[Federal Register Volume 63, Number 73 (Thursday, April 16, 1998)]
[Proposed Rules]
[Pages 18855-18863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10044]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

[Docket No. OST-96-1430; Notice 98-17]
RIN 2105-AC69


Public Availability of Information; Electronic FOIA Amendment

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Transportation proposes to revise its 
regulations implementing the Freedom of Information Act (FOIA). This 
proposed revision provides changes to conform to the requirements of 
the Electronic Freedom of Information Act Amendments of 1996 (EFOIA), 
provides changes to DOT's fee schedule, and reflects certain 
organizational changes.

DATES: Comments must be received on or before June 15, 1998.

ADDRESSES: Comments should be addressed to Information Services, 
Attention: Docket Section, Room PL-401, Docket No. OST-96-1430, 
Department of Transportation, SVC-124.1, Washington, DC 20590. Any 
person wishing acknowledgement that his/her comments have been received 
should include a self-addressed stamped postcard. Comments received 
will be available for public inspection and copying in the Documentary 
Services Division, Room PL-401, Department of Transportation Building, 
400 Seventh Street, SW., Washington, DC, from 10:00 a.m. to 5:00 p.m. 
ET Monday through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert I. Ross, Office of the General 
Counsel, C-10, Department of Transportation, Washington, DC 20590, 
telephone (202) 366-9156, FAX (202) 366-9170; electronic mail bob. 
[email protected].

SUPPLEMENTARY INFORMATION: These proposed revisions reflect changes 
required by the Electronic Freedom of Information Act Amendments of 
1996 (Public law 104-231). New provisions implementing the amendments 
are found at Secs. 7.5 (frequently requested documents), 7.8 
(electronic reading room requirements), 7.21 (deletion markings and 
volume estimation), 7.31 (timing of responses, multi-track and 
expedited processing), and 7.33 (unusual circumstances). Proposed 
revisions to DOT's fee schedule can be found at Sec. 7.43. DOT proposes 
to charge fees at rates based on an average of hourly rates for three 
pay scale levels. Finally, references to DOT's Urban Mass 
Transportation Administration (UMTA) are changed to the Federal Transit 
Administration (FTA) to reflect a statutory revision of the name of the 
agency.

Regulatory Notices and Analysis

    This proposed amendment is not a ``significant regulatory action'' 
within the meaning of Executive Order 12866. It is also not significant 
within the definition in DOT's Regulatory Policies and Procedures, 49 
FR 1034 (1979), in part because it does not involve any change in 
important DOT policies. Because the economic impact should be minimal, 
further regulatory evaluation is not necessary. Under the Regulatory 
Flexibility Act, the group of persons who will be directly affected by 
this proposal are the public, who will find it easier to obtain 
information from the DOT under FOIA. They do not qualify as small 
entities, but will have burdens lessened by this proposal, as the 
effect of the proposal will be to make records available through 
electronic media and to streamline FOIA processing activities; however, 
it is not likely that any such burden reduction will be large nor that 
it will be convertible into economic equivalents. Hence, I certify that 
this proposal will not have a significant economic impact on a 
substantial number of small entities.
    This proposal does not significantly affect the environment, and 
therefore an environmental impact statement is not required under the 
National Environmental Policy Act of 1969. It has also been reviewed 
under Executive Order 12612, Federalism, and it has been determined 
that it does not have sufficient implications for federalism to warrant 
preparation of a Federalism Assessment.
    Finally, the proposal does not contain any collection of 
information requirements, requiring review under the Paperwork 
Reduction Act, as amended.

List of Subjects in 49 CFR Part 7

    Freedom of information.

    In accordance with the above, DOT proposes to revise 49 CFR part 7 
to read as follows:

[[Page 18856]]

PART 7--PUBLIC AVAILABILITY OF INFORMATION

Subpart A--General Provisions

Sec.
7.1  General.
7.2  Definitions.

Subpart B--Information Required To Be Made Public by DOT

7.3  Publication in the Federal Register.
7.4  Publication required.
7.5  Availabiity of opinions, orders, staff manuals, statements of 
policy and interpretations and indices.
7.6  Deletion of identifying detail.
7.7  Access to materials and indices.
7.8  Copies.
7.9  Protection on records.
7.10  Public records.

Subpart C--Availability of Reasonably Described Records Under the 
Freedom of Information Act

7.11  Applicability.
7.12  Administration of part.
7.13  Records available.
7.14  Requests for records.
7.15  Contacts for records requested under the FOIA.
7.16  Requests for records of concern to more than one government 
organization.
7.17  Consultation with submitters of commercial and financial 
information.

Subpart D--Procedures for Appealing Decisions Not To Disclose Records 
and/or Waive Fees

7.21  General.

Subpart E--Time Limits

7.31  Initial determinations.
7.32  Final determination.
7.33  Extension.

Subpart F--Fees

7.41  General.
7.42  Payment of fees.
7.43  Fee schedule.
7.44  Services performed without charge or at a reduced charge.
7.45  Transcripts.
7.46  Alternative sources of information.

    Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 
12600, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Provisions


Sec. 7.1  General.

    (a) This part implements 5 U.S.C. 552, and prescribes rules 
governing the availability to the public of DOT records. Many documents 
are made available to the public for inspection and copying through 
DOT's Primary Electronic Access Facility and public record unit 
locations that are discussed in subpart B of this part, which contains 
the DOT regulations concerning the availability to the public of 
opinions issued in the adjudication of cases, policy issuances, 
administrative manuals, and other information made available to the 
public, without need for a specific request.
    (b) Subpart C of this part describes the records that are not 
required to be disclosed on DOT's own action under this part, but that 
may be available upon request under FOIA.
    (c) Indices are maintained to reflect all records subject to 
subpart B of this part, and are available for public inspection and 
copying as provided in subpart B.


Sec. 7.2 Definitions.

    As used 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 of 
DOT and includes the Commandant of the Coast Guard, the Inspector 
General, and the Director of the Bureau of Transportation Statistics.
    Concurrence means that the approval of the person being consulted 
is required in order for the subject action to be taken.
    Consultation means that the approval of the person 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 of Transportation, the Office of the 
Inspector General, and the following operating administrations, all of 
which may be referred to as DOT components:

(Means of contacting each of these DOT components appear in 
Sec. 7.15. This definition specifically excludes the Surface 
Transportation Board, which has its own FOIA regulations (49 CFR 
part 1001.)

    (1) United States Coast Guard,
    (2) Federal Aviation Administration,
    (3) Federal Highway Administration,
    (4) Federal Railroad Administration,
    (5) National Highway Traffic Safety Administration,
    (6) Federal Transit Administration,
    (7) Saint Lawrence Seaway Development Corporation,
    (8) Maritime Administration,
    (9) Research and Special Programs Administration, and
    (10) Bureau of Transportation Statistics.
    Primary Electronic Access Facility means the electronic docket 
facility in the DOT Headquarters Building, 400 7th Street, SW., 
Washington, DC 20590.
    Reading room records are those records required to be made 
available to the public under 5 U.S.C. 552(a)(2) as described in 
Sec. 7.5 of subpart B. These records are made available through DOT's 
Primary Electronic Access Facility. Other records may also be made 
available at DOT's discretion at DOT inspection facilities, including 
DOT's Primary Electronic Access Facility.
    Record includes any writing, drawing, map, recording, tape, film, 
photograph, or other documentary material by which information is 
preserved. The term also includes any such documentary material stored 
by computer.
    Responsible DOT official means the head of the 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 person to 
whom the Secretary has delegated authority in the matter concerned.

Subpart B--Information Required To Be Made Public by DOT


Sec. 7.3  Publication in the Federal Register

    This section implements 5 U.S.C. 552(a)(1), and prescribes rules 
governing publication in the Federal Register of the following:
    (A) Descriptions of DOT's organization, including its operating 
administrations 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;
    (b) 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;
    (c) 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;
    (d) 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
    (e) Each amendment, revision, or repeal of any material listed in 
paragraphs (a) through (d) of this section.


Sec. 7.4  Publication required.

    (a) General. The material described in Sec. 7.3 will be published 
in the Federal Register. For the purposes of this paragraph, material 
that will reasonably be available to the class of persons affected by 
it will be considered to be published in the Federal Register if it has 
been incorporated by reference with the approval of the Director of the 
Federal Register.

[[Page 18857]]

    (b) Effect of nonpublication. Except to the extent that he/she has 
actual and timely notice of the terms thereof, a person may not in any 
manner be required to resort to, or be adversely affected by, any 
procedure or matter required to be published in the Federal Register, 
but not so published.


Sec. 7.5  Availability of opinions, orders, staff manuals, statements 
of policy, and interpretations and indices.

    (a) This section implements 5 U.S.C. 552(a)(2). It prescribes the 
rules governing the availability for public inspection and copying of 
the following reading room materials:
    (1) Any final opinion (including a concurring or dissenting 
opinion) or order made in the adjudication of a case.
    (2) Any policy or interpretation that has been adopted under DOT 
authority, including any policy or interpretation concerning a 
particular factual situation, if that policy or interpretation can 
reasonably be expected to have precedential value in any case involving 
a member of the public in a similar situation.
    (3) Any administrative staff manual or instruction to staff that 
affects any member of the public, including the prescribing of any 
standard, procedure, or policy that, when implemented, requires or 
limits any action of any member of the public or prescribes the manner 
of performance of any activity by any member of the public. However, 
this does not include staff manuals or instruction to staff concerning 
internal operating rules, practices, guidelines, and procedures for DOT 
inspectors, investigators, law enforcement officers, examiners, 
auditors, and negotiators and other information developed predominantly 
for internal use, the release of which could significantly risk 
circumvention of agency regulations or statutes.
    (4) Copies of all records, regardless of form or format, that have 
been released to any person under subpart C of this part and which, 
because of the nature of their subject matter, a DOT component 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records.
    (5) A general index of the records listed in this paragraph.
    (b) Any material listed in paragraph (a) of this section that is 
not made available for public inspection and copying, or that is not 
indexed as required by Sec. 7.7, may not be cited, relied on, or used 
as precedent by DOT to affect any member of the public adversely unless 
the person to whose detriment it is relied on, used, or cited has had 
actual timely notice of the material.
    (c) This section does not apply to material that is published in 
the Federal Register or covered by subpart C of this part.


