and Federal
Continuity Directives (FCD) 1 Federal Executive Branch National
Continuity Program and Requirements and FCD 2 Federal Executive Branch
Mission Essential Function and Primary Mission Essential Function
Identification and Submission Process. Provide leadership for
departmental programs pertaining to intelligence related to the
transportation sector, transportation security policy, and civil
transportation emergency preparedness and response activities.
(c) Lead departmental collaboration efforts with the Department of
Homeland Security and other Departments and Agencies related to
transportation security and transportation infrastructure protection as
required by Homeland Security Presidential Directive 7,
[[Page 25]]
Critical Infrastructure Identification, Prioritization, and Protection.
(d) Together with the Assistant Secretary for Administration, carry
out oversight and management of the duties pertaining to national
security professional development assigned to the Secretary under
Executive Order 13434 (``National Security Professional Development'').
(e) Together with the Office of the Assistant Secretary for Aviation
and International Affairs, coordinate the Department's responsibilities
under National Security Presidential Directive 44, Management of
Interagency Efforts Concerning Reconstruction and Stabilization, and
Presidential Decision Directive 56, Managing Complex Contingency
Operations, pertaining to interagency reconstruction and stabilization
assistance.
(f) Lead departmental efforts pertaining to transportation-related
international civil emergency preparedness activities, including
coordinating DOT representation on North Atlantic Treaty Organization
committees, as directed under Executive Order 12656 (as amended; see
Executive Order 13286).
(g) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b), as implemented by 49 CFR part 15, in consultation and
coordination with the General Counsel.
(h) Oversee the Department's protective service program.
(i) Serve as the Secretary's representative to the Transportation
Security Oversight Board, in accordance with 49 U.S.C. 115, when so
designated.
(j) Lead Departmental participation in internal and interagency
planning efforts related to preparedness in accordance with Presidential
Policy Directive 8, National Preparedness, in coordination with the
Under Secretary.
(k) Serve as the Secretary's senior advisor on matters pertaining to
public health, biological, and medical matters.
(l) Develop departmental plans to support the Department of Defense
Civil Reserve Air Fleet (CRAF) program and allocate civil air carrier
aircraft to CRAF based on Department of Defense requirements.
(m) Oversee operation of the Department's Crisis Management Center.
(n) Lead departmental efforts for all interaction with the Program
Manager, Information Sharing Environment to include appointing the
Associate Director for Intelligence as the DOT Information Sharing
Program Manager to coordinate day-to-day Information Sharing Environment
matters.
(o) Carry out departmental responsibilities under Executive Order
13587 (``Structural Reforms to Improve the Security of Classified
Networks and the Responsible Sharing and Safeguarding of Classified
Information'') including overseeing classified information sharing and
safeguarding efforts for DOT. Oversee the day-to-day activities for
monitoring the Top Secret and Secret classified network used by DOT and
function as the Senior Official principally responsible for establishing
and implementing the DOT Insider Threat Program.
(p) Serve as the department's program manager responsible for
oversight of all intelligence programs, to include the DOT
Counterintelligence effort as it pertains to the DOT classified
networks, and coordinate intelligence matters throughout the department.
Nothing in this provision is intended to prohibit or limit a component's
ability to conduct intelligence activities authorized by law.
(q) Carry out the functions under the Defense Production Act of
1950, Public Law 81-774, 64 Stat. 798, as amended (50 U.S.C. app. 2061
et seq.), that were vested in the Secretary by Executive Order 13603
(``National Defense Resources Preparedness'').
Sec.1.46 Office of Public Affairs.
The Director of Public Affairs is the principal advisor to the
Secretary and Secretarial Officers on public affairs issues and the
final authority on public affairs issues within the Department. The
Office of Public Affairs prepares news releases and supporting media
materials, and maintains a new media presence. The Office also provides
information to the Secretary on opinions and reactions of the public and
news media on programs and transportation issues. The Office of Public
Affairs is responsible for the supervision, coordination, and review of
the activities of
[[Page 26]]
the public affairs offices within the Operating Administrations. The
Director of Public Affairs participates with each Administrator in the
hiring decisions (other than in the Federal Aviation Administration) and
performance reviews of all of the Operating Administrations' Directors
of Public Affairs.
[82 FR 19193, Apr. 26, 2017]
Sec.1.47 Delegations to the Assistant to the Secretary and Director
of Public Affairs.
The Assistant to the Secretary and Director of Public Affairs is
delegated authority to:
(a) Monitor the overall public information program and review and
approve departmental informational materials having policy-making
ramifications before they are printed and disseminated.
(b) Carry out the functions to promote carpooling and vanpooling
transferred to the Department of Transportation by section 310 of the
Department of Energy Organization Act of 1977 (Pub. L. 95-91) [42 U.S.C.
7159].
Sec.1.48 Office of the Chief Information Officer.
The Chief Information Officer (CIO) is the principal information
technology (IT), cyber security, privacy, and records management advisor
to the Secretary, and is the final authority on these matters within the
Department. The Office of the CIO supports the Organizational Excellence
Strategic Goal by providing leadership on all matters associated with
the Department's IT portfolio. The CIO participates with each
Administrator in the hiring decisions and performance reviews of the
Operating Administrations' CIOs.
[82 FR 19193, Apr. 26, 2017]
Sec.1.49 Delegations to the Chief Information Officer.
The Chief Information Officer is delegated authority to:
(a) Carry out all functions and responsibilities assigned to the
Secretary with respect to the Paperwork Reduction Act of 1995 (44 U.S.C.
3506);
(b) Carry out all functions and responsibilities assigned to the
Secretary with respect to the Clinger-Cohen Act of 1996 (40 U.S.C. 11312
to 11314, and 11317);
(c) Carry out all functions and responsibilities assigned to the
Secretary with respect to the E-Government Act of 2002, Public Law 107-
347;
(d) Carry out all functions and responsibilities necessary to ensure
compliance with the Federal Information Security Management Act of 2002
(44 U.S.C. 3534 and 3544);
(e) Serve as the Chief Privacy Officer, 42 U.S.C. 2000ee-2, and
administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR part 10
(Maintenance of and Access to Records Pertaining to Individuals) in
connection with the records of the Office of the Secretary;
(f) Carry out all functions and responsibilities necessary to issue
notices of Department of Transportation systems of records as required
by the Privacy Act;
(g) Carry out all functions and responsibilities assigned to the
Secretary with respect to the Federal Records Act (44 U.S.C. 3101-3102)
and necessary to ensure compliance with the regulations of the National
Archives and Records Administration (36 CFR parts 1220 through 1299; 44
U.S.C. Chapters 21, 29, 31, and 33), in coordination with the General
Counsel; and
(h) Serve as the Senior Agency Official for Geospatial Information
under Office of Management and Budget Memorandum M-06-07, ``Designation
of a Senior Agency Official for Geospatial Information'' (March 3,
2006).
Sec.1.50 Office of Drug & Alcohol Policy & Compliance.
The Office of Drug & Alcohol Policy & Compliance advises the
Secretary on national and international drug testing and control issues
and is the principal advisor to the Secretary on rules related to the
drug and alcohol testing of safety-sensitive transportation employees in
aviation, trucking, railroads, mass transit, pipelines, and other
transportation industries. The Office, in coordination with the Office
of the General Counsel, publishes and provides interpretations of rules
related to 49 CFR part 40 on the conduct of drug and alcohol tests,
including how to conduct tests, and which procedures to use when
testing. The Office
[[Page 27]]
coordinates with Federal Agencies and assists foreign governments in
developing drug and alcohol testing programs and implementing the
President's National Drug Control Strategy.
Sec.1.60 General Authorizations and Delegations to Secretarial Officers.
(a) Acting in his or her own name and title, the Under Secretary,
the General Counsel, and each Assistant Secretary, within his or her
sphere of responsibility, is authorized to identify and define the
requirements for, and to recommend to the Secretary, new or revised
departmental policies, plans, and proposals. Each of these officers is
authorized to issue departmental standards, criteria, systems and
procedures that are consistent with applicable laws, Executive Orders,
Government-wide regulations and policies established by the Secretary,
and to inspect, review, and evaluate departmental program performance
and effectiveness and advise the Secretary regarding the adequacy
thereof.
(b) Except for nondelegable statutory duties including those that
transfer as a result of succession to act as Secretary of
Transportation, each Deputy Assistant Secretary and Deputy General
Counsel is authorized to act for and perform the duties of his or her
principal in the absence or disability of the principal and as otherwise
directed by the principal.
(c) The Deputy Secretary, the Under Secretary, the General Counsel,
and the Assistant Secretaries for Administration, Budget and Programs,
and Governmental Affairs are delegated authority to:
(1) Redelegate and authorize successive redelegations of authority
granted by the Secretary within their respective organizations, except
as limited by law or specific administrative reservation, including
authority to publish those redelegations in appendix A of this part.
(2) Authorize and approve official travel (except foreign travel)
and transportation for themselves, their subordinates, and others
performing services for, or in cooperation with, the Office of the
Secretary.
(3) Establish ad hoc committees for specific tasks within their
assigned staff area.
(4) Establish, modify, extend, or terminate standing committees
within their specific areas of responsibility when directed or
authorized to do so by the Secretary.
(5) Designate members of interagency committees when such committees
are specifically concerned with responsibilities of direct interest to
their office.
(6) Exercise the following authorities with respect to positions in
the Senior Executive Service and Senior Level within their respective
areas of responsibility:
(i) Determine how executive level positions will be filled; i.e., by
reassignment, promotion, or appointment.
(ii) Establish selection criteria to be used in identifying eligible
candidates.
(iii) Confer with the Administrators on selection criteria and
candidates for an executive level position that is a counterpart of an
activity or position in the Office of the Secretary.
(iv) Recommend final selection for executive level positions,
subject to review by the Executive Committee of the Departmental
Executive Resources Board and approval by the Secretary and the Office
of Personnel Management.
(7) Enter into inter- and intra-departmental reimbursable agreements
other than with the head of another department or agency (31 U.S.C.
686). This authority may be redelegated only to office directors or
other comparable levels and to contracting officers.
(8) Administer and perform the functions described in their
respective functional statements.
(9) Exercise the authority of the Secretary to make certifications,
findings and determinations under the Regulatory Flexibility Act (Pub.
L. 96-354) with regard to any rulemaking document for which issuance
authority is delegated by other sections in this part. This authority
may be redelegated to those officials to whom document issuance
authority has been redelegated.
(10) Exercise the authority of the Secretary to resolve informal
allegations of discrimination arising in or relating to their respective
organizations
[[Page 28]]
through Equal Employment Opportunity counseling or the Alternative
Dispute Resolution process and to develop and implement affirmative
action and diversity plans within their respective organizations.
(11) Exercise the authority vested in the Secretary by 49 U.S.C.
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the
Designated Agency Ethics Official, the following: Gifts of property
(other than real property) not exceeding $1,000 in value, gifts of
services (in carrying out aviation duties and powers) not exceeding
$1,000 in value, and reimbursement of travel expenses from non-federal
sources not exceeding $3,000 in value. Acceptance of gifts or travel
reimbursement that exceed these limits in value or are otherwise
significant may only take place with the additional concurrence of the
General Counsel. This delegation extends only to the acceptance of gifts
or travel expenses and does not authorize the solicitation of gifts,
which is reserved to the Secretary at Sec.1.21.
Subpart C_Office of Inspector General
Sec.1.70 Overview.
This subpart describes the key responsibilities of the Office of
Inspector General, the structure of the office, and the authority of the
Inspector General.
Sec.1.71 Key responsibilities.
The Inspector General conducts, supervises, and coordinates audits
and investigations; reviews existing and proposed legislation and makes
recommendations to the Secretary and Congress concerning their effect on
the economy and efficiency of program administration, or the prevention
and detection of fraud and abuse; recommends policies for and conducts,
supervises, or coordinates other activities of the Department for the
purpose of promoting economy and efficiency in program administration,
or preventing and detecting fraud and abuse; and keeps the Secretary and
the Congress fully and currently informed.
Sec.1.72 Structure.
This Office is composed of:
(a) The Office of the Deputy Inspector General;
(b) The Office of the Principal Assistant Inspector General for
Investigations;
(c) The Office of the Principal Assistant Inspector General for
Auditing and Evaluation;
(d) The Office of the Assistant Inspector General for
Administration; and
(e) The Office of the Assistant Inspector General for Legal,
Legislative and External Affairs.
Sec.1.73 Authority of Inspector General.
The Inspector General shall report to and be under the general
supervision of the Secretary and Deputy Secretary. The Inspector General
has such authority as is provided by the Inspector General Act of 1978,
as amended, and as is otherwise provided by law. Authorities provided to
the Inspector General by law are reserved to the Inspector General. In
accordance with the statutory intent of the Inspector General Act to
create an independent and objective unit, the Inspector General is
authorized to make such investigations and reports relating to the
administration of the programs and operations of the Department as are,
in the judgment of the Inspector General, necessary and desirable.
Neither the Secretary nor the Deputy Secretary shall prevent or prohibit
the Inspector General from initiating, carrying out, or completing any
audit or investigation, or from issuing any subpoena during the course
of any audit or investigation.
Sec.1.74 Delegations to Inspector General.
The Inspector General is delegated authority to:
(a) Redelegate and authorize successive redelegations of authority
granted by the Secretary within the Office of Inspector General, except
as limited by law or specific administrative reservation.
(b) Authorize and approve official travel, including foreign travel
and transportation for themselves, their subordinates, and others
performing services for, or in cooperation with, the Office of Inspector
General.
(c) Exercise the authority of the Secretary to resolve informal
allegations
[[Page 29]]
of discrimination arising in or relating to the Office of Inspector
General through Equal Employment Opportunity counseling or the
Alternative Dispute Resolution process and to develop and implement
affirmative action and diversity plans.
(d) Exercise the authority vested in the Secretary by 49 U.S.C.
326(a) to accept gifts of property (other than real property) or
services (in carrying out aviation duties and powers), and the authority
to accept travel reimbursements from non-federal sources under 31 U.S.C.
1353.
(e) Exercise the implied authority to solicit gifts associated with
49 U.S.C. 326(a), notwithstanding the reservation of authority to the
Secretary in Sec.1.21.
(f) Carry out the emergency preparedness functions assigned to the
Secretary by Executive Order 12656 (as amended; see Executive Order
13286) and by the Federal Emergency Management Agency and General
Services Administration (FEMA and GSA) as they pertain to the Office of
Inspector General, including those relating to continuity of operations,
emergency resource management, and training.
(g) Determine the existence and amount of indebtedness and the
method of collecting repayments from employees and members within the
Office of Inspector General and collect repayments accordingly, as
provided by 5 U.S.C. 5514.
(h) Waive claims of the United States arising out of an erroneous
payment to an employee of the Office of Inspector General of pay or
allowances, or travel, transportation, or relocation expenses and
allowances, and deny requests for waiver of such claims, as authorized
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to
Transfer of Functions Pursuant to Public Law 104-316'' (December 17,
1996). But for claims arising from erroneous payments to current
employees, this delegation of authority is limited to claims greater
than $500. For claims arising from erroneous payments to former
employees, this delegation of authority is not limited by claim amount.
Redelegation of this authority may be made only to the principal
officials responsible for financial management or such officials'
principal assistants.
(i) Settle and pay claims by employees of the Office of Inspector
General for personal property losses as provided by 31 U.S.C. 3721
(Claims of personnel of agencies and the District of Columbia government
for personal property damage or loss).
(j) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer.
(k) [Reserved]
(l) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of, the Office of Inspector General, subject to the limits on
that authority imposed by 31 U.S.C. 3711 and the Federal Claims
Collection Standards, 31 CFR chapter IX.
(m) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28
CFR part 14, related to the administrative disposition of federal tort
claims, for claims involving the Office of Inspector General. The
Inspector General may request the approval of the Attorney General to
adjust, compromise, and settle any such claim if the amount of the
adjustment, compromise, or award exceeds $100,000, but only after the
General Counsel concurs with the request. If the Inspector General
believes that a pending claim presents a novel question of law or of
policy, he or she shall coordinate with the General Counsel to obtain
the advice of the Assistant Attorney General in charge of the Civil
Division. If the Inspector General settles a claim for an amount greater
than $50,000, the Inspector General shall prepare a memorandum fully
explaining the basis for the action taken and coordinate with the
General Counsel before sending a copy of the memorandum to the Director,
Federal Torts Claims Act Staff, Torts Branch of the Civil Division, U.S.
Department of Justice.
(n) Make written requests under subsection (b)(7) of the Privacy Act
of 1974, 5 U.S.C. 552a(b)(7), for records maintained by other agencies
that are necessary to carry out an authorized law enforcement activity.
[[Page 30]]
(o) Administer the Freedom of Information Act, 5 U.S.C. 552, and 49
CFR part 7 (Public Availability of Information) in connection with the
records of the Office of the Inspector General.
(p) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR
part 10 (Maintenance of and Access to Records Pertaining to Individuals)
in connection with the records of the Office of the Inspector General.
(q) Exercise the authority of the Secretary over and with respect to
any personnel within the Office of Inspector General, except as
prescribed by the Secretary or limited by law.
(r) Approve payment of recruitment, relocation, and retention
incentives under 5 U.S.C. 5753 and 5754.
(s) Administer 49 CFR part 9 (Testimony of Employees of the
Department and Production of Records in Legal Proceedings) in connection
with the records of the Office of Inspector General and testimony of
current and former employees of the Office of Inspector General.
Subpart D_Operating Administrations
Sec.1.80 Overview.
This subpart sets forth the key responsibilities of the Operating
Administrations, and the delegations of authority from the Secretary of
Transportation to the Administrators.
Sec.1.81 Delegations to all Administrators.
(a) Except as prescribed by the Secretary of Transportation, each
Administrator is authorized to:
(1) Exercise the authority of the Secretary over and with respect to
any personnel within their respective organizations.
(2) [Reserved]
(3) Exercise the authority vested in the Secretary to prescribe
regulations under 49 U.S.C. 322(a) with respect to statutory provisions
for which authority is delegated by other sections in this part.
(4) Carry out the functions of the Secretary concerning
environmental enhancement by 49 U.S.C. 303 (Duties of the Secretary of
Transportation: Policy on lands, wildlife and waterfowl refuges, and
historic sites) and 23 U.S.C. 138 as they relate to matters within the
primary responsibility of each Operating Administration.
(5) Carry out the functions of the Secretary under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), section
176(c) of the Clean Air Act (42 U.S.C. 7506(c)), and related
environmental laws as they relate to matters within the primary
responsibility of each Operating Administration.
(6) Carry out the functions of the Secretary under section 106 of
the Historic Preservation Act of 1966, 16 U.S.C. 470f, as they relate to
matters within the primary responsibility of each Operating
Administration.
(7) Administer FOIA and 49 CFR part 7 (Public Availability of
Information) in connection with the records of the Operating
Administration.
(8) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR
part 10 (Maintenance of and Access to Records Pertaining to Individuals)
in connection with the records of the Operating Administration.
(9) Make written requests under subsection (b)(7) of the Privacy Act
for records maintained by other agencies that are necessary to carry out
an authorized law enforcement activity.
(10) Carry out the emergency preparedness functions assigned to the
Secretary by Executive Order 12656, (as amended; see Executive Order
13286) and by the Federal Emergency Management Agency and General
Services Administration (FEMA and GSA) as they pertain to his or her
administration, including those relating to continuity of operations,
emergency resource management, associated Federal claimant procedures,
facilities protection and warfare effects monitoring and reporting,
research, stockpiling, financial aid, and training.
(11) Enter into inter- and intradepartmental reimbursable agreements
other than with the head of another department or agency. This authority
may be redelegated only to Office Directors, Regional Directors,
District Commanders or other comparable levels and Contracting Officers.
[[Page 31]]
(12) Determine the existence and amount of indebtedness and the
method of collecting repayments from employees within their respective
administrations and collect repayments accordingly, as provided by 5
U.S.C. 5514. Redelegation of this authority may be made only to the
principal officials responsible for financial management or such
officials' principal assistants.
(13) Waive claims of the United States arising out of an erroneous
payment to an employee of the Operating Administration of pay or
allowances, or travel, transportation, or relocation expenses and
allowances, and deny requests for waiver of such claims, as authorized
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to
Transfer of Functions Pursuant to Public Law 104-316'' (December 17,
1996). But for claims arising from erroneous payments to current
employees, this delegation of authority is limited to claims greater
than $500. For claims arising from erroneous payments to former
employees, this delegation of authority is not limited by claim amount.
Redelegation of this authority may be made only to the principal
officials responsible for financial management or such officials'
principal assistants.
(14) Settle and pay claims by employees of the Operating
Administration for personal property losses as provided by 31 U.S.C.
3721 (Claims of personnel of agencies and the District of Columbia
government for personal property damage or loss). This authority may be
redelegated only to Office Directors, Regional Directors, or other
comparable levels and to those individuals that report to the above
officials.
(15) Exercise the authority of the Secretary to resolve informal
allegations of discrimination arising in or relating to their respective
organizations through Equal Employment Opportunity counseling or the
Alternative Dispute Resolution process and to develop and implement
affirmative action and diversity plans within their respective
organizations. With regard to external civil rights programs, each
Administrator exercises authority pursuant to statutes, regulations,
Executive Orders, or delegations in this subpart to carry out these
programs, under the guidance of the Director of the Departmental Office
of Civil Rights, including conducting compliance reviews and other
activities relating to the enforcement of these statutes, regulations,
and Executive Orders.
(16) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer.
(17) Authorize and approve official non-foreign travel and
transportation for themselves, their subordinates, and others performing
services for, or in cooperation with, their Operating Administrations.
(18) Exercise the authority of the Secretary to make certifications,
findings and determinations under the Regulatory Flexibility Act (5
U.S.C. 601, et seq.) with regard to any rulemaking document for which
issuance authority is delegated by other sections in this part. This
authority may be redelegated to those officials to whom document
issuance authority has been delegated.
(19) Carry out the functions vested in the Secretary by 15 U.S.C.
3710(a), which authorizes agencies to permit their laboratories to enter
into cooperative research and development agreements.
(20) [Reserved]
(21) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of, the Operating Administration, subject to the limits on
that authority imposed by 31 U.S.C. 3711 and the Federal Claims
Collection Standards, 31 CFR chapter IX.
(22) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28
CFR part 14, related to the administrative disposition of federal tort
claims, for claims involving the Operating Administration. The
Administrator may request the approval of the Attorney General to
adjust, compromise, and settle any such claim if the amount of the
adjustment, compromise, or award exceeds $100,000, but only after the
General Counsel concurs with the request. If the Administrator believes
that a pending claim presents a novel
[[Page 32]]
question of law or of policy, he or she shall coordinate with the
General Counsel to obtain the advice of the Assistant Attorney General
in charge of the Civil Division. If the Administrator settles a claim
for an amount greater than $50,000, the Administrator shall prepare a
memorandum fully explaining the basis for the action taken and
coordinate with the General Counsel before sending a copy of the
memorandum to the Director, Federal Torts Claims Act Staff, Torts Branch
of the Civil Division, U.S. Department of Justice.
(23) Enter into memoranda of agreement with the Occupational Safety
and Health Administration (OSHA) in regard to setting and enforcing
occupational safety or health standards and whistleblower protection for
employees in DOT-regulated industries. The General Counsel shall concur
in each memorandum of understanding with OSHA prior to its execution by
the Administrator of the Operating Administration concerned.
(24) Enter into memoranda of agreement with the Mine Safety Health
Administration (MSHA) in regard to setting and enforcing safety
standards for employees in DOT-regulated industries while on mine
property. The General Counsel shall concur in each memorandum of
agreement with MSHA prior to its execution by the Administrator of the
Operating Administration concerned.
(25) Exercise the authority vested in the Secretary by Section 329A
of the Department of Transportation and Related Agencies Appropriations
Act, 1995, Public Law 103-331, 329A, 108 Stat. 2471, 2493 (September 30,
1994), to enter into grants, cooperative agreements, and other
transactions with any person, agency, or instrumentality of the United
States, any unit of state or local government, any educational
institution, and any other entity in execution of the Technology
Reinvestment Project authorized under the Defense Conversion,
Reinvestment, and Transition Assistance Act of 1992, Public Law 102-484,
106 Stat. 2658 (October 23, 1992), and related legislation.
(26) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b), as implemented by 49 CFR part 15, in coordination with the
Office of the General Counsel and the Office of Intelligence, Security
and Emergency Response, relating to the determination that information
is Sensitive Security Information within their respective organizations.
(27) Exercise the authority vested in the Secretary by 49 U.S.C.
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the
Operating Administration's Deputy Ethics Official, the following: Gifts
of property (other than real property) not exceeding $1,000 in value,
gifts of services (in carrying out aviation duties and powers) not
exceeding $1,000 in value, and reimbursement of travel expenses from
non-federal sources not exceeding $3,000. Acceptance of gifts or travel
reimbursement that exceed these limits in value or are otherwise
significant may only take place with the additional concurrence of the
General Counsel. This delegation extends only to the acceptance of gifts
or travel expenses and does not authorize the solicitation of gifts,
which is reserved to the Secretary at Sec.1.21.
(28) Exercise the authority vested in the Secretary by the Federal
Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104
Stat. 890), as amended by the Debt Collection Improvement Act of 1996
(Pub. L. 104-134, 110 Stat. 1321), to promulgate rules that adjust civil
penalties.
(29) Carry out the functions vested in the Secretary to implement
the Uniform Relocation Assistance and Real Property Acquisition Act of
1970 (Uniform Act), 42 U.S.C. Chapter 61, with respect to programs
administered by their respective Operating Administrations. Each
Operating Administration may prescribe additional Uniform Act guidance
that is appropriate to those particular programs, provided that such
additional guidance must be consistent with the Uniform Act and 49 CFR
part 24. The lead agency for Uniform Act matters is the Federal Highway
Administration (see Sec.1.85 and 49 CFR part 24).
Sec.1.81a Redelegation by all Administrators.
Except as otherwise specifically provided in this part, each
Administrator
[[Page 33]]
may redelegate and authorize successive redelegations of authority
within the organization under that official's jurisdiction.
Sec.1.82 The Federal Aviation Administration.
Is responsible for:
(a) Promulgating and enforcing regulations on all safety matters
relating to the operation of airports, the manufacture, operation, and
maintenance of aircraft, and the efficiency of the National Airspace
System;
(b) Planning and supporting the development of an integrated
national system of airports, with due consideration of safety, capacity,
efficiency, environmental compatibility and sustainability;
(c) Administering federal financial assistance programs for airports
including airport grants-in-aid;
(d) Preserving and enhancing the safety and efficiency of the
Nation's air transportation system by implementing NextGen and other
technologies, as appropriate;
(e) Registering aircraft and recording rights in aircraft;
(f) Developing, modifying, testing, and evaluating systems,
procedures, facilities, and devices needed for the safe and efficient
navigation and traffic control of aircraft;
(h) Locating, constructing or installing, maintaining and operating
Federal aids to air navigation, wherever necessary;
(i) Developing air traffic regulations, and administering air
navigation services for control of civil and military air operations
within U.S. airspace, as well as administering such air navigation
services as the FAA has accepted responsibility for providing in
international airspace and the airspace of foreign countries;
(j) Promoting aviation safety and efficiency through technical
aviation assistance to foreign aviation authorities;
(k) Developing strategies to improve runway safety at all commercial
service airports;
(l) Administering the Continuous Lower Energy, Emissions and Noise
program, improving connections to surface transportation, and other
efforts to increase the environmental sustainability of the Nation's air
transportation systems;
(m) Conducting an effective airport technology research program to
improve airport safety, efficiency, and sustainability;
(n) Exercising the final authority for carrying out all functions,
powers, and duties of the Administration in accordance with 49 U.S.C.
106(f) and adjudication in accordance with 49 U.S.C. 40110(d) and that
such authorities supersede any conflicting provisions elsewhere in this
part.
(o) Promoting and encouraging U.S. leadership in commercial space
activities, and promulgating and enforcing regulations on safety matters
relating to commercial space transportation.
Sec.1.83 Delegations to the Federal Aviation Administrator.
The Federal Aviation Administrator is delegated authority to:
(a) Carry out the following functions vested in the Secretary by 49
U.S.C. Subtitle VII (Aviation Programs):
(1) Sections 40103(a)(2), relating to the consultation with the
Architectural and Transportation Barriers Compliance Board before
prescribing regulations or procedures that will have a significant
impact on accessibility of commercial airports or commercial air
transportation for individuals with disabilities; 40109(c), but only as
it relates to the regulation of 49 U.S.C. 46301(b) (smoke alarm device
penalties), and 40109(e), relating to maximum flying hours 40113(a) as
it relates to the functions vested in the Secretary and delegated in
this section; 40114, relating to reports and records requirements;
40115, relating to withholding information from public disclosure;
40116, relating to the prohibition on State taxation as the prohibition
may affect an airport sponsor's grant assurances; 40117, relating to
passenger facility charges; 40119(b), relating to the issuance of
regulations on disclosure of information obtained or developed in
ensuring security; and 40127(b) of chapter 401, relating to prohibition
on discrimination by private airports;
[[Page 34]]
(2) Section 41723 of subchapter I of chapter 417, relating to notice
concerning aircraft assembly;
(3) Section 44102(b) of chapter 441, relating to defining the term
``based and primarily used in the United States'';
(4) Chapter 443, relating to insurance;
(5) Chapter 445, relating to facilities, personnel, and research,
except section 44502(a)(3) as it relates to authorizing a department,
agency, or instrumentality of the United States Government to carry out
any duty or power under subsection 44502(a) with the consent of the head
of the department, agency, or instrumentality;
(6) Chapter 447, relating to safety regulation;
(7) Chapter 451, relating to alcohol and controlled substances
testing;
(8) Subpart IV of Part A of 49 U.S.C. Subtitle VII (chapters 461-
465) relating to the Secretary's authority to enforce and impose
penalties under sections of Subtitle VII that have been delegated to the
Federal Aviation Administrator in this section;
(9) Part B of 49 U.S.C. Subtitle VII (chapters 471-475) relating to
airport development and noise, except 49 U.S.C. 47129(a);
(10) Part C of 49 U.S.C. Subtitle VII (chapters 481-483) relating to
financing; and
(11) Part E of 49 U.S.C. Subtitle VII (chapter 501) relating to Buy-
American Preferences.
(b) Carry out the functions vested in the Secretary by chapters 509
and 511 (commercial space) of title 51, U.S.C. and coordinate with the
Assistant Secretary for Aviation and International Affairs regarding
those functions related to the promotion of the aerospace industry.
(c) Carry out the functions vested in the Secretary by part B of
title II of the Clean Air Act, as amended (Pub. L. 91-604, sec. 11, 84
Stat. 1703), and by 40 CFR part 87 as it relates to exemptions from
aircraft air pollution standards.
(d)(1) Except as delegated to the Under Secretary of Transportation
for Policy by Sec.1.25, carry out the functions vested in the
Secretary by 49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124,
relating to the transportation or shipment of hazardous materials by
air.
(2) Carry out the functions vested in the Secretary by 49 U.S.C.
5114, relating to the establishment of procedures for monitoring and
enforcing regulations with respect to the transportation of radioactive
materials on passenger-carrying aircraft.
(3) Participate, with the Administrator of the Pipeline and
Hazardous Materials Safety Administration, in the Dangerous Goods Panel
at the International Civil Aviation Organization, under the authority
vested in the Secretary by 49 U.S.C. 5120.
(e) Serve, or designate a representative to serve, as Vice Chairman
and alternate Department of Transportation member of the Interagency
Group on International Aviation (IGIA) pursuant to the interagency
agreement of December 9, 1960, and Executive Order 11382, and provide
for the administrative operation of the IGIA Secretariat.
(f) Carry out the functions assigned to the Secretary by Executive
Order 12465 relating to commercial expendable launch vehicle activities.
(g) Carry out the functions vested in the Secretary by the National
Aeronautics and Space Administration Authorization Act, Fiscal Year 1993
(Pub. L. 102-588, 106 Stat 5119, November 4, 1992).
Sec.1.84 The Federal Highway Administration.
Is responsible for:
(a) Improving mobility on our Nation's highways through national
leadership, innovation, and program delivery.
(b) Developing safety strategies using a data-driven, systematic
approach to address safety for motorists, bicyclists, and pedestrians
from engineering, education, enforcement, and emergency medical services
perspectives and coordinating with FMCSA and NHTSA as appropriate.
(c) Planning, in cooperation with the States, the nation's highway
system.
(d) Improving, in cooperation with the States (via the provision of
grants), infrastructure condition, safety, mobility and freight movement
roads on the National Highway System, including the Interstate System
and to other federal-aid roads and other surface transportation
infrastructure.
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(e) Identifying and deploying innovation aimed at shortening project
delivery, enhancing the safety of our roadways, and protecting the
environment.
(f) Surveying and constructing Federal lands transportation
facilities, Federal lands access transportation facilities, tribal
transportation facilities, defense highways and access roads, and
parkways and roads in national parks and other federally-administered
areas.
(g) Developing and administering uniform State standards for highway
safety programs with respect to identification and surveillance of crash
locations; highway design, construction, and maintenance, including
context sensitive solutions, highway-related aspects of pedestrian
safety, and traffic control devices.
(h) Administering the Department's National Bridge Inspection
Standards and the National Tunnel Inspection Standards to ensure the
Nation has safe, well-maintained bridges and tunnels for use by the
traveling public.
(i) In coordination with NHTSA, RITA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research.
(j) Managing TIFIA funds, 23 U.S.C. 601-609, in conjunction with the
TIFIA Joint Program Office, including managing accounting and budgeting
activities, and procuring any necessary financial or technical support
services for the TIFIA program.
(k) Maximizing the positive impacts on the U.S. economy by
encouraging domestic manufacturing on highway projects through the
enforcement of Buy America provisions.
Sec.1.85 Delegations to the Federal Highway Administrator.
(a) The Federal Highway Administrator is delegated authority to
administer the following provisions of title 23, U.S.C. (Highways):
(1) Chapter 1, Federal-Aid Highways, except for:
(i) Section 142 (as it relates to matters within the primary
responsibility of the Federal Transit Administrator);
(ii) The following sections as they relate to matters within the
primary responsibility of the National Highway Traffic Safety
Administration: 153, 154, 158, 161, 163, and 164; and
(iii) Section 167(f) (National Freight Strategic Plan).
(2) Chapter 2, Other Highways, except for section 205.
(3) Chapter 3, General Provisions (as it relates to matters within
the primary responsibility of the Federal Highway Administration),
except for section 322.
(4) Section 409 of chapter 4, Highway Safety.
(5) Chapter 5, Research, Technology, and Education, except for
section 508.
(6) Chapter 6, Infrastructure Finance, subject to the limitations
set forth in Sec. Sec.1.33 (Assistant Secretary for Budget and
Programs) and 1.21 (reservation to the Secretary of final approval of
TIFIA credit assistance applications).
(b) The Federal Highway Administrator is delegated authority to
administer the following provisions of title 49, U.S.C.
(Transportation):
(1) Section 20134(a) with respect to the laws administered by the
Federal Highway Administrator pertaining to highway safety and highway
construction; and
(2) Sections 31111 and 31112 (as it relates to matters within the
primary responsibility of the Federal Highway Administration).
(3) Section 31314 (as it relates to matters within the primary
responsibility of the Federal Highway Administration).
(c) The Federal Highway Administrator is delegated authority to
administer the following laws relating generally to highways:
(1) Section 502(c) of the General Bridge Act of 1946, as amended,
Public Law 79-601, tit. V, 60 Stat. 847, [33 U.S.C. 525(c)].
(2) Reorganization Plan No. 7 of 1949 (63 Stat. 1070).
