[Federal Register Volume 82, Number 86 (Friday, May 5, 2017)]
[Rules and Regulations]
[Pages 21136-21140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08925]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

RIN 2105-AE62


Updates To Comply With the FOIA Improvement Act of 2016 and Other 
Technical Amendments

AGENCY: Office of the Secretary (OST), Department of Transportation 
(DOT).

ACTION: Final rule.

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SUMMARY: This final rule updates the Department of Transportation's 
regulations prescribing procedures for the public availability of 
information to conform these procedures with amendments to the Freedom 
of Information Act enacted by the FOIA Improvement Act of 2016. This 
rule also removes a reference to the Surface Transportation Board, as 
it has been made a separate agency, outside of the Department, under 
the Surface Transportation Board Reauthorization Act of 2015. Finally, 
this rule makes a technical amendment to the Department's submitter 
notice process to include a reference to the Federal Motor Carrier 
Safety Administration's updated procedures related to the submission of 
confidential business information.

DATES: This final rule is effective June 5, 2017.

FOR FURTHER INFORMATION CONTACT: Claire McKenna, Senior Attorney, 
Office of the General Counsel, U.S. Department of Transportation, 
Washington, DC, at [email protected] or (202) 366-0365.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document may be viewed online through the Federal eRulemaking 
portal at https://www.regulations.gov. Retrieval help and guidelines 
are available on the Web site. It is available 24 hours each day, 365 
days a year. An electronic copy of this document may also be downloaded 
from the Office of the Federal Register home page at: https://www.ofr.gov and the Government Printing Office Web page at: https://www.gpo.gov.

I. Purpose of the Regulatory Action

    The United States Department of Transportation (Department or DOT) 
is issuing this final rule to update the Department's regulations 
prescribing procedures for the public availability of information to 
conform these procedures with recent amendments to the Freedom of 
Information Act (FOIA) enacted in the FOIA Improvement Act of 2016, 
Public Law 114-185. This rule also makes technical amendments to 49 CFR 
part 7.
    The rule revises the definition of ``reading room records'' in 
section 7.2 to remove the discussion of the locations of reading room 
records. The location of reading room records is already provided in 
section 7.12(b), therefore, this is not a substantive change. As 
required by the section 2 of the FOIA Improvement Act of 2016, this 
rule also revises the description of ``Frequently Requested Records'' 
in section 7.12(a)(4) to include records requested three or more times 
under FOIA. The FOIA Improvement Act of 2016 no longer requires that 
agencies maintain physical locations for the reading rooms. The rule 
revises the description of reading room locations in section 7.12(b) to 
indicate that DOT may continue to maintain physical reading rooms 
(although not required) and, if it does, those locations will be listed 
on the Department's FOIA Web site (www.transportation.gov/foia).
    In section 7.23, the rule amends subparagraph (c)(5) to state that 
Exemption 5's deliberative process privilege applies only to records 
created 25 years or more before the date on which the records are 
requested, and the rule adds a new paragraph (d) to

[[Page 21137]]