Sec. 7.6  Deletion of identifying detail.

    Whenever it is determined to be necessary to prevent a clearly 
unwarranted invasion of personal privacy, identifying details will be 
deleted from any record covered by this subpart that is published or 
made available for inspection. Whenever it is determined to be 
necessary to prevent the disclosure of information required or 
authorized to be withheld by another Federal statute, such information 
shall be deleted from any record covered by this subpart that is 
published or made available for inspection. A full explanation of the 
justification for the deletion will accompany the record published or 
made available for inspection.


Sec. 7.7  Access to materials and indices.

    (a) Except as provided in paragraph (b) of this section, material 
listed in Sec. 7.5 will be made available for inspection and copying to 
any member of the public at DOT document inspection facilities. It has 
been determined that it is unnecessary and impracticable to publish the 
index of materials in the Federal Register. Information as to the kinds 
of materials available at each facility may be obtained from the 
facility or the headquarters of the operating administration of which 
it is a part.
    (b) The material listed in Sec. 7.5 that is published and offered 
for sale will be indexed, but is not required to be kept available for 
public inspection. Whenever practicable, however, it will be made 
available for public inspection at the appropriate DOT reading room.
    (c) Each DOT component will also make the reading room records 
identified in Sec. 7.5(a) that are created by DOT on or after November 
1, 1996, available electronically. This includes indices of its reading 
room records as required by law after December 1, 1999.


Sec. 7.8  Copies.

    Copies of any material covered by this subpart that is not 
published and offered for sale may be ordered, upon payment of the 
appropriate fee, from the Docket Offices listed in Sec. 7.10. Copies 
will be certified upon request and payment of the fee prescribed in 
Sec. 7.43(f).


Sec. 7.9  Protection of records.

    (a) Records made available for inspection and copying may not be 
removed, altered, destroyed, or mutilated.
    (b) 18 U.S.C. 641 provides for criminal penalties for embezzlement 
or theft of government records.
    (c) 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.


Sec. 7.10  Public records.

    Publicly available records are located in DOT'S Primary Electronic 
Access Facility at 400 7th Street, SW., Washington, DC 20590.
    (a) The Primary Electronic Access Facility maintains materials for 
the Office of the Secretary, including former Civil Aeronautics Board 
material, and materials for the operating administrations. This 
facility is located at Plaza Level 401, and the hours of operation are 
10 a.m. to 5 p.m.
    (b) Certain operating administrations also maintain public record 
units at regional offices and at the offices of the Commandant and 
District Commanders of the United States Coast Guard. These facilities 
are open to the public Monday through Friday except Federal holidays, 
during regular working hours. The Saint Lawrence Seaway Development 
Corporation has facilities at 180 Andrews Street, Massena, New York 
13662-0520.
    (c) Operating Administrations may have separate facilities for 
manual records. Additional information on the location and hours of 
operations for Docket Offices and inspection facilities can be obtained 
through DOT's Primary Electronic Access Facility, at (202) 366-9322.

Subpart C--Availability of Reasonably Described Records Under the 
Freedom of Information Act


Sec. 7.11  Applicability.

    (a) This subpart implements 5 U.S.C. 552(a)(3), and prescribes the 
regulations governing public inspection and copying of reasonably 
described records under FOIA.
    (b) This subpart does not apply to:
    (1) Records published in the Federal Register, opinions in the 
adjudication of cases, statements of policy and interpretations, and 
administrative staff manuals that have been published or made available 
under subpart B of this part.
    (2) Records or information compiled for law enforcement purposes 
and covered by the disclosure exemption described in Sec. 7.13(c)(7) 
if--

[[Page 18858]]

    (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.
    (3) Informant records maintained by a 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.


Sec. 7.12  Administration of part.

    Authority to administer this part and to issue determinations with 
respect to initial requests is delegated as follows:
    (a) To the General Counsel for the records of the Office of the 
Secretary other than the Office of Inspector General.
    (b) To the Inspector General for records of the Office of Inspector 
General.
    (c) To the Administrator of each operating administration, who may 
redelegate to officers of that administration the authority to 
administer this part in connection with defined groups of records. 
However, each Administrator may redelegate the duties under subpart D 
of this part to consider appeals of initial denials of requests for 
records only to his or her deputy or to not more than one other officer 
who reports directly to the Administrator and who is located at the 
headquarters of that operating administration.


Sec. 7.13  Records available.