(3) The Federal-Aid Highway Act of 1954, as amended (Pub. L. 83-350,
68 Stat. 70).
(4) The Federal-Aid Highway Act of 1956, as amended (Pub. L. 84-627,
tit. I, 70 Stat. 374).
(5) The Highway Revenue Act of 1956, as amended (Pub. L. 84-627,
tit. II, 70 Stat. 374, 387).
(6) The Alaska Omnibus Act, as amended (Pub. L. 86-70, 73 Stat.
141).
(7) The Act of September 26, 1961, as amended (Pub. L. 87-307, 75
Stat. 670).
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(8) The Act of April 27, 1962 (Pub. L. 87-441, 76 Stat. 59).
(9) The Federal-Aid Highway Act of 1962, as amended (Pub. L. 87-866,
76 Stat. 1145).
(10) The Joint Resolution of August 28, 1965, as amended (Pub. L.
89-139, 79 Stat. 578).
(11) The Federal-Aid Highway Act of 1966, as amended (Pub. L. 889-
574, 80 Stat. 766).
(12) The Federal-Aid Highway Act of 1968, as amended (Pub. L. 90-
495, 82 Stat. 815).
(13) The Federal-Aid Highway Act of 1970, as amended (except section
118) (Pub. L. 91-605, 84 Stat. 1713).
(14) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147,
149, 154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-
Aid Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub.
L. 93-643, 88 Stat. 2281).
(15) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1)
and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of 1976
(Pub. L. 94-280, 90 Stat. 425).
(16) The Highway Beautification Act of 1965, as amended (Pub. L. 89-
285, 79 Stat. 1028, 23 U.S.C. 131 et seq., notes).
(17) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327, 96 Stat.
1611), except section 6 as it relates to matters within the primary
responsibility of the Federal Transit Administrator.
(18) The Surface Transportation Assistance Act of 1982, as amended,
(Pub. L. 97-424, 96 Stat. 2097) except:
(i) Sections 165 and 531 as they relate to matters within the
primary responsibility of the Federal Transit Administrator;
(ii) Sections 105(f), 413; 414(b)(2); 421, 426, and Title III; and
(iii) Section 414(b)(1), unless with the concurrence of the National
Highway Traffic Safety Administrator.
(19) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b),
114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137,
139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151
through 157, 164, and 208 of the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).
(20) Sections 105, 107(c) through (e), 123(a) and (b), 124(c),
126(d) through (g), 138(c), 142, 144, 147 through 154, 167, and 171,
Title IV, as amended (as it relates to matters within the primary
responsibility of the Federal Highway Administrator), and sections 502-
504 of Title V of the Surface Transportation Assistance Act of 1978
(Pub. L. 95-599, 92 Stat. 2689).
(21) Sections 201 through 205, 327 through 336, 339, 340, 349, 352,
353, and 408 of the National Highway System Designation Act of 1995
(Pub. L. 104-59, 109 Stat. 568).
(22) Sections 1002(e), 1006(h), 1009(c), 1012(b) and (d) through
(f), 1015, 1016(g), 1017(c), 1021(c) and (d), 1022(c), 1023(f) through
(g), 1032(d), 1038 through 1041, 1044, 1046(d), 1047, 1051, 1057 through
1060, 1072, 1073, 1105, and 6016 of the Intermodal Surface
Transportation Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914).
(23) Sections 1108(f) and (g) and 1224 of the Transportation Equity
Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107).
(24) Sections 1101(a), 1102, 1109(f), 1111(b)(4), 1112, 1115(c),
1116(a) and (b), 1117, 1119(n), 1120(c), 1201, 1301, 1302, 1303, 1304,
1305, 1306, 1308, 1310, 1404, 1408, 1409(a) and (b), 1410, 1411, 1502,
1604, 1803, 1907, 1908, 1910, 1911, 1916, 1917, 1918, 1923, 1928, 1934,
1935, 1937, 1939, 1940, 1941, 1943, 1944, 1945, 1948, 1949, 1950, 1952,
1957, 1959, 1962, 1964, 4404 (as it relates to matters within the
primary responsibility of the Federal Highway Administrator), 5101(b),
5202(b)(3)(B), (c), and (d), 5203(e) and (f), 5204(g) and (i), 5304,
5305, 5306, 5307, 5308, 5309, 5502, 5504, 5508, 5511, 5512, 5513(b),
(f), (k), and (m) (as (m) relates to (b), (f), and (k)), 5514, 6009(b)
(as they relate to matters within the primary responsibility of the
Federal Highway Administrator), 6017, 6018, 10210, and 10212 of the
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (Pub. L. 109-59, 119 Stat. 1144).
(25) Sections 1101(a), 1102, 1106(b), 1112(b), 1113(c), 1116, 1123,
1201(b), 1315 (as it relates to matters within the primary
responsibility of the Federal Highway Administration), 1316 (as it
relates to matters within the primary responsibility of the Federal
Highway Administration), 1317 (as it relates to
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matters within the primary responsibility of the Federal Highway
Administration), 1318(a) and (b) (as it relates to matters within the
primary responsibility of the Federal Highway Administration), 1323 (a)
and (b), 1401(b), (c) and (d), 1405, 1503(c), 1512(b), 1519(a), 1520,
1522, 1523, 1524, 1525, 1526, 1527 (as it relates to matters within the
primary responsibility of the Federal Highway Administration), 1528,
1529, 1530 (as it relates to matters within the primary responsibility
of the Federal Highway Administration), 1533, 1534, 1535, 32801, 32802,
and 51001 of the Moving Ahead for Progress in the 21st Century Act (Pub.
L. 112-141, 126 Stat. 405).
(d) The Federal Highway Administrator is delegated authority to:
(1) Carry out the functions vested in the Secretary of
Transportation by section 601 of the Pipeline Safety Act of 1992 (Pub.
L. 102-508, 106 Stat. 3289) relating to construction of the Page Avenue
Extension Project in Missouri.
(2) Carry out the functions of the Secretary under the Appalachian
Regional Development Act of 1965, 40 U.S.C. Subtitle IV.
(3) Carry out the Act of September 21, 1966, Public Law 89-599,
relating to certain approvals concerned with a compact between the
States of Missouri and Kansas.
(4) Carry out the functions vested in the Secretary by section 5 (as
it relates to bridges, other than railroad bridges, not over navigable
waters), and section 8(a) (as it relates to all bridges other than
railroad bridges) of the International Bridge Act of 1972 (Pub. L. 92-
434, 86 Stat. 731) [33 U.S.C. 535c and 535e(a)].
(5) Carry out the Highway Safety Act of 1966, as amended (Pub. L.
89-564, 80 Stat. 731) for highway safety programs, research, and
development relating to highway design, construction and maintenance,
traffic control devices, identification and surveillance of crash
locations, and highway-related aspects of pedestrian safety.
(6) Exercise the authority vested in the Secretary by 49 U.S.C.
20134(a) with respect to the laws administered by the Federal Highway
Administrator pertaining to highway safety and highway construction
(7) Prescribe regulations, as necessary, at part 24 of this title,
to implement the Uniform Act, 42 U.S.C. Chapter 61, and to act as the
lead agency in carrying out all other functions vested in the Secretary
by the Uniform Act, in coordination with the Under Secretary.
(8) Exercise the authority vested in the Secretary by sections 101,
118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974
(Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).
(9) Carry out the functions vested in the Secretary of
Transportation by section 114 of Part C of the Paperwork Reduction
Reauthorization Act of 1986 (contained in the Act Making Continuing
Appropriations for Fiscal Year 1987 and for Other Purposes, Public Law
99-591, 100 Stat. 3341, 2241-349), relating to construction of
Interstate Highway H-3 in Hawaii.
(10) Carry out the functions vested in the Secretary by Public Law
98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds
for construction of the Interstate Highway System in Fiscal Year 1985,
apportioning certain funds for Interstate substitute highway projects,
and increasing amounts available for emergency highway relief.
(11) Carry out all of the functions vested in the Secretary under
section 324 of the Fiscal Year 1986 Department of Transportation
Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the
reservation of authority under Sec.1.21.
(12) Carry out the functions vested in the Secretary of
Transportation by section 505 of the Railroad Revitalization and
Regulatory Reform Act of 1976, as amended, (Pub. L. 94-210, 90 Stat. 31)
relating to the Alameda Corridor Project in consultation with the
Federal Railroad Administrator.
(13) Act as the lead DOT agency in matters relating to the National
Environmental Policy Act of 1969, Public Law 91-190, 83 Stat. 852 [42
U.S.C. 4321 et seq.] pertinent to the authority vested in the Secretary
to establish, operate, and manage the Nationwide Differential Global
Positioning System (NDGPS) by section 346 of the Department of
Transportation and Related Agencies Appropriations Act, 1998 (Pub. L.
105-66, 111 Stat. 1425).
[[Page 38]]
(14) Exercise the responsibilities of the Secretary under 49 U.S.C.
309 (high speed ground transportation).
(15) Carry out the functions vested in the Secretary by section
201(4)(d) and (e) of the Alaska National Interest Lands Conservation
Act, as amended (Pub. L. 96-487, 94 Stat. 2377) [16 U.S.C. 410hh(4)(d)
and (e)].
Sec.1.86 The Federal Motor Carrier Safety Administration.
Is responsible for:
(a) Managing program and regulatory activities, including
administering laws and promulgating and enforcing regulations on safety
matters relating to motor carrier safety;
(b) Carrying out motor carrier registration and authority to
regulate household goods transportation;
(c) Developing strategies for improving commercial motor vehicle,
operator, and carrier safety and administering grants to implement these
strategies;
(d) Inspecting records and equipment of commercial motor carriers,
and investigating accidents and reporting violations of motor carrier
safety regulations;
(e) Carrying out research, development, and technology transfer
activities to promote safety of operation and equipment of motor
vehicles for the motor carrier transportation program; and
(f) Carrying out an effective communications and outreach program
which includes providing relevant safety data to the public.
Sec.1.87 Delegations to the Federal Motor Carrier Safety Administrator.
The Federal Motor Carrier Safety Administrator is delegated
authority to:
(a) Carry out the following functions and exercise the authority
vested in the Secretary by 49 U.S.C., Subtitle IV, part B:
(1) Chapter 131, relating to general provisions on transportation
policy;
(2) Chapter 133, relating to administrative provisions;
(3) Chapter 135, relating to jurisdiction;
(4) Sections 13704 and 13707 of chapter 137, relating to rates,
routes, and services;
(5) Chapter 139, relating to registration and financial
responsibility requirements, except section 13907(d)(2);
(6) Chapter 141, relating to operations of motor carriers;
(7) Sections 14501, 14502, and 14504a relating to Federal-State
relations, and section 14506 relating to identification of vehicles.
(8) Sections 14701 through 14705, 14707, 14708, 14710, and 14711 of
chapter 147, relating to enforcement remedies, investigations and motor
carrier liability; and
(9) Sections 14901 through 14913, 14915, and 14916 of chapter 149
relating to civil and criminal penalties for violations of 49 U.S.C.
subtitle IV, part B.
(b) Carry out the functions vested in the Secretary by sections 104
and 204 of the ICC Termination Act of 1995, Public Law 104-88, 109 Stat.
803, relating to self-insurance rules and a savings clause.
(c) Carry out the functions vested in the Secretary by 42 U.S.C.
4917, relating to procedures for the inspection, surveillance and
measurement of commercial motor vehicles for compliance with interstate
motor carrier noise emission standards and related enforcement
activities including the promulgation of necessary regulations.
(d) Carry out the following functions and exercise the authority
vested in the Secretary by chapter 51 of title 49, U.S.C.:
(1) Except as delegated to the Under Secretary of Transportation for
Policy by Sec.1.25, carry out the functions vested in the Secretary by
49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, relating to
the transportation or shipment of hazardous materials by highway.
(2) Carry out the functions vested in the Secretary by 49 U.S.C.
5105(e), relating to inspections of motor vehicles carrying hazardous
material; 49 U.S.C. 5109, relating to motor carrier safety permits,
except subsection (f); 49 U.S.C. 5112, relating to highway routing of
hazardous materials; 49 U.S.C. 5113, relating to unsatisfactory safety
ratings of motor carriers; 49 U.S.C. 5119, relating to uniform forms and
procedures;
[[Page 39]]
and 49 U.S.C. 5125(a) and (c)-(f), relating to preemption determinations
or waivers of preemption of hazardous materials highway routing
requirements.
(e) Carry out the functions vested in the Secretary by:
(1) Chapter 313 of 49, U.S.C., relating to commercial motor vehicle
operators; and
(2) Section 4123(c), (d) and (e) of SAFETEA-LU relating to grants,
funding, and contract authority and availability, respectively, for
commercial driver's license information system modernization.
(f) Carry out the functions vested in the Secretary by subchapters
I, III, and IV of chapter 311, title 49, U.S.C., and 49 U.S.C. 31111,
relating to commercial motor vehicle programs, safety regulation, and
international activities, except that the authority to promulgate safety
standards for commercial motor vehicles and equipment subsequent to
initial manufacture is limited to standards that are not based upon and
similar to a Federal Motor Vehicle Safety Standard promulgated under
chapter 301 of title 49, U.S.C.
(g) Carry out the functions vested in the Secretary by 49 U.S.C.
5701 relating to food transportation inspections of commercial motor
vehicles.
(h) Carry out the functions and exercise the authority delegated to
the Secretary in section 2(d)(2) of Executive Order 12777, as amended,
with respect to highway transportation, relating to the approval of
means to ensure the availability of private personnel and equipment to
remove, to the maximum extent practicable, a worst case discharge, the
review and approval of response plans, and the authorization of motor
carriers, subject to the Federal Water Pollution Control Act, Pub. L.
87-88, as amended [33 U.S.C. 1321], to operate without approved response
plans.
(i) Carry out chapter 315 of title 49, U.S.C., relating to motor
carrier safety.
(j) Carry out 49 U.S.C. 502, 503, 504, 506, and 523 to the extent
they relate to motor carriers, motor carriers of migrant workers, and
motor private carriers; 49 U.S.C. 507 to the extent it relates to motor
carriers, motor carries of migrant workers, motor private carriers, or
freight forwarders; and 49 U.S.C. 505, 508, 521(b), and 525.
(k) Carry out the functions and exercise the authority vested in the
Secretary by 23 U.S.C. 502(a)(1)(A).
(l) Carry out the functions vested in the Secretary by the following
sections of SAFETEA-LU:
(1) Section 4105(b)(1) relating to the study concerning predatory
tow truck operations;
(2) Section 4126, relating to the commercial vehicle information
systems and networks deployment program;
(3) Section 4127, relating to outreach and education;
(4) Section 4128, relating to grants under the safety data
improvement program;
(5) Section 4130-4133, amending section 229 of the Motor Carrier
Safety Improvement Act of 1999 (49 U.S.C. 31136 note) relating to the
operators of vehicles transporting agricultural commodities and farm
supplies, and hours of service for miscellaneous vehicle operators;
(6) Section 4134 (49 U.S.C. 31301 note), relating to the grant
program for persons to train operators of commercial motor vehicles;
(7) [Reserved]
(8) Section 4136 relating to interstate vans;
(9) Section 4138 relating to high risk carrier compliance (49 U.S.C.
31144 note);
(10) Section 4139(a)(1), relating to the training of and outreach to
State personnel; section (b)(1) relating to a review of Canadian and
Mexican compliance with Federal motor vehicles safety standards; and the
first sentence of section (b)(2) relating to the report concerning the
findings and conclusions of the review required by section (b)(1) (see
49 U.S.C. 31100 note);
(11) Section 4143, granting authority to stop commercial motor
vehicles, 18 U.S.C. 3064;
(12) Section 4144, relating to a motor carrier safety advisory
committee;
(13) [Reserved]
(14) Section 4147, relating to emergency conditions requiring
immediate response (amending section 229 of the Motor Carrier Safety
Improvement Act of 1999 (49 U.S.C. 31136 note);
[[Page 40]]
(15) Section 4213, relating to the establishment of a working group
for the development of practices and procedures to enhance Federal-State
relations (49 U.S.C. 14710 note);
(16) Section 4214, relating to the establishment of a system for
collecting consumer complaint information and issuing regulations
related to reporting requirements under the system (49 U.S.C. 14701
note); and
(17) Section 4308, granting authority to adopt regulations to carry
out SAFETEA-LU, Title IV, subtitle C (49 U.S.C. 13902 note).
(m) Carry out the functions vested in the Secretary by the following
sections of the Moving Ahead for Progress in the 21st Century Act (Pub.
L. 112-141, 126 Stat. 405):
(1) Section 32101(b) concerning proficiency examination (49 U.S.C.
13902 note).
(2) Section 32101(c) concerning conforming amendments to proficiency
examinations (49 U.S.C. 31144 note).
(3) Section 32101(d) concerning agricultural and farm transportation
exemption (49 U.S.C. 31136 note).
(4) Section 32104 concerning a study of financial responsibility
requirements (49 U.S.C. 13903 note).
(5) Section 32206 concerning a rental truck accident study.
(6) Section 32301(a) requiring an hours of service study.
(7) Section 32302(c)(2) regarding the establishment of state
licensing agency oversight (49 U.S.C. 31149 note).
(8) Section 32303(b) relating to the establishment of a driver
record notification system (49 U.S.C. 31304 note).
(9) Section 32303(c) relating to a plan for national notification
system.
(10) Section 32308 regarding a study, plan, report and
implementation of accelerated veteran's licensing procedures (49 U.S.C.
31301 note).
(11) Section 32603(i) relating to the administration of grant
programs (49 U.S.C. 31100).
(12) Section 32605 related to a report on the commercial vehicle
information system and networks.
(12) Sections 32702, 32707(b), 32708, 32709, 32710, and 32711
related to the Motorcoach Enhanced Safety Act of 2012 (49 U.S.C. 31136
note).
(13) Section 32918(b) relating to broker and forwarder financial
responsibility rulemaking requirement (49 U.S.C. 13906 note).
(14) Section 32934 related to exemptions from requirements for
covered farm vehicles (49 U.S.C. 31136 note).
Sec.1.88 The Federal Railroad Administration.
Is responsible for:
(a) Regulating safety functions pertaining to railroads;
(b) Conducting research and development activity in support of safer
and more efficient rail transportation;
(c) Investigating and issuing reports concerning collisions,
derailments, and other railroad accidents resulting in serious injury to
persons or to the property of a railroad;
(d) Developing safety strategies to combat the causes of collisions,
derailments, and other railroad accidents, as well as to reduce overall
risk in the Nation's rail systems;
(e) Promoting and strengthening the national rail system, including
freight rail and high speed and higher performing intercity passenger
rail.
(f) Providing financial assistance, including grants, loans and loan
guarantees, for rail freight and intermodal development, as well as
high-speed and intercity passenger rail development;
(g) Maximizing the positive impacts on the U.S. economy by
encouraging domestic manufacturing on rail projects through the
enforcement of Buy America provisions; and
(h) Strengthening local communities by supporting station-area
development and strong connections among rail passenger service,
intercity bus, local transit, bicycle/pedestrian, and airport
facilities.
Sec.1.89 Delegations to the Federal Railroad Administrator.
The Federal Railroad Administrator is delegated authority to:
(a) Carry out the functions and exercise the authority vested in the
Secretary by 49 U.S.C. Subtitle V, Part A (Safety, chapter 201 et seq.),
Part B (Assistance, chapter 221 et seq.), Part C (Passenger
Transportation, chapter 241
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et seq.), Part D (High-speed Rail, chapter 261), and section 28101 of
Part E, relating to the law enforcement authority of railroad police
officers; except 49 U.S.C. 20134 with respect to highway, traffic, and
motor vehicle safety and highway construction.
(b) Carry out the functions and exercise the authority vested in the
Secretary by the Rail Safety Improvement Act of 2008 (Pub. L. 110-432,
Div. A, 122 Stat. 4848).
(c) Carry out the functions and exercise the authority vested in the
Secretary by the Passenger Rail Investment and Improvement Act of 2008
(Pub. L. 110-432, Div. B, 122 Stat. 4907), except Title VI (122 Stat.
4968) as it relates to capital and preventive maintenance projects for
the Washington Metropolitan Area Transit Authority.
(d) Carry out the functions vested in the Secretary by section 5 (as
it relates to railroad bridges not over navigable waterways) and section
8(a) (as it relates to railroad bridges) of the International Bridge Act
of 1972 (Pub. L. 92-434, 86 Stat. 731) (33 U.S.C. 535c and 535e(a)).
(e) Exercise the administrative powers vested in the Secretary by 49
U.S.C. Subtitle I, Chapter 5 (section 501 et seq.) pertaining to
railroad safety and 49 U.S.C. 103 (Federal Railroad Administration).
(f) Promote and undertake research and development relating to rail
matters generally (49 U.S.C. Chapter 3 (section 301 et seq). and 49
U.S.C. 102).
(g) Carry out the functions vested in the Secretary by 45 U.S.C. Ch.
15 (section 601 et seq.) with respect to emergency rail services, except
the authority to make findings required by 45 U.S.C. 662(a) and the
authority to sign guarantees of certificates issued by trustees.
(h) Carry out the functions vested in the Secretary by 45 U.S.C.
chapter 17 (section 801 et seq.) with respect to railroad revitalization
and regulatory reform and the Railroad Rehabilitation and Improvement
Financing program.
(i) Carry out the functions vested in the Secretary by 45 U.S.C.
chapter 21 (section 1201 et seq.) related to the Alaska Railroad
transfer.
(j) Except as delegated to the Under Secretary of Transportation for
Policy by Sec.1.25, carry out the functions vested in the Secretary by
49 U.S.C. 5121-5124 relating to the transportation or shipment of
hazardous materials by railroad.
(k) Carry out the functions vested in the Secretary by section 7 of
Executive Order 12580 (delegating sections 108 and 109, respectively, of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate
to rolling stock.
(l) Carry out the functions vested in the Secretary by 33 U.S.C.
493, relating to disputes over the terms and compensation for use of
railroad bridges built under that statute.
(m) Carry out the functions vested in the Secretary by 49 U.S.C.
5701 with respect to transportation of food and other products by
railroad.
(n) Carry out the functions vested in the Secretary by 23 U.S.C. 322
(Magnetic Levitation Transportation Technology Deployment Program).
(o) Carry out the functions vested in the Secretary by sections 1307
(see note to 23 U.S.C. 322), and 1946 of SAFETEA-LU as they relate to
deployment of magnetic levitation transportation projects and a study of
rail transportation and regulation.
(p) Carry out the function vested in the Secretary by the Bankruptcy
Code (11 U.S.C. 1163), which relates to the nomination of trustees for
rail carriers in reorganization, with the concurrence of the Office of
the General Counsel.
(q) Carry out the functions vested in the Secretary by 23 U.S.C.
327, as it relates to railroad projects.
(r) Carry out the functions vested in the Secretary by the sections
1318(d) and 1534 of Moving Ahead for Progress in the 21st Century Act
(Pub. L. 112-141, 126 Stat. 405), as they relate to railroads.
(s) Carry out the functions vested in the Secretary by section
2(d)(2) of Executive Order 12777, with respect to rail transportation,
relating to the approval of means to ensure the availability of private
personnel and equipment to remove, to the maximum extent practicable, a
worst case discharge, the review and approval of response plans, and the
authorization of
[[Page 42]]
railroads to operate without approved response plans.
Sec.1.90 The Federal Transit Administration.
Is responsible for:
(a) Providing grants that support the development of safe,
comprehensive and coordinated public transportation systems;
(b) Creating and implementing a national public transportation
safety program that includes the development of safety practices and
standards;
(c) Assisting public transportation systems to achieve and maintain
their infrastructure, equipment and vehicles in a state of good repair;
(d) Promoting the environmental benefits of public transportation
through continuing, cooperative, and comprehensive planning that
improves the performance of the intermodal transportation system.
(e) Supporting research, development, demonstration, and deployment
projects dedicated to assisting in the delivery of safe, efficient and
effective public transportation service;
(f) Supporting, in coordination with FHWA and FRA, strong
connections between public transportation and other modes of
transportation, including bicycle/pedestrian facilities and station-area
development that strengthen local communities; and
(g) Maximizing the positive impacts on the U.S. economy by
encouraging domestic manufacturing on transit projects through the
enforcement of Buy America provisions.
Sec.1.91 Delegations to the Federal Transit Administrator.
The Federal Transit Administrator is delegated authority to carry
out the following:
(a) Chapter 53 of title 49, United States Code, and notes thereto.
(b) Sections 3 and 9 through 15 of the National Capital
Transportation Act of 1969 (Pub. L. 91-143, 83 Stat. 320), as amended
(DC Code, section 9-1101.01 et seq.).
(c) Sections of title 23, United States Code, and notes thereto that
involve public transportation projects, including those provisions that
pertain to planning, environmental reviews and use of historic resources
for public transportation projects.
(d) Section 303 of title 49, United States Code, as it involves
public transportation projects.
(e) The following sections of Moving Ahead for Progress in the 21st
Century Act (Pub. L. 112-141, 126 Stat. 405):
(1) Sections 1315 [23 U.S.C. 109 note], 1316 [23 U.S.C. 109 note],
1317 [23 U.S.C. 109 note], 1318 [23 U.S.C. 109 note], and 1321, as they
relate to public transit projects; and
(2) Sections 20005(b) [49 U.S.C. 5303 note], 20008(b) [49 U.S.C.
5309 note], 20013(b) [49 U.S.C. 5315 note], 20017(b) [49 U.S.C. 5324
note], 20021(b), and 20025(b) [49 U.S.C. 5335 note].
(f) Section 601 of the Passenger Rail Investment and Improvement Act
of 2008 (Pub. L. 110-432, Div. B).
Sec.1.92 The Maritime Administration.
Is responsible for:
(a) Fostering the development and maintenance of a United States
merchant marine sufficient to meet the needs of the national security
and of the domestic and foreign commerce of the United States;
(b) Operating the U.S. Merchant Marine Academy in order to train
officers for the Nation's merchant marine;
(c) Promoting development of ports and intermodal transportation
systems through investments in port infrastructure via grant programs
and America's Marine Highway program;
(d) Promoting the growth and modernization of the U.S. merchant
marine and U.S. shipyards by administering loan and guarantee programs;
(e) Overseeing the administration of cargo preference statutes;
(f) Maintaining custody of, operating, and preserving ships in the
National Defense Reserve Fleet as well as other vessels under the
custody of MARAD and managing, maintaining and operating its Ready
Reserve Force component;
(g) Conducting research and development to improve and promote the
waterborne commerce of the United States.
[[Page 43]]
Sec.1.93 Delegations to the Maritime Administrator.
The Maritime Administrator is delegated authority to:
(a) Carry out the functions and exercise the authorities vested in
the Secretary under Subtitle V of title 46, U.S.C., except for 46 U.S.C.
51303 and 55601(c) and (d);
(b) Carry out the functions and exercise the authorities vested in
the Secretary under Subtitle III of title 46, U.S.C.;
(c) Carry out the functions and exercise the authorities vested in
the Secretary under the Merchant Ship Sales Act of 1946, as amended (50
U.S.C. App. 1735 et seq.);
(d) Carry out the functions and exercise the authorities vested in
the Secretary under 50 U.S.C. App 1744 with respect to the National
Shipping Authority;
(e) Exercise the authority vested in the Administrator of General
Services by the Act of June 1, 1948, Public Law 80-566, 62 Stat. 281, 40
U.S.C. 318-318c and the Federal Property and Administrative Services Act
of 1949, as amended, Public Law 81-152, 63 Stat. 377, and delegated to
the Secretary of Transportation by the Administrator of General Services
on March 23, 2000, relating to the enforcement of laws for the
protection of property and persons at the United States Merchant Marine
Academy, located in Kings Point, New York. This may be accomplished
through appointment of uniformed personnel as special police,
establishment of rules and regulations governing conduct on the affected
property, and execution of agreements with other Federal, State, or
local authorities.
(f) Carry out the functions and exercise the authorities vested in
the Secretary by section 3(d) of the Act to Prevent Pollution from Ships
(33 U.S.C. 1902(d)) as it relates to ships owned or operated by the
Maritime Administration when engaged in noncommercial service;
(g) Carry out the functions vested in the Secretary by 40 U.S.C. 554
relating to authority to convey surplus real property to public entities
for use in the development or operation of port facilities;
(h) Carry out the following powers and duties and exercise the
authorities vested in the Secretary by the Deepwater Port Act of 1974,
Public Law 93-627, as amended (33 U.S.C. 1501 et seq.):
(1) Section 4: The authority to issue, transfer, amend, or reinstate
a license for the construction and operation of a deepwater port (33
U.S.C. 1503(b));
(2) Section 4: The authority to process applications for the
issuance, transfer, amendment, or reinstatement of a license for the
construction and operation of a deepwater port (33 U.S.C. 1503(b)), in
coordination with the Commandant of the Coast Guard;
(3) Section 5(h)(2): Approval of fees charged by adjacent coastal
States for use of a deepwater port and directly related land-based
facilities (33 U.S.C. 1504(h)(2));
(4) Section 4: Make Adjacent Coastal State designations pursuant to
33 U.S.C. 1508(a)(2);
(5) Section 11: In collaboration with the Assistant Secretary for
Aviation and International Affairs and the Assistant Secretary for
Transportation Policy, consultation with the Secretary of State relating
to international actions and cooperation in the economic, trade and
general transportation policy aspects of the ownership and operation of
deepwater ports (33 U.S.C. 1510);
(6) Section 16(b): Submission of notice of the commencement of a
civil suit (33 U.S.C. 1515(b));
(7) Section 16(c): Intervention in any civil action to which the
Secretary is not a party (33 U.S.C. 1515(c));
(8) Sections 8(b), 12: Authority to request the Attorney General to
seek the suspension or termination of a deepwater port license and to
initiate a proceeding before the Surface Transportation Board (33 U.S.C.
1507, 1511);
(i) Carry out the functions and exercise the authority vested in the
Secretary by section 109 of the Maritime Transportation Security Act of
2002, Public Law 107-295, 116 Stat. 2064, 46 U.S.C. 70101 note, to
provide training for maritime security professionals;
(j) Exercise all the powers of the Secretary under 49 U.S.C. 336
with respect to civil penalties;
(k) Carry out all of the duties, authorities and powers of the
Secretary
[[Page 44]]
under the Reefs for Marine Life Conservation law, 16 U.S.C. 1220 et
seq.;
(l) In consultation and coordination with the Office of
Intelligence, Security and Emergency Response, carry out the functions
under the Defense Production Act of 1950, Public Law 81-774, 64 Stat.
798, as amended (50 U.S.C. app. 2061 et seq.), that were vested in the
Secretary by Executive Order 13603 (``National Defense Resources
Preparedness'') as such authorities relate to the use of sealift support
and port facilities, and other maritime industry related facilities and
services, and maritime-related voluntary agreements pursuant to Section
708 of the Act;
(m) Carry out the functions related to the National Defense Reserve
Fleet vested in the Secretary pursuant to 50 U.S.C. App. 1744;
(n) Carry out all of the duties, authorities and powers of the
Secretary under the following statutes:
(1) 10 U.S.C. 2218, the National Defense Sealift Fund;
(2) 40 U.S.C. 3134, Bond waiver authority for certain contracts;
(3) 46 U.S.C. 501(b), Waiver of navigation and vessel-inspection
laws and determination of non-availability of qualified U.S. flag
vessels;
(4) 46 U.S.C. 3316, granting authority to appoint a representative
to Executive Board of the American Bureau of Shipping (ABS);
(5) 46 U.S.C. 12119(a)(5), authority to waive or reduce the
qualified proprietary cargo requirements and determine citizenship;
(6) 50 U.S.C. 196, Emergency foreign vessel acquisition; purchase
and requisition of vessels lying idle in United States waters;
(7) 50 U.S.C. 197, Voluntary purchase or charter agreement;
(8) 50 U.S.C. 198, granting authority over requisitioned vessels;
(o) Carry out all of the duties, authorities and powers of the
Secretary with respect to 16 U.S.C. 1220 et seq. (use of obsolete ships
as reefs for marine life conservation);
(p) Carry out all of the duties, powers and authorities delegated to
the Secretary of Transportation by the Administrator of General Services
with respect to the leasing and management of property under 41 CFR 102-
72.30, Delegations of Authority;
(q) Carry out all of the duties, authorities and powers vested in
the Secretary by 46 U.S.C. 70101 note, to provide training for maritime
security professionals;
(r) Carry out the duties, authorities and powers of the Secretary
under the following statutes:
(1) Title XV, Subtitle B of the Food, Agriculture, Conservation, and
Trade Act of 1990, Public Law 101-624 (104 Stat. 3359, 3665), 7 U.S.C.
1421 and Chapter 553 of Title 46, U.S.C., authorizing the Secretary to
designate ``American Great Lakes'' vessels that are exempt from the
restrictions relating to the carriage of preference cargoes;
(2) 46 U.S.C. 2302(e) (determination of substandard vessels);
(3) Section 304(a) of Coast Guard and Maritime Transportation Act of
2006, 33 U.S.C. 1503(i), a program to promote liquefied natural gas
tanker transportation;
(4) Section 306 of Public Law 111-281, concerning the phaseout of
vessels supporting oil and gas development;
(s) Carry out the functions and exercise the authorities vested in
the President by Section 1019 of John Warner National Defense
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) and delegated
to the Secretary by the President;
(t) Lead efforts pertaining to civil emergency planning for sealift
support for North Atlantic Treaty Organization (NATO) operations,
including coordinating DOT representation on sealift-related committees,
in coordination with the Office of Intelligence, Security and Emergency
Response;
(u) Carry out the duties, functions, authorities, and powers of the
Secretary under 49 U.S.C. 109(e), (f), (h), (j)(3);
(v) Carry out all of the duties, authorities, and powers of the
Secretary of Transportation, with respect to matters involving the
Clarification Act, Public Law 78-17, 57 Stat. 45, as amended (50 U.S.C.
App. 1291);
(w) Carry out all of the duties, authorities, and powers of the
Secretary under 46 U.S.C. 12102(d).
[[Page 45]]
Sec.1.94 The National Highway Traffic Safety Administration.
Is responsible for:
(a) In highway safety, setting uniform guidelines for a coordinated
national highway safety formula grant program carried out by the States
and local communities; conducting research and development activities,
including demonstration projects and the collection and analysis of
highway and motor vehicle safety data and related information;
administering highway safety grant programs to encourage State efforts
in such areas as occupant protection, impaired and distracted driving,
traffic safety data information system improvements, motorcyclist
safety, child safety restraints, and graduated driver's licensing;
determining State compliance with highway traffic safety law
requirements; administering a nationwide high visibility enforcement
program; administering the National Driver Register; and leading and
coordinating efforts to establish, expand, and improve State, local,
tribal, and regional emergency medical services and 9-1-1 systems.
(b) In motor vehicle safety, establishing and enforcing safety
standards and regulations for the manufacture and importation of motor
vehicles and motor vehicle equipment; conducting research, development,
and testing concerning motor vehicle safety, including vehicle-to-
vehicle and vehicle-to-infrastructure technologies and other new or
advanced vehicle technologies; and investigating safety-related defects
and non-compliance in motor vehicles and motor vehicle equipment and
administering related recalls.
(c) In automobile fuel economy, establishing automobile fuel economy
standards for passenger and non-passenger automobiles and fuel
efficiency standards for medium and heavy vehicles.
(d) In consumer protection and information, establishing
requirements and carrying out programs for passenger motor vehicle
information, such as the New Car Assessment Program; bumper standards
for passenger motor vehicles; odometer requirements; and passenger motor
vehicle theft prevention standards.
Sec.1.95 Delegations to the National Highway Traffic Safety
Administrator.