prohibit DOT from withholding information under this section unless DOT 
reasonably foresees that disclosure will harm an interest protected by 
a FOIA exemption, or the disclosure is prohibited by law. Both of these 
changes are required by the FOIA Improvement Act of 2016.
    Several additions have been made to section 7.31 in Subpart D, 
``Time Limits,'' to align with changes required by the FOIA Improvement 
Act of 2016, including requirements that DOT notify FOIA requesters of 
the availability of assistance or dispute resolution services from 
DOT's FOIA Public Liaisons or the Office of Government Information 
Services. This rule also extends the amount of time requesters have to 
file an administrative appeal from 45 days to 90 days from the date of 
DOT's initial determination. Finally, the rule amends section 7.34 in 
subpart D, ``Fees'', to prohibit the Department from charging 
requesters for the time spent searching for responsive records if the 
agency misses a deadline. The Department may continue to charge for 
search time if there are unusual circumstances and the Department 
responds within thirty days of the date of the request (and has 
notified the requester of the unusual circumstances). The Department 
may also continue to charge for search time if: (1) There are unusual 
circumstances, (2) the requester has been so notified, (3) more than 
5000 pages are necessary in the response, and (4) the agency 
communicates or makes at least three good faith attempts to address the 
scope with the requester in an attempt to narrow the request. If a 
court determines that exceptional circumstances exist, the agency's 
failure to comply with time limits shall be excused for the length of 
time provided by court order.
    In addition to the changes to the Department's regulations required 
by the FOIA Improvement Act of 2016, this final rule makes several 
other technical amendments needed as the result of legislative or 
regulatory action since the Department's last update to its regulations 
at 49 CFR part 7, in 2014. First, the Department is updating any 
reference to the Department's web address to replace ``dot'' with 
``transportation'' to reflect a change in the Department's web address. 
Next, this rule removes the reference to the Surface Transportation 
Board in Section 7.2, ``Definitions.'' The Surface Transportation Board 
was previously part of DOT, but was made a separate, independent 
agency, in December 2015, under the Surface Transportation Board 
Reauthorization Act of 2015 (Pub. L. 114-110). Finally, this rule 
amends Section 7.29 to include a reference to information submitted to 
the Federal Motor Carrier Safety Administration under 49 CFR 389.9. 
Section 7.29 sets forth the procedures the Department follows when it 
receives a request for information submitted to the Department that may 
contain confidential business information; however, these procedures do 
not apply when confidential business information is submitted to the 
Department through other regulatory procedures, such as 49 CFR 389.9, 
that include the opportunity for the submitter to identify the 
information as confidential and the Department to make a determination 
about the confidential nature of the information.

Final Rule

    Under the Administrative Procedure Act (5 U.S.C. 553(b)), the 
normal notice and comment procedure does not apply if the agency finds 
that it would be impracticable, unnecessary, or contrary to the public 
interest. This rule amends 49 CFR part 7 to make minor technical 
amendments, and revisions directly and expressly mandated by the FOIA 
Improvement Act of 2016. Additional changes are merely technical 
amendments that conform the Department's regulations with recent 
changes made by regulation or legislation. These changes to part 7 do 
not involve the exercise of agency discretion. Therefore, the 
Department finds that notice and comment for this rule is unnecessary 
due to the technical nature of the revisions and the lack of agency 
discretion. 5 U.S.C. 553(b)(3)(B).

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    The Department has determined this action is not a significant 
regulatory action within the meaning of Executive Order 12866, and 
within the meaning of the Department of Transportation's regulatory 
policies and procedures. The Department anticipates that the economic 
impact of this rulemaking would be minimal.

Regulatory Flexibility Act

    The Department has found under 5 U.S.C. 553(b)(3)(B) that notice 
and opportunity for comment are unnecessary for this rule; therefore, 
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 
U.S.C. 601-612) do not apply.

Assistance to Small Entities

    Section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 is applicable to assist small entities in 
understanding this final rule so that they can better evaluate its 
effects on themselves and participate in the rulemaking initiative. If 
the final rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult Joe Solomey, 
Senior Counsel for Enforcement Programs, (202) 366-2934.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, 
March 22, 1995) as it will not result in the expenditure by State, 
local, tribal governments, in the aggregate, or by the private sector, 
of $155 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132 dated August 4, 1999, and the Department determined this 
action will not have a substantial direct effect or sufficient 
federalism implications on the States. The Department also determined 
this action will not preempt any State law or regulation or affect the 
States' ability to discharge traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs do not apply to this 
program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. The

[[Page 21138]]

Department analyzed this final rule under the PRA and determined this 
rule does not contain collection of information requirements for the 
purposes of the PRA.