    (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 providing reasonably segregable information from 
documents that contain information that may be withheld.
    (b) Statutory disclosure requirement. FOIA requires that DOT, on a 
request from a member of the public submitted in accordance with this 
subpart, make requested records available for inspection and copying.
    (c) Statutory exemptions. Exempted from FOIA's statutory disclosure 
requirement are matters that are:
    (1)(i) Specifically authorized under criteria established by 
Executive order to be kept secret in the interest of national defense 
or foreign policy, and
    (ii) 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 mandatory disclosure by statute 
(other than the Privacy Act or the Government in the Sunshine Act), 
provided that such statute--
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave not any discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular criteria for withholding or refers to particular types of 
matters to be withheld;
    (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;
    (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 that 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) Deleted information. The amount of information deleted from 
frequently-requested electronic records that are available in a public 
reading room will be indicated on the released portion of the record, 
unless doing so would harm an interest protected by the exemption 
concerned. If technically feasible, the amount of information deleted 
will be indicated at the place in the record where the deletion is 
made.


Sec. 7.14  Requests for records.

    (a) Each person desiring access to or a copy of a record covered by 
this subpart shall comply with the following provisions:
    (1) A written request must be made for the record.
    (2) Such request should indicate that it is being made under FOIA.
    (3) The envelope in which a mailed request is sent should be 
prominently marked: ``FOIA.''
    (4) The request should be addressed to the appropriate office as 
set forth in Sec. 7.15.
    (5) The request should state the format (e.g., paper, microfiche, 
computer diskette, etc.) in which the information is sought, if the 
requestor has a preference.
    (b) If the requirements of paragraph (a) of this section are not 
met, treatment of the request will be at the discretion of the agency. 
The twenty-day limit for responding to requests, described in 
Sec. 7.31, will not start to run until the request has been identified, 
or would have been identified with the exercise of due diligence, by an 
employee of DOT as a request pursuant to FOIA and has been received by 
the office to which it should have been originally sent.
    (c) Form of Requests. (1) Each request should describe the 
particular record to the fullest extent possible. 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 person 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 notify the requestor and, to the extent possible, indicate 
the additional data required.
    (2) Each request shall--
    (i) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or 
other) in which the requestor claims the request to fall and the basis 
of this claim (see subpart F of this part for fees and fee waiver 
requirements),

[[Page 18859]]

    (ii) State the maximum amount of fees that the requestor is willing 
to pay or include a request for a fee waiver, and
    (iii) A request seeking a fee waiver shall, to the extent possible, 
address why the requestor believes that the criteria for fee waivers 
set out in Sec. 7.44(f) are met.
    (3) Requesters are advised that the time for responding to requests 
set forth in subpart E of this part will not begin to run--
    (i) If a requestor has not sufficiently identified the fee category 
applicable to the request,
    (ii) If a requestor has not stated a willingness to pay fees as 
high as anticipated by DOT,
    (iii) If a fee waiver request is denied and the requestor has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by DOT, or
    (iv) If a fee waiver request does not address fee waiver criteria.
    (d) Creation of records. A request may seek only records that are 
in existence at the time the request is received. A request may not 
seek records that come into existence after the date on which it is 
received and 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. In those instances where DOT determines that creating a 
new record will be less burdensome than disclosing large volumes of 
unassembled material, DOT may, in its discretion, agree to creation of 
a new record as an alternative to disclosing existing records.
    Records will be provided in the form or format sought by the 
requestor if the record is readily reproducible in the requested 
format.
    (e) Search for records. (1) Each record made available under this 
subpart will be made available for inspection and copying during 
regular business hours at the place where it is located, or 
photocopying may be arranged with the copied materials being mailed to 
the requestor upon payment of the appropriate fee. Original records 
ordinarily will be copied except in the instances where, in DOT's 
judgment, copying would endanger the quality of the original or raise 
the reasonable possibility of irreparable harm to the record. In these 
instances, copying of the original would not be in the public interest. 
In any event, original records will not be released from DOT custody. 
Original records, regardless of format, may be returned to agency 
service upon provision of a copy of the record to the requestor, or, in 
the case of a denial, upon creation and retention of a copy of the 
original for purposes of FOIA processing.
    (2) DOT will make a reasonable effort to search for requested 
records in electronic form or format, unless doing so would 
significantly interfere with operation of the affected automated 
information system.
    (f) If a requested record is known not to exist in the files of the 
agency, or to have been destroyed or otherwise disposed of, the 
requestor will be so notified.
    (g) Fees will be determined in accordance with subpart F of this 
part.
    (h) Notwithstanding paragraphs (a) through (g) of this section, 
informational material, such as news releases, pamphlets, and other 
materials of that nature that are ordinarily made available to the 
public as a part of any information program of the Government will be 
available upon oral or written request. A fee will not be charged for 
individual copies of that material so long as the material is in 
supply. In addition DOT will continue to respond, without charge, to 
routine oral or written inquires that do not involve the furnishing of 
records.


Sec. 7.15  Contacts for records requested under the FOIA.