The National Highway Traffic Safety Administrator is delegated
authority to:
(a) Exercise the authority vested in the Secretary under chapters
301, 303, 321, 323, 325, 327, 329, and 331, of Title 49, U.S.C., except
for 49 U.S.C. 32916(b).
(b) Exercise the authority vested in the Secretary by 49 U.S.C.
20134(a) with respect to laws administered by the National Highway
Traffic Safety Administration pertaining to highway, traffic and motor
vehicle safety.
(c) Carry out, in coordination with the Federal Motor Carrier Safety
Administrator, the authority vested in the Secretary by subchapter III
of chapter 311 of title 49, U.S.C., to promulgate safety standards for
commercial motor vehicles and equipment subsequent to initial
manufacture when the standards are based upon and similar to a Federal
Motor Vehicle Safety Standard promulgated, either simultaneously or
previously, under chapter 301 of title 49, U.S.C.
(d) Carry out the Highway Safety Act of 1966, as amended (Pub. L.
89-564, 80 Stat. 731), for highway safety programs, research, and
development except those relating to highway design, construction and
maintenance, traffic control devices, identification and surveillance of
crash locations, and highway-related aspects of pedestrian safety.
(e) Exercise the authority vested in the Secretary under chapter 4
of title 23, U.S.C., except for 23 U.S.C. 409.
(f) Carry out the functions and exercise the authority vested in the
Secretary for the following provisions of title 23, U.S.C. (with respect
to matters within the primary responsibility of the National Highway
Traffic Safety Administration): 153, 154, 158, 161, 163, 164, and 313
(Buy America).
(g) Carry out the consultation functions vested in the Secretary by
Executive Order 11912, as amended (``Delegation of Authorities Relating
to Energy Policy and Conservation'') relating to automobiles.
(h) Exercise the authority vested in the Secretary by section 210(2)
of the
[[Page 46]]
Clean Air Act, Public Law 90-148, as amended [42 U.S.C. 7544(2)].
(i) Carry out the functions and exercise the authority vested in the
Secretary by the following sections of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users, Public Law 109-
59:
(1) Section 1906 [23 U.S.C. 402 note], relating to the grant program
to prohibit racial profiling;
(2) Section 2010 [23 U.S.C. 402 note], relating to motorcyclist
safety;
(3) Section 2011 [23 U.S.C. 405 note], relating to child safety and
child booster seat incentive grants;
(4) Section 10202 [42 U.S.C. 300d-4], relating to emergency medical
services, as amended by section 31108 of the Moving Ahead for Progress
in the 21st Century Act, Public Law 112-141;
(5) Section 10305(b) [49 U.S.C. 30101 note], relating to the
publication of non-traffic incident data collection; and
(6) Section 10309(a), relating to the testing of 15-passenger van
safety.
(j) Carry out the following functions and exercise the authority
vested in the Secretary under the Energy Independence and Security Act
of 2007 (Pub. L. 110-140):
(1) Section 106 [49 U.S.C. 32902 note], relating to the continued
applicability of existing standards;
(2) Section 107 [49 U.S.C. 32902 note], relating to the National
Academy of Sciences studies;
(3) Section 108, relating to the National Academy of Sciences study
of medium-duty and heavy-duty truck fuel economy;
(4) Section 110 [49 U.S.C. 32908 note], relating to the periodic
review of accuracy of fuel economy labeling;
(5) Section 113 [49 U.S.C. 32904 note], relating to the exemption
from separate calculation requirement;
(6) Section 131(b)(2) and (c)(1) [42 U.S.C. 17011(b)(2), (c)(1)],
relating to the Plug-in Electric Drive Vehicle Program;
(7) Section 225(a), relating to the study of optimization of
flexible fueled vehicles to use E-85 fuel;
(8) Section 227(a), relating to the study of optimization of biogas
used in natural gas vehicles;
(9) Section 242 [42 U.S.C. 17051], relating to renewable fuel
dispenser requirements; and
(10) Section 248(a) [42 U.S.C. 17054(a)], relating to biofuels
distribution and advanced biofuels infrastructure.
(k) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under section 7103 of the
Transportation Equity Act for the 21st Century, Public Law 105-178.
(l) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under sections 3(d), 10, 11 and 13
through 17 [uncodified provisions] of the Transportation Recall
Enhancement, Accountability, and Documentation (TREAD) Act, Public Law
106-414.
(m) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under Anton's Law, Public Law 107-318.
(n) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under the Cameron Gulbransen Kids
Transportation Safety Act of 2007 or the K.T. Safety Act of 2007, Public
Law 110-189.
(o) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under the Pedestrian Safety
Enhancement Act of 2010, Public Law 111-373.
(p) Carry out the functions and exercise the authority vested in the
Secretary by the following sections of the Moving Ahead for Progress in
the 21st Century Act, Public Law 112-141:
(1) Sections 31101(d) and (f) (23 U.S.C. 402 note), Authorization of
Appropriations;
(2) Sections 31203(b), Civil Penalty Criteria Rule, 31301, Public
Availability of Recall Information, 31302, NHTSA Outreach to
Manufacturer, Dealer, and Mechanic Personnel, 31309(a), Study of Crash
Data Collection, 31401, NHTSA Electronics, Software, and Engineering
Expertise, 31402, Electronics Systems Performance, 31501, Child Safety
Seats, 31502, Child Restraint Anchorage Systems, 31503, Rear Seat Belt
Reminders, 31504, Unattended Passenger Reminders, 31505, New Deadline,
and 31601, Rulemaking on Visibility of Agricultural Equipment;
[[Page 47]]
(3) Section 32201, Crashworthiness Standards; and
(4) Sections 32703, Regulations for Improved Occupant Protection,
Passenger Evacuation, and Crash Avoidance, 32704, Fire Prevention and
Mitigation, 32705, Occupant Protection, Collision Avoidance, Fire
Causation, and Fire Extinguisher Research and Testing, and 32706,
Concurrence of Research and Rulemaking.
(q) Carry out the functions and exercise the authority vested in the
Secretary to implement section 3(g)-(h) of the Automobile Information
Disclosure Act (Pub. L. 85-506, 72 Stat. 325), as amended (15 U.S.C.
1232(g)-(h)).
Sec.1.96 The Pipeline and Hazardous Materials Safety Administration.
Is responsible for:
(a) Pipelines. (1) Administering a national program of safety in
natural gas and hazardous liquid pipeline transportation including
identifying pipeline safety concerns, developing uniform safety
standards, and promulgating and enforcing safety regulations;
(2) Increasing the gas and liquid pipeline industry's focus on
safety beyond compliance with minimum standards, with particular
attention to developing strong safety cultures in regulated entities;
(3) Enhancing information awareness systems at the State and local
levels to reduce pipeline damage from excavation and providing grants to
support these systems; and
(4) Encouraging the timely replacement of aging and deteriorating
pipelines in distribution systems, especially in areas with high
potential negative consequences to public safety and the environment.
(b) Hazardous materials. (1) Administering a national program of
safety, including security, in multi-modal hazardous materials
transportation including identifying hazardous materials safety
concerns, developing uniform safety standards, and promulgating and
enforcing safety and security regulations; and
(2) Conducting outreach and provide available grants assistance to
increase awareness and emergency preparedness.
Sec.1.97 Delegations to the Pipeline and Hazardous Materials Safety
Administrator.
The Pipeline and Hazardous Materials Safety Administrator is
delegated responsibility to:
(a) Pipelines. (1) Exercise the authority vested in the Secretary
under chapter 601 of title 49, U.S.C.
(2) Exercise the authority vested in the Secretary under section 28
of the Mineral Leasing Act, as amended (30 U.S.C. 185(a) and 30 U.S.C.
185(w)(3)).
(3) Exercise the authority vested in the Secretary under section 21
of the Deepwater Port Act of 1974, as amended (33 U.S.C. 1520) relating
to the establishment, enforcement and review of regulations concerning
the safe construction, operation or maintenance of oil or natural gas
pipelines on Federal lands and the Outer Continental Shelf.
(4) Carry out the functions vested in the Secretary by section 5 (as
it relates to pipelines not over navigable waterways) and section 8(a)
(as it relates to pipelines) of the International Bridge Act of 1972
(Pub. L. 92-434, 86 Stat. 731) (33 U.S.C. 535c and 535e(a)).
(5) Exercise the authority vested in the Secretary under the Outer
Continental Shelf Lands Act, as amended (43 U.S.C. 1331 et seq.) with
respect to the establishment, enforcement and review of regulations
concerning pipeline safety.
(6) Carry out the functions vested in the Secretary by section 7 of
Executive Order 12580 (delegating sections 108 and 109, respectively, of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate
to pipelines.
(7) Exercise the authority vested in the Secretary by 49 U.S.C.
60301 as it relates to pipeline safety user fees.
(8) Exercise the authority vested in the Secretary by 49 U.S.C. 6101
et seq. as it relates to pipeline damage prevention One Call programs.
(9) Exercise the authority vested in the Secretary by the Pipeline
Safety Improvement Act of 2002 (Pub. L. 107-355, 116 Stat. 2985).
(10) Exercise the authority vested in the Secretary by the Pipeline
Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-
90).
[[Page 48]]
(b) Hazardous materials. Except as delegated to the Under Secretary
of Transportation for Policy by Sec.1.25:
(1) Carry out the functions vested in the Secretary by 49 U.S.C.
5121(a), (b), (c), (d) and (e), 5122, 5123, and 5124, with particular
emphasis on the shipment of hazardous materials and the manufacture,
fabrication, marking, maintenance, reconditioning, repair or test of
multi-modal containers that are represented, marked, certified, or sold
for use in the transportation of hazardous materials; and
(2) Participate, with the Administrator of the Federal Aviation
Administration, in the Dangerous Goods Panel at the International Civil
Aviation Organization, under the authority vested in the Secretary by 49
U.S.C. 5120; and
(3) Carry out, in coordination with the Administrators of the
Federal Aviation Administration (for matters relating to the transport
of hazardous materials by aircraft), the Federal Motor Carrier Safety
Administration (for matters relating to the transport of hazardous
materials by public highway), and the Federal Railroad Administration
(for matters relating to the transport of hazardous materials by rail),
the functions vested in the Secretary by all other provisions of the
Federal hazardous material transportation law (49 U.S.C. 5101 et seq.)
except as delegated by Sec. Sec.1.83(d)(2) and (3) (FAA) and
1.87(d)(2) (FMCSA) and by paragraph 2(99) of Department of Homeland
Security Delegation No. 0170.
(4) Exercise the authority vested in the Secretary by sections 33005
(49 U.S.C. 5121 note), 33006, 33008 (49 U.S.C. 5121 note), 33009(b)(2)
(49 U.S.C. 5121 note), and 33012 (49 U.S.C. 5117 note) of the Moving
Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat.
405).
(c) Exercise the authority delegated to the Secretary in the
following sections of Executive Order 12777:
(1) Section 2(b)(2) relating to the establishment of procedures,
methods, equipment and other requirements to prevent discharges from,
and to contain oil and hazardous substances in, pipelines, motor
carriers, and railroads; and
(2) Section 2(d)(2) relating to the issuance of regulations
requiring the owners or operators of pipelines, motor carriers, and
railroads, subject to the Federal Water Pollution Control Act (33 U.S.C.
1321 et seq.), to prepare and submit response plans. For pipelines
subject to the Federal Water Pollution Control Act, this authority
includes the approval of means to ensure the availability of private
personnel and equipment to remove, to the maximum extent practicable, a
worst case discharge, the review and approval of response plans, and the
authorization of pipelines to operate without approved response plans.
Sec.1.98 The Research and Innovative Technology Administration.
Is responsible for:
(a) Coordinating, facilitating, and reviewing the Department's
research and development programs and activities, except as related to
NHTSA;
(b) After consultation with Operating Administration and OST
offices, making recommendations to the Secretary on all Operating
Administration and OST research budgets;
(c) Providing leadership on technical, navigation, communication,
and systems engineering activities, and spectrum management on behalf of
the civil and civilian PNT communities;
(d) Directing and administering university transportation research
grants;
(e) In coordination with FHWA, NHTSA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research;
(f) Advancing Intelligent Transportation Systems (ITS) research and
deployment of real-time multi-modal travel information for travelers,
carriers, and public agencies;
(g) Providing oversight of the activities of the Volpe National
Transportation Systems Center, the ITS Joint Program Office, the Bureau
of Transportation Statistics, and the Transportation Safety Institute;
and
(h) Providing technical support to advance the mission of the
Secretary's Safety Council.
[[Page 49]]
Sec.1.99 Delegations to the Research and Innovative Technology
Administrator.
The Research and Innovative Technology Administrator is delegated
authority for the following:
(a) Coordination of departmental research and development programs
and activities. (1) Coordinate, facilitate, and review all departmental
research and development programs and activities, except those carried
out by the National Highway Traffic Safety Administration, as described
in section 4(b) of the Norman Y. Mineta Research and Special Programs
Improvement Act (Pub. L. 108-426, 118 Stat. 2423).
(2) After consultation with Operating Administration and OST
offices, RITA shall make recommendations to the Secretary on all
Operating Administration and OST research budgets.
(b) Science and technology. (1) With respect to scientific and
technological matters, serve as principal advisor to the Secretary and
representative of the Department to the academic community, the private
sector, professional organizations, and other federal, state and local
government agencies.
(2) Serve as principal liaison official for the Department of
Transportation with the Office of Science and Technology Policy in the
Executive Office of the President, the National Science and Technology
Council, and the President's Committee of Advisors on Science and
Technology.
(3) Serve as primary official responsible for coordination and
oversight of the Department's implementation of section 2 of the Federal
Technology Transfer Act of 1986 (15 U.S.C. 3710a), relating to the
transfer of Federal technology to the marketplace; and section 12(d) of
the National Technology Transfer and Advancement Act of 1996 (Pub. L.
104-113), as implemented by OMB Circular A-119: Federal Participation in
the Development and Use of Voluntary Consensus Standards and in
Conformity Assessment Activities.
(4) Serve as Chair and Executive Secretary of the Department of
Transportation's Research, Development and Technology Planning Council
and Planning Team.
(5) Advocate Department of Transportation policy and program
coordination efforts associated with transportation research.
(6) Represent the Department of Transportation on departmental,
national and international committees and meetings dealing with
transportation research and development (R & D).
(7) Manage the strategic planning process for transportation R & D
across the Department of Transportation and, through the National
Science and Technology Council, across the Federal Government.
(8) Carry out the transportation research and development strategic
planning function vested in the Secretary by 23 U.S.C. 508.
(9) Conduct transportation system-level assessments and policy
research.
(10) Facilitate the creation of transportation public/private
partnerships.
(11) Foster innovation in the transportation sector.
(12) Disseminate information on departmental, national, and
international transportation R & D activities.
(13) Provide legal support for Departmental intellectual property
and patent issues.
(14) Manage department- and government-wide (inter/multimodal)
transportation R & D programs.
(15) Oversee such advisory boards that deal with transportation
system-level R & D assessments and issues, such as the Transportation
Research Board Committee on the Federal Transportation R & D Strategic
Planning Process.
(c) Advanced vehicle technology. Carry out the functions vested in
the Secretary by section 5111 of the Transportation Equity Act for the
21st Century (49 U.S.C. 5506), as extended by the Surface Transportation
Extension Act of 2004, Part V, Public Law 108-310, September 30, 2004,
118 Stat. 1144, and section 5513(j) of SAFETEA-LU.
(d) Remote sensing technology. Carry out the functions vested in the
Secretary by section 5113 of the Transportation Equity Act for the 21st
Century (23 U.S.C. 502 Note), as extended by the Surface Transportation
Extension Act
[[Page 50]]
of 2004, Part V, Public Law 108-310, September 30, 2004, 118 Stat. 1144,
and section 5506 of SAFETEA-LU.
(e) University transportation research. Carry out the functions
vested in the Secretary by section 5110 of the Transportation Equity Act
for the 21st Century (49 U.S.C. 5505), as extended by the Surface
Transportation Extension Act of 2004, Part V, Public Law 108-310,
September 30, 2004, 118 Stat. 1144, and sections 5401 and 5402 of
SAFETEA-LU.
(f) Volpe National Transportation Systems Center. Exercise the
authority vested in the Secretary with respect to the activities of the
Volpe National Transportation Systems Center as described in 49 U.S.C.
112(d)(1)(E) and carry out the functions vested in the Secretary by 49
U.S.C. 328 with respect to the working capital fund for financing the
activities of the Volpe National Transportation Systems Center.
(g) Exercise authority over the Transportation Safety Institute.
(h) Carry out the functions vested in the Secretary by 49 U.S.C. 111
relating to transportation statistics, analysis, and reporting.
(i) Carry out the functions vested in the Secretary by 49 U.S.C.
5503(d) (Office of Intermodalism).
(j) Aviation information. (1) Carry out the functions vested in the
Secretary by 49 U.S.C. 329(b)(1) relating to the collection and
dissemination of information on civil aeronautics.
(2) Carry out the functions vested in the Secretary by section
4(a)(7) of the Civil Aeronautics Board Sunset Act of 1984 (Pub. L. 98-
443) relating to the reporting of the extension of unsecured credit to
political candidates (section 401, Federal Election Campaign Act of
1971; 2 U.S.C. 451), in conjunction with the General Counsel and the
Assistant Secretary for Aviation and International Affairs.
(3) Carry out the functions vested in the Secretary by: 49 U.S.C.
40113 (relating to taking such actions and issuing such regulations as
may be necessary to carry out its air commerce and safety
responsibilities), 49 U.S.C. 41702 (relating to the duty of carriers to
provide safe and adequate service), 49 U.S.C. 41708 and 41709 (relating
to the requirement to keep information and the forms in which it is to
be kept), and 49 U.S.C. 41701 (relating to establishing just and
reasonable classifications of carriers and rules to be followed by each)
as appropriate to carry out the responsibilities under this paragraph in
conjunction with the General Counsel and the Assistant Secretary for
Aviation and International Affairs.
(k) Hazardous materials information. In coordination with the Under
Secretary, work with the Operating Administrations to determine data
needs, collection strategies, and analytical techniques appropriate for
implementing 49 U.S.C. 5101 et seq.
(l) Carry out the functions vested in the Secretary by section
1801(e) of SAFETEA-LU (establishing and maintaining a national ferry
database).
(m) Carry out the functions vested in the Secretary by section
5513(c), (d), (g), (h), (i), (l), and (m) of SAFETEA-LU (establishing
various research grants).
(n) Carry out the functions vested in the Secretary by section
5201(m) of SAFETEA-LU (biobased transportation research program).
(o) Carry out the functions vested in the Secretary by 23 U.S.C. 509
(establishing and supporting a national cooperative freight
transportation research program).
(p) Positioning, navigation and timing (PNT) and spectrum
management. Carry out the functions described in the Secretarial memo of
August 1, 2007, ``Positioning, Navigation and Timing (PNT) and Spectrum
Management Realignment under the Research and Innovative Technology
Administration (RITA).''
(q) Carry out the Secretary's authority to establish, operate and
manage the Nationwide Differential Global Positioning System (NDGPS) as
described in Section 346 of Public Law 105-66 (Department of
Transportation and Related Agencies Appropriations Act of 1998).
Sec.1.100 The Saint Lawrence Seaway Development Corporation.
Is responsible for the development, operation, and maintenance of
that part of the Saint Lawrence Seaway within the territorial limits of
the United States.
[[Page 51]]
Sec.1.101 Delegations to the Saint Lawrence Seaway Development
Corporation Administrator.
The Administrator of the Saint Lawrence Seaway Development
Corporation is delegated authority to:
(a) Carry out the functions vested in the Secretary by sections 4,
5, 6, 7, 8, 12 and 13 of section 2 of the Port and Tanker Safety Act of
1978 (Pub. L. 95-474, 92 Stat. 1471) [33 U.S.C. 1223-1225, 1227, and
1231-1232] as they relate to the operation of the Saint Lawrence Seaway.
(b) Carry out the functions vested in the Secretary by section 5 and
section 8(a) of the International Bridge Act of 1972 (Pub. L. 92-434, 86
Stat. 731) [33 U.S.C. 535c and 535e(a)] as it relates to the Saint
Lawrence River.
(c) Carry out the functions vested in the Secretary by section 3(d)
of the Act to Prevent Pollution from Ships [33 U.S.C. 1902e] as it
relates to ships owned or operated by the Corporation when engaged in
noncommercial service.
Sec. Appendix A to Part 1--Delegations and Redelegations by Secretarial
Officers
1. Director of Budget. The Assistant Secretary for Budget and
Programs and CFO has redelegated to the Director of Budget authority
to--
(a) Request apportionment and reapportionment of funds by the Office
of Management and Budget, provided that no request for apportionment or
reapportionment which anticipates the need for a supplemental
appropriation shall be submitted to the Office of Management and Budget
without appropriate certification by the Secretary.
(b) Issue allotments or allocations of funds to components of the
Department.
2. Chief Counsels. The General Counsel has delegated to the Chief
Counsels the authority delegated to the General Counsel by Amendment 1-
41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17658,
November 17, 1970, as follows:
Section 855 of the Revised Statutes, as amended by Public Law 91-
393, 84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to
delegate to other departments and agencies his authority to give written
approval of the sufficiency to the title to land being acquired by the
United States. The Attorney General has delegated to the Assistant
Attorney General in charge of the Land and Natural Resources Division
the authority to make delegations under that law to other Federal
departments and agencies (28 CFR 0.66). The Assistant Attorney General,
Land and Natural Resources Division, has further delegated certain
responsibilities in connection with the approval of the sufficiency of
the title to land to the Department of Transportation as follows:
Delegation to the Department of Transportation for the Approval of the
Title to Lands Being Acquired for Federal Public Purposes
Pursuant to the provision of Public Law 91-393, approved September
1, 1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting
under the provisions of Order No. 440-70 of the Attorney General, dated
October 2, 1970, the responsibility for the approval of the sufficiency
of the title to land for the purpose for which the property is being
acquired by purchase or condemnation by the United States for the use of
your Department is, subject to the general supervision of the Attorney
General and to the following conditions, hereby delegated to your
Department.
This delegation of authority is further subject to:
1. Compliance with the regulations issued by the Assistant Attorney
General on October 2, 1970, a copy of which is enclosed.
2. This delegation is limited to:
(a) The acquisition of land for which the title evidence, prepared
in compliance with these regulations, consists of a certificate of
title, title insurance policy, or an owner's duplicate Torrens
certificate of title.
(b) The acquisition of lands valued at $100,000 or less, for which
the title evidence consists of abstracts of title or other types of
title evidence prepared in compliance with said regulations.
As stated in the above-mentioned Act, any Federal department or
agency which has been delegated the responsibility to approve land
titles under the Act may request the Attorney General to render his
opinion as to the validity of the title to any real property or interest
therein, or may request the advice or assistance of the Attorney General
in connection with determinations as to the sufficiency of titles.
The Chief Counsels of the Federal Aviation Administration, Federal
Highway Administration, Federal Railroad Administration, National
Highway Traffic Safety Administration, Federal Transit Administration,
the Saint Lawrence Seaway Development Corporation, Maritime
Administration, and Research and Innovative Technology Administration
are hereby authorized to approve the sufficiency of the title to land
being acquired by purchase or condemnation by the United States for the
use of their respective organizations. This delegation is subject to the
limitations imposed by the Assistant Attorney General, Land and Natural
Resources Division, in his delegation to the Department
[[Page 52]]
of Transportation. Redelegation of this authority may only be made by
the Chief Counsels to attorneys within their respective organizations.
If the organization does not have an attorney experienced and
capable in the examination of title evidence, a Chief Counsel may, with
the concurrence of the General Counsel, request the Attorney General to
(1) furnish an opinion as to the validity of a title to real property or
interest therein, or (2) provide advice or assistance in connection with
determining the sufficiency of the title.
PART 3_OFFICIAL SEAL--Table of Contents
Authority: 49 U.S.C. 102(e).
Source: Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, unless otherwise
noted.
Sec.3.1 Description.
The official seal of the Department of Transportation is described
as follows: A white abstract triskelion figure signifying motion appears
within a circular blue field. The figure is symmetrical. The three
branches of the figure curve outward in a counter-clockwise direction,
each tapering almost to a point at the edge of the field. Surrounding
the blue circle is a circular ring of letters. The upper half of the
ring shows the words ``Department of Transportation''. The lower half of
the ring shows the words ``United States of America''. The letters may
be shown in either black or medium gray. The official seal of the
Department is modified when embossed. It appears below in black and
white.
[GRAPHIC] [TIFF OMITTED] TC02FE91.096
PART 5_ADMINISTRATIVE RULEMAKING, GUIDANCE, AND ENFORCEMENT PROCEDURES
--Table of Contents
Subpart A_GENERAL
Sec.
5.1 Applicability.
Subpart B_Rulemaking Procedures
5.3 General.
5.5 Regulatory policies.
5.7 Responsibilities.
5.9 Regulatory Reform Task Force.
5.11 Initiating a rulemaking.
5.13 General rulemaking procedures.
5.15 Unified Agenda of Regulatory and Deregulatory Actions (Unified
Agenda).
5.17 Special procedures for economically significant and high-impact
rulemakings.
5.19 Public contacts in informal rulemaking.
5.21 Policy updates and revisions.
5.23 Disclaimer.
Subpart C_Guidance Procedures
5.25 General.
5.27 Review and clearance by Chief Counsels and the Office of the
General Counsel.
5.29 Requirements for clearance.
5.31 Public access to effective guidance documents.
5.33 Good faith cost estimates.
5.35 Approved procedures for guidance documents identified as
``significant'' or ``otherwise of importance to the
Department's interests.''
5.37 Definitions of ``significant guidance document'' and guidance
documents that are ``otherwise of importance to the
Department's interests.''
5.39 Designation procedures.
5.41 Notice-and-comment procedures.
5.43 Petitions for guidance
5.45 Rescinded guidance.
5.47 Exigent circumstances.
5.49 Reports to Congress and GAO.
5.51 No judicial review or enforceable rights.
Subpart D_Enforcement Procedures
5.53 General.
5.55 Enforcement attorney responsibilities.
5.57 Definitions.
5.59 Enforcement policy generally.
5.61 Investigative functions.
5.63 Clear legal foundation.
5.65 Proper exercise of prosecutorial and enforcement discretion.
5.67 Duty to review for legal sufficiency.
5.69 Fair notice.
5.71 Separation of functions.
5.73 Avoiding bias.
[[Page 53]]
5.75 Formal enforcement adjudications.
5.77 Informal enforcement adjudications.
5.79 The hearing record.
5.81 Contacts with the public.
5.83 Duty to disclose exculpatory evidence.
5.85 Use of guidance documents in administrative enforcement cases.
5.87 Alternative Dispute Resolution (ADR).
5.89 Duty to adjudicate proceedings promptly.
5.91 Agency decisions.
5.93 Settlements.
5.95 OGC approval required for certain settlement terms.
5.97 Basis for civil penalties and disclosures thereof.
5.99 Publication of decisions.
5.101 Coordination with the Office of Inspector General on criminal
matters.
5.103 Standard operating procedures.
5.105 Cooperative Information Sharing.
5.107 Small Business Regulatory Enforcement Fairness Act (SBREFA).
5.109 Referral of matters for judicial enforcement.
5.111 No third-party rights or benefits.
Authority: 49 U.S.C. 322(a).
Source: 84 FR 71717, Dec. 27, 2019, unless otherwise noted.
Subpart A_General
Sec.5.1 Applicability.
(a) This part prescribes general procedures that apply to
rulemakings, guidance documents, and enforcement actions of the U.S.
Department of Transportation (the Department or DOT), including each of
its operating administrations (OAs) and all components of the Office of
Secretary of Transportation (OST).
(b) For purposes of this part, Administrative Procedure Act (APA) is
the Federal statute, codified in scattered sections of chapters 5 and 7
of title 5, United States Code, that governs procedures for agency
rulemaking and adjudication and provides for judicial review of final
agency actions.
Subpart B_Rulemaking Procedures
Sec.5.3 General.
(a) This subpart governs all DOT employees and contractors involved
with all phases of rulemaking at DOT.
(b) Unless otherwise required by statute, this subpart applies to
all DOT regulations, which shall include all rules of general
applicability promulgated by any components of the Department that
affect the rights or obligations of persons outside the Department,
including substantive rules, rules of interpretation, and rules
prescribing agency procedures and practice requirements applicable to
outside parties.
(c) Except as provided in paragraph (d) of this section, this
subpart applies to all regulatory actions intended to lead to the
promulgation of a rule and any other generally applicable agency
directives, circulars, or pronouncements concerning matters within the
jurisdiction of an OA or component of OST that are intended to have the
force or effect of law or that are required by statute to satisfy the
rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556.
(d) This subpart does not apply to:
(1) Any rulemaking in which a notice of proposed rulemaking was
issued before December 20, 2018, and which was still in progress on that
date;
(2) Regulations issued with respect to a military or foreign affairs
function of the United States;
(3) Rules addressed solely to internal agency management or
personnel matters;
(4) Regulations related to Federal Government procurement; or
(5) Guidance documents, which are not intended to, and do not in
fact, have the force or effect of law for parties outside of the
Department, and which are governed by part 5, subpart C of this chapter.
Sec.5.5 Regulatory policies.
The policies in paragraphs (a) through (j) of this section govern
the development and issuance of regulations at DOT:
(a) There should be no more regulations than necessary. In
considering whether to propose a new regulation, policy makers should
consider whether the specific problem to be addressed requires agency
action, whether existing rules (including standards incorporated by
reference) have created or contributed to the problem and should be
revised or eliminated, and whether any other reasonable alternatives
exist
[[Page 54]]
that obviate the need for a new regulation.
(b) All regulations must be supported by statutory authority and
consistent with the Constitution.
(c) Where they rest on scientific, technical, economic, or other
specialized factual information, regulations should be supported by the
best available evidence and data.
(d) Regulations should be written in plain English, should be
straightforward, and should be clear.
(e) Regulations should be technologically neutral, and, to the
extent feasible, they should specify performance objectives, rather than
prescribing specific conduct that regulated entities must adopt.
(f) Regulations should be designed to minimize burdens and reduce
barriers to market entry whenever possible, consistent with the
effective promotion of safety. Where they impose burdens, regulations
should be narrowly tailored to address identified market failures or
specific statutory mandates.
(g) Unless required by law or compelling safety need, regulations
should not be issued unless their benefits are expected to exceed their
costs. For each new significant regulation issued, agencies must
identify at least two existing regulatory burdens to be revoked.
(h) Once issued, regulations and other agency actions should be
reviewed periodically and revised to ensure that they continue to meet
the needs they were designed to address and remain cost-effective and
cost-justified.
(i) Full public participation should be encouraged in rulemaking
actions, primarily through written comment and engagement in public
meetings. Public participation in the rulemaking process should be
conducted and documented, as appropriate, to ensure that the public is
given adequate knowledge of substantive information relied upon in the
rulemaking process.
(j) The process for issuing a rule should be sensitive to the
economic impact of the rule; thus, the promulgation of rules that are
expected to impose greater economic costs should be accompanied by
additional procedural protections and avenues for public participation.
Sec.5.7 Responsibilities.
(a) The Secretary of Transportation supervises the overall planning,
direction, and control of the Department's Regulatory Agenda; approves
regulatory documents for issuance and submission to the Office of
Management and Budget (OMB) under Executive Order (E.O.) 12866,
``Regulatory Planning and Review'' (Oct. 4, 1993); identifies an
approximate regulatory budget for each fiscal year as required by E.O.
13771, ``Reducing Regulation and Controlling Regulatory Costs'' (Jan.
30, 2017); establishes the Department's Regulatory Reform Task Force
(RRTF); and designates the members of the RRTF and the Department's
Regulatory Reform Officer (RRO) in accordance with E.O. 13777,
``Enforcing the Regulatory Reform Agenda'' (Feb. 24, 2017).
(b) The Deputy Secretary of Transportation assists the Secretary in
overseeing overall planning, direction, and control of the Department's
Regulatory Agenda and approves the initiation of regulatory action, as
defined in E.O. 12866, by the OAs and components of OST. Unless
otherwise designated by the Secretary, the Deputy Secretary serves as
the Chair of the Leadership Council of the RRTF and as the Department's
RRO.
(c) The General Counsel of DOT is the chief legal officer of the
Department with final authority on all questions of law for the
Department, including the OAs and components of OST; serves on the
Leadership Council of the RRTF; and serves as the Department's
Regulatory Policy Officer pursuant to section 6(a)(2) of E.O. 12866.
(d) The RRO of DOT is delegated authority by the Secretary to
oversee the implementation of the Department's regulatory reform
initiatives and policies to ensure the effective implementation of
regulatory reforms, consistent with E.O. 13777 and applicable law.
(e) DOT's noncareer Deputy General Counsel is a member of the RRTF
and serves as the Chair of the RRTF Working Group.
[[Page 55]]
(f) DOT's Assistant General Counsel for Regulation supervises the
Office of Regulation within the Office of the General Counsel (OGC);
oversees the process for DOT rulemakings; provides legal advice on
compliance with APA and other administrative law requirements and
executive orders, related OMB directives, and other procedures for
rulemaking and guidance documents; circulates regulatory documents for
departmental review and seeks concurrence from reviewing officials;
submits regulatory documents to the Secretary for approval before
issuance or submission to OMB; coordinates with the Office of
Information and Regulatory Affairs (OIRA) within OMB on the designation
and review of regulatory documents and the preparation of the Unified
Agenda of Regulatory and Deregulatory Actions; publishes the monthly
internet report on significant rulemakings; and serves as a member of
the RRTF Working Group.
(g) Pursuant to delegations from the Secretary under part 1 of this
title, OA Administrators and Secretarial officers exercise the
Secretary's rulemaking authority under 49 U.S.C. 322(a), and they have
responsibility for ensuring that the regulatory data included in the
Regulatory Management System (RMS), or a successor data management
system, for their OAs and OST components is accurate and is updated at
least once a month.
(h) OA Chief Counsels supervise the legal staffs of the OAs;
interpret and provide guidance on all statutes, regulations, executive
orders, and other legal requirements governing the operation and
authorities of their respective OAs; and review all rulemaking documents
for legal sufficiency.
(i) Each OA or OST component responsible for rulemaking will have a
Regulatory Quality Officer, designated by the Administrator or
Secretarial office head, who will have responsibility for reviewing all
rulemaking documents for plain language, technical soundness, and
general quality.
Sec.5.9 Regulatory Reform Task Force.
(a) Purpose. The Regulatory Reform Task Force (RRTF) evaluates
proposed and existing regulations and makes recommendations to the
Secretary regarding their promulgation, repeal, replacement, or
modification, consistent with applicable law, E.O. 13777, E.O. 13771,
and E.O. 12866.
(b) Structure. The RRTF comprises a Leadership Council and a Working
Group.
(1) The Working Group coordinates with leadership in the Secretarial
offices and OAs, reviews and develops recommendations for regulatory and
deregulatory action, and presents recommendations to the Leadership
Council.
(2) The Leadership Council reviews the Working Group's
recommendations and advises the Secretary.
(c) Membership. (1) The Leadership Council comprises the following:
(i) The Regulatory Reform Officer (RRO), who serves as Chair;
(ii) The Department's Regulatory Policy Officer, designated under
section 6(a)(2) of E.O. 12866;
(iii) A representative from the Office of the Under Secretary of
Transportation for Policy;
(iv) At least three additional senior agency officials as determined
by the Secretary.
(2) The Working Group comprises the following:
(i) At least one senior agency official from the Office of the
General Counsel, including at a minimum the Assistant General Counsel
for Regulation, as determined by the RRO;
(ii) At least one senior agency official from the Office of the
Under Secretary of Transportation for Policy, as determined by the RRO;
(iii) Other senior agency officials from the Office of the
Secretary, as determined by the RRO.
