[Federal Register Volume 63, Number 30 (Friday, February 13, 1998)]
[Rules and Regulations]
[Pages 7311-7318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3529]
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NATIONAL RAILROAD PASSENGER CORPORATION
49 CFR Part 701
Revision of the Freedom of Information Act Regulations and
Implementation of the Electronic Freedom of Information Act Amendments
of 1996
AGENCY: National Railroad Passenger Corporation (Amtrak).
ACTION: Final rule.
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SUMMARY: This revision to the rules of the National Railroad Passenger
Corporation (Amtrak) provides substantive and administrative changes to
conform to requirements of the Electronic Freedom of Information Act
Amendments of 1996, 5 U.S.C. 552, as amended by Pub. L. 104-231 and
reflects recent developments in case law. Amtrak also took this
opportunity to streamline its rules and include updated cost figures to
be used in calculating and charging fees.
EFFECTIVE DATE: Effective February 13, 1998.
FOR FURTHER INFORMATION CONTACT: Ms. Medaris Oliveri; National Railroad
Passenger Corporation; Freedom of Information Office; 60 Massachusetts
Avenue, N.E.; Washington, D.C. 20002 or by telephone at 202/906-2728.
SUPPLEMENTARY INFORMATION: On November 14, 1997, the National Railroad
Passenger Corporation (Amtrak) published a Notice of Proposed
Rulemaking with a Request for Comments, 49 CFR 61070. No responses were
received by the comment deadline of December 15, 1997. The purpose of
the present rule is to establish the effective date for the final rule
using the same text as the proposed rule with a minor change to reflect
the current title of Amtrak's President and Chief Executive Officer in
paragraph (l) of Sec. 701.2 definitions and in paragraph (a)(2) of
Sec. 701.10 appeals.
List of Subjects in 49 CFR Part 701
Freedom of Information.
Accordingly 49 CFR part 701 is revised to read as follows:
PART 701--AMTRAK FREEDOM OF INFORMATION ACT PROGRAM
Sec.
701.1 General provisions.
701.2 Definitions.
701.3 Policy.
701.4 Amtrak public information.
701.5 Requirements for making requests.
701.6 Release and processing procedures.
701.7 Timing of responses to requests.
701.8 Responses to requests.
701.9 Business information.
701.10 Appeals.
701.11 Fees.
701.12 Other rights and services.
Authority: 5 U.S.C. 552; 49 U.S.C. 24301(e).
Sec. 701.1 General provisions.
This part contains the rules that the National Railroad Passenger
Corporation (``Amtrak'') follows in processing requests for records
under the Freedom of Information Act (FOIA), Title 5 of the United
States Code, section 552. Information routinely provided to the public
(i.e., train timetables, press releases) may be obtained without
following Amtrak's FOIA procedures. As a matter of policy, Amtrak may
make discretionary disclosures of records or information exempt under
the FOIA whenever disclosure would not foreseeably harm an interest
protected by an FOIA exemption; however, this policy does not create
any right enforceable in court.
Sec. 701.2 Definitions.
Unless the context requires otherwise in this part, masculine
pronouns include the feminine gender and ``includes'' means ``includes
but is not limited to.''
(a) Amtrak or Corporation means the National Railroad Passenger
Corporation.
(b) Appeal means a request submitted to the President of Amtrak or
designee for review of an adverse initial determination.
(c) Business days means working days; Saturdays, Sundays, and legal
public holidays are excluded in computing response time for processing
FOIA requests.
(d) Disclose or disclosure means making records available for
examination or copying, or furnishing a copy of nonexempt responsive
records.
(e) Electronic data means records and information (including E-
mail) that are created, stored, and retrievable by electronic means.
(f) Exempt information means information that is exempt from
disclosure under one or more of the nine exemptions to the FOIA.
(g) Final determination means a decision by the President of Amtrak
or
[[Page 7312]]
designee concerning a request for review of an adverse initial
determination received in response to an FOIA request.
(h) Freedom of Information Act or ``FOIA'' means the statute as
codified in section 552 of Title 5 of the United States Code as
amended.