    Each person desiring a record under this subpart should submit a 
request in writing (via paper, facsimile, or electronic mail) to the 
DOT component where the records are located:
    (a) FOIA Offices at 400 7th Street, SW., Washington, DC 20590:
    (1) Office of the Secretary of Transportation, Room 5432.
    (2) Federal Highway Administration, Room 4428.
    (3) National Highway Traffic Safety Administration, Room 5221.
    (4) Federal Transit Administration Room 9400.
    (5) Maritime Administration, Room 7221.
    (6) Research and Special Programs Administration, Room 8419.
    (7) Bureau of Transportation Statistics, Room 3430.
    (8) Office Inspector General, Room 9210.
    (b) Federal Aviation Administration, 800 Independence Avenue, SW., 
Room 906A, Washington, DC 20591.
    (c) United States Coast Guard, 2100 2nd Street, SW., Room 6106, 
Washington, DC 20593-0001.
    (d) Director, Office of Finance, Saint Lawrence Seaway Development 
Corporation, 180 Andrews Street, P.O. Box 520, Massena, New York 13662-
0520.
    (e) Federal Railroad Administration, 1120 Vermont Avenue NW., 7th 
Floor, Washington, DC. (Mailing address: 400 Seventh St., SW., 
Washington, DC 20590.)
    (f) Certain operating administrations also maintain FOIA contacts 
at regional offices and at the offices of the Commandant and District 
Commanders of the United States Coast Guard. Additional information on 
the location of these offices can be obtained through the FOIA contact 
offices listed above.
    (g) If the person making the request does not know where in DOT the 
record is located, he or she may make inquiry to the Chief, FOIA 
Division, Office of the General Counsel (voice: 202.366.4542; 
facsimile: 202.366.8536).
    (h) Requests for records under this part, and Freedom of 
Information Act inquiries generally, may be made by accessing the DOT 
Home Page on the Internet (www.dot.gov) and clicking on the Freedom of 
Information Act link.


Sec. 7.16  Requests for records of concern to more than one government 
organization.

    (a) If the release of a record covered by this subpart would be of 
concern to both DOT and another Federal agency, the determination as to 
release will be made by DOT only after consultation with the other 
interested agency.
    (b) If the release of the record covered by this subpart would be 
of concern to both 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 will be made by DOT only after 
consultation with the interested government.
    (c) Alternatively, DOT may refer the request (or relevant portion 
thereof) for decision by a Federal agency that originated or is 
substantially concerned with the records, but only if that agency is 
subject to FOIA. Such referrals will be made expeditiously and the 
requester notified in writing that a referral has been made.


Sec. 7.17  Consultation with submitters of commercial and financial 
information.

    (a) If a request if received for information that has been 
designated by the submitter as confidential commercial information, or 
which DOT has some other reason to believe may contain information of 
the type described in Sec. 7.13(c)(4), the submitter of such 
information will, except as is provided in paragraphs (c) and (d) of 
this section, be notified expeditiously and asked to submit any written 
objections to release. At the same time, the requester will be notified 
that notice and an opportunity to comment are

[[Page 18860]]

being provided to the submitter. The submitter will, to the extent 
permitted by law, be afforded a reasonable period of time within which 
to provide a detailed statement of any such objections. The submitter's 
statement shall specify all grounds for withholding any of the 
information. The burden shall be on the submitter to identify 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 will, to the extent permitted by 
law, consider carefully a submitter's objections and specific grounds 
for nondisclosure prior to determining whether to disclose business 
information. Whenever a decision is made to disclose such information 
over the objection of a submitter, the office responsible for the 
decision will forward to the submitter a written notice that will 
include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not accepted;
    (2) A description of the business information to be disclosed; and
    (3) A specific disclosure date. Such notice of intent to disclose 
will, to the extent permitted by law, be forwarded to the submitter a 
reasonable number of days prior to the specified date upon which 
disclosure is intended. At the same time the submitter is notified, the 
requester will be notified of the decision to disclose information.
    (c) The notice requirements of this section will not apply if:
    (1) The office responsible for the decision 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 will not apply in 
the case of:
    (1) Business 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 that is sought to be withheld pursuant to Rule 39 of the 
Rules of Practice in Aviation Economic Proceedings (14 CFR 302.39).
    (e) Whenever a requester brings suit seeking to compel disclosure 
of confidential commercial information, the responsible DOT component 
will promptly notify the submitter.

Subpart D--Procedures for Appealing Decisions Not to Disclose 
Records and/or Waive Fees


Sec. 7.21  General.