(d) Functions and responsibilities. In addition to the functions and
responsibilities enumerated in E.O. 13777, the RRTF performs the
following duties:
(1) Reviews each request for a new rulemaking action initiated by an
OA or OST component; and
(2) Considers each regulation and regulatory policy question (which
may include proposed guidance documents) referred to it and makes a
recommendation to the Secretary for its disposition.
[[Page 56]]
(e) Support. The Office of Regulation within OGC provides support to
the RRTF.
(f) Meetings. The Leadership Council meets approximately monthly and
will hold specially scheduled meetings when necessary to address
particular regulatory matters. The Working Group meets approximately
monthly with each OA and each component of OST with regulatory
authority, and the Working Group may establish subcommittees, as
appropriate, to focus on specific regulatory matters.
(g) Agenda. The Office of Regulation prepares an agenda for each
meeting and distributes it to the members in advance of the meeting,
together with any documents to be discussed at the meeting. The OA or
OST component responsible for matters on the agenda will be invited to
attend to respond to questions.
(h) Minutes. The Office of Regulation prepares summary minutes
following each meeting and distributes them to the meeting's attendees.
Sec.5.11 Initiating a rulemaking.
(a) Before an OA or component of OST may proceed to develop a
regulation, the Administrator of the OA or the Secretarial officer who
heads the OST component must consider the regulatory philosophy and
principles of regulation identified in section 1 of E.O. 12866 and the
policies set forth in Sec.5.5 of this subpart. If the OA Administrator
or OST component head determines that rulemaking is warranted consistent
with those policies and principles, the Administrator or component head
may prepare a Rulemaking Initiation Request.
(b) The Rulemaking Initiation Request should specifically state or
describe:
(1) A proposed title for the rulemaking;
(2) The need for the regulation, including a description of the
market failure or statutory mandate necessitating the rulemaking;
(3) The legal authority for the rulemaking;
(4) Whether the rulemaking is expected to be regulatory or
deregulatory;
(5) Whether the rulemaking is expected to be significant or
nonsignificant, as defined by E.O. 12866;
(6) Whether the final rule in question is expected to be an
economically significant rule or high-impact rule, as defined in Sec.
5.17(a) of this subpart;
(7) A description of the economic impact associated with the
rulemaking, including whether the rulemaking is likely to impose
quantifiable costs or cost savings;
(8) The tentative target dates for completing each stage of the
rulemaking; and
(9) Whether there is a statutory or judicial deadline, or some other
urgency, associated with the rulemaking.
(c) The OA or OST component submits the Rulemaking Initiation
Request to the Office of Regulation, together with any other documents
that may assist in the RRTF's consideration of the request.
(d) The Office of Regulation includes the Rulemaking Initiation
Request on the agenda for consideration at the OA's or OST component's
next Working Group meeting.
(e) If the Working Group recommends the approval of the Rulemaking
Initiation Request, then the Request is referred to the Leadership
Council for consideration. In lieu of consideration at a Leadership
Council meeting, the Working Group, at its discretion, may submit a
memorandum to the RRO seeking approval of the Rulemaking Initiation
Request.
(f) The OA or OST component may assign a Regulatory Information
Number (RIN) to the rulemaking only upon the Leadership Council's (or
RRO's) approval of the Rulemaking Initiation Request.
(g) The Secretary may initiate a rulemaking on his or her own
motion. The process for initiating a rulemaking as described herein may
be waived or modified for any rule with the approval of the RRO. Unless
otherwise determined by the RRO, the Administrator of the Federal
Aviation Administration (FAA) may promulgate an emergency rule under 49
U.S.C. 106(f)(3)(B)(ii) or 49 U.S.C. 46105(c), without first submitting
a Rulemaking Initiation Request.
(h) Rulemaking Initiation Requests will be considered on a rolling
basis;
[[Page 57]]
however, the Office of Regulation will establish deadlines for
submission of Rulemaking Initiation Requests so that new rulemakings may
be included in the Unified Agenda of Regulatory and Deregulatory
Actions.
Sec.5.13 General rulemaking procedures.
(a) Definitions--(1) Significant rulemaking means a regulatory
action designated by OIRA under E.O. 12866 as likely to result in a rule
that may:
(i) Have an annual effect on the U.S. economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public health
or safety, or State, local, or tribal governments or communities;
(ii) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(iii) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(iv) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866.
(2) Nonsignificant rulemaking means a regulatory action not
designated significant by OIRA.
(b) Departmental review process. (1) OST review and clearance.
(i) Except as provided herein or as otherwise provided in writing by
OGC, all departmental rulemakings are to be reviewed and cleared by the
Office of the Secretary.
(ii) The FAA Administrator may promulgate emergency rules pursuant
to 49 U.S.C. 106(f)(3)(B)(ii) and 49 U.S.C. 46105(c), without prior
approval from OST; provided that, to the maximum extent practicable and
consistent with law, the FAA Administrator will give OST advance notice
of such emergency rules and will allow OST to review the rules in
accordance with the provisions of this subpart at the earliest
opportunity after they are promulgated.
(2) Leadership within the proposing OA or component of OST shall:
(i) Ensure that the OA's or OST component's Regulatory Quality
Officer reviews all rulemaking documents for plain language, technical
soundness, and general quality;
(ii) Ensure that the OA's Office of Chief Counsel (or for OST rules,
the Office within OGC responsible for providing programmatic advice)
reviews all rulemaking documents for legal support and legal
sufficiency; and
(iii) Approve the submission of all rulemaking documents, including
any accompanying analyses (e.g., regulatory impact analysis), to the
Office of Regulation through the Regulatory Management System (RMS), or
a successor data management system, for OST review and clearance.
(3) To effectuate departmental review under this subpart, the
following Secretarial offices ordinarily review and approve DOT
rulemakings: The Office of the Under Secretary for Policy, the Office of
Public Affairs, the Office of Budget and Programs and Chief Financial
Officer, OGC, and the Office of Governmental Affairs. The Office of
Regulation may also require review and clearance by other Secretarial
offices and OAs depending on the nature of the particular rulemaking
document.
(4) Reviewing offices should provide comments or otherwise concur on
rulemaking documents within 7 calendar days, unless exceptional
circumstances apply that require expedited review.
(5) The Office of Regulation provides a passback of comments to the
proposing OA or OST component for resolution. Comments should be
resolved and a revised draft submitted to the Office of Regulation by
the OA or OST component within 14 calendar days.
(6) The Office of Regulation prepares a rulemaking package for the
General Counsel to request the Secretary's approval for the rulemaking
to be submitted to OMB for review (for significant rulemakings) or to
the Federal Register for publication (for nonsignificant rulemakings).
These rulemaking packages are submitted through the General Counsel to
the Office of the Executive Secretariat.
(7) The Office of Regulation notifies the proposing OA or OST
component when the Secretary approves or disapproves the submission of
the rulemaking to OMB or to the Federal Register.
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(8) The Office of Regulation is responsible for coordination with
OIRA staff on the designation of all rulemaking documents, submission
and clearance of all significant rulemaking documents, and all
discussions or meetings with OMB concerning these documents. OAs and OST
components should not schedule their own meetings with OIRA without
Office of Regulation involvement. Each OA or OST component should
coordinate with the Office of Regulation before holding any discussions
with OIRA concerning regulatory policy or requests to modify regulatory
documents.
(c) Petitions for rulemaking, exemption, and retrospective review.
(1) Any person may petition an OA or OST component with rulemaking
authority to:
(i) Issue, amend, or repeal a rule;
(ii) Issue an exemption, either permanently or temporarily, from any
requirements of a rule; or
(iii) Perform a retrospective review of an existing rule.
(2) When an OA or OST component receives a petition under this
paragraph (c), the petition should be filed with the Docket Clerk in a
timely manner. If a petition is filed directly with the Docket Clerk,
the Docket Clerk will submit the petition in a timely manner to the OA
or component of OST with regulatory responsibility over the matter
described in the petition.
(3) The OA or component of OST should provide clear instructions on
its website to members of the public regarding how to submit petitions,
including, but not limited to, an email address or Web portal where
petitions can be submitted, a mailing address where hard copy requests
can be submitted, and an office responsible for coordinating such
requests.
(4) Unless otherwise provided by statute or in OA regulations or
procedures, the following procedures apply to the processing of
petitions for rulemaking, exemption, or retrospective review:
(i) Contents. Each petition filed under this section must:
(A) Be submitted, either by paper submission or electronically, to
the U.S. Department of Transportation, Docket Operations, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590;
(B) Describe the nature of the request and set forth the text or
substance of the rule or specify the rule that the petitioner seeks to
have issued, amended, exempted, repealed, or retrospectively reviewed,
as the case may be;
(C) Explain the interest of the petitioner in the action requested,
including, in the case of a petition for an exemption, the nature and
extent of the relief sought and a description of the persons to be
covered by the exemption;
(D) Contain any information and arguments available to the
petitioner to support the action sought; and
(E) In the case of a petition for exemption, unless good cause is
shown in that petition, be submitted at least 60 days before the
proposed effective date of the exemption.
(ii) Processing. Each petition received under this paragraph (c) is
referred to the head of the office responsible for the subject matter of
that petition, the Office of Regulation, and the RRO. No public hearing,
argument, or other proceeding must necessarily be held directly on a
petition for its disposition under this section.
(iii) Grants. If the OA or component of OST with regulatory
responsibility over the matter described in the petition determines that
the petition contains adequate justification, it may request the
initiation of a rulemaking action under Sec.5.11 or grant the
petition, as appropriate.
(iv) Denials. If the OA or component of OST determines that the
petition is not justified, the OA or component of OST denies the
petition in coordination with the Office of Regulation.
(v) Notification. Whenever the OA or OST component determines that a
petition should be granted or denied, and after consultation with the
Office of Regulation in the case of denial, the office concerned
prepares a notice of that grant or denial for issuance to the
petitioner, and issues it to the petitioner.
(d) Review of existing regulations. (1) All departmental regulations
are on a 10-year review cycle, except economically significant and high-
impact rules, which are reviewed every 5 years in accordance with Sec.
5.17(f) of this subpart.
[[Page 59]]
(2) The OA or OST component that issued the regulation will review
it for the following:
(i) Continued cost justification: Whether the regulation requires
adjustment due to changed market conditions or is no longer cost-
effective or cost-justified in accordance with Sec.5.5(h);
(ii) Regulatory flexibility: Whether the regulation has a
significant economic impact on a substantial number of small entities
and, thus, requires review under 5 U.S.C. 610 (section 610 of the
Regulatory Flexibility Act);
(iii) Innovation: Whether there are new or emerging technologies,
especially those that could achieve current levels of safety at the same
or lower levels of cost or achieve higher levels of safety, use of which
is precluded or limited by the regulation.
(iv) General updates: Whether the regulation may require technical
corrections, updates (e.g., updated versions of voluntary consensus
standards), revisions, or repeal;
(v) Plain language: Whether the regulation requires revisions for
plain language; and
(vi) Other considerations as required by relevant executive orders
and laws.
(3) The results of each OA's or OST component's review will be
reported annually to the public.
(4) Any member of the public may petition the Department to conduct
a retrospective review of a regulation by filing a petition in
accordance with the procedures contained in paragraph (c) of this
section.
(e) Supporting economic analysis. (1) Rulemakings shall include, at
a minimum:
(i) An assessment of the potential costs and benefits of the
regulatory action (which may entail a regulatory impact analysis) or a
reasoned determination that the expected impact is so minimal or the
safety need so significant and urgent that a formal analysis of costs
and benefits is not warranted; and
(ii) If the regulatory action is expected to impose costs, either a
reasoned determination that the benefits outweigh the costs or, if the
particular rulemaking is mandated by statute or compelling safety need
notwithstanding a negative cost-benefit assessment, a detailed
discussion of the rationale supporting the specific regulatory action
proposed and an explanation of why a less costly alternative is not an
option.
(2) To the extent practicable, economic assessments shall quantify
the foreseeable annual economic costs and cost savings within the United
States that would likely result from issuance of the proposed rule and
shall be conducted in accordance with the requirements of sections
6(a)(2)(B) and 6(a)(2)(C) of E.O. 12866 and OMB Circular A-4, as
specified by OIRA in consultation with the Office of Regulation. If the
proposing OA or OST component has estimated that the proposed rule will
likely impose economic costs on persons outside the United States, such
costs should be reported separately.
(3) Deregulatory rulemakings (including nonsignificant rulemakings)
shall be evaluated for quantifiable cost savings. If it is determined
that quantification of cost savings is not possible or appropriate, then
the proposing OA or OST component shall provide a detailed justification
for the lack of quantification upon submission of the rulemaking to the
Office of Regulation. Other nonsignificant rulemakings shall include, at
a minimum, the economic cost-benefit analysis described in paragraph
(e)(1) of this section.
(f) Regulatory flexibility analysis. All rulemakings subject to the
requirements of 5 U.S.C. 603-604 (sections 603-604 of the Regulatory
Flexibility Act), and any amendment thereto, shall include a detailed
statement setting forth the required analysis regarding the potential
impact of the rule on small business entities.
(g) Advance notices of proposed rulemaking. Whenever the OA or OST
component responsible for a proposed rulemaking is required to publish
an advance notice of proposed rulemaking (ANPRM) in the Federal
Register, or whenever the RRTF determines it appropriate to publish an
ANPRM, the ANPRM shall:
(1) Include a written statement identifying, at a minimum:
(i) The nature and significance of the problem the OA or OST
component may address with a rule;
[[Page 60]]
(ii) The legal authority under which a rule may be proposed; and
(iii) Any preliminary information available to the OA or OST
component that may support one or another potential approach to
addressing the identified problem;
(2) Solicit written data, analysis, views, and recommendations from
interested persons concerning the information and issues addressed in
the ANPRM; and
(3) Provide for a reasonably sufficient period for public comment.
(h) Notices of proposed rulemaking--(1) When required. Before
determining to propose a rule, and following completion of the ANPRM
process under paragraph (g) of this section, if applicable, the
responsible OA or OST component shall consult with the RRTF concerning
the need for the potential rule. If the RRTF thereafter determines it
appropriate to propose a rule, the proposing OA or OST component shall
publish a notice of proposed rulemaking (NPRM) in the Federal Register,
unless a controlling statute provides otherwise or unless the RRTF (in
consultation with OIRA, as appropriate) determines that an NPRM is not
necessary under established exceptions.
(2) Contents. The NPRM shall include, at a minimum:
(i) A statement of the time and place for submission of public
comments and the time, place, and nature of related public rulemaking
proceedings, if any;
(ii) Reference to the legal authority under which the rule is
proposed;
(iii) The terms of the proposed rule;
(iv) A description of information known to the proposing OA or OST
component on the subject and issues of the proposed rule, including but
not limited to:
(A) A summary of material information known to the OA or OST
component concerning the proposed rule and the considerations specified
in Sec.5.11(a) of this subpart;
(B) A summary of any preliminary risk assessment or regulatory
impact analysis performed by the OA or OST component; and
(C) Information specifically identifying all material data, studies,
models, available voluntary consensus standards and conformity
assessment requirements, and other evidence or information considered or
used by the OA or OST component in connection with its determination to
propose the rule;
(v) A reasoned preliminary analysis of the need for the proposed
rule based on the information described in the preamble to the NPRM, and
an additional statement of whether a rule is required by statute;
(vi) A reasoned preliminary analysis indicating that the expected
economic benefits of the proposed rule will meet the relevant statutory
objectives and will outweigh the estimated costs of the proposed rule in
accordance with any applicable statutory requirements;
(vii) If the rulemaking is significant, a summary discussion of:
(A) The alternatives to the proposed rule considered by the OA or
OST component;
(B) The relative costs and benefits of those alternatives;
(C) Whether the alternatives would meet relevant statutory
objectives; and
(D) Why the OA or OST component chose not to propose or pursue the
alternatives;
(viii) A statement of whether existing rules have created or
contributed to the problem the OA or OST component seeks to address with
the proposed rule, and, if so, whether or not the OA or OST component
proposes to amend or rescind any such rules and why; and
(ix) All other statements and analyses required by law, including,
without limitation, the Regulatory Flexibility Act (5 U.S.C. 601-612) or
any amendment thereto.
(3) Information access and quality. (i) To inform public comment
when the NPRM is published, the proposing OA or OST component shall
place in the docket for the proposed rule and make accessible to the
public, including by electronic means, all material information relied
upon by the OA or OST component in considering the proposed rule, unless
public disclosure of the information is prohibited by law or the
information would be exempt from disclosure under 5 U.S.C. 552(b).
Material provided electronically should be made available in accordance
with the requirements of 29 U.S.C. 794d (section
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508 of the Rehabilitation Act of 1973, as amended).
(ii) If the proposed rule rests upon scientific, technical, or
economic information, the proposing OA or OST component shall base the
proposal on the best and most relevant scientific, technical, and
economic information reasonably available to the Department and shall
identify the sources and availability of such information in the NPRM.
(iii) A single copy of any relevant copyrighted material (including
consensus standards and other relevant scientific or technical
information) should be placed in the docket for public review if such
material was relied on as a basis for the rulemaking.
(i) Public comment. (1) Following publication of an NPRM, the
Department will provide interested persons a fair and sufficient
opportunity to participate in the rulemaking through submission of
written data, analysis, views, and recommendations.
(2) The Department, in coordination with OIRA for significant
rulemakings, will ensure that the public is given an adequate period for
comment, taking into account the scope and nature of the issues and
considerations involved in the proposed regulatory action.
(3) Generally, absent special considerations, the comment period for
nonsignificant DOT rules should be at least 30 days, and the comment
period for significant DOT rules should be at least 45 days.
(4) Any person may petition the responsible OA or OST component for
an extension of time to submit comments in response to a notice of
proposed rulemaking. Petitions must be received no later than 3 days
before the expiration of the time stated in the notice. The filing of
the petition does not automatically extend the time for comments. The OA
or OST component may grant the petition only if the petitioner shows a
substantive interest in the proposed rule and good cause for the
extension, or if the extension is otherwise in the public interest. If
an extension is granted, it is granted as to all persons and published
in the Federal Register.
(5) All timely comments are considered before final action is taken
on a rulemaking proposal. Late-filed comments may be considered so far
as possible without incurring additional expense or delay.
(j) Exemptions from notice and comment. (1) Except when prior notice
and an opportunity for public comment are required by statute or
determined by the Secretary to be advisable for policy or programmatic
reasons, the responsible OA or OST component may, subject to the
approval of the RRTF (in consultation with OIRA, as appropriate),
publish certain final rules in the Federal Register without prior notice
and comment. These may include:
(i) Rules of interpretation and rules addressing only DOT
organization, procedure, or practice, provided such rules do not alter
substantive obligations for parties outside the Department;
(ii) Rules for which notice and comment is unnecessary to inform the
rulemaking, such as rules correcting de minimis technical or clerical
errors or rules addressing other minor and insubstantial matters,
provided the reasons to forgo public comment are explained in the
preamble to the final rule; and
(iii) Rules that require finalization without delay, such as rules
to address an urgent safety or national security need, and other rules
for which it would be impracticable or contrary to public policy to
accommodate a period of public comment, provided the responsible OA or
OST component makes findings that good cause exists to forgo public
comment and explains those findings in the preamble to the final rule.
(2) Except when required by statute, issuing substantive DOT rules
without completing notice and comment, including as interim final rules
(IFRs) and direct final rules (DFRs), must be the exception. IFRs and
DFRs are not favored. DFRs must follow the procedures in paragraph (l)
of this section. In most cases where an OA or OST component has issued
an IFR, the RRTF will expect the OA or OST component to proceed at the
earliest opportunity to replace the IFR with a final rule.
(k) Final rules. The responsible OA or OST component shall adopt a
final rule
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only after consultation with the RRTF. The final rule, which shall
include the text of the rule as adopted along with a supporting
preamble, shall be published in the Federal Register and shall satisfy
the following requirements:
(1) The preamble to the final rule shall include:
(i) A concise, general statement of the rule's basis and purpose,
including clear reference to the legal authority supporting the rule;
(ii) A reasoned, concluding determination by the adopting OA or OST
component regarding each of the considerations required to be addressed
in an NPRM under paragraphs (h)(2)(v) through (ix) of this section;
(iii) A response to each significant issue raised in the comments to
the proposed rule;
(iv) If the final rule has changed in significant respects from the
rule as proposed in the NPRM, an explanation of the changes and the
reasons why the changes are needed or are more appropriate to advance
the objectives identified in the rulemaking; and
(v) A reasoned, final determination that the information upon which
the OA or OST component bases the rule complies with the Information
Quality Act (section 515 of Pub. L. 106-554--Appendix C, 114 Stat.
2763A-153-54 (2001)), or any subsequent amendment thereto.
(2) If the rule rests on scientific, technical, economic, or other
specialized factual information, the OA or OST component shall base the
final rule on the best and most relevant evidence and data known to the
Department and shall ensure that such information is clearly identified
in the preamble to the final rule and is available to the public in the
rulemaking record, subject to reasonable protections for information
exempt from disclosure under 5 U.S.C. 552(b). If the OA or OST component
intends to support the final rule with specialized factual information
identified after the close of the comment period, the OA or OST
component shall allow an additional opportunity for public comment on
such information.
(3) All final rules issued by the Department:
(i) Shall be written in plain and understandable English;
(ii) Shall be based on a reasonable and well-founded interpretation
of relevant statutory text and shall not depend upon a strained or
unduly broad reading of statutory authority; and
(iii) Shall not be inconsistent or incompatible with, or
unnecessarily duplicative of, other Federal regulations.
(4) Effective dates for final rules must adhere to the following:
(i) Unless required to address a safety emergency or otherwise
required by law, approved by the RRTF (or RRO), or approved by the
Director of OMB (as appropriate), no regulation may be issued by an OA
or component of OST if it was not included on the most recent version or
update of the published Unified Agenda.
(ii) No significant regulatory action may take effect until it has
appeared in either the Unified Agenda or the monthly internet report of
significant rulemakings for at least 6 months prior to its issuance,
unless good cause exists for an earlier effective date or the action is
otherwise approved by the RRTF (or RRO).
(iii) Absent good cause, major rules (as defined by the
Congressional Review Act, 5 U.S.C. 801-808) cannot take effect until 60
days after publication in the Federal Register or submission to
Congress, whichever is later. Nonmajor rules cannot take effect any
sooner than submission to Congress.
(l) Direct final rules. (1) Rules that the OA or OST component
determines to be noncontroversial and unlikely to result in adverse
public comment may be published as direct final rules. These include
noncontroversial rules that:
(i) Affect internal procedures of the Department, such as filing
requirements and rules governing inspection and copying of documents,
(ii) Are nonsubstantive clarifications or corrections to existing
rules,
(iii) Update existing forms,
(iv) Make minor changes in the substantive rules regarding
statistics and reporting requirements,
(v) Make changes to the rules implementing the Privacy Act, or
(vi) Adopt technical standards set by outside organizations.
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(2) The Federal Register document will state that any adverse
comment must be received in writing by the OA or OST component within
the specified time after the date of publication and that, if no written
adverse comment is received, the rule will become effective a specified
number of days after the date of publication.
(3) If no written adverse comment is received by the OA or OST
component within the original or extended comment period, the OA or OST
component will publish a notice in the Federal Register indicating that
no adverse comment was received and confirming that the rule will become
effective on the date that was indicated in the direct final rule.
(4) If the OA or OST component receives any written adverse comment
within the specified time of publication in the Federal Register, the OA
or OST component may proceed as follows:
(i) Publish a document withdrawing the direct final rule in the
rules and regulations section of the Federal Register and, if the OA or
OST component decides a rulemaking is warranted, a proposed rule; or
(ii) Any other means permitted under the Administrative Procedure
Act. (5) An ``adverse'' comment for the purpose of this subpart means
any comment that the OA or OST component determines is critical of the
rule, suggests that the rule should not be adopted or suggests a
material change that should be made in the rule. A comment suggesting
that the policy or requirements of the rule should or should not also be
extended to other Departmental programs outside the scope of the rule is
not adverse. A notice of intent to submit an adverse comment is not, in
and of itself, an adverse comment.
(m) Reports to Congress and GAO. For each final rule adopted by DOT,
the responsible OA or OST component shall submit the reports to Congress
and the U.S. Government Accountability Office to comply with the
procedures specified by 5 U.S.C. 801 (the Congressional Review Act), or
any subsequent amendment thereto.
(n) Negotiated rulemakings. (1) DOT negotiated rulemakings are to be
conducted in accordance with the Negotiated Rulemaking Act, 5 U.S.C.
561-571, and the Federal Advisory Committee Act, 5 U.S.C. App. 2, as
applicable.
(2) Before initiating a negotiated rulemaking process, the OA or OST
component should:
(i) Assess whether using negotiated rulemaking procedures for the
proposed rule in question is in the public interest, in accordance with
5 U.S.C. 563(a), and present these findings to the RRTF;
(ii) Consult with the Office of Regulation on the appropriateness of
negotiated rulemaking and the procedures therefor; and
(iii) Receive the approval of the RRTF for the use of negotiated
rulemaking.
(3) Unless otherwise approved by the General Counsel, all DOT
negotiated rulemakings should involve the assistance of a convener and a
facilitator, as provided in the Negotiated Rulemaking Act. A convener is
a person who impartially assists the agency in determining whether
establishment of a negotiated rulemaking committee is feasible and
appropriate in a particular rulemaking. A facilitator is a person who
impartially aids in the discussions and negotiations among members of a
negotiated rulemaking committee to develop a proposed rule. The same
person may serve as both convener and facilitator.
(4) All charters, membership appointments, and Federal Register
notices must be approved by the Secretary. Any operating procedures
(e.g., bylaws) for negotiated rulemaking committees must be approved by
OGC.
Sec.5.15 Unified Agenda of Regulatory and Deregulatory Actions
(Unified Agenda).
(a) Fall editions of the Unified Agenda include the Regulatory Plan,
which presents the Department's statement of regulatory priorities for
the coming year. Fall editions also include the outcome and status of
the Department's reviews of existing regulations, conducted in
accordance with Sec.5.13(d).
(b) The OAs and components of OST with rulemaking authority must:
(1) Carefully consider the principles contained in E.O. 13771, E.O.
13777, and
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E.O. 12866 in the preparation of all submissions for the Unified Agenda;
(2) Ensure that all data pertaining to the OA's or OST component's
regulatory and deregulatory actions are accurately reflected in the
Department's Unified Agenda submission; and
(3) Timely submit all data to the Office of Regulation in accordance
with the deadlines and procedures communicated by that office.
Sec.5.17 Special procedures for economically significant and
high-impact rulemakings.
(a) Definitions--(1) Economically significant rule means a
significant rule likely to impose:
(i) A total annual cost on the U.S. economy (without regard to
estimated benefits) of $100 million or more, or
(ii) A total net loss of at least 75,000 full-time jobs in the U.S.
over the five years following the effective date of the rule (not
counting any jobs relating to new regulatory compliance).
(2) High-impact rule means a significant rule likely to impose:
(i) A total annual cost on the U.S. economy (without regard to
estimated benefits) of $500 million or more, or
(ii) A total net loss of at least 250,000 full-time jobs in the U.S.
over the five years following the effective date of the rule (not
counting any jobs relating to new regulatory compliance).
(b) ANPRM required. Unless directed otherwise by the RRTF or
otherwise required by law, in the case of a rulemaking for an
economically significant rule or a high-impact rule, the proposing OA or
OST component shall publish an ANPRM in the Federal Register.
(c) Additional requirements for NPRM. (1) In addition to the
requirements set forth in Sec.5.13, an NPRM for an economically
significant rule or a high-impact rule shall include a discussion
explaining an achievable objective for the rule and the metrics by which
the OA or OST component will measure progress toward that objective.
(2) Absent unusual circumstances and unless approved by the RRTF (in
consultation with OIRA, as appropriate), the comment period for an
economically significant rule shall be at least 60 days and for a high-
impact rule at least 90 days. If a rule is determined to be an
economically significant rule or high-impact rule after the publication
of the NPRM, the responsible OA or OST component shall publish a notice
in the Federal Register that informs the public of the change in
classification and discusses the achievable objective for the rule and
the metrics by which the OA or OST component will measure progress
toward that objective, and shall extend or reopen the comment period by
not less than 30 days and allow further public comment as appropriate,
including comment on the change in classification.
(d) Procedures for formal hearings--(1) Petitions for hearings.
Following publication of an NPRM for an economically significant rule or
a high-impact rule, and before the close of the comment period, any
interested party may file in the rulemaking docket a petition asking the
proposing OA or OST component to hold a formal hearing on the proposed
rule in accordance with this subsection.
(2) Mandatory hearing for high-impact rule. In the case of a
proposed high-impact rule, the responsible OA or OST component shall
grant the petition for a formal hearing if the petition makes a
plausible prima facie showing that:
(i) The proposed rule depends on conclusions concerning one or more
specific scientific, technical, economic, or other complex factual
issues that are genuinely in dispute or that may not satisfy the
requirements of the Information Quality Act;
(ii) The ordinary public comment process is unlikely to provide the
OA or OST component an adequate examination of the issues to permit a
fully informed judgment on the dispute; and
(iii) The resolution of the disputed factual issues would likely
have a material effect on the costs and benefits of the proposed rule or
on whether the proposed rule would achieve the statutory purpose.
(3) Authority to deny hearing for economically significant rule. In
the case of a proposed economically significant rule, the responsible OA
or OST component may deny a petition for a formal
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hearing that includes the showing described in paragraph (d)(2) of this
section but only if the OA or OST component reasonably determines that:
(i) The requested hearing would not advance the consideration of the
proposed rule and the OA's or OST component's ability to make the
rulemaking determinations required under this subpart; or
(ii) The hearing would unreasonably delay completion of the
rulemaking in light of a compelling safety need or an express statutory
mandate for prompt regulatory action.
(4) Denial of petition. If the OA or OST component denies a petition
for a formal hearing under this subsection in whole or in part, the OA
or OST component shall include a detailed explanation of the factual
basis for the denial in the rulemaking record, including findings on
each of the relevant factors identified in paragraph (d)(2) or (3) of
this section. The denial of a good faith petition for a formal hearing
under this section shall be disfavored.
(5) Notice and scope of hearing. If the OA or OST component grants a
petition for a formal hearing under this section, the OA or OST
component shall publish notification of the hearing in the Federal
Register not less than 45 days before the date of the hearing. The
document shall specify the proposed rule at issue and the specific
factual issues to be considered in the hearing. The scope of the hearing
shall be limited to the factual issues specified in the notice.
(6) Hearing process. (i) A formal hearing for purposes of this
section shall be conducted using procedures borrowed from 5 U.S.C. 556
and 5 U.S.C. 557, or similar procedures as approved by the Secretary,
and interested parties shall have a reasonable opportunity to
participate in the hearing through the presentation of testimony and
written submissions.
(ii) The OA or OST component shall arrange for an administrative
judge or other neutral administrative hearing officer to preside over
the hearing and shall provide a reasonable opportunity for cross-
examination of witnesses at the hearing.
(iii) After the formal hearing and before the record of the hearing
is closed, the presiding hearing officer shall render a report
containing findings and conclusions addressing the disputed issues of
fact identified in the hearing notice and specifically advising on the
accuracy and sufficiency of the factual information in the record
relating to those disputed issues on which the OA or OST component
proposes to base the rule.
(iv) Interested parties who have participated in the hearing shall
be given an opportunity to file statements of agreement or objection in
response to the hearing officer's report, and the complete record of the
proceeding shall be made part of the rulemaking record.
(7) Actions following hearing. (i) Following completion of the
formal hearing process, the responsible OA or OST component shall
consider the record of the hearing and, subject to the approval of the
RRTF (in consultation with OIRA, as appropriate), shall make a reasoned
determination whether:
(A) To terminate the rulemaking;
(B) To proceed with the rulemaking as proposed; or
(C) To modify the proposed rule.
(ii) If the decision is made to terminate the rulemaking, the OA or
OST component shall publish a notice in the Federal Register announcing
the decision and explaining the reasons therefor.
(iii) If the decision is made to finalize the proposed rule without
material modifications, the OA or OST component shall explain the
reasons for its decision and its responses to the hearing record in the
preamble to the final rule, in accordance with paragraph (e) of this
section.
(iv) If the decision is made to modify the proposed rule in material
respects, the OA or OST component shall, subject to the approval of the
RRTF (in consultation with OIRA, as appropriate), publish a new or
supplemental NPRM in the Federal Register explaining the OA's or OST
component's responses to and analysis of the hearing record, setting
forth the modifications to the proposed rule, and providing an
additional reasonable opportunity for public comment on the proposed
modified rule.
(8) Relationship to interagency process. The formal hearing
procedures under
[[Page 66]]
this subsection shall not impede or interfere with OIRA's interagency
review process for the proposed rulemaking.
(e) Additional requirements for final rules. (1) In addition to the
requirements set forth in Sec.5.13(k), the preamble to a final
economically significant rule or a final high-impact rule shall include:
(i) A discussion explaining the OA's or OST component's reasoned
final determination that the rule as adopted is necessary to achieve the
objective identified in the NPRM in light of the full administrative
record and does not deviate from the metrics previously identified by
the OA or OST component for measuring progress toward that objective;
and
(ii) In accordance with paragraph (d)(7)(iii) of this section, the
OA's or OST component's responses to and analysis of the record of any
formal hearing held under paragraph (d) of this section.
(2) Absent exceptional circumstances and unless approved by the RRTF
or Secretary (in consultation with OIRA, as appropriate), the OA or OST
component shall adopt as a final economically significant rule or final
high-impact rule the least costly regulatory alternative that achieves
the relevant objectives.
(f) Additional requirements for retrospective reviews. For each
economically significant rule or high-impact rule, the responsible OA or
OST component shall publish a regulatory impact report in the Federal
Register every 5 years after the effective date of the rule while the
rule remains in effect. The regulatory impact report shall include, at a
minimum:
(1) An assessment of the impacts, including any costs, of the rule
on regulated entities;
(2) A determination about how the actual costs and benefits of the
rule have varied from those anticipated at the time the rule was issued;
and
(3) An assessment of the effectiveness and benefits of the rule in
producing the regulatory objectives it was adopted to achieve.
(g) Waiver and modification. The procedures required by this section
may be waived or modified as necessary with the approval of the RRO or
the Secretary.
Sec.5.19 Public contacts in informal rulemaking.
(a) Agency contacts with the public during informal rulemakings
conducted in accordance with 5 U.S.C. 553. (1) DOT personnel may have
meetings or other contacts with interested members of the public
concerning an informal rulemaking under 5 U.S.C. 553 or similar
procedures at any stage of the rulemaking process, provided the
substance of material information submitted by the public that DOT
relies on in proposing or finalizing the rule is adequately disclosed
and described in the public rulemaking docket such that all interested
parties have notice of the information and an opportunity to comment on
its accuracy and relevance.
(2) After the issuance of the NPRM and pending completion of the
final rule, DOT personnel should avoid giving persons outside the
Executive Branch information regarding the rulemaking that is not
available generally to the public.
(3) If DOT receives an unusually large number of requests for
meetings with interested members of the public during the comment period
for a proposed rule or after the close of the comment period, the
issuing OA or component of OST should consider whether there is a need
to extend or reopen the comment period, to allow for submission of a
second round of ``reply comments,'' or to hold a public meeting on the
proposed rule.
(4) If the issuing OA or OST component meets with interested persons
on the rulemaking after the close of the comment period, it should be
open to giving other interested persons a similar opportunity to meet.