(i) Freedom of Information Officer means the Amtrak official
designated to fulfill the responsibilities of implementing and
administering the Freedom of Information Act as specifically designated
under this part.
(j) Initial determination means a decision by an Amtrak FOIA
Officer in response to a request for information under the FOIA.
(k) Pages means paper copies of standard office size or the cost
equivalent in other media.
(l) President means the President and Chief Executive Officer (CEO)
of the National Railroad Passenger Corporation (Amtrak) or designee.
(m) Record means any writing, drawing, map, recording, tape, film,
photograph, or other documentary material by which information is
preserved in any format, including electronic format. A record must
exist and be in the possession and control of Amtrak at the time of the
request to be subject to this part and the FOIA. The following are not
included within the definition of the word ``record'':
(1) Library materials compiled for reference purposes or objects of
substantial intrinsic value.
(2) Routing and transmittal sheets, notes, and filing notes which
do not also include information, comments, or statements of substance.
(3) Anything that is not a tangible or documentary record such as
an individual's memory or oral communication.
(4) Objects or articles, whatever their historical or value as
evidence.
(n) Request means any request for records made pursuant to 5 U.S.C.
552(a)(3).
(o) Requester or requesting party means any person who has
submitted a request to Amtrak.
(p) Responsive records means documents determined to be within the
scope of a FOIA request.
Sec. 701.3 Policy.
(a) Amtrak will make records of the Corporation available to the
public to the greatest practicable extent in keeping with the spirit of
the law. Therefore, records of the Corporation are available for public
inspection and copying as provided in this part with the exception of
those that the Corporation specifically determines should not be
disclosed either in the public interest, for the protection of private
rights, or for the efficient conduct of public or corporate business,
but only to the extent withholding is permitted by law.
(b) A record of the Corporation, or parts thereof, may be withheld
from disclosure if it comes under one or more exemptions in 5 U.S.C.
552(b) or is otherwise exempted by law. Disclosure to a properly
constituted advisory committee, to Congress, or to federal agencies
does not waive the exemption.
(c) In the event one or more exemptions apply to a record, any
reasonably segregable portion of the record will be made available to
the requesting person after deletion of the exempt portions. The entire
record may be withheld if a determination is made that nonexempt
material is so inextricably intertwined that disclosure would leave
only essentially meaningless words or phrases, or when it can be
reasonably assumed that a skillful and knowledgeable person could
reconstruct the deleted information.
(d) The procedures in this part apply only to records in existence
at the time of a request. The Corporation has no obligation to create a
record solely for the purpose of making it available under the FOIA or
to provide a record that will be created in the future.
(e) Each officer and employee of the Corporation dealing with FOIA
requests is directed to cooperate in making records available for
disclosure under the Act in a prompt manner consistent with this part.
(f) The FOIA time limits will not begin to run until a request has
been identified as being made under the Act and deemed received by the
Freedom of Information Office.
(g) Generally, when a member of the public complies with the
procedures established in this part for obtaining records under the
FOIA, the request shall receive prompt attention, and a response shall
be made within twenty business days.
Sec. 701.4 Amtrak public information.
(a) Public reading room. Amtrak maintains a public reading room at
its headquarters at 60 Massachusetts Avenue, N.E. in Washington, D.C.
The public reading room contains records required under the FOIA to be
regularly available for public inspection and copying. A current
subject-matter index shall be maintained of records in the public
reading room that are available for inspection and copying. The index
shall be updated at least quarterly with respect to newly included
records. A copy of the index shall be provided upon request at a cost
not to exceed the direct cost of duplication.
(b) Electronic reading room. Amtrak will make available
electronically reading room records created by the Corporation on or
after November 1, 1996 on its World Wide Web site which can be accessed
at http://www.Amtrak.com. An index of the Corporation's reading room
records will also be made available at the web site. The index will
indicate reading room records that are available electronically.