National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA 
that establish specific criteria for, and identification of, three 
classes of actions: Those that normally require preparation of an 
Environmental Impact Statement; those that normally require preparation 
of an Environmental Assessment; and those that are categorically 
excluded from further NEPA review (40 CFR 1507.3(b)). The changes in 
this rule are part of agency procedures, and therefore establishing the 
changes does not require preparation of a NEPA analysis or document. 
Agency NEPA procedures are generally procedural guidance to assist 
agencies in the fulfillment of agency responsibilities under NEPA, but 
are not the agency's final determination of what level of NEPA analysis 
is required for a particular proposed action. The requirements for 
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 
1507.3.
    This action was also analyzed under the Clean Air Act, as amended 
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement because it does not affect direct or indirect emissions of 
criteria pollutants.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at 
www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require the Department to achieve 
environmental justice (EJ) as part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects, including interrelated social and 
economic effects, of its programs, policies, and activities on minority 
populations and low-income populations in the United States. The DOT 
Order requires the Department to address compliance with the Executive 
Order and the DOT Order in all rulemaking activities. In addition, the 
Department has issued additional documents relating to administration 
of the Executive Order and the DOT Order.
    At the time the Department applies the NEPA implementing procedures 
in 23 CFR part 771, the Department would have an independent obligation 
to conduct an evaluation of the proposed action under the applicable EJ 
orders and guidance to determine whether the proposed action has the 
potential for EJ effects. The Department has evaluated the 
environmental justice effects of this rule in accordance with the E.O. 
and has determined that no environmental justice issue is associated 
with this rule, nor is there any collective environmental impact that 
would result from its promulgation.

Executive Order 12630 (Taking of Private Property)

    The Department has analyzed this final rule under Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights, and found this final rule will not affect a 
taking of private property or otherwise have taking implications under 
Executive Order 12630.

Privacy

    The E-Government Act of 2002, Public Law 107-347, sec. 208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a privacy impact assessment for new or substantially changed technology 
that collects, maintains, or disseminates information in an 
identifiable form. No new or substantially changed technology would 
collect, maintain, or disseminate information as a result of this rule.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The Department analyzed this rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks, which requires agencies issuing ``economically significant'' 
rules, if the regulation also concerns an environmental health or 
safety risk that an agency has reason to believe may disproportionately 
affect children, to include an evaluation of the regulation's 
environmental health and safety effects on children. It was determined 
this final rule is not economically significant, thus no analysis of 
the impacts on children is required. There is also no anticipation that 
this action could present an environmental or safety risk that could 
disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    The Department has analyzed this action under Executive Order 
13175, dated November 6, 2000, and determined the action will not have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibility between the Federal 
Government and Indian tribes.

National Technology Transfer and Advancement Act (Technical Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards (e.g., specifications of materials, performance, 
design, or operation; test methods; sampling procedures; and related 
management systems practices) are standards that are developed or 
adopted by voluntary consensus standards bodies. This rule does not use 
technical standards. Therefore, we did not consider the use of 
voluntary consensus standards.

Executive Order 13211 (Energy Effects)

    The Department has analyzed this action under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. The Department determined this rule is 
not a significant energy action under that order because it is not a 
significant regulatory action under Executive Order 12866 and is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects is not required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN number contained in the 
heading of this

[[Page 21139]]

document can be used to cross-reference this action with the Unified 
Agenda.

List of Subjects in 49 CFR Part 7

    Freedom of information, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the DOT amends 49 CFR part 7 as 
follows:

PART 7--PUBLIC AVAILABILITY OF INFORMATION

0
1. The authority citation for part 7 continues to read as follows:

    Authority:  5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 
12600; E.O. 13392


0
2. Amend Sec.  7.2 by revising the definitions of ``Department or DOT'' 
and ``Reading room records'' to read as follows:


Sec.  7.2  Definitions.

* * * * *
    Department or DOT means the Department of Transportation, including 
the Office of the Secretary, the Office of Inspector General, and all 
DOT Operating Administrations, any of which may be referred to as a DOT 
component.
* * * * *
    Reading room records are those records required to be made 
available to the public without a specific request under 5 U.S.C. 
552(a)(2), as described in Sec.  7.12.
* * * * *

0
3. Amend Sec.  7.12 by revising paragraphs (a)(4) and (b) to read as 
follows:


Sec.  7.12   What records are available in reading rooms, and how are 
they accessed?

    (a) * * *
    (4) Copies of all records, regardless of form or format, that have 
been released to any person under subpart C of this part and that:
    (i) Because of the nature of their subject matter, DOT determines 
have become or are likely to become the subject of subsequent requests 
for substantially the same records; or
    (ii) Have been requested three or more times.
* * * * *
    (b) Reading room locations. DOT makes its reading room records and 
indices (in the form of lists or links) available at https://www.transportation.gov/foia. To the extent that DOT continues to make 
reading rooms available at a physical location, those locations are 
listed on the DOT FOIA Web site at https://www.transportation.gov/foia.

