[Federal Register Volume 63, Number 136 (Thursday, July 16, 1998)]
[Rules and Regulations]
[Pages 38331-38339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18757]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 7
[Docket No. OST-96-1430; Amdt. 1]
RIN 2105-AC69
Public Availability of Information; Electronic FOIA Amendment
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: The Department of Transportation revises its regulations
implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552. This
amendment provides changes to conform to the requirements of the
Electronic Freedom of Information Act Amendments of 1996 (EFOIA),
Public Law 104-231, provides changes to DOT's fee schedule, and
reflects certain organizational changes.
DATES: This rule takes effect on August 17, 1998.
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
[email protected].
SUPPLEMENTARY INFORMATION: These revisions reflect changes required by
the Electronic Freedom of Information Act Amendments of l996 (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). Revisions to DOT's fee schedule can be
found at Sec. 7.43. DOT will be charging 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 to the name of the agency. This amendment was published for
public comment (63 FR 18855; April 16, 1998), but none was received. We
are therefore issuing this amendment as proposed.
Regulatory Notices and Analysis
This amendment is not a ``significant regulatory action'' within
the meaning of Executive Order 12866 or the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1531 et seq.). It is also not significant within
the definition in DOT's Regulatory Policies and Procedures, 49 FR 11034
(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 amendment are the public, who will find it easier to obtain
information from the DOT under FOIA. Individual members of the public
do not qualify as small entities, but small organizations, businesses,
etc., do and all will have burdens lessened by this amendment, as its
effect 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
amendment will not have a significant economic impact on a substantial
number of small entities.
This amendment 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 amendment 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 revises 49 CFR Part 7 to read as
follows:
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 Availability 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 of records.
7.10 Public records.
[[Page 38332]]
Subpart C--Availability of Reasonably Described Records Under the
Freedom of Information Act
7.11 Applicability.
7.12 Administration of subpart.
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 determinations.
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 DOT component 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 DOT components, 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 specially 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, S.W.,
Washington, D.C. 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 of this part. 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 DOT component
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 DOT
components 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.
(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,
[[Page 38333]]
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 instructions 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 DOT component 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 section 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, S.W., Washington, D.C. 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 DOT components. This facility is
located at Plaza Level 401, and the hours of operation are 10:00-17:00.
(b) Certain DOT components 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--
(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 subpart.
Authority to administer this subpart and to issue determinations
with respect
[[Page 38334]]
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 DOT component, 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 DOT component.
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),
(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 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
[[Page 38335]]
(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 this instance 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 be 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 inquiries 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, S.W., 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 of Inspector General, Room 9210.
(b) Federal Aviation Administration, 800 Independence Avenue, S.W.,
Room 906A, Washington, DC 20591.
(c) United States Coast Guard, 2100 2nd Street, S.W., 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 DOT components 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 in this section.
(g) If the person making the request does not know where in DOT the
record is located, he or she may make an 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 (www.dot.gov/foia).
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
requestor notified in writing that a referral has been made.
Sec. 7.17 Consultation with submitters of commercial and financial
information.
(a) If a request is 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 requestor will be notified
that notice and an opportunity to comment are 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
[[Page 38336]]
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 of intent to disclose that 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 requestor will be notified of the
decision to disclose information. The written notice 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.
(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 requestor 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 responds 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 DOT component 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.
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 the 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
[[Page 38337]]
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 most 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 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 determinations.
(a) 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.
(b) In general. Components ordinarily will respond to appeals
according to their order of receipt.
(c) Multitrack processing. (1) A 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 on the number of pages involved.
(2) A component using multitrack 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.
(d) Expedited processing. (1) An appeal 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) A request 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 appeal or at any later time. For a prompt determination, a request
for expedited processing must be received by the proper component,
which is the component that is processing the appeal for 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 Sec. 7.31(c)(1)(ii), 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 Sec. 7.31(c)(1)(ii) 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. A person who was granted expedited processing
under Sec. 7.31 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 requestor 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. 7.33 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
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.
[[Page 38338]]
(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 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.
(c) 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 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 in paragraphs (g)
and (h) of this section. 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%
[[Page 38339]]
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 chart in this section 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 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 from the chart
multiplied by the time he/she spent determining whether the requested
records are exempt from 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 standard fee schedule in paragraph (d) of this
section 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 DOT component 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
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 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
unless the records are requested for commercial use.
(d) A fee is not to be charged to any requestor under subpart C 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.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 98-18757 Filed 7-15-98; 8:45 am]
BILLING CODE 4910-62-P