    (a) Each officer or employee of DOT who, upon a request by a member 
of the public for a record under this part, makes a determination that 
the record is not to be disclosed, either because it is subject to an 
exemption or not in DOT's custody and control, will give a written 
statement of the reasons for that determination to the person making 
the request; and indicate the names and titles or positions of each 
person responsible for the initial determination not to comply with 
such request, and the availability of an appeal within DOT. The denial 
letter will include an estimate of the volume of records or information 
withheld, in number of pages or in some 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. Records disclosed in part will be marked or 
annotated to show both the amount and the location of the information 
deleted whenever practicable.
    (b) When a request for a waiver of fees pursuant to Sec. 7.44 has 
been denied in whole or in part, the requestor may appeal the denial.
    (c) Any person to whom a record has not been made available within 
the time limits established by Sec. 7.31 and any person who has been 
given a determination pursuant to paragraph (a) of this section that a 
record will not be disclosed may appeal to the responsible DOT 
official. Any person 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 
first to submit an administrative appeal. Judicial review may be sought 
in the United States District Court for the judicial district in which 
the requestor resides or has his or her principal place of business, 
the judicial district in which the records are located, or in the 
District of Columbia. A determination that a record will not be 
disclosed and/or that a request for a fee waiver or reduction will not 
be granted does not constitute final agency action for the purposes of 
judicial review unless:
    (1) It was made by the responsible DOT official; or
    (2) The applicable time limit has passed without a determination on 
the initial request or the appeal, as the case may be, having been 
made.
    (d) Each appeal must be made in writing within thirty days from the 
date of receipt of the original denial 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. (Appeals may be 
submitted via facsimile and conventional mail, but not via electronic 
mail.) Such letter should indicate that it is an appeal from a denial 
of a request made under FOIA. The envelope in which a mailed appeal is 
sent should be prominently marked: ``FOIA Appeal.'' If these 
requirements are not met, the twenty-day limit described in Sec. 7.32 
will not begin to run until the appeal has been identified, or would 
have been identified with the exercise of due diligence, by a DOT 
employee as an appeal under FOIA, and has been received by the 
appropriate office.
    (e) Whenever the responsible DOT official determines it necessary, 
he/she may require the requestor to furnish additional information, or 
proof of factual allegations, and may order other proceedings 
appropriate in the circumstances; in any case in which a request or 
order is made, DOT's time for responding ceases to count while the 
requestor response to the request or order. The decision of the 
responsible DOT official as to the availability of the record or the 
appropriateness of a fee waiver or reduction constitutes final agency 
action for the purpose of judicial review.
    (f) The decision of the responsible DOT official not to disclose a 
record under this part or not to grant a request for a fee waiver or 
reduction is considered to be a denial by the Secretary for the purpose 
of 5 U.S.C. 552(a)(4)(B).
    (g) Any final determination by the head of an operating 
administration not to disclose a record under this part, or not to 
grant a request for a fee waiver or reduction, is subject to 
concurrence by a representative of the General Counsel.
    (h) Upon a determination that an appeal will be denied, the 
requestor will be 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 requestor 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.

[[Page 18861]]

Subpart E--Time Limits


Sec. 7.31  Initial determinations.

    An initial determination whether to release a record requested 
pursuant to subpart C of this part will be made within twenty Federal 
working days after the request is received by the appropriate office in 
accordance with Sec. 7.14, except that this time limit may be extended 
by up to ten Federal working days in accordance with Sec. 7.33. The 
person making the request will be notified immediately of such 
determination. If the determination is to grant this request, the 
desired record will be made available as promptly as possible. If the 
determination is to deny the request, the person making the request 
will be notified in writing, at the same time he or she is notified of 
such determination, of the reason for the determination, the right of 
such person to appeal the determination, and the name and title of each 
person responsible for the initial determination to deny the request.
    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) A 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 on the number of pages involved.
    (2) A component using multitrack 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). A component doing so will 
contact the requestor either by telephone, letter, facsimile, or 
electronic mail, whichever is not efficient in each case.
    (c) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever a compelling need 
is demonstrated and it is determined 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;
    (ii) Requests made by a person primarily engaged in disseminating 
information, with an 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, a request for expedited processing must be received by 
the proper component. Requests must be submitted to the component that 
maintains the records requested.
    (3) A requestor who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. For example, a requestor within the 
category in paragraph (c)(1)(ii) of this section, if not a full-time 
member of the news media, must establish that he or she is a person 
whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requestor within the category in paragraph (c)(1)(ii) of this section 
also 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. The formality of 
certification may be waived as a matter of discretion.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component will decide whether to grant 
it and will notify the requestor of the decision. If a request for 
expedited treatment is granted, the request will be given priority and 
will be processed as soon as practicable. If a request for expedited 
processing is denied, any appeal of that decision will be acted on 
expeditiously.


Sec. 7.32  Final determination.

    A determination with respect to any appeal made pursuant to 
Sec. 7.21 will be made within twenty Federal working days after receipt 
of such appeal except that this time limit may be extended by up to ten 
Federal working days in accordance with Sec. 7.33. The person making 
the request will be notified immediately of such determination pursuant 
to Sec. 7.21.


Sec. 7.33  Extension.