0
4. Amend Sec.  7.23 as follows:
0
a. Revise paragraph (c)(5);
0
b. Redesignate paragraph (d) as (e);
0
c. Add new paragraph (d); and
0
d. Add paragraph (f).
    The revision and additions read as follows:


Sec.  7.23   What limitations apply to disclosure?

* * * * *
    (c) * * *
    (5) Inter-agency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency, provided that the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested;
* * * * *
    (d) Application of exemptions. DOT shall withhold information 
pursuant to a statutory exemption only if:
    (1) DOT reasonably foresees that disclosure would harm an interest 
protected by an exemption under paragraph (c) of this section; or
    (2) Disclosure is prohibited by law or otherwise exempted from 
disclosure under paragraph (c)(3) of this section.
* * * * *
    (f) Non-confidentiality of requests. DOT releases the names of FOIA 
requesters and descriptions of the records they have sought, as shown 
on DOT FOIA logs, except to the extent that an exemption authorizes or 
requires withholding of the log information.

0
5. Amend Sec.  7.27 to revise paragraphs (a) introductory text and (c) 
to read as follows:


Sec.  7.27   What are the designated DOT FOIA Requester Service 
Centers?

    (a) A request for a record under this subpart may be submitted via 
paper, facsimile, or electronic mail to the FOIA Requester Service 
Center designated for the DOT component where the records are located, 
at the electronic mail addresses or facsimile numbers identified at 
https://www.transportation.gov/foia or the mailing addresses indicated 
below (unless a more up-to-date mailing address has been designated at 
https://www.transportation.gov/foia):
* * * * *
    (c) Requests for records under this part, and FOIA inquiries 
generally, may be made by accessing the DOT Home Page on the Internet 
(https://www.transportation.gov) and clicking on the Freedom of 
Information Act link (https://www.transportation.gov/foia).

0
6. Add paragraph (d)(3) to Sec.  7.29 to read as follows:


Sec.  7.29   When and how does DOT consult with submitters of 
commercial information?

* * * * *
    (d) * * *
    (3) Information submitted to the Federal Motor Carrier Safety 
Administration and addressed in 49 CFR 389.9.
* * * * *

0
7. Revise paragraph Sec.  7.31(a)(3) to read as follows:


Sec.  7.31   What time limits apply to DOT with respect to initial 
determinations?

    (a) * * *
    (3) DOT notifies the requester of DOT's initial determination. If 
DOT decides to grant the request in full or in part, DOT makes the 
record (or the granted part) available as promptly as possible and 
provides the requester with written notification of DOT's 
determination, the reasons for the determination, and the right of the 
requester to seek assistance from the FOIA Public Liaison. If DOT 
denies the request in full or in part, because the record (or the 
denied part) is subject to an exemption, is not within DOT's custody 
and control, or was not located following a reasonable search, DOT 
notifies the requester of the denial in writing and includes in the 
notice the reason for the determination, the right of the requester to 
appeal the determination, the name and title of each individual 
responsible for the initial determination to deny the request, and the 
requester's right to seek dispute resolution services from the FOIA 
Public Liaison or the Office of Government Information Services. The 
denial letter includes an estimate of the volume of records or 
information withheld, in number of pages or other reasonable form of 
estimation. This estimate does not need to be provided if the volume is 
otherwise indicated through deletions on records disclosed in part, or 
if providing an estimate would harm an interest protected by an 
applicable exemption. DOT marks or annotates records disclosed in part 
to show both the amount and location of the information deleted 
whenever practicable (see Sec.  7.23(d)).
* * * * *

0
8. Amend Sec.  7.32 by revising paragraphs (a), (b), and (c) and (d)(1) 
to read as follows:


Sec.  7.32   What time limits apply to a requester when appealing DOT's 
initial or final determination?