(5) If DOT learns of significant new information, such as new
studies or data, after the close of the comment period that the issuing
OA or OST component wishes to rely upon in finalizing the rule, the OA
or OST component should reopen the comment period to give the public an
opportunity to comment on the new information. If the new information is
likely to result in a change to the rule that is not within the scope of
the NPRM, the OA or OST
[[Page 67]]
component should consider issuing a Supplemental NPRM to ensure that the
final rule represents a logical outgrowth of DOT's proposal.
(b) Contacts during OIRA review. (1) E.O. 12866 and E.O. 13563 lay
out the procedures for review of significant regulations by OIRA, which
include a process for members of the public to request meetings with
OIRA regarding rules under OIRA review. Per E.O. 12866, OIRA invites the
Department to attend these meetings. The Office of Regulation will
forward these invitations to the appropriate regulatory contact in the
OA or component of OST responsible for issuing the regulation.
(2) If the issuing OA or OST component wishes to attend the OIRA-
sponsored meeting or if its participation is determined to be necessary
by the Office of Regulation, the regulatory contact should identify to
the Office of Regulation up to two individuals from the OA or OST
component who will attend the meeting along with a representative from
the Office of Regulation. Attendance at these meetings can be by phone
or in person. These OIRA meetings are generally listening sessions for
DOT.
(3) The attending DOT personnel should refrain from debating
particular points regarding the rulemaking and should avoid disclosing
the contents of a document or proposed regulatory action that has not
yet been disclosed to the public, but may answer questions of fact
regarding a public document.
(4) Following the OIRA meeting, the attendee(s) from the issuing OA
or OST component will draft a summary report of the meeting and submit
it to the Office of Regulation for review. After the report is reviewed
and finalized in coordination with the Office of Regulation, the
responsible OA or OST component will place the final report in the
rulemaking docket.
Sec.5.21 Policy updates and revisions.
This subpart shall be reviewed from time to time to reflect
improvements in the rulemaking process or changes in Administration
policy.
Sec.5.23 Disclaimer.
This subpart is intended to improve the internal management of the
Department. It is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its agencies or other entities,
officers or employees, or any other person. In addition, this subpart
shall not be construed to create any right to judicial review involving
the compliance or noncompliance with this subpart by the Department, its
OAs or OST components, its officers or employees, or any other person.
Subpart C_Guidance Procedures
Sec.5.25 General.
(a) This subpart governs all DOT employees and contractors involved
with all phases of issuing DOT guidance documents.
(b) Subject to the qualifications and exemptions contained in this
subpart and in appendix A to the Memorandum on the Review and Clearance
of Guidance Documents (available online at the website of the Office of
the General Counsel's Office of Regulation \1\), these procedures apply
to all guidance documents issued by all components of the Department
after December 20, 2018.
---------------------------------------------------------------------------
\1\ See Appendix A to ``Memorandum on the Review and Clearance of
Guidance Documents,'' available at https://www.transportation.gov/sites/
dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-
documents-signed-122018.pdf.
---------------------------------------------------------------------------
(c) For purposes of this subpart, the term guidance document
includes any statement of agency policy or interpretation concerning a
statute, regulation, or technical matter within the jurisdiction of the
agency that is intended to have general applicability and future effect,
but which is not intended to have the force or effect of law in its own
right and is not otherwise required by statute to satisfy the rulemaking
procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. The term is not
confined to formal written documents; guidance may come in a variety of
forms, including (but not limited to) letters, memoranda, circulars,
bulletins, advisories, and may include video, audio, and Web-based
formats. See OMB Bulletin 07-02, ``Agency Good
[[Page 68]]
Guidance Practices,'' (January 25, 2007) (``OMB Good Guidance
Bulletin'').
(d) This subpart does not apply to:
(1) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);
(2) Rules of agency organization, procedure, or practice;
(3) Decisions of agency adjudications under 5 U.S.C. 554 or similar
statutory provisions;
(4) Internal executive branch legal advice or legal advisory
opinions addressed to executive branch officials;
(5) Agency statements of specific applicability, including advisory
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory letters responding to
complaints, warning letters), notices regarding particular locations or
facilities (e.g., guidance pertaining to the use, operation, or control
of a government facility or property), and correspondence with
individual persons or entities (e.g., congressional correspondence),
except documents ostensibly directed to a particular party but designed
to guide the conduct of the broader regulated public;
(6) Legal briefs, other court filings, or positions taken in
litigation or enforcement actions;
(7) Agency statements that do not set forth a policy on a statutory,
regulatory, or technical issue or an interpretation of a statute or
regulation, including speeches and individual presentations, editorials,
media interviews, press materials, or congressional testimony that do
not set forth for the first time a new regulatory policy;
(8) Guidance pertaining to military or foreign affairs functions;
(9) Grant solicitations and awards;
(10) Contract solicitations and awards; or
(11) Purely internal agency policies or guidance directed solely to
DOT employees or contractors or to other Federal agencies that are not
intended to have substantial future effect on the behavior of regulated
parties.
Sec.5.27 Review and clearance by Chief Counsels and the Office
of the General Counsel.
All DOT guidance documents, as defined in Sec.5.25(c), require
review and clearance in accordance with this subpart.
(a) Guidance proposed to be issued by an OA of the Department must
be reviewed and cleared by the OA's Office of Chief Counsel. In
addition, as provided elsewhere in this subpart, some OA guidance
documents will require review and clearance by OGC.
(b) Guidance proposed to be issued by a component of OST must be
reviewed and cleared by OGC.
Sec.5.29 Requirements for clearance.
DOT's review and clearance of guidance shall ensure that each
guidance document proposed to be issued by an OA or component of OST
satisfies the following requirements:
(a) The guidance document complies with all relevant statutes and
regulation (including any statutory deadlines for agency action);
(b) The guidance document identifies or includes:
(1) The term ``guidance'' or its functional equivalent;
(2) The issuing OA or component of OST;
(3) A unique identifier, including, at a minimum, the date of
issuance and title of the document and its Z-RIN, if applicable;
(4) The activity or entities to which the guidance applies;
(5) Citations to applicable statutes and regulations;
(6) A statement noting whether the guidance is intended to revise or
replace any previously issued guidance and, if so, sufficient
information to identify the previously issued guidance; and
(7) A short summary of the subject matter covered in the guidance
document at the top of the document.
(c) The guidance document avoids using mandatory language, such as
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the
language is describing an established statutory or regulatory
requirement or is addressed to DOT staff and will not foreclose the
Department's consideration of positions advanced by affected private
parties;
(d) The guidance document is written in plain and understandable
English;
[[Page 69]]
(e) All guidance documents include a clear and prominent statement
declaring that the contents of the document do not have the force and
effect of law and are not meant to bind the public in any way, and the
document is intended only to provide clarity to the public regarding
existing requirements under the law or agency policies.
Sec.5.31 Public access to effective guidance documents.
Each OA and component of OST responsible for issuing guidance
documents shall:
(a) Ensure all effective guidance documents, identified by a unique
identifier which includes, at a minimum, the document's title and date
of issuance or revision and its Z-RIN, if applicable, are on its website
in a single, searchable, indexed database, and available to the public
in accordance with 49 CFR 7.12(a)(2);
(b) Note on its website that guidance documents lack the force and
effect of law, except as authorized by law or as incorporated into a
contract;
(c) Maintain and advertise on its website a means for the public to
comment electronically on any guidance documents that are subject to the
notice-and-comment procedures described in Sec.5.39 and to submit
requests electronically for issuance, reconsideration, modification, or
rescission of guidance documents in accordance with Sec.5.41; and
(d) Designate an office to receive and address complaints from the
public that the OA or OST component is not following the requirements of
OMB's Good Guidance Bulletin or is improperly treating a guidance
document as a binding requirement.
Sec.5.33 Good faith cost estimates.
Even though not legally binding, some agency guidance may result in
a substantial economic impact. For example, the issuance of agency
guidance may induce private parties to alter their conduct to conform to
recommended standards or practices, thereby incurring costs beyond the
costs of complying with existing statutes and regulations. While it may
be difficult to predict with precision the economic impact of voluntary
guidance, the proposing OA or component of OST shall, to the extent
practicable, make a good faith effort to estimate the likely economic
cost impact of the guidance document to determine whether the document
might be significant. When an OA or OST component is assessing or
explaining whether it believes a guidance document is significant, it
should, at a minimum, provide the same level of analysis that would be
required for a major determination under the Congressional Review
Act.\2\ When an agency determines that a guidance document will be
economically significant, the OA or OST component should conduct and
publish a Regulatory Impact Analysis of the sort that would accompany an
economically significant rulemaking, to the extent reasonably possible.
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\2\ See OMB Memorandum M-19-14, Guidance on Compliance with the
Congressional Review Act (April 11, 2019).
---------------------------------------------------------------------------
Sec.5.35 Approved procedures for guidance documents identified as
``significant'' or ``otherwise of importance to the Department's
interests.''
(a) For guidance proposed to be issued by an OA, if there is a
reasonable possibility the guidance may be considered ``significant'' or
``otherwise of importance to the Department's interests'' within the
meaning of Sec.5.37 or if the OA is uncertain whether the guidance may
qualify as such, the OA should email a copy of the proposed guidance
document (or a summary of it) to the Office of Regulation for review and
further direction before issuance. Unless exempt under appendix A to the
Memorandum on the Review and Clearance of Guidance Documents,\3\ each
proposed DOT guidance document determined to be significant or otherwise
of importance to the Department's interests must be approved by the
Secretary before issuance. In such instances, the Office of Regulation
will request that the proposing OA or component of OST obtain a Z-RIN
[[Page 70]]
for departmental review and clearance through the Regulatory Management
System (RMS), or a successor data management system, and OGC will
coordinate submission of the proposed guidance document to the Secretary
for approval.
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\3\ See Appendix A to ``Memorandum on the Review and Clearance of
Guidance Documents,'' available at https://www.transportation.gov/sites/
dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-
documents-signed-122018.pdf.
---------------------------------------------------------------------------
(b) As with significant regulations, OGC will submit significant DOT
guidance documents to OMB for coordinated review. In addition, OGC may
determine that it is appropriate to coordinate with OMB in the review of
guidance documents that are otherwise of importance to the Department's
interests.
(c) If the guidance document is determined not to be either
significant or otherwise of importance to the Department's interests
within the meaning of Sec.5.37, the Office of Regulation will advise
the proposing OA or component of OST to proceed with issuance of the
guidance either through the Office of the Executive Secretariat (for
Federal Register notices) or through its standard clearance process. For
each guidance document coordinated through the Office of the Executive
Secretariat, the issuing OA or component of OST should include a
statement in the action memorandum indicating that the guidance document
has been reviewed and cleared in accordance with this process.
Sec.5.37 Definitions of ``significant guidance document'' and
guidance documents that are ``otherwise of importance to the
Department's interests.''
(a) The term ``significant guidance document'' means a guidance
document that will be disseminated to regulated entities or the general
public and that may reasonably be anticipated:
(1) To lead to an annual effect on the economy of $100 million or
more or adversely affect in a material way the U.S. economy, a sector of
the U.S. economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities;
(2) To create serious inconsistency or otherwise interfere with an
action taken or planned by another Federal agency;
(3) To alter materially the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) To raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866, as further amended.
(b) The term ``significant guidance document'' does not include the
categories of documents excluded by Sec.5.25(b) or any other category
of guidance documents exempted in writing by OGC in consultation with
OMB's Office of Information and Regulatory Affairs (OIRA).
(c) Significant and economically significant guidance documents must
be reviewed by OIRA under E.O. 12866 before issuance; and and must
demonstrate compliance with the applicable requirements for regulations
or rules, including significant regulatory actions, set forth in E.O.
12866, E.O. 13563, E.O. 13609, E.O. 13771, and E.O. 13777.
(d) Even if not ``significant,'' a guidance document will be
considered ``otherwise of importance to the Department's interests''
within the meaning of this paragraph if it may reasonably be
anticipated:
(1) To relate to a major program, policy, or activity of the
Department or a high-profile issue pending for decision before the
Department;
(2) To involve one of the Secretary's top policy priorities;
(3) To garner significant press or congressional attention; or
(4) To raise significant questions or concerns from constituencies
of importance to the Department, such as Committees of Congress, States
or Indian tribes, the White House or other departments of the Executive
Branch, courts, consumer or public interest groups, or leading
representatives of industry.
Sec.5.39 Designation procedures.
(a) The Office of Regulation may request an OA or OST component to
prepare a designation request for certain guidance documents.
Designation requests must include the following information:
(1) A summary of the guidance document; and
[[Page 71]]
(2) The OA or OST component's recommended designation of ``not
significant,'' ``significant,'' or ``economically significant,'' as well
as a justification for that designation.
(b) Except as otherwise provided in paragraph (c) of this section,
the Office of Regulation will seek significance determinations from OIRA
for certain guidance documents, as appropriate, in the same manner as
for rulemakings. Prior to publishing these guidance documents, and with
sufficient time to allow OIRA to review the document in the event that a
significance determination is made, the Office of Regulation should
provide OIRA with an opportunity to review the designation request or
the guidance document, if requested, to determine if it meets the
definition of ``significant'' or ``economically significant'' under
Executive Order 13891.
(c) Unless they present novel issues, significant risks, interagency
considerations, unusual circumstances, or other unique issues, the
categories of guidance documents found in appendix A \4\ do not require
designation by OIRA.
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\4\ See Appendix A to ``Memorandum on the Review and Clearance of
Guidance Documents,'' available at https://www.transportation.gov/sites/
dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-
documents-signed-122018.pdf.
---------------------------------------------------------------------------
Sec.5.41 Notice-and-comment procedures.
(a) Except as provided in paragraph (b) of this section, all
proposed DOT guidance documents determined to be a ``significant
guidance document'' within the meaning of Sec.5.37 shall be subject to
the following informal notice-and-comment procedures. The issuing OA or
component of OST shall publish a notice in the Federal Register
announcing that a draft of the proposed guidance document is publicly
available, shall post the draft guidance document on its website, shall
invite public comment on the draft document for a minimum of 30 days,
and shall prepare and post a public response to major concerns raised in
the comments, as appropriate, on its website, either before or when the
guidance document is finalized and issued.
(b) The requirements of paragraph (a) of this section will not apply
to any significant guidance document or categories of significant
guidance documents for which OGC finds, in consultation with OIRA, the
proposing OA or component of OST, and the Secretary, good cause that
notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest (and incorporates the finding of good
cause and a brief statement of reasons therefor in the guidance issued).
Unless OGC advises otherwise in writing, the categories of guidance
documents listed in appendix A \5\ will be exempt from the requirements
of paragraph (a) of this section.
---------------------------------------------------------------------------
\5\ See Appendix A to ``Memorandum on the Review and Clearance of
Guidance Documents,'' available at https://www.transportation.gov/sites/
dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-
documents-signed-122018.pdf.
---------------------------------------------------------------------------
(c) Where appropriate, OGC or the proposing OA or component of OST
may recommend to the Secretary that a particular guidance document that
is otherwise of importance to the Department's interests shall also be
subject to the informal notice-and-comment procedures described in
paragraph (a) of this section.
Sec.5.43 Petitions for guidance.
Any person may petition an OA or OST component to withdraw or modify
a particular guidance document by using the procedures found in Sec.
5.13(c). The OA or OST component should respond to all requests in a
timely manner, but no later than 90 days after receipt of the request.
Sec.5.45 Rescinded guidance.
No OA or component of OST may cite, use, or rely on guidance
documents that are rescinded, except to establish historical facts.
Sec.5.47 Exigent circumstances.
In emergency situations or when the issuing OA or component of OST
is required by statutory deadline or court order to act more quickly
than normal review procedures allow, the issuing OA or component of OST
shall coordinate with OGC to notify OIRA as soon
[[Page 72]]
as possible and, to the extent practicable, shall comply with the
requirements of this subpart at the earliest opportunity. Wherever
practicable, the issuing OA or component of OST should schedule its
proceedings to permit sufficient time to comply with the procedures set
forth in this subpart.
Sec.5.49 Reports to Congress and GAO.
Unless otherwise determined in writing by OGC, it is the policy of
the Department that upon issuing a guidance document determined to be
``significant'' within the meaning of Sec.5.37, the issuing OA or
component of OST will submit a report to Congress and GAO in accordance
with the procedures described in 5 U.S.C. 801 (the ``Congressional
Review Act'').
Sec.5.51 No judicial review or enforceable rights.
This subpart is intended to improve the internal management of the
Department of Transportation. As such, it is for the use of DOT
personnel only and is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its agencies or other entities, its
officers or employees, or any other person.
Subpart D_Enforcement Procedures
Sec.5.53 General.
The requirements set forth in this subpart apply to all enforcement
actions taken by each DOT operating administration (OA) and each
component of the Office of the Secretary of Transportation (OST) with
enforcement authority.
Sec.5.55 Enforcement attorney responsibilities.
All attorneys of OST and the OAs involved in enforcement activities
are responsible for carrying out and adhering to the policies set forth
in this subpart. All supervising attorneys with responsibility over
enforcement adjudications, administrative enforcement proceedings, and
other enforcement actions are accountable for the successful
implementation of these policies and for reviewing and monitoring
compliance with this subpart by the employees under their supervision.
These responsibilities include taking all steps necessary to ensure that
the Department provides a fair and impartial process at each stage of
enforcement actions. The Office of Litigation and Enforcement within the
Office of the General Counsel (OGC) is delegated authority to interpret
this subpart and provide guidance on compliance with the policies
contained herein. The Office of Litigation and Enforcement shall
exercise this authority in coordination with the Chief Counsels of the
OAs and subject to the direction and supervision of the General Counsel.
Sec.5.57 Definitions.
Administrative enforcement proceeding is to be interpreted broadly,
consistent with applicable law and regulations, and includes, but is not
limited to, administrative civil penalty proceedings; proceedings
involving potential cease-and-desist or corrective action orders;
preemption proceedings; safety rating appeals; pilot and mechanic
revocation proceedings; grant suspensions, terminations, or other
actions to remedy violations of grant conditions; and similar
enforcement-related proceedings.
Administrative law judges (ALJs) are adjudicatory hearing officers
appointed by a department head to serve as triers of fact in formal and
informal administrative proceedings and to issue recommended decisions
in adjudications. At DOT, ALJs are to be appointed by the Secretary of
Transportation and assigned to the Office of Hearings.
Adversarial personnel are those persons who represent a party
(including the agency) or a position or interest at issue in an
enforcement action taken or proposed to be taken by or for an agency.
They include the agency's employees who investigate, prosecute, or
advocate on behalf of the agency in connection with the enforcement
action.
Decisional personnel are employees of the agency responsible for
issuing decisions arising out of the agency's enforcement actions, which
include formal or informal enforcement adjudications. These employees
include ALJs,
[[Page 73]]
hearing officers, Administrative Judges (AJs), and agency employees who
advise and assist such decision makers.
Due process means procedural rights and protections afforded by the
Government to affected parties to provide for a fair process in the
enforcement of legal obligations, including in connection with agency
actions determining a violation of law, assessing a civil penalty,
requiring a party to take corrective action or to cease and desist from
conduct, or otherwise depriving a party of a property or liberty
interest. Due process always includes two essential elements for a party
subject to an agency enforcement action: adequate notice of the proposed
agency enforcement action and a meaningful opportunity to be heard by
the agency decision maker.
Enabling act means the Federal statute that defines the scope of an
agency's authority and authorizes it to undertake an enforcement action.
Enforcement action means an action taken by the Department upon its
own initiative or at the request of an affected party in furtherance of
its statutory authority and responsibility to execute and ensure
compliance with applicable laws. Such actions include administrative
enforcement proceedings, enforcement adjudications, and judicial
enforcement proceedings.
Enforcement adjudication is the administrative process undertaken by
the agency to resolve the legal rights and obligations of specific
parties with regard to a particular enforcement issue pending before an
agency. The outcome of an enforcement adjudication is a formal or
informal decision issued by an appropriate decision maker. Enforcement
adjudications require the opportunity for participation by directly
affected parties and the right to present a response to a decision
maker, including relevant evidence and reasoned arguments.
Formal enforcement adjudication means an adjudication required by
statute to be conducted ``on the record.'' The words ``on the record''
generally refer to a decision issued by an agency after a proceeding
conducted before an ALJ (or the agency head sitting as judge or other
presiding employee who is not an ALJ) using trial-type procedures. It is
usually the agency's enabling act, not the APA, that determines whether
a formal hearing is required.
Informal enforcement adjudication means an adjudication that is not
required to be conducted ``on the record'' with trial-like procedures.
The APA provides agencies with a substantial degree of flexibility in
establishing practices and procedures for the conduct of informal
adjudications.
Investigators, inspectors, and special agents refer to those agency
employees or agents responsible for the investigation and review of an
affected party's compliance with the regulations and other legal
requirements administered by the agency.
Judicial enforcement proceeding means a proceeding conducted in an
Article III court, in which the Department is seeking to enforce an
applicable statute, regulation, or order.
Procedural regulations are agency regulations setting forth the
procedures to be followed during adjudications consistent with the
agency's enabling act, the APA, and other applicable laws.
Sec.5.59 Enforcement policy generally.
It is the policy of the Department to provide affected parties
appropriate due process in all enforcement actions. In the course of
such actions and proceedings, the Department's conduct must be fair and
free of bias and should conclude with a well-documented decision as to
violations alleged and any violations found to have been committed, the
penalties or corrective actions to be imposed for such violations, and
the steps needed to ensure future compliance. It is in the public
interest and fundamental to good government that the Department carry
out its enforcement responsibilities in a fair and just manner. No
person should be subject to an administrative enforcement action or
adjudication absent prior public notice of both the enforcing agency's
jurisdiction over particular conduct and the legal standards applicable
to that conduct. The Department should, where feasible, foster greater
private-sector cooperation in enforcement, promote information sharing
with the private sector, and establish
[[Page 74]]
predictable outcomes for private conduct.
Sec.5.61 Investigative functions.
DOT's investigative powers must be used in a manner consistent with
due process, basic fairness, and respect for individual liberty and
private property. Congress has granted the Secretary (and by delegation
from the Secretary to the OAs) and the FAA Administrator broad
investigative powers, and it is an essential part of DOT's safety and
consumer protection mission to investigate compliance with the statutes
and regulations administered by the Department, including through
periodic inspections. The OAs and components of OST with enforcement
authority are appropriately given broad discretion in determining
whether and how to conduct investigations, periodic inspections, and
other compliance reviews, and these investigative functions are often
performed by agency investigators or inspectors in the field. The
employees and contractors of DOT responsible for inspections and other
investigative functions must not use these authorities as a game of
``gotcha'' with regulated entities and should follow existing statutes
and regulations. Rather, to the maximum extent consistent with
protecting the integrity of the investigation, the representatives of
DOT should promptly disclose to the affected parties the reasons for the
investigative review and any compliance issues identified or findings
made in the course of the review. The responsible enforcement attorneys
within the relevant OA or component of OST shall provide effective legal
guidance to investigators and inspectors to ensure adherence to the
policies and procedures set forth herein.
Sec.5.63 Clear legal foundation.
All DOT enforcement actions against affected parties seeking redress
for asserted violations of a statute or regulation must be founded on a
grant of statutory authority in the relevant enabling act. The authority
to prosecute the asserted violation and the authority to impose monetary
penalties, if sought, must be clear in the text of the statute. Unless
the terms of the relevant statute or regulation with government-wide
applicability, such as 2 CFR part 180, clearly and expressly authorize
the OA or component of OST to enforce the relevant legal requirement
directly through an administrative enforcement proceeding, the proper
forum for the enforcement action is Federal court, and the enforcement
action must be initiated in court by attorneys of the Department of
Justice acting in coordination with DOT counsel.
Sec.5.65 Proper exercise of prosecutorial and enforcement discretion.
The Department's attorneys and policy makers have broad discretion
in deciding whether to initiate an enforcement action. Nevertheless, in
exercising discretion to initiate an enforcement action and in the
pursuit of that action, agency counsel must not adopt or rely upon
overly broad or unduly expansive interpretations of the governing
statutes or regulations, and should ensure that the law is interpreted
and applied according to its text. DOT will not rely on judge-made rules
of judicial discretion, such as the Chevron doctrine, as a device or
excuse for straining the limits of a statutory grant of enforcement
authority. All decisions by DOT to prosecute or not to prosecute an
enforcement action should be based upon a reasonable interpretation of
the law about which the public has received fair notice and should be
made with due regard for fairness, the facts and evidence adduced
through an appropriate investigation or compliance review, the
availability of scarce resources, the administrative needs of the
responsible OA or OST component, Administration policy, and the
importance of the issues involved to the fulfillment of the Department's
statutory responsibilities.
Sec.5.67 Duty to review for legal sufficiency.
In accordance with established agency procedures, enforcement
actions should be reviewed by the responsible agency component for legal
sufficiency
[[Page 75]]
under applicable statutes and regulations, judicial decisions, and other
appropriate authorities.\6\ If, in the opinion of the responsible agency
component or its counsel, the evidence is sufficient to support the
assertion of violation(s), then the agency may proceed with the
enforcement action. If the evidence is not sufficient to support the
proposed enforcement action, the agency may modify or amend the charges
and bring an enforcement action in line with the evidence or return the
case to the enforcement staff for additional investigation. The
reviewing attorney or agency component may also recommend the closure of
the case for lack of sufficient evidence.\7\ The Department will not
initiate enforcement actions as a ``fishing expedition'' to find
potential violations of law in the absence of sufficient evidence in
hand to support the assertion of a violation.
---------------------------------------------------------------------------
\6\ Though it may not always be feasible or necessary for agency
personnel to consult with counsel before initiating an enforcement
action, particularly since the OAs utilize a variety of enforcement
personnel to staff their enforcement programs, including personnel
located in the fields, agency personnel should ensure that the basis for
an enforcement action is legally sufficient before initiating it.
\7\ Attorneys at many of the OAs issue Notices of Probable
Violations, Notice of Claims, or Demand Letters to initiate enforcement
proceedings. At other OAs, these documents are issued by non-attorney
program officials. The duty to review applies equally to all agency
attorneys whether deciding to issue a document to initiate enforcement
proceedings or to continue to prosecute based upon a document previously
issued by a non-attorney program official. In the latter situation, it
is important that attorneys provide legal input, training, and review of
the work product of the program office. At all times, DOT attorneys are
encouraged to exercise their best professional judgment in deciding to
initiate, continue, or recommend closing a case, consistent with
applicable legal and ethical standards.
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Sec.5.69 Fair notice.
Notice to the regulated party is a due process requirement. All
documents initiating an enforcement action shall ensure notice
reasonably calculated to inform the regulated party of the nature and
basis for the action being taken to allow an opportunity to challenge
the action and to avoid unfair surprise. The notice should include legal
authorities, statutes or regulations allegedly violated, basic issues,
key facts alleged, a clear statement of the grounds for the agency's
action, and a reference to or recitation of the procedural rights
available to the party to challenge the agency action, including
appropriate procedure for seeking administrative and judicial review.
Sec.5.71 Separation of functions.
For those OAs or OST components whose regulations provide for a
separation of decisional personnel from adversarial personnel in an
administrative enforcement proceeding, any agency personnel who have
taken an active part in investigating, prosecuting, or advocating in the
enforcement action should not serve as a decision maker and should not
advise or assist the decision maker in that same or a related case. In
such proceedings, the agency's adversarial personnel should not furnish
ex parte advice or factual materials to decisional personnel. When and
as necessary, agency employees involved in enforcement actions should
consult legal counsel and applicable regulations and ethical standards
for further guidance on these requirements.
Sec.5.73 Avoiding bias.
Consistent with all applicable laws and ethical standards relating
to recusals and disqualifications, no Federal employee or contractor may
participate in a DOT enforcement action in any capacity, including as
ALJ, adjudication counsel, adversarial personnel, or decisional
personnel, if that person has:
(a) A financial or other personal interest that would be affected by
the outcome of the enforcement action;
(b) Personal animus against a party to the action or against a group
to which a party belongs;
(c) Prejudgment of the adjudicative facts at issue in the
proceeding; or
(d) Any other prohibited conflict of interest.
[[Page 76]]
Sec.5.75 Formal enforcement adjudications.
When a case is referred by the decision maker to the Office of
Hearings or another designated hearing officer for formal adjudication
(an ``on the record'' hearing), the assigned ALJ or hearing officer
should use trial-type procedures consistent with applicable legal
provisions. In formal adjudication, the APA requires findings and
reasons on all material issues of fact, law, or discretion (policy). In
all formal adjudications, the responsible OA or component of OST shall
adhere faithfully and consistently to the procedures established in the
relevant procedural regulations. Agency counsel engaged in formal
adjudications on behalf of DOT are accountable for compliance with the
requirements of this subpart.
Sec.5.77 Informal enforcement adjudications.
Even though informal adjudications do not require trial-type
procedures, the responsible OA or component of OST should ordinarily
afford the applicant or the regulated entity that is the subject of the
adjudication (as the case may be), as well as other directly affected
parties (if any), adequate notice and an opportunity to be heard on the
matter under review, either through an oral presentation or through a
written submission. Except in cases of a safety emergency or when the
clear text of the relevant enabling act or government-wide regulation,
such as 2 CFR part 180, expressly authorizes exigent enforcement action
without a prior hearing, the responsible OA or component of OST shall
give the regulated entity appropriate advance notice of the proposed
enforcement action and shall advise the entity of the opportunity for an
informal hearing in a manner and sufficiently in advance that the
entity's representatives have a fair opportunity to prepare for and to
participate in the hearing, whether in person or by writing. The notice
should be in plain language and, when appropriate, contain basic
information about the applicable adjudicatory process. In all informal
adjudications, the responsible OA or component of OST shall adhere
faithfully and consistently to the procedures established in any
applicable procedural regulations.
Sec.5.79 The hearing record.
In formal hearings, the agency shall comply with the APA and shall
include in the record of the hearing the testimony, exhibits, papers,
and requests that are filed by parties to the hearing, in addition to
the ALJ's or hearing officer's decision or the decision on appeal. For
informal hearings, the record shall include the information that the
agency considered ``at the time it reached the decision'' and its
contemporaneous findings. The administrative record does not include
privileged documents, such as attorney-client communications or
deliberative or draft documents. Agencies are encouraged to make the
record available to all interested parties to the fullest extent allowed
by law, consistent with appropriate protections for the handling of
confidential information.
Sec.5.81 Contacts with the public.
After the initiation of an enforcement proceeding, communications
between persons outside the agency and agency decisional personnel
should occur on the record. Consistent with applicable regulations and
procedures, if oral, written, or electronic ex parte communications
occur, they should be placed on the record as soon as practicable.
Notice should be given to the parties that such communications are being
placed into the record. When performing departmental functions, all DOT
employees should properly identify themselves as employees of the
Department, including the OA or component of OST in which they work;
they should properly show official identification if the contact is made
in person; and they should clearly state the nature of their business
and the reasons for the contact. All contacts by DOT personnel with the
public shall be professional, fair, honest, direct, and consistent with
all applicable ethical standards.
Sec.5.83 Duty to disclose exculpatory evidence.
It is the Department's policy that each responsible OA or component
of OST will voluntarily follow in its civil
[[Page 77]]
enforcement actions the principle articulated in Brady v. Maryland, \8\
in which the Supreme Court held that the Due Process Clause of the Fifth
Amendment requires disclosure of exculpatory evidence ``material to
guilt or punishment'' known to the government but unknown to the
defendant in criminal cases. Adopting the ``Brady rule'' and making
affirmative disclosures of exculpatory evidence in all enforcement
actions will contribute to the Department's goal of open and fair
investigations and administrative enforcement proceedings. This policy
requires the agency's adversarial personnel to disclose materially
exculpatory evidence in the agency's possession to the representatives
of the regulated entity whose conduct is the subject of the enforcement
action. These affirmative disclosures should include any material
evidence known to the Department's adversarial personnel that may be
favorable to the regulated entity in the enforcement action--including
evidence that tends to negate or diminish the party's responsibility for
a violation or that could be relied upon to reduce the potential fine or
other penalties. The regulated entity need not request such favorable
information; it should be disclosed as a matter of course. Agency
counsel should recommend appropriate remedies to DOT decision makers
where a Brady rule violation has occurred, using the factors identified
by courts when applying the Brady rule in the criminal context.
---------------------------------------------------------------------------
\8\ Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
Sec.5.85 Use of guidance documents in administrative enforcement
cases.
Guidance documents cannot create binding requirements that do not
already exist by statute or regulation. Accordingly, the Department may
not use its enforcement authority to convert agency guidance documents
into binding rules. Likewise, enforcement attorneys may not use
noncompliance with guidance documents as a basis for proving violations
of applicable law. Guidance documents can do no more, with respect to
prohibition of conduct, than articulate the agency or Department's
understanding of how a statute or regulation applies to particular
circumstances. The Department may cite a guidance document to convey
this understanding in an administrative enforcement action or
adjudication only if it has notified the public of such document in
advance through publication in the Federal Register or on the
Department's website. Additional procedures related to guidance
documents are contained in part 5, subpart C, of this chapter.
Sec.5.87 Alternative Dispute Resolution (ADR).
The OAs and the components of OST with enforcement authority are
encouraged to use ADR to resolve enforcement cases where appropriate.
The Department's ADR policy describes a variety of problem-solving
processes that can be used in lieu of litigation or other adversarial
proceedings to resolve disputes over compliance.
Sec.5.89 Duty to adjudicate proceedings promptly.
Agency attorneys should promptly initiate proceedings or prosecute
matters referred to them. In addition, cases should not be allowed to
linger unduly after the adjudicatory process has begun. Attorneys should
seek to settle matters where possible or refer the case to a decision
maker for proper disposition when settlement negotiations have reached
an impasse.
Sec.5.91 Agency decisions.
Agency counsel may be used in the conduct of informal hearings and
to prepare initial recommended decisions for the agency decision maker.
The agency must notify the directly affected parties of its decision,
and the decision must reasonably inform the parties in a timely manner
of the additional procedural rights available to them.
Sec.5.93 Settlements.
Settlement conferences may be handled by appropriate agency counsel
without the involvement of the agency's decision maker. Once a matter is
settled by compromise, that agreement should be reviewed and accepted by
an appropriate supervisor. The responsible
[[Page 78]]
OA or component of OST should issue an order adopting the terms of the
settlement agreement as the final agency decision, where and as
authorized by statute or regulation. No DOT settlement agreement,
consent order, or consent decree should be used to adopt or impose new
regulatory obligations for entities that are not parties to the
settlement. Unless required by law, settlement agreements are not
confidential and are subject to public disclosure.
Sec.5.95 OGC approval required for certain settlement terms.
Whenever a proposed settlement agreement, consent order, or consent
decree would impose behavioral commitments or obligations on a regulated
entity that go beyond the requirements of relevant statutes and
regulations, including the appointment of an independent monitor or the
imposition of novel, unprecedented, or extraordinary obligations, the
responsible OA or OST component should obtain the approval of OGC before
finalizing the settlement agreement, consent order, or consent decree.
Sec.5.97 Basis for civil penalties and disclosures thereof.
No civil penalties will be sought in any DOT enforcement action
except when and as supported by clear statutory authority and sufficient
findings of fact. Where applicable statutes vest the agency with
discretion with regard to the amount or type of penalty sought or
imposed, the penalty should reflect due regard for fairness, the scale
of the violation, the violator's knowledge and intent, and any
mitigating factors (such as whether the violator is a small business).
The assessment of proposed or final penalties in a DOT enforcement
action shall be communicated in writing to the subject of the action,
along with a full explanation of the basis for the calculation of
asserted penalties. In addition, the agency shall voluntarily share
penalty calculation worksheets, manuals, charts, or other appropriate
materials that shed light on the way penalties are calculated to ensure
fairness in the process and to encourage a negotiated resolution where
possible.