(c) Frequently requested information. The FOIA requires that copies
of records, regardless of form or format, released pursuant to a FOIA
request under 5 U.S.C. 552(a)(3) that have become or are likely to
become the subject of subsequent requests for substantially the same
records be made publicly available. Such records created by the
Corporation after November 1, 1996 will be made available
electronically while records created prior to this date will be made
available for inspection and copying in Amtrak's public reading room.
(1) Amtrak shall decide on a case-by-case basis whether records
fall into the category of ``frequently requested FOIA records'' based
on the following factors:
(i) Previous experience with similar records;
(ii) The nature and type of information contained in the records;
(iii) The identity and number of requesters and whether there is
widespread media or commercial interest in the records.
(2) The provision in this paragraph is intended for situations
where public access in a timely manner is important. It is not intended
to apply where there may be a limited number of requests over a short
period of time from a few requesters. Amtrak may remove the records
from this category when it is determined that access is no longer
necessary.
(d) Guide for making requests. A guide on how to use the FOIA for
requesting records from Amtrak shall be made available to the public
upon request. Amtrak's major information systems will be described in
the guide.
Sec. 701.5 Requirements for making requests.
(a) General requirements. (1) A FOIA request can be made by ``any
person'' as defined in 5 U.S.C. 551(2), which encompasses individuals
(including foreign citizens; partnerships; corporations; associations;
and local, state, tribal, and foreign governments). A FOIA request may
not be made by a Federal agency.
[[Page 7313]]
(2) A request must be in writing, indicate that it is being made
under the FOIA and provide an adequate description of the records
sought. The request should also include applicable information
regarding fees as specified in paragraphs (d) and (e) of this section.
(b) How to submit a request. (1) A request must clearly state on
the envelope and in the letter that it is a Freedom of Information Act
or ``FOIA'' request.
(2) The request must be addressed to the Freedom of Information
Office; National Railroad Passenger Corporation; 60 Massachusetts
Avenue, N.E.; Washington, D.C. 20002. Requests will also be accepted by
facsimile at (202) 906-2169. Amtrak cannot assure that a timely or
satisfactory response under this part will be given to written requests
addressed to Amtrak offices, officers, or employees other than the
Freedom of Information Office. Amtrak employees receiving a
communication in the nature of a FOIA request shall forward it to the
FOIA Office expeditiously. Amtrak shall advise the requesting party of
the date that an improperly addressed request is received by the FOIA
Office.
(c) Content of the request. (1) Description of records--
Identification of records sought under the FOIA is the responsibility
of the requester. The records sought should be described in sufficient
detail so that Amtrak personnel can locate them with a reasonable
amount of effort. When possible, the request should include specific
information such as dates, title or name, author, recipient, subject
matter of the record, file designation or number, or other pertinent
details for each record or category of records sought.
(2) Reformulation of a request. Amtrak is not obligated to act on a
request until the requester provides sufficient information to locate
the record. Amtrak may offer assistance in identifying records and
reformulating a request where: the description is considered
insufficient, the production of voluminous records is required, or a
considerable number of work hours would be required that would
interfere with the business of the Corporation. The Freedom of
Information Office shall notify the requester within ten business days
of the type of information that will facilitate the search. The
requesting party shall be given an opportunity to supply additional
information and may submit a revised request, which will be treated as
a new request.
(d) Payment of fees. The submission of a FOIA request constitutes
an agreement to pay applicable fees accessed up to $25.00 unless the
requesting party specifies a willingness to pay a greater or lesser
amount or seeks a fee waiver or reduction in fees.
(1) Fees in excess of $25.00. When Amtrak determines or estimates
that applicable fees are likely to exceed $25.00, the requesting party
shall be notified of estimated or actual fees, unless a commitment has
been made in advance to pay all fees. If only a portion of the fee can
be estimated readily, Amtrak shall advise the requester that the
estimated fee may be a portion of the total fee.
(i) In order to protect requesters from large and/or unexpected
fees, Amtrak will request a specific commitment when it estimates or
determines that fees will exceed $100.00.