    (a) In unusual circumstances as specified in this section, the time 
limits prescribed in Sec. 7.31 and Sec. 7.32 may be extended by written 
notice to the person making the request setting forth the reasons for 
such extension and the date on which a determination is expected to be 
dispatched. Such notice may not specify a date that would result in a 
cumulative extension of more than 10 Federal working days without 
providing the requestor an opportunity to modify the request as noted 
below. Where the extension is for more than 10 working days, the DOT 
component will provide the requestor with an opportunity either to 
modify the request so that it may be processed within the time limits 
or to arrange an alternative time period with the component for 
processing the request or a modified request. As used in this 
subparagraph, ``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; or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with any other agency or DOT component having a 
substantial interest in the determination of the request or among two 
or more components of the agency having substantial subject-matter 
interest therein.
    (b) Where a component reasonably believes that multiple requests 
submitted by a requestor, 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, they may be aggregated for the purposes of fees and processing 
activities. Multiple requests involving unrelated matters will not be 
aggregated.

Subpart F--Fees


Sec. 7.41  General.

    (a) This subpart prescribes fees for services performed for the 
public under subparts B and C of this part by DOT.
    (b) All terms defined by FOIA apply to this subpart, and the term 
``hourly rate'' means the actual hourly base pay for a civilian 
employee or, for members of the Coast Guard, the equivalent hourly pay 
rate computed using a 40-hour week and the member's normal basic pay 
and allowances.
    (c) This subpart applies to all employees of DOT, including those 
of non-appropriated fund activities of the Coast Guard and the Maritime 
Administration.
    (d) This subpart does 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

[[Page 18862]]

account administered under the direction of the Secretary, and may be 
used for the ordinary expenses incidental to providing the information.
    (e) This subpart does not apply to requests from record subjects 
for records about themselves in DOT systems of records, which are 
determined in accordance with the Privacy Act, as implemented by DOT 
regulations (49 CFR part 10).


Sec. 7.42  Payment of fees.

    (a) The fees prescribed in this subpart may be paid by check, 
draft, or money order, payable to the DOT component where fees were 
incurred, for deposit in the General Fund of the Treasury of the United 
States, e.g. DOT/FAA.
    (b) Charges may be assessed by DOT for time spent searching for 
requested records 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 it is estimated that the search charges, review charges, 
duplication fees, or any combination of fees that could be charged to 
the requestor will likely exceed US $25, the requestor will be notified 
of the estimated amount of the fees, unless the requestor has indicated 
in advance his or her willingness to pay fees as high as those 
anticipated. In cases where a requestor has been notified that actual 
or estimated fees may amount to more than US $25, the request will be 
deemed not to have been received until the requestor has agreed to pay 
the anticipated total fee. The notice will also inform the requestor 
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.
    (d) Payment of fees may be required prior to actual duplication or 
delivery of any releasable records to a requestor. However, advance 
payment, i.e., before work is commenced or continued on a request, may 
not be required unless:
    (1) Allowable charges that a requestor may be required to pay are 
likely to exceed US $250; or
    (2) The requestor has failed to pay within 30 days of the billing 
date fees charged for a previous request to any part of DOT.
    (e) When paragraph (d)(1) of this section applies, the requestor 
will be notified of the likely cost and, where he/she has a history of 
prompt payment of FOIA fees, requested to furnish satisfactory 
assurance of full payment of FOIA fees. Where the requestor does not 
have any history of payment, he or she may be required to make advance 
payment of any amount up to the full estimated charges.
    (f) When paragraph (d)(2) of this section applies, the requestor 
will be required to demonstrate that the fee has, in fact, been paid or 
to pay the full amount owed, including any applicable interest, late 
handling charges, and penalty charges as discussed below. The requestor 
will also be required to make an advance payment of the full amount of 
the estimated fee before processing of a new request or continuation of 
a pending request is begun.
    (g) DOT will assess 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 requestor. Interest will accrue from the date of the 
notice of amount due and will be 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 will stay 
the accrual of interest, even if the payment has not been processed.
    (h) If payment of fees charged is not received within 30 calendar 
days after the date the initial notice of the amount due is first 
mailed to the requestor, an administrative charge will be assessed by 
DOT to cover the cost of processing and handling the delinquent claim. 
In addition, a penalty charge will be applied with respect to any 
principal amount of a debt that is more than 90 days past due. Where 
appropriate, other steps permitted by Federal debt collection statutes, 
including disclosure to consumer reporting agencies and use of 
collection agencies, will be used by DOT to encourage payment of 
amounts overdue.
    (i) Notwithstanding any other provision of this subpart, when the 
total amount of fees that could be charged for a particular request (or 
aggregation of requests) under subpart C of this part, after taking 
into account all services that must be provided free of, or at a 
reduced, charge, is less than US $10.00 DOT will not make any charge 
for fees.


Sec. 7.43  Fee schedule.