Sec.5.99 Publication of decisions.
The agency's decisions in informal adjudications are not required to
be published under the APA. However, where the agency intends to rely on
its opinions in future cases, those opinions must generally be made
available on agency websites or in agency reading rooms (and publication
on Westlaw, Lexis, or similar legal services is also highly
recommended). The APA has been read to require that opinions in formal
adjudications must be made ``available for public inspection and
copying.'' Agencies are strongly encouraged to publish all formal
decisions on Westlaw, Lexis, or similar legal services.
Sec.5.101 Coordination with the Office of Inspector General
on criminal matters.
All Department employees must comply with the operative DOT Order(s)
addressing referrals of potential criminal matters to the Office of
Inspector General (OIG), consistent with the respective roles of the OIG
and DOT OAs and components of OST in criminal investigations and the
OIG's investigative procedures under the Inspector General Act of 1978,
as amended.
Sec.5.103 Standard operating procedures.
All legal offices that participate in or render advice in connection
with enforcement actions should, to the extent practicable, operate
under standard operating procedures. Such offices include, but are not
limited to, those that oversee investigatory matters and serve as
adversarial personnel in the agency's enforcement matters. These
standard operating procedures, which can be contained in manuals, can be
used to outline step-by-step requirements for attorney actions in the
investigative stage and the prosecution stage; the role of an attorney
as counselor, adjudicator, or litigator; the rulemaking process; and the
process for issuance of guidance documents, letters of interpretation,
preemption decisions, legislative guidance, contract administration, and
a variety of other legal functions performed in the legal office. Each
DOT OA and each OST
[[Page 79]]
component that conducts administrative inspections shall operate under
those procedures governing such inspections and shall adopt such
administrative inspection procedures if they do not exist. Those
procedures shall be updated in a timely manner as needed.
Sec.5.105 Cooperative Information Sharing.
The Department, as appropriate and to the extent practicable and
permitted by law, shall:
(a) Encourage voluntary self-reporting of regulatory violations by
regulated parties in exchange for reduction or waivers of civil
penalties;
(b) Encourage voluntary information sharing by regulated parties;
and
(c) Provide pre-enforcement rulings to regulated parties (formal and
informal interpretations).
Sec.5.107 Small Business Regulatory Enforcement Fairness Act
Compliance (SBREFA).
The Department shall comply with the terms of SBREFA when conducting
administrative inspections and adjudications, including section 223 of
SBREFA (reduction or waivers of civil penalties, where appropriate). The
Department will also cooperate with the Small Business Administration
(SBA) when a small business files a comment or complaint related to
DOT's inspection authority and when requested to answer SBREFA
compliance requests.
Sec.5.109 Referral of matters for judicial enforcement.
In considering whether to refer a matter for judicial enforcement by
the Department of Justice, DOT attorneys should consult the applicable
procedures set forth by the General Counsel, including in the document
entitled ``Partnering for Excellence: Coordination of Legal Work Within
the U.S. Department of Transportation,'' and any update or supplement to
such document issued hereafter by the General Counsel. The specific
procedures for initiating an affirmative litigation request are
currently found in the coordination document at Section 11.B.l.,
``Affirmative Litigation Requests to the Department of Justice.'' In
most instances, requests to commence affirmative litigation must be
reviewed by OGC, with such reviews coordinated through the Office of
Litigation and Enforcement.
Sec.5.111 No third-party rights or benefits.
This subpart is intended to improve the internal management of the
Department. As such, it is for the use of DOT personnel only and is not
intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the
United States, its agencies, officers, or any person.
PART 6_IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY
PROCEEDINGS--Table of Contents
Subpart A_General Provisions
Sec.
6.1 Purpose of these rules.
6.3 Applicability.
6.5 Proceedings covered.
6.7 Eligibility of applications.
6.9 Standards for awards.
6.11 Allowable fees and expenses.
6.13 Delegations of authority.
Subpart B_Information Required from Applicants
6.17 Contents of application.
6.19 Net worth exhibit.
6.21 Documentation of fees and expenses.
Subpart C_Procedures for Considering Applications
6.23 Filing and service of documents.
6.25 Answer to application.
6.27 Comments by other parties.
6.29 Settlement.
6.31 Further proceedings.
6.33 Decision.
6.35 Agency review.
6.37 Judicial review.
6.39 Payment of award.
Authority: 5 U.S.C. 504; 28 U.S.C. 2412.
Source: 48 FR 1070, Jan. 10, 1983, unless otherwise noted.
Subpart A_General Provisions
Sec.6.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in
this part), provides for the award of attorney fees and other expenses
to eligible
[[Page 80]]
individuals and entities who are parties to certain administrative
proceedings (called ``adversary adjudications'') before government
agencies, such as the Department of Transportation or any of its
operating administrations. The rules in this part describe the parties
eligible for awards and the proceedings that are covered. They also
explain how to apply for awards, and the procedures and standards that
this agency will use to make them. The use of the term ``Department'',
in this rule, will be understood to mean the Department of
Transportation or any of its operating administrations, unless otherwise
specified. The term ``agency counsel'' will be understood to mean
counsel for the Department of Transportation or any of its operating
administrations.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]
Sec.6.3 Applicability.
Section 6.9(a) applies to any adversary adjudication pending before
the Department on or after October 1, 1981. In addition, applicants for
awards must also meet the standards of Sec.6.9(b) for any adversary
adjudication commenced on or after March 29, 1996.
[62 FR 19233, Apr. 21, 1997]
Sec.6.5 Proceedings covered.
(a) The Act applies to adversarial adjudications conducted by the
Department of Transportation. These are adjudications under 5 U.S.C. 554
in which the position of the Department is represented by an attorney or
other representative who enters an appearance and participates in the
proceeding. Coverage of the Act begins at designation of a proceeding or
issuance of a charge sheet. Any proceeding in which the Department may
prescribe or establish a lawful present or future rate is not covered by
the Act. Proceedings to grant or renew licenses are also excluded, but
proceedings to modify, suspend, or revoke licenses are covered if they
are otherwise ``adversary adjudications.'' For the Department of
Transportation, the types of proceedings covered include, but may not be
limited to: National Highway Traffic Safety Administration (NHTSA)
automotive fuel economy enforcement under 49 CFR part 511; Federal Motor
Carrier Safety Administration (FMCSA) enforcement of motor carrier
safety regulations under 49 CFR 386; and the Department's aviation
economic enforcement proceedings conducted by its Office of Aviation
Enforcement and Proceedings pursuant to 14 CFR Chapter II. Also covered
is any hearing conducted under Chapter 38 of title 31 of the U.S. Code
or the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et
seq.).
(b) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997; 81
FR 71385, Oct. 17, 2016]
Sec.6.7 Eligibility of applications.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to an adversary
adjudication for which it seeks an award. The term ``party'' is defined
in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all
conditions of eligibility set out in this subpart and in paragraph (b)
of this section.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees.
(3) A charitable or other tax-exempt organization as described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with a net worth of not
more than $5 million and not more than 500 employees.
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $7 million and
not more than 500 employees.
[[Page 81]]
(6) For the purposes of Sec.6.9(b), eligible applicants include
small entities as defined in 5 U.S.C. 601.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was designated.
(d) An applicant who owns an unincorporated business will be
considered an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(e) The number of employees of an applicant includes all persons who
regularly perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the administrative law judge determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
administrative law judge may determine that financial relationships of
the applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(h) An applicant who appears pro se in a proceeding is ineligible
for award of attorney fees. However, eligibility for other expenses is
not affected by pro se representation.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
Sec.6.9 Standards for awards.
(a) An eligible applicant may receive an award for fees and expenses
incurred by that party in connection with a decision in favor of the
applicant in a proceeding covered by this Part, unless the position of
the Department over which the applicant has prevailed was substantially
justified or special circumstances make the award sought unjust. The
burden of proof that an award should not be made to an eligible
applicant is on the Department where it has initiated the proceeding. No
presumption arises that the Department's position was not substantially
justified simply because the Department did not prevail. Whether or not
the position of the Department was substantially justified shall be
determined on the basis of the administrative record, as a whole, in the
adversary adjudication for which fees and other expenses are sought. The
``position of the Department'' means, in addition to the position taken
by the agency in the adversary adjudication, the action or failure to
act by the Department upon which the adversary adjudication may be
based.
(b) In the context of a Departmental proceeding to enforce a party's
compliance with a statutory or regulatory requirement, if the demand by
the Department is substantially in excess of the amount awarded to the
government pursuant to the decision of the adjudicative officer and is
unreasonable when compared with such decision, under the facts and
circumstances of the case, the adjudicative officer shall award to an
eligible applicant party the fees and expenses related to defending
against the excessive demand, unless the applicant party has committed a
willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Fees and expenses awarded under this
paragraph shall be paid only as a consequence of appropriations provided
in advance. As used in this section, ``demand'' means the express demand
of the Department which led to the adversary adjudication, but does not
include a recitation by the Department of the maximum statutory penalty
(i) In the administrative complaint, or
[[Page 82]]
(ii) Elsewhere when accompanied by an express demand for a lesser
amount.
(c) The decision of the Department on the application for fees and
other expenses shall be the final administrative decision under this
section.
(d) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding.
[62 FR 19234, Apr. 21, 1997]
Sec.6.11 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents or expert
witnesses.
(b) No award for the fee of an attorney or agent under these rules
may exceed $125.00 per hour. This amount shall include all other
expenses incurred by the attorney or agent in connection with the case.
No award to compensate an expert witness may exceed the highest market
rate at which the Department pays expert witnesses, or $24.09 per hour,
whichever is less.
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the administrative law judge shall
consider the following:
(1) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(e) Fees may be awarded only for work performed after designation of
a proceeding.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
Sec.6.13 Delegations of authority.
The Secretary of Transportation delegates to the head of each
operating administration of this Department the authority to take final
action, other than rulemaking, on matters pertaining to the Act in
actions that require section 554 proceedings. The head of each operating
administration may redelegate this authority.
Subpart B_Information Required from Applicants
Sec.6.17 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of an agency or agencies in the proceeding that
the applicant alleges was not substantially justified. Unless the
applicant is an individual, the application shall also state that it did
not have more than 500 employees at the time the proceeding was
initiated, giving the number of employees of the applicant and
describing briefly the type and purpose of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $1 million (if an individual) or
$5 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a)
[[Page 83]]
of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes this agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer or attorney of the applicant. It shall also contain
or be accompanied by a written verification under oath or under penalty
of perjury that the information provided in the application is true and
correct.
(f) If the applicant is a partnership, corporation, association, or
organization, or a sole owner of an unincorporated business, the
application shall state that it did not have more than 500 employees at
the time the proceeding was initiated, giving the number of its
employees and describing briefly the type and purpose of its
organization or business.
Sec.6.19 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in this part) when the proceeding was designated. If any
individual, corporation, or other entity directly or indirectly controls
or owns a majority of the voting shares or other interest of the
applicant, or if the applicant directly or indirectly owns or controls a
majority of the voting shares or other interest of any corporation or
other entity, the exhibit must include a showing of the net worth of all
such affiliates or of the applicant including the affiliates. The
exhibit may be in any form convenient to the applicant that provides
full disclosure of the applicant's and its affiliates' assets and
liabilities and is sufficient to determine whether the applicant
qualifies under the standards in this subpart. The administrative law
judge may require an applicant to file additional information to
determine its eligibility for an award.
(b) The net worth exhibit shall describe any transfers of assets
from, or obligations incurred by, the applicant or any affiliate,
occurring in the one-year period prior to the date on which the
proceeding was initiated, that reduced the net worth of the applicant
and its affiliates below the applicable net worth ceiling. If there were
no such transactions, the applicant shall so state.
(c) The net worth exhibit shall be included in the public record of
the proceeding.
Sec.6.21 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of
the fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought.
(b) The documentation shall include an affidavit from any attorney,
agent, or expert witness representing or appearing in behalf of the
party, stating the actual time expended and the rate at which fees and
other expenses were computed and describing the specific services
performed.
(1) The affidavit shall state the services performed. In order to
establish the hourly rate, the affidavit shall state the hourly rate
which is billed and paid by the majority of clients during the relevant
time periods.
(2) If no hourly rate is paid by the majority of clients because,
for instance, the attorney or agent represents most clients on a
contingency basis, the attorney or agent shall provide information about
two attorneys or agents with similar experience, who perform similar
work, stating their hourly rate.
(c) The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of the
amounts paid and payable by the applicant or by any other person or
entity for the services provided.
(d) The administrative law judge may require the applicant to
provide vouchers, receipts, or other substantiation for any expenses
claimed.
(e) The administrative law judge may, within his or her discretion,
[[Page 84]]
make a determination as to whether a study, conducted by the applicant,
was necessary to the preparation of the applicant's case.
Subpart C_Procedures for Considering Applications
Sec.6.23 Filing and service of documents.
Any application for an award or other pleading or document related
to an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding.
Sec.6.25 Answer to application.
(a) Within 30 calendar days after service of an application, the
agency counsel may file an answer to the application. Unless the agency
counsel requests an extension of time for filing or files a statement of
intent to negotiate under paragraph (b) of this section, failure to file
an answer within the 30-day period may be treated as a consent to the
award request.
(b) If agency counsel and applicant believe that they can reach a
settlement concerning the award, the agency counsel may file a statement
of intent to negotiate. The filing of such a statement shall extend the
time for filing an answer an additional 30 days.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of the
Department's position. If the answer is based on any alleged facts not
already in the record of the proceeding, the Department shall include
with the answer either supporting affidavits or a request for further
proceedings under Sec.6.3.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
Sec.6.27 Comments by other parties.
Any party to a proceeding, other than the applicant and the
Department may file comments on an application within 30 days after it
is served or on an answer within 15 days after it is served. A
commenting party may not participate further in proceedings on the
application.
Sec.6.29 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded, in accordance with the
agency's standard settlement procedure. If a prevailing party and the
agency counsel agree on a proposed settlement of an award before an
application has been filed the application shall be filed with the
proposed settlement.
Sec.6.31 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the applicant
or agency counsel, or on his or her own initiative, the administrative
law judge may order further proceedings, such as an informal conference,
oral argument, additional written submissions or an evidentiary hearing.
Such further proceedings shall be held only when necessary for full and
fair resolution of the issues arising from the application, and shall be
conducted as promptly as possible.
(b) A request that the administrative law judge order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
Sec.6.33 Decision.
The administrative law judge shall issue an initial decision on the
application as soon as possible after completion of proceedings on the
application. The decision shall also include, if at issue, findings on
whether the Department's position was substantially justified, whether
the applicant unduly protracted the proceedings, or whether special
circumstances make an award unjust. If the applicant has sought an award
against more than one agency, the decision shall allocate responsibility
for payment or any award made among the agencies, and shall explain the
reasons for the allocation made.
[[Page 85]]
Sec.6.35 Agency review.
Where Department review of the underlying decision is permitted,
either the applicant or agency counsel, may seek review of the initial
decision on the fee application, or the Department may decide to review
the decision on its own initiative. If neither the applicant nor the
agency counsel seeks review within 30 days after the decision is issued,
it shall become final.
Sec.6.37 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
Sec.6.39 Payment of award.
An applicant seeking payment of an award from the Department of
Transportation or any of its operating administrations under this part
shall submit a copy of the Department of Transportation's or any of its
operating administration's final decisions granting the award,
accompanied by a statement that the applicant will not seek review of
the decision in the United States courts. The copy of the decision and
the statement should be submitted to the head of the affected operating
administration or the Secretary of Transportation, where the Department
of Transportation, Office of the Secretary, has initiated the
proceedings.
PART 7_PUBLIC AVAILABILITY OF INFORMATION--Table of Contents
Subpart A_General Provisions
Sec.
7.1 General.
7.2 Definitions.
Subpart B_Information Required To Be Made Public by DOT
7.11 What records are published in the Federal Register, and how are
they accessed?
7.12 What records are available in reading rooms, and how are they
accessed?
7.13 How are copies of publicly available records obtained?
7.14 Redaction of Information That is Exempt from Disclosure.
7.15 Protection of Records.
Subpart C_Availability of Reasonably Described Records
Under the Freedom of Information Act
7.21 What does this subpart cover?
7.22 Who administers this subpart?
7.23 What limitations apply to disclosure?
7.24 How do I submit a FOIA request?
7.25 How does DOT handle first-party requests?
7.26 To what extent and in what format are records searched and made
available?
7.27 What are the designated DOT FOIA Requester Service Centers?
7.28 How does DOT handle requests that concern more than one Government
agency?
7.29 When and how does DOT consult with submitters of commercial
information?
Subpart D_Time Limits
7.31 What time limits apply to DOT with respect to initial
determinations?
7.32 What time limits apply to a requester when appealing DOT's initial
or final determination?
7.33 What time limits apply to DOT with respect to administrative
appeals (final determinations)?
7.34 When and how are time limits applicable to DOT extended?
7.35 When and how is the twenty day time limit for rendering an initial
determination tolled?
Subpart E_Fees
7.41 When and how are processing fees imposed for records that are made
available under subpart B or processed under subpart C of this
part?
7.42 What is DOT's fee schedule for records requested under subpart C of
this part?
7.43 When are fees waived or reduced for records requested under subpart
C of this part?
7.44 How can I pay a processing fee for records requested under subpart
B or subpart C of this part?
7.45 When are pre-payments required for records requested under subpart
C of this part, and how are they handled?
7.46 How are late payments handled?
Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600;
E.O. 13392.
Source: 79 FR 16209, Mar. 25, 2014, unless otherwise noted.
Subpart A_General Provisions
Sec.7.1 General.
(a) This part implements the Freedom of Information Act, 5 U.S.C.
552, as
[[Page 86]]
amended, and prescribes rules governing the public availability of
Department of Transportation (DOT) records.
(b) Subpart B of this part contains the DOT regulations concerning
the public availability of:
(1) Records and indices that DOT is required to publish in the
Federal Register pursuant to 5 U.S.C. 552(a)(1) (described in Sec.
7.11(a)); and
(2) Records and indices that DOT is required to make available to
the public in a reading room without need for a specific request,
pursuant to 5 U.S.C. 552(a)(2) (described in Sec.7.12(a)).
(c) Subpart C of this Part contains the DOT regulations concerning
records that may be requested from DOT under the FOIA, namely, records
that DOT is not required to publish in the Federal Register or make
publicly available in a reading room under 5 U.S.C. 552(a)(2)(A), (B),
(C), and (E) and frequently requested records even if DOT has made them
publicly available as required under 5 U.S.C. 552(a)(2)(D). Because DOT
and its components make many of these records available on their Web
pages (http://www.dot.gov or http://www.dot.gov/foia), requesters may
find it preferable to obtain such records directly from the Web pages
instead of submitting a FOIA request, if the Web pages contain records
that meet their needs.
(d) Subpart D of this part contains the DOT regulations concerning
time limits applicable to processing requests for records under subpart
C.
(e) Subpart E of this part contains the DOT regulations concerning
processing fees applicable to records made available under subpart B or
requested under subpart C.
Sec.7.2 Definitions.
Unless the context requires otherwise, the following definitions
apply in this part:
Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as
amended.
Administrator means the head of each Operating Administration.
Components--see the definition of Department in this section.
Concurrence means that the approval of the individual being
consulted is required in order for the subject action to be taken.
Confidential commercial information means trade secrets and
confidential, privileged, and/or proprietary business or financial
information submitted to DOT by any person.
Consultation has its ordinary meaning; the approval of the
individual being consulted is not required in order for the subject
action to be taken.
Department or DOT means the Department of Transportation, including
the Office of the Secretary, the Office of Inspector General, and all
DOT Operating Administrations, any of which may be referred to as a DOT
component.
First-party request means a request by an individual for records
pertaining to that individual.
Hourly rate means the actual hourly base pay for a civilian
employee.
Operating Administration means one of the following components of
the Department:
(1) Federal Aviation Administration;
(2) Federal Highway Administration;
(3) Federal Motor Carrier Safety Administration;
(4) Federal Railroad Administration;
(5) Federal Transit Administration;
(6) Maritime Administration;
(7) National Highway Traffic Safety Administration;
(8) Pipeline and Hazardous Materials Safety Administration; and
(9) Saint Lawrence Seaway Development Corporation.
Reading room records are those records required to be made available
to the public without a specific request under 5 U.S.C. 552(a)(2), as
described in Sec.7.12.
Record includes any writing, drawing, map, recording, diskette, DVD,
CD-ROM, tape, film, photograph, or other documentary material,
regardless of medium, by which information is preserved. The term also
includes any such documentary material stored electronically by
computer.
Redact means delete or mark over.
Representative of the news media 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
[[Page 87]]
that work to an audience. ``News'' means information that is about
current events or that would be of current interest to the public.
Responsible DOT official means the head of the DOT Operating
Administration concerned, or the General Counsel or the Inspector
General, as the case may be, or the designee of any of them authorized
to take an action under this Part.
Secretary means the Secretary of Transportation or any individual to
whom the Secretary has delegated authority in the matter concerned.
Toll means temporarily stop the running of a time limit.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]
Subpart B_Information Required To Be Made Public by DOT
Sec.7.11 What records are published in the Federal Register,
and how are they accessed?
(a) General. Pursuant to 5 U.S.C. 552(a)(1), DOT publishes the
following records in the Federal Register and makes an index of the
records publicly available. For purposes of this paragraph, material
that is reasonably available to the class of persons affected by the
material is considered to be published in the Federal Register when the
material is incorporated by reference with the approval of the Director
of the Federal Register.
(1) Descriptions of DOT's organization and the established places at
which, the officers from whom, and the methods by which, the public may
secure information and make submittals or obtain decisions;
(2) Statements of the general course and methods by which DOT's
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as authorized
by law and statements of general policy or interpretations of general
applicability formulated and adopted by DOT; and
(5) Each amendment, revision, or repeal of any material listed in
paragraphs (a)(1) through (4) of this section.
(b) Federal Register locations. DOT makes its Federal Register
publications and indices publicly available at the physical locations
identified in Sec.7.12(b). The publications and indices can be
accessed online at http://www.federalregister.gov.
Sec.7.12 What records are available in reading rooms, and how are
they accessed?
(a) General. Pursuant to 5 U.S.C. 552(a)(2), unless the following
records are promptly published and offered for sale or published in the
Federal Register, DOT and its components make the following records, and
an index to the records, available in a reading room, including an
electronic reading room if the records were created by DOT on or after
November 1, 1996:
(1) Final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;
(2) Statements of policy and interpretations, including guidance
documents as defined in 49 CFR 5.25(c), that have been adopted by DOT;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public; and
(4) Copies of all records, regardless of form or format, that have
been released to any person under subpart C of this part and that:
(i) Because of the nature of their subject matter, DOT determines
have become or are likely to become the subject of subsequent requests
for substantially the same records; or
(ii) Have been requested three or more times.
(5) A general index of the records listed in paragraph (a)(4) of
this section.
(b) Reading room locations. DOT makes its reading room records and
indices (in the form of lists or links) available at https://
www.transportation.gov/foia. To the extent that DOT continues to make
reading rooms available at a physical location, those locations are
listed on the
[[Page 88]]
DOT FOIA Web site at https://www.transportation.gov/foia.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017; 84
FR 71733, Dec. 27, 2019]
Sec.7.13 How are copies of publicly available records obtained?
(a) Copies of materials covered by this subpart that are published
and offered for sale. Records that are ordinarily made available to the
public as a part of an information program of the Government, such as
news releases and pamphlets, may be obtained upon request by contacting
the appropriate DOT location identified in Sec.7.12(b) or the sources
identified in Sec.7.41(g), and paying the applicable duplication fee
or purchase price. Whenever practicable, DOT also makes the publications
available at the appropriate physical locations identified in Sec.
7.12(b).
(b) Copies of materials covered by this subpart that are not
published and offered for sale. Such records may be ordered, upon
payment of the appropriate fee (if any fee applies), through the
applicable FOIA Requester Service Center or through the DOT Dockets
Office identified in Sec.7.12(b):
(1) Per copy of each page (not larger than 8.5 x 14 inches)
reproduced by photocopy or similar means--US $0.10.
(2) Per copy prepared by any other method of duplication--actual
direct cost of production.
(3) Copies are certified upon request by contacting the applicable
FOIA Requester Service Center listed in Sec.7.27 and paying the fee
prescribed in Sec.7.41(e).
Sec.7.14 Redaction of information that is exempt from disclosure.
Whenever DOT determines it to be necessary to prevent the disclosure
of information required or authorized to be withheld by FOIA or another
Federal statute (such as, to prevent a clearly unwarranted invasion of
personal privacy), DOT redacts such information from any record covered
by this subpart that is published or made available. A full explanation
of the justification for the deletion accompanies the record published
or made available.
Sec.7.15 Protection of records.
Records made available to the public under this subpart may not be
removed, altered, destroyed, or mutilated (this excludes duplicate
copies that are provided to a member of the public to take and keep). 18
U.S.C. 641 provides for criminal penalties for embezzlement or theft of
Government records. 18 U.S.C. 2071 provides for criminal penalties for
the willful and unlawful concealment, mutilation or destruction of, or
the attempt to conceal, mutilate, or destroy, Government records.
Subpart C_Availability of Reasonably Described Records Under the Freedom
of Information Act
Sec.7.21 What does this subpart cover?
(a) Except as otherwise provided in paragraph (b) of this section,
this subpart applies to reasonably described records that are made
available in response to written requests under FOIA.
(b) This subpart does not apply to:
(1) Records published in the Federal Register.
(2) Records published and offered for sale.
(3) Records (other than frequently requested records) made available
in a reading room.
(4) Records or information compiled for law enforcement purposes and
covered by the disclosure exemption described in Sec.7.23(c)(7)(A)
if--
(i) The investigation or proceeding involves a possible violation of
criminal law; and
(ii) There is reason to believe that--
(A) The subject of the investigation or proceeding is not aware of
its pendency; and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
(5) Informant records maintained by any criminal law enforcement
component of DOT under an informant's name or personal identifier, if
requested by a third party according to the informant's name or personal
identifier, unless the informant's status as an informant has been
officially confirmed.
[[Page 89]]
Sec.7.22 Who administers this subpart?
(a) A Chief FOIA Officer is appointed by the Secretary to oversee
DOT's compliance with the Act pursuant to 5 U.S.C. 552(k). The DOT Chief
FOIA Officer is designated at 49 CFR 1.27a as the Career Deputy General
Counsel.
(b) Each DOT FOIA Requester Service Center listed in Sec.7.27 is
the initial point of contact for providing information about its
processing of requests.
(c) One or more Public Liaisons are designated by the Chief FOIA
Officer for each DOT FOIA Requester Service Center listed in Sec.7.27.
Public Liaisons assist requesters in reducing delays and resolving
disputes, as described in 5 U.S.C. 552(k)(6).
(d) Authority to administer this subpart and to issue determinations
with respect to initial requests and appeals of initial denials has been
delegated as follows:
(1) To the General Counsel for the records of the Office of the
Secretary by 49 CFR 1.27.
(2) To the Inspector General for records of the Office of Inspector
General by 49 CFR 1.74.
(3) To the Administrator of each DOT Operating Administration for
records of that component by 49 CFR 1.81.
(4) Each responsible DOT official may redelegate the authority to
issue final determinations of appeals of initial denials to that
official's deputy or to not more than one other officer who reports
directly to the official and who is located at the headquarters of that
DOT component.
(5) Any such final determination by an Administrator or an
Administrator's designee (following an appeal of an initial denial) is
subject to concurrence by the General Counsel or the General Counsel's
designee, if the final determination is not to disclose a record or
portion of a record under this part, or not to grant a request for a fee
waiver or reduction.
(6) The Inspector General or the Inspector General's designee must
consult with the General Counsel or the General Counsel's designee
before issuing a final determination following an appeal of an initial
denial, if the final determination is not to disclose a record or
portion of a record under this part, or not to grant a request for a fee
waiver or reduction.
Sec.7.23 What limitations apply to disclosure?
(a) Policy. It is DOT policy to make its records available to the
public to the greatest extent possible, in keeping with the spirit of
FOIA. This includes releasing reasonably segregable and meaningful
nonexempt information in a document from which exempt information is
withheld.
(b) Statutory disclosure requirement. As provided in 5 U.S.C.
552(a)(3)(A), DOT makes reasonably described records available upon
request from a member of the public, when the request is submitted in
accordance with this subpart, except to the extent that the records
contain information exempt from FOIA's mandate of disclosure as provided
in 5 U.S.C. 552(b).
(c) Statutory exemptions. Exempted from FOIA's statutory disclosure
requirement are matters that are:
(1) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy, and are in fact properly classified pursuant to such
Executive Order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than the
Privacy Act, 5 U.S.C. 552a, or Open Meetings Act, 5 U.S.C. 552b, as
amended), in that the statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, establishes particular
criteria for withholding, or refers to particular types of matters to be
withheld; or
(ii) Specifically allows withholding from release under FOIA by
citation to 5 U.S.C. 552;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation
with the agency, provided that the deliberative process privilege shall
not apply to records created 25 years or more before
[[Page 90]]
the date on which the records were requested;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information--
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair or an impartial
adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, tribal, or foreign agency
or authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions, if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(d) Application of exemptions. DOT shall withhold information
pursuant to a statutory exemption only if:
(1) DOT reasonably foresees that disclosure would harm an interest
protected by an exemption under paragraph (c) of this section; or
(2) Disclosure is prohibited by law or otherwise exempted from
disclosure under paragraph (c)(3) of this section.
(e) Redacted information. DOT indicates the amount of information
redacted from records released under the FOIA and the exemption(s)
relied upon in redacting the information, at the place in the record
where the redaction is made, when technically feasible and when doing so
does not harm an interest protected by the exemption concerned.
(f) Non-confidentiality of requests. DOT releases the names of FOIA
requesters and descriptions of the records they have sought, as shown on
DOT FOIA logs, except to the extent that a statutory exemption
authorizes or requires withholding of the log information.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017; 82
FR 25740, June 5, 2017]
Sec.7.24 How do I submit a FOIA request?
(a) Each person desiring access to or a copy of a record covered by
this subpart must make a written request (via paper, facsimile or
electronic mail) for the record. The request should--
(1) Indicate that it is being made under FOIA;
(2) Display the word ``FOIA'' prominently on the envelope or on the
subject line of the email or facsimile;
(3) Be addressed to the appropriate FOIA Requester Service Center as
set forth in Sec.7.27;
(4) State the format (e.g., paper, compact disc) in which the
information is sought, if the requester has a preference (see Sec.
7.26(c)); and
(5) Describe the record or records sought to the fullest extent
possible. In this regard, the request should describe the subject matter
of the record and, if known, indicate the date when it was made, the
place where it was made, and the individual or office that made it. If
the description does not enable the office handling the request to
identify or locate the record sought, that office will contact the
requester for additional information. So that the office may contact the
requester for additional information, the request should
[[Page 91]]
provide the requester's complete contact information, including name,
address, telephone number, and email address, if any.
(b) With respect to fees, the request must--
(1) Specify the fee category (commercial use, news media,
educational institution, noncommercial scientific institution, or other;
see Sec.7.42(g)) in which the requester claims the request falls and
the basis of this claim (see subpart E of this Part for fees and fee
waiver requirements);
(2) Support any request for fee waiver by addressing, to the fullest
extent possible, how the criteria set out in Sec.7.43(c) for
establishing that the request is in the public interest have been met,
if relevant;
(3) State the maximum amount of fees that the requester is willing
to pay and/or include a request for a fee waiver or reduction (if a
maximum amount is not stated by the requester, DOT will assume the
requester is willing to pay up to US $25);
(c) If the requester seeks expedited processing at the time of the
initial request, the request must include a statement supporting
expedited processing, as set forth in Sec.7.31(c);
(d) A request is not considered to be a FOIA request if the record
or records sought are insufficiently described such that DOT is unable
to respond as required by FOIA. The twenty Federal working day limit for
responding to requests, described in Sec.7.31(a)(2), will not start to
run until the request is determined by DOT to be sufficiently understood
to enable DOT to respond as contemplated under FOIA (or would have been
so determined with the exercise of due diligence by an employee of DOT)
and is considered received (see paragraph (e)); and
(e) Provided the request is considered to be a FOIA request (see
paragraph (d)), the request is considered received when it is first
received by the FOIA office to which it should have been originally
sent, as shown in Sec.7.27, but in any event not later than ten
Federal working days after it is first received by any DOT FOIA
Requester Service Center identified in Sec.7.27.
(f) As provided in Sec.7.35, DOT's time limit for responding to a
FOIA request as set forth in subpart D may be tolled one time to seek
additional information needed to clarify the request and as often as
necessary to clarify fee issues with the requester.
Sec.7.25 How does DOT handle first-party requests?
(a) DOT processes FOIA requests from first-party requesters in
accordance with this regulation. DOT also processes such requests in
accordance with the Privacy Act (5 U.S.C. 552a) if the records reside in
a Privacy Act system of records (defined in 5 U.S.C. 552a(a)(5) as a
system from which information is retrieved by the individual's name or
some other personal identifier). Whichever statute provides greater
access is controlling.
(b) First party requesters must establish their identity to DOT's
satisfaction before DOT will process the request under the Privacy Act.
DOT may request that first party requesters authenticate their identity
to assist with our evaluation of the application of FOIA exemptions,
such as FOIA Exemption 6, 5 U.S.C. 552(b)(6), to the requested records.
Acceptable methods of authenticating the requester's identity include
those outlined in DOT's Privacy Act regulations at 49 CFR 10.37.
Sec.7.26 To what extent and in what format are records searched
and made available?
(a) Existing records. A request may seek only records that are in
existence at the time of the request. In determining which records are
responsive to a request, DOT ordinarily will include only records in its
possession as of the date it begins its search for them. If any other
date is used, DOT will inform the requester of that date. DOT considers
records created after the beginning of the search to be non-responsive
to a request. A request made under this subpart may not require that new
records be created in response to the request by, for example, combining
or compiling selected items from manual files, preparing a new computer
program, or calculating proportions, percentages, frequency
distributions, trends, or comparisons. DOT may, in its discretion,
create a new record as an alternative to disclosing existing
[[Page 92]]
records, if DOT determines that creating a new record will be less
burdensome than disclosing large volumes of unassembled material and if
the requester consents to accept the newly-created record in lieu of the
existing records.
(b) Electronic records. DOT makes a reasonable effort to search
electronic records without significantly interfering with the operation
of the affected information system.
(c) Format of production. DOT provides records in the form or format
sought by the requester, if the records are readily reproducible in that
form or format.
(d) Photocopying of records. Original records ordinarily are copied
except where, in DOT's judgment, copying would endanger the quality of
the original or raise the reasonable possibility of irreparable harm to
the record. Original records are not released from DOT custody. DOT may
make records requested under this subpart available for inspection and
copying during regular business hours at the place where the records are
located.
(e) If no responsive record is located. If DOT cannot locate a
requested record in agency files after a reasonable search (e.g.,
because the record was never created or was disposed of), DOT so
notifies the requester.
Sec.7.27 What are the designated DOT FOIA Requester Service Centers?