    (a) Denial of records request. When the responsible DOT official 
determines that a record request will be denied, in whole or in part, 
because the record is subject to an exemption, is not in DOT's

[[Page 21140]]

custody and control, or was not located following a reasonable search, 
DOT provides the requester with the written statement described in 
Sec.  7.31(a)(3).
    (b) Denial of fee waiver. When the responsible DOT official denies, 
in whole or in part, a request for a waiver of fees made pursuant to 
Sec.  7.24(b) or Sec.  7.43(c), DOT provides the requester with written 
notification of that determination, the reasons for the determination, 
the right of the requester to appeal the determination within DOT, and 
the requester's right to seek assistance in resolution of disputes from 
the FOIA Public Liaison or Office of Government Information Services.
    (c) Denial of expedited processing. When the responsible DOT 
official denies a request for expedited processing made pursuant to 
Sec.  7.31(c), DOT provides the requester with written notice of that 
determination, the reasons for the determination, the right to appeal 
the determination within DOT, and the requester's right to seek dispute 
resolution services from the FOIA Public Liaison or Office of 
Government Information Services.
    (d) * * *
    (1) Each appeal must be made in writing to the appropriate DOT 
appeal official and postmarked or, in the case of electronic or 
facsimile transmissions transmitted, within ninety calendar days from 
the date the initial determination is signed and should include the DOT 
file or reference number assigned to the request and all information 
and arguments relied upon by the person making the request. The contact 
information for all DOT component appeal officials is identified in the 
DOT FOIA Reference Guide available at https://www.transportation.gov/foia. The envelope in which a mailed appeal is sent or the subject line 
of an appeal sent electronically or by facsimile should be prominently 
marked: ``FOIA Appeal.'' The twenty Federal working day limit described 
in Sec.  7.33(a) will not begin to run until the appeal has been 
received by the appropriate office and identified as an appeal under 
FOIA, or would have been so identified with the exercise of due 
diligence, by a DOT employee.
* * * * *

0
9. Amend Sec.  7.34 by revising paragraph (b) to read as follows:


Sec.  7.34   When and how are time limits applicable to DOT extended?

* * * * *
    (b) When the extension is for more than ten Federal working days, 
the written notice provides the requester with an opportunity to either 
modify the request (e.g., by narrowing the record types or date ranges) 
so that it may be processed within the extended time limit, or arrange 
an alternative time period with the DOT component for processing the 
request (e.g., by prioritizing portions of the request). The written 
notice also will notify the requester of the right to seek dispute 
resolution services from the Office of Government Information Services.
* * * * *

0
10. Amend Sec.  7.43 by revising paragraph (f) to read as follows:


Sec.  7.43   When are fees waived or reduced for records requested 
under subpart C of this part?

* * * * *
    (f) Except as provided in paragraphs (f)(1) through (3) of this 
section, DOT does not assess search fees otherwise chargeable under 
Sec.  7.42(h) and (j) or duplication fees otherwise chargeable under 
Sec.  7.42(i) when DOT fails to comply with the time limits under Sec.  
7.31 or Sec.  7.33.
    (1) If DOT has determined that unusual circumstances apply (as 
defined in Sec.  7.34(a)), 5,000 pages or less are necessary to respond 
to the request, and DOT has provided a timely written notice to the 
requester in accordance with Sec.  7.34(a), a failure to comply with 
the time limits under Sec.  7.31 or Sec.  7.33 is excused for an 
additional 10 days. If DOT does not comply with the extended time 
limit, DOT does not assess search fees otherwise chargeable under Sec.  
7.42(h) and (j) or duplication fees otherwise chargeable under Sec.  
7.24(i);
    (2) If DOT has determined that unusual circumstances apply (as 
defined under Sec.  7.34(a)) and more than 5,000 pages are necessary to 
respond to the request, DOT may charge search fees under Sec.  7.42(h) 
and (j) or duplication fees under Sec.  7.42(j) if DOT has provided 
timely written notice to the requester in accordance with Sec.  7.34(a) 
and (b), and DOT has discussed with the requester via written mail, 
electronic mail, or telephone (or made not less than three good faith 
attempts to do so) how the requester could effectively limit the scope 
of the request.
    (3) If a court determines that exceptional circumstances exist (as 
that term is defined in 5 U.S.C. 552(a)(6)(C)), failure to comply with 
time limits under Sec.  7.31 or Sec.  7.33 shall be excused for the 
length of time provided by the court order.

    Issued on: April 25, 2017.
Judith S. Kaleta,
Deputy General Counsel.
[FR Doc. 2017-08925 Filed 5-4-17; 8:45 am]
 BILLING CODE 4910-9X-P