    The rates for manual searching, computer operator/programmer time 
and time spent reviewing records will be calculated based on the grades 
and rates established by the Washington-Baltimore Federal White-Collar 
Pay Schedule or equivalent grades, as follows:
    When performed by employees:

GS-1 through GS-8--Hourly rate of GS-5 step 7 plus 16%
GS-9 through GS-14--Hourly rate of GS-12 step 7 plus 16%
GS-15 and above--Hourly rate of GS-15 step 7 plus 16%

    (a) The standard fee for a manual search to locate a record 
requested under subpart C of this part, including making it available 
for inspection, will be determined by multiplying the searcher's rate 
as calculated from the above chart and the time spent conducting the 
search.
    (b) The standard fee for a computer search for a record requested 
under subpart C of this part is the actual cost. This includes the cost 
of operating the central processing unit for the time directly 
attributable to searching for records responsive to a FOIA request and 
the operator/programmer's rate as calculated from the above chart for 
costs apportionable to the search.
    (c) The standard fee for review of records requested under subpart 
C of this part is the reviewer's rate as calculated above multiplied by 
the time he/she spent determining whether the requested records are 
exempt mandatory disclosure.
    (d) The standard fee for duplication of a record requested under 
subpart C of this part is determined 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 computer such as tapes or printout--actual 
costs, including operator time.
    (3) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (e) Depending upon the category of requestor, and the use for which 
the records are requested, in some cases the fees computed in 
accordance with the above standard fee schedule will either be reduced 
or not charged, as prescribed by other provisions of this subpart.
    (f) The following special services not required by FOIA may be made 
available upon request, at the stated fees: Certified copies of 
documents, with DOT or operating administration seal (where 
authorized)--US $4.00; or true copy, without seal--US $2.00.


Sec. 7.44  Services performed without charge or at a reduced charge.

    (a) A fee is not to be charged to any requestor making a request 
under subpart C of this part for the first two hours of search time 
unless the records are requested for commercial use. For purposes of 
this subpart, when a computer search is required two hours of search 
time will be considered spent when the hourly costs of operating the

[[Page 18863]]

central processing unit used to perform the search added to the 
computer operator's salary cost (hourly rate plus 16 percent) equals 
two hours of the computer operator's salary costs (hourly rate plus 16 
percent).
    (b) A fee is not to be charged for any time spent searching for a 
record requested under subpart C of this part if the records are not 
for commercial use and the requestor is a representative of the news 
media, an educational institution whose purpose is scholarly research, 
or a non-commercial scientific institution whose purpose is scientific 
research.
    (c) A fee is not to be charged for duplication of the first 100 
pages (standard paper, not larger than 8.5 x 14 inches) of records 
provided to any requestor in response to a request under subpart C of 
this part unless the records are requested for commercial use.
    (d) A fee is not to be charged to any requestor under subpart C of 
this part to determine whether a record is exempt from mandatory 
disclosure unless the record is requested for commercial use. A review 
charge may not be charged except with respect to an initial review to 
determine the applicability of a particular exemption to a particular 
record or portion of a record. A review charge may not be assessed for 
review at the administrative appeal level. When records or portions of 
records withheld in full 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.
    (e) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
disclosure of the information is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requestor.
    (f) Factors to be considered by DOT officials authorized to 
determine whether a waiver or reduction of fees will be granted 
include:
    (1) Whether the subject matter of the requested records concerns 
the operations or activities of the Federal government;
    (2) Whether the disclosure is likely to contribute to an 
understanding of Federal government operations or activities;
    (3) Whether disclosure of the requested information will contribute 
to the understanding of the public at large, as opposed to the 
individual understanding of the requestor or a narrow segment of 
interested persons;
    (4) Whether the contribution to public understanding of Federal 
government operations or activities will be significant;
    (5) Whether the requestor has a commercial interest that would be 
furthered by the requested disclosure; and
    (6) Whether the magnitude of any identified commercial interest to 
the requestor is sufficiently large in comparison with the public 
interest in disclosure that disclosure is primarily in the commercial 
interest of the requestor.
    (g) Documents will be furnished without charge or at a reduced 
charge if 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 or a member 
of the Coast Guard.
    (h) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
the request is by the victim of a crime who seeks the record of the 
trial or court-martial at which the requestor testified.


Sec. 7.45  Transcripts.

    Transcripts of hearings or oral arguments are available for 
inspection. Where transcripts are prepared by a nongovernmental 
contractor, and the contract permits DOT to handle the reproduction of 
further copies, Sec. 7.43 applies. Where the contract for transcription 
services reserves the sales privilege to the reporting service, any 
duplicate copies must be purchased directly from the reporting service.


Sec. 7.46  Alternative sources of information.

    In the interest of making documents of general interest publicly 
available at as low a cost as possible, alternative sources will be 
arranged whenever possible. In appropriate instances, material that is 
published and offered for sale may be obtained from the Superintendent 
of Documents, U.S. Government Printing Office, Washington, DC 20402; 
U.S. Department of Commerce's National Technical Information Service 
(NTIS), Springfield, Virginia 22151; or National Audio-Visual Center, 
National Archives and Records Administration, Capital Heights, MD 
20743-3701.

    Issued in Washington, DC, on March 26, 1998.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 98-10044 Filed 4-15-98; 8:45 am]
BILLING CODE 4910-62-M