(a) A request for a record under this subpart may be submitted via
paper, facsimile, or electronic mail to the FOIA Requester Service
Center designated for the DOT component where the records are located,
at the electronic mail addresses or facsimile numbers identified at
https://www.transportation.gov/foia or the mailing addresses indicated
below (unless a more up-to-date mailing address has been designated at
https://www.transportation.gov/foia):
(1) FOIA Requester Service Centers at 1200 New Jersey Avenue SE.,
Washington, DC 20590:
(i) FOIA Requester Service Center at Federal Highway Administration,
Room E64-302 (unless a more specific address has been designated by FHWA
at http://www.fhwa.dot.gov/foia);
(ii) FOIA Requester Service Center at Federal Motor Carrier Safety
Administration, Room W66-458;
(iii) FOIA Requester Service Center at Federal Railroad
Administration, Room W33-437;
(iv) FOIA Requester Service Center at Federal Transit
Administration, Room E42-315;
(v) FOIA Requester Service Center at Maritime Administration, Room
W24-233;
(vi) FOIA Requester Service Center at National Highway Traffic
Safety Administration, Room W41-311;
(vii) FOIA Requester Service Center at Office of the Secretary of
Transportation, Room W94-122;
(viii) FOIA Requester Service Center at Office of Inspector General,
Room W70-329;
(ix) FOIA Requester Service Center at Pipeline and Hazardous
Materials Safety Administration, Room E23-306; and
(2) FOIA Requester Service Center at Federal Aviation
Administration, 800 Independence Avenue SW., Room 306, Washington, DC
20591 (unless a more specific address has been designated by FAA at
http://www.faa.dot.gov/foia).
(3) FOIA Requester Service Center at Associate Administrator's
Office, Saint Lawrence Seaway Development Corporation, 180 Andrews
Street, P.O. Box 520, Massena, NY 13662-0520.
(b) If the person making the request does not know where in DOT the
records are located, the person may submit the request to the FOIA
Requester Service Center at Office of the Secretary of Transportation,
1200 New Jersey Avenue SE., Room W94-122, Washington, DC 20590 or by
facsimile: 202-366-8536. Requesters also may contact the FOIA Requester
Service Center at the Office of the Secretary of Transportation at 202-
366-4542 with questions about how to submit a FOIA request or to confirm
the mailing addresses indicated in this part.
(c) Requests for records under this part, and FOIA inquiries
generally, may be made by accessing the DOT Home Page on the Internet
(https://www.transportation.gov) and clicking on
[[Page 93]]
the Freedom of Information Act link (https://www.transportation.gov/
foia).
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]
Sec.7.28 How does DOT handle requests that concern more than
one Government agency?
(a) If the release of a DOT-created record covered by this subpart
would be of concern to DOT and one or more other Federal agencies, the
determination as to release is made by DOT, but only after consultation
with the other concerned agency.
(b) If the release of a DOT-created record covered by this subpart
would be of concern to DOT and a State, local, or tribal Government, a
territory or possession of the United States, or a foreign Government,
the determination as to release is made by DOT, but only after
consultation with the other concerned Governmental jurisdiction.
(c) DOT refers a request for a non-DOT-created record covered by
this subpart (or the relevant portion thereof) for decision by the
Federal agency that is best able to determine the record's exemption
status (usually, this is the agency that originated the record), but
only if that agency is subject to FOIA. DOT makes such referrals
expeditiously and notifies the requester in writing that a referral has
been made. DOT informs the requester that the Federal agency to which
DOT referred the request will respond to the request, unless DOT is
precluded from attributing the record in question to that agency.
(d) DOT components will handle all consultations and referrals they
receive from other agencies or DOT components according to the date the
FOIA request initially was received by the first agency or DOT
component, not any later date.
Sec.7.29 When and how does DOT consult with submitters of commercial
information?
(a) If DOT receives a request for a record that includes information
designated by the submitter of the information as confidential
commercial information, or that DOT has some other reason to believe may
contain information of that type (see Sec.7.23(c)(4)), DOT notifies
the submitter expeditiously and asks the submitter to submit any written
objections to release (unless paragraphs (c) and (d) of this section
apply). At the same time, DOT notifies the requester that notice and an
opportunity to comment are being provided to the submitter. To the
extent permitted by law, DOT affords the submitter a reasonable period
of time to provide a detailed statement of any such objections. The
submitter's statement must specify all grounds for withholding any of
the information. The burden is on the submitter to identify with
specificity all information for which exempt treatment is sought and to
persuade the agency that the information should not be disclosed.
(b) The responsible DOT component, to the extent permitted by law,
considers carefully a submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose commercial
information. Whenever DOT decides to disclose such information over the
objection of a submitter, the office responsible for the decision
provides the submitter with a written notice of intent to disclose,
which is sent to the submitter a reasonable number of days prior to the
specified date upon which disclosure is intended. The written notice to
the submitter includes:
(1) A statement of the reasons for which the submitter's disclosure
objections were not accepted;
(2) A description of the commercial information to be disclosed; and
(3) A specific disclosure date.
(c) The notice requirements of this section do not apply if:
(1) DOT determines that the information should not be disclosed;
(2) The information lawfully has been published or otherwise made
available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552).
(d) The procedures established in this section do not apply in the
case of:
(1) Information submitted to the National Highway Traffic Safety
Administration and addressed in 49 CFR part 512.
(2) Information contained in a document to be filed or in oral
testimony
[[Page 94]]
that is sought to be withheld pursuant to Rule 12 of the Rules of
Practice in Aviation Economic Proceedings (14 CFR 302.12).
(3) Information submitted to the Federal Motor Carrier Safety
Administration and addressed in 49 CFR 389.9.
(e) Whenever a requester brings suit seeking to compel disclosure of
confidential commercial information, the responsible DOT component
promptly notifies the submitter. The submitter may be joined as a
necessary party in any suit brought against DOT or a DOT component for
nondisclosure.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]
Subpart D_Time Limits
Sec.7.31 What time limits apply to DOT with respect to initial
determinations?
(a) In general. (1) DOT ordinarily responds to requests according to
their order of receipt.
(2) DOT makes an initial determination whether to release a record
requested pursuant to subpart C of this Part within twenty Federal
working days after the request is received by the appropriate FOIA
Requester Service Center designated in Sec.7.27, except that DOT may
extend this time limit by up to ten Federal working days, or longer, in
accordance with Sec.7.34. In addition, DOT may toll this time limit
one time to seek additional information needed to clarify the request
and as often as necessary to clarify fee issues with the requester (see
Sec.7.35).
(3) DOT notifies the requester of DOT's initial determination. If
DOT decides to grant the request in full or in part, DOT makes the
record (or the granted part) available as promptly as possible and
provides the requester with written notification of DOT's determination,
the reasons for the determination, and the right of the requester to
seek assistance from the FOIA Public Liaison. If DOT denies the request
in full or in part, because the record (or the denied part) is subject
to an exemption, is not within DOT's custody and control, or was not
located following a reasonable search, DOT notifies the requester of the
denial in writing and includes in the notice the reason for the
determination, the right of the requester to appeal the determination,
the name and title of each individual responsible for the initial
determination to deny the request, and the requester's right to seek
dispute resolution services from the FOIA Public Liaison or the Office
of Government Information Services. The denial letter includes an
estimate of the volume of records or information withheld, in number of
pages or other reasonable form of estimation. This estimate does not
need to be provided if the volume is otherwise indicated through
deletions on records disclosed in part, or if providing an estimate
would harm an interest protected by an applicable exemption. DOT marks
or annotates records disclosed in part to show both the amount and
location of the information deleted whenever practicable (see Sec.
7.23(d)).
(b) Multi-track processing of initial requests. (1) A DOT component
may use two or more processing tracks by distinguishing between simple
and more complex requests based on the amount of work and/or time needed
to process the request, or based on the number of pages involved.
(2) A DOT component using multi-track processing may provide
requesters in its slower track(s) with an opportunity to limit the scope
of their requests in order to qualify for faster processing within the
specified limits of the component's faster track(s). In that event, the
component contacts the requester either by telephone, letter, facsimile,
or electronic mail, whichever is most efficient in each case.
(3) Upon receipt of a request that will take longer than ten days to
process, a DOT component shall assign an individualized tracking number
to the request and notify the requester of the assigned number.
Requesters may contact the appropriate DOT component FOIA Requester
Service Center to determine the status of the request.
(c) Expedited processing of initial requests. (1) Requests are
processed out of order and given expedited treatment whenever a
compelling need is demonstrated and DOT determines that the compelling
need involves:
[[Page 95]]
(i) Circumstances 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; or
(ii) A request made by a person primarily engaged in disseminating
information, with a time urgency to inform the public of actual or
alleged Federal Government activity.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, the request for expedited processing must be received by
the FOIA office for the component that maintains the records requested,
as identified in Sec.7.27.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
individual's knowledge and belief, explaining in detail the basis for
requesting expedited processing. A requester within the category in
paragraph (c)(1)(ii) of this section must establish a particular urgency
to inform the public about the Government activity involved in the
request, beyond the public's right to know about Government activity
generally.
(4) Within ten calendar days of receipt of a request for expedited
processing, the proper component decides whether to grant it and
notifies the requester of the decision. If DOT grants a request for
expedited treatment, the request is given priority and is processed as
soon as practicable. If DOT denies a request for expedited processing,
any appeal of that denial is acted on expeditiously.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]
Sec.7.32 What time limits apply to a requester when appealing DOT's
initial or final determination?
(a) Denial of records request. When the responsible DOT official
determines that a record request will be denied, in whole or in part,
because the record is subject to an exemption, is not in DOT's custody
and control, or was not located following a reasonable search, DOT
provides the requester with the written statement described in Sec.
7.31(a)(3).
(b) Denial of fee waiver. When the responsible DOT official denies,
in whole or in part, a request for a waiver of fees made pursuant to
Sec.7.24(b) or Sec.7.43(c), DOT provides the requester with written
notification of that determination, the reasons for the determination,
the right of the requester to appeal the determination within DOT, and
the requester's right to seek assistance in resolution of disputes from
the FOIA Public Liaison or Office of Government Information Services.
(c) Denial of expedited processing. When the responsible DOT
official denies a request for expedited processing made pursuant to
Sec.7.31(c), DOT provides the requester with written notice of that
determination, the reasons for the determination, the right to appeal
the determination within DOT, and the requester's right to seek dispute
resolution services from the FOIA Public Liaison or Office of Government
Information Services.
(d) Right to administrative appeal. Any requester to whom a record
has not been made available within the time limits established by Sec.
7.31 and any requester who has been provided a written determination
pursuant to paragraphs (a), (b), or (c) of this section may appeal to
the responsible DOT official.
(1) Each appeal must be made in writing to the appropriate DOT
appeal official and postmarked or, in the case of electronic or
facsimile transmissions transmitted, within ninety calendar days from
the date the initial determination is signed and should include the DOT
file or reference number assigned to the request and all information and
arguments relied upon by the person making the request. The contact
information for all DOT component appeal officials is identified in the
DOT FOIA Reference Guide available at https://www.transportation.gov/
foia. The envelope in which a mailed appeal is sent or the subject line
of an appeal sent electronically or by facsimile should be prominently
marked: ``FOIA Appeal.'' The twenty Federal working day limit described
in Sec.7.33(a) will not begin to run until the appeal has been
received by the appropriate office and identified as an appeal under
FOIA, or would have been so identified with the
[[Page 96]]
exercise of due diligence, by a DOT employee.
(2) Whenever the responsible DOT official determines it is
necessary, the official may require the requester to furnish additional
information, or proof of factual allegations, and may order other
proceedings appropriate in the circumstances. DOT's time limit for
responding to an appeal may be extended as provided in Sec.7.34. The
decision of the responsible DOT official as to the availability of the
record, the appropriateness of a fee waiver or reduction, or the
appropriateness of expedited processing, constitutes final agency action
for the purpose of judicial review.
(3) The decision of the responsible DOT official to deny a record
request, to deny a request for a fee waiver or reduction, or to deny a
request for expedited processing is considered to be a denial by the
Secretary for the purpose of 5 U.S.C. 552(a)(4)(B).
(4) When the responsible DOT official denies an appeal, the
requester is informed in writing of the reasons for the denial of the
request and the names and titles or positions of each person responsible
for the determination, and that judicial review of the determination is
available in the United States District Court for the judicial district
in which the requester resides or has his or her principal place of
business, the judicial district in which the requested records are
located, or the District of Columbia.
(e) Right to judicial review. Any requester who has not received an
initial determination on his or her request within the time limits
established by Sec.7.31 can seek immediate judicial review, which may
be sought without the need to first submit an administrative appeal. Any
requester who has received a written determination denying his or her
administrative appeal or who has not received a written determination of
his or her administrative appeal within the time limits established by
Sec.7.33 can seek judicial review. A determination that a record
request is denied, that a request for a fee waiver or reduction is
denied, and/or that a request for expedited processing is denied does
not constitute final agency action for the purpose of judicial review
unless it is made by the responsible DOT official. Judicial review may
be sought in the United States District Court for the judicial district
in which the requester resides or has his or her principal place of
business, the judicial district in which the requested records are
located, or the District of Columbia.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]
Sec.7.33 What time limits apply to DOT with respect to administrative
appeals (final determinations)?
(a) In general. (1) DOT ordinarily processes appeals according to
their order of receipt.
(2) DOT issues a determination with respect to any appeal made
pursuant to Sec.7.32(d) within twenty Federal working days after
receipt of such appeal, except that in unusual circumstances DOT may
extend this time limit by up to ten Federal working days in accordance
with Sec.7.34(a) or for more than ten Federal working days in
accordance with Sec.7.34(b). DOT notifies the requester making the
appeal immediately, in writing, if the agency takes an extension of
time. DOT may inform the requester making the appeal, at any time, of
exceptional circumstances delaying the processing of the appeal (see
Sec.7.34(c)).
(b) Multi-track processing of appeals. (1) A DOT component may use
two or more processing tracks by distinguishing between simple and more
complex appeals based on the amount of work and/or time needed to
process the appeal, or based on the amount of information involved.
(2) A DOT component using multi-track processing may provide persons
making appeals in its slower track(s) with an opportunity to limit the
scope of their appeals in order to qualify for faster processing within
the specified limits of the component's faster track(s). A component
doing so will contact the person making the appeal either by telephone,
letter, facsimile, or electronic mail, whichever is most efficient in
each case.
(c) Expedited processing of appeals. (1) An appeal is processed out
of order and given expedited treatment whenever a compelling need is
demonstrated and
[[Page 97]]
DOT determines that the compelling need involves:
(i) Circumstances 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; or
(ii) A request made by a person primarily engaged in disseminating
information, with a time urgency to inform the public of actual or
alleged Federal Government activity.
(2) A request for expedited processing may be made at the time of
the appeal or at a later time. For a prompt determination, a request for
expedited processing must be received by the component that is
processing the appeal for the records requested.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
individual's knowledge and belief, explaining in detail the basis for
requesting expedited processing. A requester within the category in
paragraph (c)(1)(ii) of this section must establish a particular time
urgency to inform the public about the Government activity involved in
the request, beyond the public's right to know about Government activity
generally. A person granted expedited processing under Sec.7.31(c)
need merely certify that the same circumstances apply.
(4) Within ten calendar days of receipt of a request for expedited
processing, the proper component will decide whether to grant it and
will notify the requester of the decision. If a request for expedited
treatment is granted, the appeal will be given priority and will be
processed as soon as practicable. If a request for expedited processing
of an appeal is denied, no further administrative recourse is available.
Sec.7.34 When and how are time limits applicable to DOT extended?
(a) In unusual circumstances as specified in this section, DOT may
extend the time limits prescribed in Sec. Sec.7.31 and 7.33 by written
notice to the person making the request or appeal, setting forth the
reasons for the extension and the date on which a determination is
expected to be issued. Such notice may not specify a date that would
result in a cumulative extension of more than ten Federal working days
without providing the requester an opportunity to modify the request as
noted in this section. As used in this paragraph, ``unusual
circumstances'' means, but only to the extent reasonably necessary to
the proper processing of the particular request:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are demanded in
a single request; and/or
(3) The need for consultation, which will be conducted with all
practicable speed, with any other agency having a substantial interest
in the determination of the request or among two or more DOT components
having substantial interest therein.
(b) When the extension is for more than ten Federal working days,
the written notice provides the requester with an opportunity to either
modify the request (e.g., by narrowing the record types or date ranges)
so that it may be processed within the extended time limit, or arrange
an alternative time period with the DOT component for processing the
request (e.g., by prioritizing portions of the request). The written
notice also will notify the requester of the right to seek dispute
resolution services from the Office of Government Information Services.
(c) The DOT component may inform the requester, at any time, of
exceptional circumstances that apply to the processing of the request or
appeal (e.g., if the component is reducing a backlog of requests or
appeals in addition to processing current requests, or is experiencing
an unexpected deluge of requests or appeals), as provided in 5 U.S.C.
552(a)(6)(C).
(d) When a DOT component reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, DOT may
aggregate the requests for the purposes of fees and
[[Page 98]]
processing activities, which may result in an extension of the
processing time. Multiple requests involving unrelated matters are not
aggregated.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21140, May 5, 2017]
Sec.7.35 When and how is the twenty day time limit for rendering
an initial determination tolled?
The twenty Federal working day time period in which to render an
initial determination will proceed without interruption except as
provided in the following circumstances:
(a) DOT may toll the initial twenty Federal working day time period
one time for the purpose of seeking additional information needed to
clarify the request. Examples of such instances include but are not
limited to:
(1) When clarification is needed with regard to the scope of a
request; or
(2) When the description of the record(s) being sought does not
enable the component handling the request to identify or locate the
record(s).
(b) DOT may toll the initial twenty Federal working day time period
as often as necessary to clarify fee issues with the requester. Examples
of such instances include but are not limited to:
(1) When the requester has not sufficiently identified the fee
category applicable to the request;
(2) When the requester has not stated a willingness to pay fees as
high as anticipated by DOT; or
(3) When a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by DOT.
Subpart E_Fees
Sec.7.41 When and how are processing fees imposed for records
that are made available under subpart B or processed under subpart
C of this part?
(a) DOT imposes fees for services that DOT performs for the public
under subparts B and C of this part. Fees apply to all required and
special services performed by DOT employees, including employees of non-
appropriated fund activities, and contractors, if utilized.
(b) DOT may assess a fee for time spent searching for records
requested under subpart C even if the search fails to locate records or
the records located are determined to be exempt from disclosure. In
addition, if records are requested for commercial use, DOT may assess a
fee for time spent reviewing any responsive records located to determine
whether they are exempt from disclosure.
(c) When a request is made under subpart C by a first-party
requester and DOT processes the request under both FOIA and the Privacy
Act, DOT determines the fees for records in DOT Privacy Act systems of
record in accordance with the Privacy Act (as implemented by DOT
regulations at 49 CFR part 10) rather than the FOIA.
(d) When DOT aggregates requests made under subpart C (see Sec.
7.34(d)), DOT apportions fees as set forth in Sec.7.43(b).
(e) As a special service, DOT may certify copies of records made
available under subpart B or released under subpart C, upon request and
payment of the applicable fee: with the DOT seal (where authorized)--US
$10; or true copy, without seal--US $5. Certified copies can be
requested by contacting the applicable FOIA Requester Service Center
(see Sec.7.27) or the DOT Dockets Office identified in Sec.
7.12(b)(1).
(f) DOT makes transcripts of hearings or oral arguments available
for inspection only. If transcripts are prepared by a nongovernmental
contractor and the contract permits DOT to handle the reproduction of
further copies, DOT assesses duplication fees as set forth in Sec.
7.42(d). If the contract for transcription services reserves the sales
privilege to the reporting service, any duplicate copies must be
purchased directly from the reporting service.
(g) In the interest of making documents of general interest publicly
available at as low a cost as possible, DOT arranges alternative sources
whenever possible. In appropriate instances, material that is published
and offered for sale may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402-0001;
U.S. Department of Commerce's National Technical Information Service
(NTIS), Springfield,
[[Page 99]]
VA 22151; or National Audio-Visual Center, National Archives and Records
Administration, Capital Heights, MD 20743-3701.
Sec.7.42 What is DOT's fee schedule for records requested under
subpart C of this part?
(a) DOT calculates the hourly rates for manual searching, computer
operator/programmer time, and time spent reviewing records, when
performed by employees, based on the grades and rates in the General
Schedule Locality Pay Table for the Locality of Washington-Baltimore-
Northern Virginia, DC-MD-VA-WV-PA, or equivalent grades, plus 16% to
cover fringe benefits, as follows:
(1) GS-1 through GS-8 (or equivalent)--Hourly rate of GS-5 step 7
plus 16%;
(2) GS-9 through GS-12 (or equivalent)--Hourly rate of GS-10 step 7
plus 16%;
(3) GS-13 through GS-14 (or equivalent)--Hourly rate of GS-13 step 7
plus 16%; and
(4) GS-15 and above (or equivalent)--Hourly rate of GS-15 step 7
plus 16%.
(b) DOT determines the standard fee for a manual or electronic
search to locate records by multiplying the searcher's hourly rate as
set forth in paragraph (a) of this section by the time spent conducting
the search.
(c) DOT's standard fee for review of records is the reviewer's rate
set forth in paragraph (a) of this section, multiplied by the time the
reviewer spent determining whether the located records are responsive to
the request and whether the responsive records or segregable portions
are exempt from disclosure, as explained in paragraphs (h), (i), and (j)
of this section.
(d) DOT determines the standard fee for duplication of records as
follows:
(1) Per copy of each page (not larger than 8.5 x 14 inches)
reproduced by photocopy or similar means (includes costs of personnel
and equipment)--US $0.10.
(2) Per copy prepared by any other method of duplication--actual
direct cost of production.
(e) If DOT utilizes a contractor to perform any services described
in this section, the standard fee is based on the equivalent hourly
rate(s). DOT does not utilize contractors to discharge responsibilities
that only DOT may discharge under the FOIA.
(f) In some cases, depending upon the category of requester and the
use for which the records are requested, the fees computed in accordance
with the standard fee schedule in paragraphs (a) through (e) of this
section are either reduced or not charged, as prescribed by other
provisions of this subpart.
(g) For purposes of fees only, there are four categories of FOIA
requests:
(1) Requests submitted by a commercial entity and/or for a
commercial use;
(2) Requests submitted by an educational or noncommercial scientific
institution whose purpose is scholarly or scientific research (and not
for a commercial use);
(3) Requests submitted by a representative of the news media; and
(4) All other requests.
(h) When records are requested by a commercial requester and/or for
a commercial use, the fees assessed are reasonable standard charges for
document search, duplication, and review.
(i) When records are requested by an educational or noncommercial
scientific institution whose purpose is scholarly or scientific research
or by a representative of the news media (i.e., for a non-commercial
use), fees are limited to reasonable standard charges for document
duplication.
(j) For any request not described in paragraph (h) or (i) of this
section, fees are limited to reasonable standard charges for document
search and duplication.
(k) Fees under this subpart do not apply to any special study,
special statistical compilation, table, or other record requested under
49 U.S.C. 329(c). The fee for the performance of such a service is the
actual cost of the work involved in compiling the record. All such fees
received by DOT in payment of the cost of such work are deposited in a
separate account administered under the direction of the Secretary, and
may be used for the ordinary expenses incidental to providing the
information.
[[Page 100]]
Sec.7.43 When are fees waived or reduced for records requested
under subpart C of this part?
(a) DOT does not charge fees to any requester making a request under
subpart C of this part for the following services:
(1) Services for which the total amount of fees that could be
charged for the particular request (or aggregation of requests) is less
than US $20, after taking into account all services that must be
provided free of charge or at a reduced charge.
(2) The first two hours of search time, unless the records are
requested for commercial use.
(3) Duplication of the first 100 pages (standard paper, not larger
than 8.5 x 14 inches) of records, unless the records are requested for
commercial use.
(4) Review time spent determining whether a record is exempt from
disclosure, unless the record is requested for commercial use. DOT does
not charge for review time except with respect to an initial review to
determine the applicability of a particular exemption to a particular
record or portion of a record. DOT does not charge for review at the
administrative appeal level. However, when records or portions of
records withheld under an exemption that is subsequently determined not
to apply are reviewed again to determine the applicability of other
exemptions not previously considered, this is considered an initial
review for purposes of assessing a review charge.
(b) When DOT aggregates requests as provided in Sec.7.34(d), DOT
charges each requester a ratable portion of the fees charged for
combined services rendered on behalf of all requesters.
(c) DOT waives or reduces the fees described in Sec.7.42(i) and
(j) when the requester makes a fee waiver or reduction request as
provided in Sec.7.24(b) and establishes that disclosure of the
information is in the public interest as provided in 5 U.S.C. 552 and
this paragraph, and the DOT official having initial denial authority
determines that disclosure of the information is in the public interest
and is not primarily in the commercial interest of the requester. The
requester must establish all of the following factors to DOT's
satisfaction to show that the request is in the public interest:
(1) That the subject matter of the requested records concerns the
operations or activities of the Federal Government;
(2) That the disclosure is likely to contribute to an understanding
of Federal Government operations or activities;
(3) That disclosure of the requested information will contribute to
the understanding of the public at large, as opposed to the
understanding of the individual requester or a narrow segment of
interested persons (to establish this factor, the requester must show an
intent and ability to disseminate the requested information to a
reasonably broad audience of persons interested in the subject);
(4) That the contribution to public understanding of Federal
Government operations or activities will be significant; and
(5) That the requester does not have a commercial interest that
would be furthered by the requested disclosure or that the magnitude of
any identified commercial interest to the requester is not sufficiently
large in comparison with the public interest in disclosure to render the
disclosure one that is primarily in the commercial interest of the
requester.
(d) DOT furnishes documents without charge or at a reduced charge
when the official having initial denial authority determines that the
request concerns records related to the death of an immediate family
member who was, at the time of death, a DOT employee.
(e) DOT furnishes documents without charge or at a reduced charge
when the official having initial denial authority determines that the
request is by the victim of a crime who seeks the record of the trial at
which the requester testified.
(f) Except as provided in paragraphs (f)(1) through (3) of this
section, DOT does not assess search fees otherwise chargeable under
Sec.7.42(h) and (j) or duplication fees otherwise chargeable under
Sec.7.42(i) when DOT fails to comply with the time limits under Sec.
7.31 or Sec.7.33.
(1) If DOT has determined that unusual circumstances apply (as
defined
[[Page 101]]
in Sec.7.34(a)), 5,000 pages or less are necessary to respond to the
request, and DOT has provided a timely written notice to the requester
in accordance with Sec.7.34(a), a failure to comply with the time
limits under Sec.7.31 or Sec.7.33 is excused for an additional 10
days. If DOT does not comply with the extended time limit, DOT does not
assess search fees otherwise chargeable under Sec.7.42(h) and (j) or
duplication fees otherwise chargeable under Sec.7.24(i);
(2) If DOT has determined that unusual circumstances apply (as
defined under Sec.7.34(a)) and more than 5,000 pages are necessary to
respond to the request, DOT may charge search fees under Sec.7.42(h)
and (j) or duplication fees under Sec.7.42(j) if DOT has provided
timely written notice to the requester in accordance with Sec.7.34(a)
and (b), and DOT has 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.
(3) If a court determines that exceptional circumstances exist (as
that term is defined in 5 U.S.C. 552(a)(6)(C)), failure to comply with
time limits under Sec.7.31 or Sec.7.33 shall be excused for the
length of time provided by the court order.
[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21140, May 5, 2017]
Sec.7.44 How can I pay a processing fee for records requested under
subpart B or subpart C of this part?
Fees typically should be paid online, using a credit card, debit
card, or electronic check. The DOT FOIA page (http://www.dot.gov/foia)
has direct links to the electronic payment site. Any fees paid with a
paper check, draft, or money order must be made payable to the U.S.
Treasury and delivered as directed by the applicable FOIA Requester
Service Center identified in Sec.7.27 (if the fees are for records
made available under subpart C) or the DOT Dockets Office identified in
Sec.7.12(b)(1) (if the fees are for records made available under
subpart B).
Sec.7.45 When are pre-payments required for records requested under
subpart C of this part, and how are they handled?
(a) When DOT estimates that the search charges, review charges,
duplication fees, or any combination of fees that could be charged to
the requester will likely exceed US $25, DOT notifies the requester of
the estimated amount of the fees, unless the requester has previously
indicated a willingness to pay fees as high as those anticipated. In
cases where DOT notifies the requester that actual or estimated fees may
amount to more than US $25, the time limit for responding to the request
is tolled until the requester has agreed to pay the anticipated total
fee (see Sec.7.35). The notice also informs the requester how to
consult with the appropriate DOT officials with the object of
reformulating the request to meet his or her needs at a lower cost.
(b) DOT may require payment of fees prior to actual duplication or
delivery of any releasable records to a requester. However, advance
payment, i.e., before work is commenced or continued on a request, is
not required unless:
(1) Allowable charges that a requester may be required to pay are
likely to exceed US $250; or
(2) The requester has failed to pay within 30 days of the billing
date fees charged for a previous request to any part of the U.S.
Government.
(c) When paragraph (b)(1) of this section applies, DOT notifies the
requester of the estimated cost. If the requester has a history of
prompt payment of FOIA fees, the requester must furnish satisfactory
assurance of full payment of the estimated charges. Otherwise, the
requester may be required to make advance payment of any amount up to
the full estimated charges.
(d) When paragraph (b)(2) of this section applies, DOT requires the
requester to either demonstrate that the fee has been paid or pay the
full amount owed, including any applicable interest, late handling
charges, and penalty charges as discussed in Sec.7.46. DOT also
requires such a requester to make an advance payment of the full amount
of the estimated fee before
[[Page 102]]
DOT begins processing a new request or continues processing a pending
request.
(e) In the event that a DOT component is required to refund a
prepayment, the processing of the refund may necessitate collection of
the requester's Taxpayer Identification Number or Social Security Number
and direct deposit information (bank routing number and bank account
number) under 31 U.S.C. 3325, 31 U.S.C. 3332, and 31 CFR Part 208.
Sec.7.46 How are late payments handled?
(a) DOT assesses interest on an unpaid bill starting on the 31st day
following the day on which the notice of the amount due is first mailed
to the requester. Interest accrues from the date of the notice of amount
due at the rate prescribed in 31 U.S.C. 3717. Receipt by DOT of a
payment for the full amount of the fees owed within 30 calendar days
after the date of the initial billing stops the accrual of interest,
even if the payment has not been processed.
(b) If DOT does not receive payment of the fees charged within 30
calendar days after the date the initial notice of the amount due is
first mailed to the requester, DOT assesses an administrative charge to
cover the cost of processing and handling the delinquent claim. In
addition, DOT applies a penalty charge with respect to any principal
amount of a debt that is more than 90 days past due. Where appropriate,
DOT uses other steps permitted by Federal debt collection statutes,
including disclosure to consumer reporting agencies and use of
collection agencies, to encourage payment of amounts overdue.
PART 8_CLASSIFIED INFORMATION: CLASSIFICATION/DECLASSIFICATION/
ACCESS--Table of Contents
Subpart A_General
Sec.
8.1 Scope.
8.3 Applicability.
8.5 Definitions.
8.7 Spheres of responsibility.
Subpart B_Classification/Declassification of Information
8.9 Information Security Review Committee.
8.11 Authority to classify information.
8.13 Authority to downgrade or declassify.
8.15 Mandatory review for classification.
8.17 Classification challenges.
8.19 [Reserved]
8.21 Burden of proof.
8.23 Classified information transferred to the Department of
Transportation.
Subpart C_Access to Information
8.25 Personnel Security Review Board.
8.27 Public availability of declassified information.
8.29 Access by historical researchers and former Presidential
appointees.
8.31 Industrial security.
Authority: E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936,
amended by E.O. 10491, 18 FR 6583, 3 CFR, 1949-1953 Comp., p. 973, E.O.
10531, 19 FR 3069, 3 CFR, 1949-1953 Comp., p. 973, E.O. 10548, 19 FR
4871, 3 CFR, 1954-1958 Comp., p. 200, E.O. 10550, 19 FR 4981, 3 CFR,
1954-1958 Comp., p. 200, E.O. 11605, 20 FR 2747, 3 CFR, 1971-1975 Comp.,
p. 580, E.O. 11785, 39 FR 20053, 3 CFR, 1971-1975 Comp., p. 874, E.O.
12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 266; E.O. 12829, 58 FR 3479, 3
CFR, 1993 Comp., p. 570, amended by E.O. 12885, 58 FR 65863, 3 CFR, 1993
Comp., p. 684; E.O. 13526, 75 FR 707, 3 CFR, 2010 Comp., p. 298; E.O.
12968, 3 CFR, 1995 Comp., p. 391, amended by E.O. 13467, 73 FR 38103, 3
CFR, 2009 Comp., p. 196.
Source: 62 FR 23661, May 1, 1997, unless otherwise noted.
Subpart A_General
Sec.8.1 Scope.
This part sets forth procedures for the classification,
declassification, and availability of information that must be protected
in the interest of national security, in implementation of Executive
Order 13526 of December 29, 2010, ``Classified National Security
Information;'' and for the review of decisions to revoke, or not to
issue, national security information clearances, or to deny access to
classified information, under Executive Order 12968 of August 2, 1995,
``Access to National Security Information,'' as amended by Executive
Order 13467 of June 30, 2008, ``Reforming Processes Related to
Suitability for Government Employment, Fitness for Contractor Employees,
and
[[Page 103]]
Eligibility for Access to Classified National Security Information.''
[81 FR 45980, July 15, 2016]
Sec.8.3 Applicability.
This part applies to all elements of the Department of
Transportation.
Sec.8.5 Definitions.
As used in this part:
Authorized holder is any individual who has been granted access to
specific classified information in accordance with Executive Order 13526
or any successor order.
Classification means the act or process by which information is
determined to be classified information.
Classification levels means the following three levels at which
information may be classified:
(a) Top secret. Information that requires the highest degree of
protection, and the unauthorized disclosure of which could reasonably be
expected to cause exceptionally grave damage to the national security
that the original classification authority is able to identify or
describe.
(b) Secret. Information that requires a substantial degree of
protection, and the unauthorized disclosure of which could reasonably be
expected to cause serious damage to the national security that the
original classification authority is able to identify or describe.
(c) Confidential. Information that requires protection and the
unauthorized disclosure of which could reasonably be expected to cause
damage to the national security that the original classification
authority is able to identify or describe.
Classified information or ``classified national security
information'' means information that has been determined under Executive
Order 13526, or any predecessor or successor order, to require
protection against unauthorized disclosure, and is marked to indicate
its classified status when in documentary form.
Clearance means that an individual is eligible, under the standards
of Executive Orders 10450, 12968, 13467, and appropriate DOT
regulations, for access to classified information.
Damage to the national security means harm to the national defense
or foreign relations of the United States from the unauthorized
disclosure of information, taking into consideration such aspects of the
information as the sensitivity, value, utility, and provenance of that
information.
Declassification means the authorized change in the status of
information from classified information to unclassified information.
Downgrading means a determination by a declassification authority
that information classified and safeguarded at a specific level shall be
classified and safeguarded at a lower level.
Information means any knowledge that can be communicated, or
documentary material, regardless of its physical form or
characteristics, that is owned by, produced by or for, or is under the
control of the United States Government. ``Control'' means the authority
of the agency that originates information, or its successor in function,
to regulate access to the information.
Mandatory declassification review means the review for
declassification of classified information in response to a request for
declassification that meets the requirements of section 3.5 of Executive
Order 13526.
Original classification means an initial determination that
information requires, in the interest of national security, protection
against unauthorized disclosure.
Original classification authority means an individual authorized in
writing, either by the President, the Vice President, or by agency heads
or other officials designated by the President, to classify information
in the first instance.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]
Sec.8.7 Spheres of responsibility.
(a) Pursuant to section 5.4(d) of Executive Order 13526, and to
section 6.1 of Executive Order 12968, the Assistant Secretary for
Administration is hereby designated as the senior agency official of the
Department of Transportation with assigned responsibilities to assure
effective compliance with and implementation of Executive Order 13526,
Executive Order 12968, Office of Management and Budget Directives, the
[[Page 104]]
regulations in this part, and related issuances.
(b) In the discharge of these responsibilities, the Assistant
Secretary for Administration will be assisted by the Director of
Security , who, in addition to other actions directed by this part, will
evaluate the overall application of and adherence to the security
policies and requirements prescribed in this part and who will report
his/her findings and recommendations to the Assistant Secretary for
Administration, heads of Departmental elements, and, as appropriate, to
the Secretary.
(c) Secretarial Officers and heads of Departmental elements will
assure that the provisions in this part are effectively administered,
that adequate personnel and funding are provided for this purpose, and
that corrective actions that may be warranted are taken promptly.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]
Subpart B_Classification/Declassification of Information
Sec.8.9 Information Security Review Committee.
(a) The Department of Transportation Information Security Review
Committee has the authority to:
(1) Act on all suggestions and complaints not otherwise resolved
with respect to the Department's administration of Executive Order 13526
and implementing directives, including those regarding
overclassification, failure to declassify, or delay in declassifying;
(2) Act on appeals of requests for classification reviews, and
appeals of requests for records under 5 U.S.C. 552 (Freedom of
Information Act) when the initial, and proposed final, denials are based
on continued classification of the record; and
(3) Recommend to the Secretary, when necessary, appropriate
administrative action to correct abuse or violation of any provision of
Executive Order 12598 and implementing directives.
(b) The Information Security Review Committee will be composed of
the Assistant Secretary for Administration, who will serve as Chair; the
General Counsel; and the Director of Security. When matters affecting a
particular Departmental component are at issue, the Associate
Administrator for Administration for that component (or for the Federal
Aviation Administration, the Associate Administrator for Security and
Hazardous Materials Safety) will participate as an ad hoc member,
together with the Chief Counsel of that component. Any regular member
may designate a representative with full power to serve in his/her
place.
(c) In carrying out its responsibilities to review decisions to
revoke or not to issue clearances, or to deny access to classified
information, the Committee will establish whatever procedures it deems
fit.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
Sec.8.11 Authority to classify information.
(a) Presidential Order of December 29, 2009, ``Original
Classification Authority'' confers upon the Secretary of Transportation
the authority to originally classify information as SECRET or
CONFIDENTIAL with further authorization to delegate this authority.
(b) The following delegations of authority originally to classify
information as ``Secret'' or ``Confidential'', which may not be
redelegated, are hereby made:
(1) Office of the Secretary of Transportation. The Deputy Secretary;
Assistant Secretary for Administration; Director of Intelligence,
Security and Emergency Response; Director of Security.
(2) Federal Aviation Administration. Administrator; Associate
Administrator for Security and Hazardous Materials Safety.
(3) Maritime Administration. Administrator.
(c) Although the delegations of authority set out in paragraph (b)
of this section are expressed in terms of positions, the authority is
personal and is invested only in the individual occupying the position.
The authority may not be exercised ``by direction of'' a designated
official. The formal appointment or assignment of an individual to one
of the identified positions or a designation in writing to act in
[[Page 105]]
the absence of one of these officials, however, conveys the authority to
originally classify information as SECRET or CONFIDENTIAL.
(d) Previous delegations and redelegations of authority within the
Department of Transportation originally to classify information are
hereby rescinded.
[62 FR 23661, May 1, 1997, as amended at 76 FR 19708, Apr. 8, 2011; 81
FR 45981, July 15, 2016]
Sec.8.13 Authority to downgrade or declassify.
Information originally classified by the Department may be
specifically downgraded or declassified by either the official
authorizing the original classification, if that official is still
serving in the same position, the originator's current successor in
function, a supervisory official of either, officials delegated
declassification authority in writing by the Secretary, or by the
Departmental Information Security Review Committee.
Sec.8.15 Mandatory review for classification.
(a) Mandatory declassification review requests will be processed in
accordance with 32 CFR 2001.33.
(b) Except as provided in paragraph b of section 3.5 of Executive
Order 13526, all information classified by the Department of
Transportation under Executive Order 13526 or predecessor orders shall
be subject to a review for declassification if:
(1) The request for review describes the information with sufficient
specificity to enable its location with a reasonable amount of effort;
(2) The information has not been reviewed for declassification
within the prior two years. If the information has been reviewed within
the prior two years, or the information is the subject of pending
litigation, the requestor will be informed of this fact, and of the
Department's decision not to declassify the information and of his/her
right to appeal the Department's decision not to declassify the
information to the Interagency Security Classification Appeals Panel
(ISCAP);
(3) The document or material containing the information responsive
to the request is not contained within an operational file exempted from
search and review, publication, and disclosure under 5 U.S.C. 552 in
accordance with law; and
(4) The information is not the subject of pending litigation.
(c) All information reviewed for declassification because of a
mandatory review will be declassified if it does not meet the standards
for classification in Executive Order 13526. The information will then
be released unless withholding is otherwise authorized and warranted
under applicable law.
(d) Mandatory declassification review requests for information that
has been classified by the Department of Transportation may be addressed
to the Director of Security, U.S. Department of Transportation, 1200 New
Jersey Avenue, Washington, DC 20590. The Director will forward the
request to the appropriate Departmental Original Classification
Authority for processing.
(e) Denied requests may be appealed to the DOT Information Security
Review Committee (DISRC) through the Director of Security within 60 days
of receipt of the denial. If the DISRC upholds the denial, it will
inform the requestor of his or her final appeal rights to the ISCAP.
[81 FR 45981, July 15, 2016]
Sec.8.17 Classification challenges.
(a) Authorized holders of information classified by the Department
of Transportation who, in good faith, believe that its classification
status is improper are encouraged and expected to challenge the
classification status of the information before the Original
Classification Authority (OCA) having jurisdiction over the information.
A formal challenge must be in writing, but need not be any more specific
than to question why information is or is not classified, or is
classified at a certain level.
(b) Classification challenges to DOT information must be addressed
to the DOT Original Classification Authority (OCA) who is responsible
for the information. If unsure of the OCA, address the challenge to the
DOT Director of Security.
[[Page 106]]
(c) Classification challenges will be processed according to 32 CFR
2001.14.
[81 FR 45981, July 15, 2016]
Sec.8.19 [Reserved]
Sec.8.21 Burden of proof.
For the purpose of determinations to be made under Sec. Sec.8.15
and 8.17, the burden of proof is on the originating Departmental
component to show that continued classification is warranted.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
Sec.8.23 Classified information transferred to the Department
of Transportation.
(a) Classified information officially transferred to the Department
in conjunction with a transfer of functions, and not merely for storage
purposes, will be considered to have been originated by the Department.
(b) Classified information in the custody of the Department
originated by another department or agency that has ceased to exist and
for whom there is no successor agency will be deemed to have been
originated by the Department. This information may be declassified or
downgraded by the Department after consultation with any other agency
that has an interest in the subject matter of the information. Such
agency will be allowed 30 calendar days in which to express an
objection, if it so desires, before action is taken. A difference of
opinion that cannot be resolved at a lower level will be referred to the
Departmental Information Security Review Committee, which will consult
with its counterpart committee for the other agency.
(c) Classified information transferred to the National Archives and
Records Administration (NARA) will be declassified or downgraded by the
Archivist of the United States in accordance with Executive Order 13526,
directives issued pursuant to Executive Order 13526, Departmental
classification guides, and any existing procedural agreement between
NARA and the Department. The Department will take all reasonable steps
to declassify information contained in records determined to have
permanent historical value before they are accessioned into the National
Archives .
(d) To the extent practicable, the Department will adopt a system of
records management that will facilitate the public release of documents
at the time such documents are declassified under the provisions for
automatic declassification in section 3.3 of Executive Order 13526 and
its implementing directives. To the maximum extent possible without
destroying the integrity of the Department's files, all such material
will be segregated or set aside for public release upon request. The
Department will cooperate with the Archivist in efforts to establish a
Government-wide database of information that has been declassified.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
Subpart C_Access to Information
Sec.8.25 Personnel Security Review Board.
(a) The Department of Transportation Personnel Security Review Board
will, on behalf of the Secretary of Transportation (except in any case
in which the Secretary personally makes the decision), make the
administratively final decision on an appeal arising in any part of the
Department from:
(1) A decision not to grant access to classified information;
(2) A decision to revoke access to classified information; or
(3) A decision under Sec.8.29 to deny access to classified
information.
(b) The Personnel Security Review Board will be composed of:
(1) Two persons appointed by the Assistant Secretary for
Administration: One from the Office of Human Resource Management, and
one, familiar with personnel security adjudication, from the Office of
Security, who will serve as Chair;
(2) One person appointed by the General Counsel, who, in addition to
serving as a member of the Board, will provide to the Board whatever
legal services it may require;
(3) One person appointed by the Administrator of the Federal
Aviation Administration; and
[[Page 107]]
(4) One person appointed by the Administrator of the Federal Highway
Administration.
(5) Any member may designate a representative, meeting the same
criteria as the member, with full power to serve in his/her place.
(c) In carrying out its responsibilities to review final decisions
to revoke or deny access to classified information, the Board will
establish whatever procedures it deems fit.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
Sec.8.27 Public availability of declassified information.
(a) It is a fundamental policy of the Department to make information
available to the public to the maximum extent permitted by law.
Information that is declassified for any reason loses its status as
material protected in the interest of national security. Accordingly,
declassified information will be handled in every respect on the same
basis as all other unclassified information. Declassified information is
subject to the Departmental public information policies and procedures,
with particular reference to the Freedom of Information Act (5 U.S.C.
552) and implementing Departmental regulations (49 CFR Part 7).
(b) In furtherance of this policy, all classified material produced
after June 1, 1972 that is of sufficient historical or other value to
warrant preservation as permanent records in accordance with appropriate
records administrative standards, and that becomes declassified, will be
systematically reviewed prior to the end of each calendar year for the
purpose of making the material publicly available. To the maximum extent
possible without destroying the integrity of the Department's files, all
such material will be segregated or set aside for public release upon
request.
Sec.8.29 Access by historical researchers and former Presidential
appointees.
Access to classified information may be granted to historical
researchers and former Presidents and Vice-Presidents and their
appointees as outlined in Executive Order 13526 or its successor order.
The general guidelines for access to classified information are
contained in Executive Order 12968.
[81 FR 45982, July 15, 2016]
Sec.8.31 Industrial security.
(a) Background. The National Industrial Security Program was
established by Executive Order 12829 of January 6, 1993 for the
protection of information classified pursuant to Executive Order 12356
of April 2, 1982, National Security Information, or its predecessor or
successor orders, and the Atomic Energy Act of 1954, as amended. The
Secretary of Defense serves as the Executive Agent for inspecting and
monitoring contractors, licensees, grantees, and certificate holders
that require or will require access to, or that store or will store,
classified information, and for determining the eligibility for access
to classified information of contractors, licensees, certificate
holders, and grantees, and their respective employees.
(b) Implementing regulations. The Secretary of Transportation has
entered into an agreement for the Secretary of Defense to render
industrial security services for the Department of Transportation.
Regulations prescribed by the Secretary of Defense to fulfill the
provisions of Executive Order 12829 have been extended to protect
release of classified information for which the Secretary of
Transportation is responsible. Specifically, this regulation is DOD
5220.22-M, National Industrial Security Program Operating Manual, and is
effective within the Department of Transportation. Appropriate security
staff, project personnel, and contracting officers must assure that
actions required by the regulation are taken.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45982, July 15, 2016]
PART 9_TESTIMONY OF EMPLOYEES OF THE DEPARTMENT AND PRODUCTION
OF RECORDS IN LEGAL PROCEEDINGS--Table of Contents
Sec.
9.1 Purpose.
9.2 Applicability.
9.3 Definitions.
[[Page 108]]
9.5 General prohibition of production or disclosure in legal
proceedings.
9.7 Testimony by employees before the Department or in other legal
proceedings in which the United States is a party.
9.9 Legal proceedings between private litigants: General rules.
9.11 Legal proceedings between private litigants: Demands.
9.13 Legal proceedings between private litigants: Procedures to request
records.
9.15 Legal proceedings between private litigants: Procedures to request
testimony.
9.17 Legal proceedings between private litigants: Procedures for taking
testimony.
9.19 Acceptance of service on behalf of Secretary.
Authority: 5 U.S.C. 301; 45 U.S.C. 41-42; 49 U.S.C. 322; 49 U.S.C.
504(f); 23 U.S.C. 409.
Source: 58 FR 6724, Feb. 2, 1993, unless otherwise noted.
Sec.9.1 Purpose.
(a) This part sets forth procedures governing the testimony of an
employee in legal proceedings in which the United States is a party. It
also sets forth procedures to be followed when an employee is issued a
subpoena, order or other demand (collectively referred to in this part
as a ``demand'') by a court or other competent authority, or is
requested by a private litigant, to provide testimony or produce records
concerning information acquired in the course of performing official
duties or because of the employee's official status. It also prescribes
the policies and procedures of the Department with respect to the
acceptance of service of legal process and pleadings in legal
proceedings involving the Department.
(b) The purposes of this part are to:
(1) Conserve the time of employees for conducting official business;
(2) Minimize the possibility of involving the Department in
controversial issues not related to its mission;
(3) Maintain the impartiality of the Department among private
litigants;
(4) Avoid spending the time and money of the United States for
private purposes; and
(5) To protect confidential, sensitive information and the
deliberative processes of the Department.
(c) Agency counsel, in his or her discretion, may permit an
exception from any requirement in this part. The exception may be
granted only when the deviation will not interfere with matters of
operational or military necessity, and when agency counsel determines
that:
(1) It is necessary to prevent a miscarriage of justice;
(2) The Department has an interest in the decision that may be
rendered in the legal proceeding; or
(3) The exception is in the best interest of the Department or the
United States.
For Office of Inspector General employees and documents, the Inspector
General, in conjunction with the General Counsel of the Department, may
permit an exception from any requirement of this part if the Inspector
General determines, based on the Inspector General Act of 1978, as
amended, that application of the requirement would be inappropriate.
Sec.9.2 Applicability.
This part applies to the testimony of an employee in legal
proceedings in which the United States is a party. It also applies in
legal proceedings between private litigants to requests or demands for
testimony or records concerning information acquired in the course of an
employee performing official duties or because of the employee's
official status. This part does not apply to any legal proceeding in
which an employee is to testify as to facts or events that are in no way
related to the employee's official duties or the functions of the
Department. Nor does it apply to Congressional demands for testimony or
documents.
Sec.9.3 Definitions.
For purposes of this part:
Department means the Department of Transportation (DOT), including
the Office of the Secretary (which encompasses the Office of the
Inspector General) and the following operating administrations while
they are part of DOT:
(a) The U.S. Coast Guard.
(b) The Federal Aviation Administration.
(c) The Federal Highway Administration.
(d) The Federal Railroad Administration.
[[Page 109]]
(e) The Federal Transit Administration.
(f) The St. Lawrence Seaway Development Corporation.
(g) The National Highway Traffic Safety Administration.
(h) The Maritime Administration.
(i) The Research and Special Programs Administration.
(j) Any DOT operating administration established after the effective
date of this part.
Legal proceeding means any case or controversy pending before any
federal, state, or local court (including grand jury proceedings), any
administrative proceeding pending before any federal, state, or local
agency, or any legislative proceeding pending before any state or local
agency.
Legal proceeding between private litigants means any legal
proceeding in which neither the Department of Transportation nor the
United States (including any federal agency or officer of the United
States in his or her official capacity) is a party.
Employee of the Department or Employee means any current or former
officer or employee of the Department; any active duty, retired, or
former officer or enlisted member of the Coast Guard; or any current or
former contractor (including any corporation or other entity and any
employee or subcontractor).
Agency counsel means the General Counsel of the Department or the
Chief Counsel of any operating administration of the Department
concerned, any person to whom the General Counsel or Chief Counsel has
delegated authority, or any person who is authorized to represent the
Department in a specific legal proceeding.
Testimony means any written or oral statement by a witness,
including depositions, answers to interrogatories, affidavits,
declarations, and statements at a hearing or trial.
Sec.9.5 General prohibition of production or disclosure in legal
proceedings.
No employee of the Department may provide testimony or produce any
material contained in the files of the Department, or disclose any
information relating to, or based upon, material contained in the files
of the Department, or disclose any information or produce any material
acquired as part of the performance of that employee's official duties
or because of that employee's official status unless authorized in
accordance with this part, or by other applicable law.
Sec.9.7 Testimony by employees before the Department or in other
legal proceedings in which the United States is a party.
In any legal proceeding before the Department or in which the United
States (including any federal agency or officer of the United States) is
a party:
(a) Agency counsel shall arrange for an employee to testify as a
witness for the United States whenever the attorney representing the
United States requests it.
(b) An employee may testify for the United States both as to facts
within the employee's personal knowledge and as an expert or opinion
witness. Except as provided in paragraph (c) of this section, an
employee may not testify as an expert or opinion witness, with regard to
any matter arising out of the employee's official duties or the
functions of the Department, for any party other than the United States
in any legal proceeding in which the United States is a party. An
employee who receives a demand to testify on behalf of a party other
than the United States may testify as to facts within the employee's
personal knowledge, provided that the testimony be subject to the prior
approval of agency counsel and to the Federal Rules of Civil Procedure
and any applicable claims of privilege.
(c) An employee may testify as an expert or opinion witness on
behalf of an officer or enlisted member of the Coast Guard in any legal
proceeding conducted by the Coast Guard.
Sec.9.9 Legal proceedings between private litigants: General rules.
In legal proceedings between private litigants:
(a) The proper method for obtaining testimony or records from an
employee is to submit a request to agency counsel as provided in
Sec. Sec.9.13 and 9.15 of this part, not to serve a demand on the
employee. Whenever, in a legal proceeding between private litigants, an
employee
[[Page 110]]
is served with a demand, or receives a request, to testify in that
employee's official capacity or produce records, the employee shall
immediately notify agency counsel.
(b) If authorized to testify pursuant to these rules, an employee
may testify only as to facts within that employee's personal knowledge
with regard to matters arising out of his or her official duties.
(1) When the proceeding arises from an accident, an employee may
testify only as to personally known facts, not reasonably available from
other sources, observed by the employee or uncovered during the
employee's investigation of the accident or observed by the employee
even if he or she did not investigate the accident. The employee shall
decline to testify regarding facts beyond the scope of his or her
official duties.
(2) The employee shall not testify to facts that are contained in a
report, or any part of a report, unless the employee has obtained
permission from agency counsel to disclose the information.
(3) The employee shall not disclose confidential or privileged
information unless the employee has obtained permission from agency
counsel to disclose the information.
(4) The employee shall not testify as to facts when agency counsel
determines that the testimony would not be in the best interest of the
Department or the United States if disclosed.
(c) An employee shall not testify as an expert or opinion witness
with regard to any matter arising out of the employee's official duties
or the functions of the Department. An employee who is asked questions
that call for expert or opinion testimony shall decline to answer on the
grounds that it is forbidden by this part. Agency counsel shall advise
the employee on how to proceed if the presiding officer directs the
employee to provide expert or opinion testimony.
(d) An employee shall not provide testimony at a trial or hearing.
An employee's testimony shall be limited to a single deposition,
affidavit, or set of interrogatories, concerning the circumstances (e.g.
an accident) from which the proceeding arose. Where multiple legal
proceedings concerning those circumstances are pending, or can occur, it
shall be the duty of the private litigant seeking the testimony to
ascertain, to the extent feasible, the identities of all parties, or
potential parties, to those proceedings and notify them that a
deposition has been granted and that they have the opportunity to
participate. The private litigant shall submit an affidavit or
certification describing the extent of the search for parties and
potential parties and listing the names of the parties and potential
parties notified.
(e) Where an employee has already provided testimony, any party
wishing to obtain further testimony from that employee concerning the
same matter or occurrence, whether in the same or a different private
legal proceeding, may submit a request to agency counsel to waive the
restrictions of paragraph (d) of this section. The request shall, in
addition to meeting the requirements of Sec.9.15 of this part, state
why the requester should be permitted to gather additional information
despite not having previously requested the information when it had an
opportunity to do so, and why the additional testimony is now required
and the prior testimony or previously supplied documents are
insufficient.
Sec.9.11 Legal proceedings between private litigants: Demands.
(a) If an employee receives a demand that has not been validly
issued or served, agency counsel may instruct the employee not to comply
with the demand.
(b) If an employee receives a demand (validly issued and served) to
testify or produce records, agency counsel, in his or her discretion,
may grant the employee permission to testify or produce records only if
the purposes of this part are met or agency counsel determines that an
exception is appropriate.
(c) If a demand is issued to an employee, agency counsel shall
contact the requester of the demand, inform that person of the
requirements of this part, and may, in agency counsel's discretion, ask
that the demand be withdrawn.
(d) If the requester of the demand refuses to have it withdrawn or
fails to
[[Page 111]]
comply with this part, the Department may seek to quash the demand.
(e) If the court or other competent authority declines to grant the
Department's motion to quash, agency counsel shall instruct the employee
whether to testify or produce documents pursuant to the demand. Agency
counsel may permit the testimony under Sec.9.1(c) of this part. If
response to a demand is required before the court or other competent
authority rules on the motion to quash and the court fails to stay the
demand, the employee must appear at the stated time and place, produce a
copy of this part, and respectfully refuse to provide any testimony or
produce any documents. Agency counsel shall take steps to arrange for
legal representation for the employee. Agency counsel shall advise the
employee how to respond, including not to testify, if the court or other
competent authority rules that the demand must be complied with
irrespective of these regulations.
Sec.9.13 Legal proceedings between private litigants: Procedures
to request records.
(a) In a legal proceeding between private litigants, a party who
wishes to obtain records from the Department shall submit to agency
counsel a request for the records. The request will ordinarily be
handled in accordance with the Department's procedures concerning
requests for records found at 49 CFR part 7. If the party does not
follow the procedures specified in that part, the request must be
accompanied by a statement setting forth the relevance of the records to
the proceeding. The request should be resolved before any request for
testimony under Sec.9.15 is submitted. Where a request for testimony
includes a request for additional records, it shall indicate precisely
how this new request differs in scope from any previous request in order
to avoid agency duplication of effort. Agency counsel shall notify the
requester of the approval or denial of the request.
(b) [Reserved]
Sec.9.15 Legal proceedings between private litigants: Procedures
to request testimony.
(a) Any party seeking the testimony of an employee in a legal
proceeding between private litigants, concerning facts within the
employee's personal knowledge with regard to matters arising out of the
employee's official duties, shall, rather than serving a demand for the
testimony, request the testimony at least 30 days before it is intended
to be taken or received. The request must be submitted to agency counsel
and must include:
(1) The title of the case, docket number, and the court, or
otherwise clearly identify the legal proceeding involved;
(2) A statement setting forth the basic facts in the proceeding,
such as the type, date, and location of an accident;
(3) A summary of the unresolved issues applicable to the testimony
sought;
(4) A summary of the testimony sought and its relevant to the
proceeding;
(5) A certification with support, that the information desired is
not reasonably available from other sources, including Departmental
documents;
(6) Pursuant to Sec.9.9(d) of this part, an affidavit or
certification describing the extent of a search of parties and potential
parties and listing the names of the parties and potential parties
notified; and
(7) A declaration that the party will not seek expert or opinion
testimony from the witness or seek the testimony of the witness at a
hearing or trial in the proceeding.
The request shall specify which form of testimony (deposition,
affidavit, declaration, or answers to interrogatories) is desired and
the date by which it is desired; however, only one form, the one least
burdensome to the Department that will provide the needed information,
will be permitted for each witness.
(b) The party seeking the testimony shall include with its request
for testimony a copy of any prior request(s) made by the same requester
to the Department or other agency of the United States for records
pertaining to the
[[Page 112]]
matter being litigated and of the response (not including the records
themselves) to the request(s). The party seeking the testimony shall
also comply with any agency counsel request that copies of the records
previously disclosed by the Department, or a list of those records, be
furnished.
(c) In accordance with the requirement of this section and the
general provisions of this part, agency counsel shall notify the
requester of the approval or denial of the request. Agency counsel may
attach special conditions to its approval.
Sec.9.17 Legal proceedings between private litigants: Procedures
for taking testimony.
(a) Testimony of an employee of the Department may be taken only at
the office to which the employee is assigned, or any other place
designated by agency counsel. Additional conditions may be specified
under Sec.9.15(c) of this part. The time shall be reasonably fixed to
avoid substantial interference with the performance of the employee's or
agency counsel's official duties.
(b) Upon completion of the testimony of an employee of the
Department, a copy of the transcript of the testimony shall be
furnished, at the expense of the party requesting the testimony, to
agency counsel for the Department's files.
Sec.9.19 Acceptance of service on behalf of Secretary.
In any legal proceeding, at the option of the server, process or
pleadings may be served on agency counsel, with the same effect as if
served upon the Secretary or the head of the operating administration
concerned, as the case may be. The official accepting service under this
section shall acknowledge the service and take appropriate action. This
section does not in any way abrogate or modify the requirements of Rule
4(d)(4) and 4(d)(5) of the Federal Rules of Civil Procedure regarding
service of summons and complaint.
PART 10_MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO INDIVIDUALS
--Table of Contents
Subpart A_Applicability and Policy
Sec.
10.1 Applicability.
10.3 Policy.
10.5 Definitions.
Subpart B_General
10.11 Administration of part.
10.13 Privacy Officer.
10.15 Protection of records.
Subpart C_Maintenance of Records
10.21 General.
10.23 Accounting of disclosures.
10.25 Mailing lists.
10.27 Government contractors.
10.29 Social Security numbers.
Subpart D_Availability of Records
10.31 Requests for records.
10.33 Acknowledgment and access.
10.35 Conditions of disclosure.
10.37 Identification of individual making request.
10.39 Location of records.
Subpart E_Correction of Records
10.41 Requests for correction of records.
10.43 Time limits.
10.45 Statement of disagreement.
Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to
or Amend Records
10.51 General.
Subpart G_Exemptions
10.61 General exemptions.
10.63 Specific exemptions.
Subpart H_Fees
10.71 General.
10.73 Payment of fees.
10.75 Fee schedule.
10.77 Services performed without charge.
Subpart I_Criminal Penalties
10.81 Improper disclosure.
10.83 Improper maintenance of records.
10.85 Wrongfully obtaining records.
Appendix A to Part 10--Exemptions
Authority: 5 U.S.C. 552a; 49 U.S.C. 322.
Source: 45 FR 8993, Feb. 11, 1980, unless otherwise noted.
[[Page 113]]
Subpart A_Applicability and Policy
Sec.10.1 Applicability.
This part implements section 552a of title 5, United States Code, as
well as other provisions of the Privacy Act of 1974, and prescribes
rules governing the availability of those records of the Department of
Transportation which relate to citizens of the United States and aliens
lawfully admitted for permanent residence.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23666, May 1, 1997]
Sec.10.3 Policy.
It is the policy of the Department of Transportation to comply with
the letter and the spirit of the Privacy Act (the Act). Therefore,
personal data contained in each system of records is afforded adequate
protection against unauthorized access, is as accurate as is feasible,
and is limited to that necessary to accomplish the stated use or uses of
the system. Further, no system of records is exempted from the
requirements of the Act unless it is determined that to do so is in the
best interest of the government with due concern for individual rights.
Sec.10.5 Definitions.
Unless the context requires otherwise, the following definitions
apply in this part:
Administrator means the head of an operating administration and
includes the Under Secretary for Security and the Commandant of the
Coast Guard.
Department means the Department of Transportation, including the
Office of the Secretary, the Office of Inspector General, and the
following operating administrations: This definition specifically
excludes the Surface Transportation Board, which has its own Privacy Act
regulations (49 CFR Part 1007), except to the extent that any system of
records notice provides otherwise.
(1) Federal Aviation Administration.
(2) Federal Highway Administration.
(3) Federal Motor Carrier Safety Administration.
(4) Federal Railroad Administration.
(5) Federal Transit Administration.
(6) National Highway Traffic Safety Administration.
(7) St. Lawrence Seaway Development Corporation.
(8) Pipeline and Hazardous Materials Safety Administration.
(9) Research and Innovative Technology Administration.
(10) Maritime Administration.
General Counsel means the General Counsel of the Department.
Includes means ``includes but is not limited to;''
Individual means a citizen of the United States or an alien lawfully
admitted;
Maintain includes maintain, collect, use, or disseminate;
May is used in a permissive sense to state authority or permission
to do the act prescribed;
Record means any item, collection, or grouping of information about
an individual that is maintained by the Department including, but not
limited to, education, financial transactions, medical history, and
criminal or employment history and that contains the name of, or an
identifying number, symbol, or other identifying particular assigned to,
the individual, such as a finger or voice print or a photograph;
Secretary means the Secretary of Transportation or any person to
whom has been delegated authority in the matter concerned;
System of records means a group of any records under the control of
the Department from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual;
Statistical record means a record in a system of records maintained
for statistical research or reporting purposes only and not in whole or
in part in making any determination about an identifiable individual,
except as provided by section 8 of title 13, United States Code; and
Routine use means, with respect to the disclosure of a record, the
use of
[[Page 114]]
such record for a purpose which is compatible with the purpose for which
it was collected.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 65
FR 48184, Aug. 7, 2000; 67 FR 54746, Aug. 26, 2002; 73 FR 33329, June
12, 2008]
Subpart B_General
Sec.10.11 Administration of part.
Authority to administer this part in connection with the records of
the Office of the Secretary is delegated to the Chief Information
Officer. Authority to administer this part in connection with records in
each operating administration is delegated to the Administrator
concerned. An Administrator may redelegate to officers of that
administration the authority to administer this part in connection with
defined systems of records. An Administrator, however, may redelegate
his or her duties under subparts F and G of this part only to his or her
deputy and to not more than one other officer who reports directly to
the Administrator and who is located at the headquarters of that
administration or at the same location as the majority of that
administration's systems of records.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 73
FR 33329, June 12, 2008]
Sec.10.13 Privacy Officer.
(a) To assist with implementation, evaluation, and administration
issues, the Chief Information Officer appoints a principal coordinating
official with the title Privacy Officer, and one Privacy Act Coordinator
from his/her staff.
(b) Inquiries concerning Privacy Act matters, or requests for
assistance, may be addressed to the Privacy Act Officer (S-80),
Department of Transportation, 1200 New Jersey Avenue, SE., Washington,
DC 20590.
(c) Administrators may designate Privacy Officers or Coordinators to
act as central coordinators within their administrations to assist them
in administering the Act.
[73 FR 33329, June 12, 2008]
Sec.10.15 Protection of records.
(a) No person may, without permission, remove any record made
available for inspection or copying under this part from the place where
it is made available. In addition, no person may steal, alter, mutilate,
obliterate, or destroy, in whole or in part, such a record.
(b) Section 641 of title 18 of the United States Code provides, in
pertinent part, as follows:
Whoever * * * steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or disposes of
any record * * * or thing of value of the United States or of any
department or agency thereof * * * shall be fined not more than $10,000
or imprisoned not more than 10 years or both; but if the value of such
property does not exceed the sum of $100, he shall be fined not more
than $1,000 or imprisoned not more than one year or both * * *.
(c) Section 2071 of title 18 of the United States Code provides, in
pertinent part, as follows:
Whoever willfully and unlawfully conceals, removes, mutilates,
obliterates, or destroys, or attempts to do so, or with intent to do so
takes and carries away any record, proceeding, map, book, paper,
document, or other thing, filed or deposited * * * in any public office,
or with any * * * public officer of the United States, shall be fined
not more than $2,000 or imprisoned not more than 3 years, or both.
Subpart C_Maintenance of Records
Sec.10.21 General.
Except to the extent that a system of records is exempt in
accordance with subpart G of this part, the Department, with respect to
each system of records:
(a) Maintains in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
Department required to be accomplished by statute or by executive order
of the President;
(b) Collects information to the greatest extent practicable directly
from the subject individual when the information may result in adverse
determinations about an individual's rights, benefits, or privileges
under Federal programs;
[[Page 115]]
(c) Informs each individual whom it asks to supply information, on
the form which it uses to collect the information or on a separate form
that can be retained by the individual of:
(1) The authority (whether granted by statute, or by executive order
of the President) which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
(2) The principal purpose or purposes for which the information is
intended to be used;
(3) The routine uses, as published pursuant to paragraph (d)(4) of
this section, which may be made of the information; and
(4) The effects, if any, on the individual of not providing all or
any part of the requested information;
(d) Publishes in the Federal Register at least annually a notice of
the existence and character of the system of records, including:
(1) The name and location of the system;
(2) The categories of individuals on whom records are maintained in
the system;
(3) The categories of records maintained in the system;
(4) Each routine use of the records contained in the system,
including the categories of users and the purpose of such use;
(5) The policies and practices regarding storage, retrievability,
access controls, retention, and disposal of the records;
(6) The title and business address of the official responsible for
the system of records;
(7) The procedures whereby an individual can be notified upon
request if the system of records contains a record pertaining to that
individual;
(8) The procedures whereby an individual can be notified upon
request how to gain access to any record pertaining to that individual
contained in the system of records, and how to contest its content; and
(9) The categories of sources of records in the system;
(e) Maintains all records which are used in making any determination
about any individual with such accuracy, relevancy, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination;
(f) Prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to Sec.10.35(a)(2), makes reasonable efforts to assure that such
records are accurate, complete, timely, and relevant for the
Department's purposes;
(g) Maintains no record describing how any individual exercises
rights guaranteed by the First Amendment unless:
(1) Expressly authorized by the General Counsel; and
(2) Expressly authorized by statute or by the individual about whom
the record is maintained or unless pertinent to and within the scope of
an authorized law enforcement activity;
(h) Makes reasonable efforts to serve notice on an individual when
any record on such individual is made available to any person under
compulsory legal process when such process becomes a matter of public
record.
Sec.10.23 Accounting of disclosures.
Each operating administration, the Office of Inspector General, and
the Office of the Secretary, with respect to each system of records
under its control:
(a) Except for disclosures made under Sec.10.35(a) (1) or (2) of
this part, keep an accurate accounting of:
(1) The date, nature, and purpose of each disclosure of a record to
any person or to another agency made under Sec.10.33; and
(2) The name and address of the person or agency to whom the
disclosure is made;
(b) Retains the accounting made under paragraph (a) of this section
for at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made;
(c) Except for disclosures made under Sec.10.33(a)(7) of this
part, makes the accounting made under paragraph (a)(1) of this section
available to the individual named in the record at his request; and
(d) Informs any person or other agency about any correction or
notation of
[[Page 116]]
dispute made by the agency in accordance with Sec.10.45 of any record
that has been disclosed to the person or agency if an accounting of the
disclosure was made.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
Sec.10.25 Mailing lists.
An individual's name and address is not sold or rented unless such
action is specifically authorized by law. This provision shall not be
construed to require the withholding of names and addresses otherwise
permitted to be made public.
Sec.10.27 Government contractors.
When the Department provides by a contract for the operation by or
on behalf of the Department of a system of records to accomplish a
function of the Department, the requirements of this part are applied to
such system. For purposes of subpart I, Criminal Penalties, any such
contractor and any employee of the contractor are considered, in
accordance with section 3(m) of the Privacy Act, to be employees of the
Department.
Sec.10.29 Social Security numbers.
(a) No individual is denied any right, benefit, or privilege
provided by law because of such individual's refusal to disclose his
Social Security account number.
(b) The provisions of paragraph (a) of this section do not apply to:
(1) Any disclosure which is required by Federal statute; or
(2) The disclosure of a Social Security number when such disclosure
was required under statute or regulation adopted prior to January 1,
1975, to verify the identity of an individual.
(c) When an individual is requested to disclose his or her Social
Security account number, that individual is informed whether that
disclosure is mandatory or voluntary, by what statutory or other
authority such number is solicited, what uses are made of it, and what
detriments, including delay in the location of records, are incurred if
the number is not provided.