(ii) A request shall not be considered received, and further
processing carried out until the requesting party agrees to pay the
anticipated total fee. Any such agreement must be memorialized in
writing. A notice under this paragraph will offer the requesting party
an opportunity to discuss the matter in order to reformulate the
request to meet the requester's needs at a lower cost.
(iii) Amtrak will hold in abeyance for forty-five (45) days
requests requiring agreement to pay fees and will thereafter deem the
request closed. This action will not prevent the requesting party from
refiling the FOIA request with a fee commitment at a subsequent date.
(2) Fees in excess of $250. When Amtrak estimates or determines
that allowable charges are likely to exceed $250, an advance deposit of
the entire fee may be required before continuing to process the
request.
(e) Information regarding fee category. In order to determine the
appropriate fee category, a request should indicate whether the
information sought is intended for commercial use or whether the
requesting party is a member of the staff of an educational or
noncommercial scientific institution or a representative of the news
media.
(f) Records concerning other individuals. If the request is for
records concerning another individual, either a written authorization
signed by that individual permitting disclosure of those records to the
requesting party or proof that the individual is deceased (i.e., a copy
of a death certificate or an obituary) will help to expedite processing
of the request.
Sec. 701.6 Release and processing procedures.
(a) General provisions. In determining records that are responsive
to a request, Amtrak will ordinarily include only records that exist
and are in the possession and control of the Corporation as of the date
that the search is begun. If any other date is used, the requesting
party will be informed of that date.
(b) Authority to grant or deny requests. Amtrak's FOIA officer is
authorized to grant or deny any request for records.
(c) Notice of referral. If Amtrak refers all or any part of the
responsibility for responding to a request to another organization, the
requesting party will be notified. A referral shall not be considered a
denial of access within the meaning of this part. All consultations and
referrals of requests will be handled according to the date that the
FOIA request was initially received.
(d) Creating a record. There is no obligation on the part of Amtrak
to create, compile, or obtain a record to satisfy a FOIA request. The
FOIA also does not require that a new computer program be developed to
extract the records requested. Amtrak may compile or create a new
record, however, when doing so would result in a more useful response
to the requesting party or would be less burdensome to Amtrak than
providing existing records. The cost of creating or compiling such a
record may not be charged to the requester unless the fee for creating
the record is equal to or less than the fee that would be charged for
providing the existing record.
(e) Incomplete records. If the records requested are not complete
at the time of a request, Amtrak may, at its discretion, inform the
requester that complete nonexempt records will be provided when
available without having to submit an additional request.
(f) Electronic records. Amtrak is not obligated to process a
request for electronic records where creation of a record, programming
or a particular format would result in a significant expenditure of
resources or interfere with the corporation's operations.
Sec. 701.7 Timing of responses to requests.
(a) General. (1) The time limits of the FOIA will begin only after
the requirements for submitting a request as established in Sec. 701.5
have been met, and the request is deemed received by the Freedom of
Information Office.
(2) A request for records shall be considered to have been received
on the later of the following dates:
(i) The requester has agreed in writing to pay applicable fees in
accordance with Sec. 701.5(d), or
(ii) The fees have been waived in accordance with Sec. 701.11(k),
or
[[Page 7314]]
(iii) Payment in advance has been received from the requester when
required in accordance with Sec. 701.11(i).
(3) The time for responding to requests set forth in paragraph (b)
of this section may be delayed if:
(i) The request does not sufficiently identify the fee category
applicable to the request;
(ii) The request does not state a willingness to pay all fees;
(iii) A request seeking a fee waiver does not address the criteria
for fee waivers set forth in Sec. 701.11(k);
(iv) A fee waiver request is denied, and the request does not
include an alternative statement indicating that the requesting party
is willing to pay all fees.
(b) Initial determination. Whenever possible, an initial
determination to release or deny a record shall be made within twenty
business days after receipt of the request. In ``unusual
circumstances'' as described in paragraph (d) of this section, the time
for an initial determination may be extended for ten business days.
(c) Multitrack processing. (1) Amtrak 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 a
request or the number of pages involved.
(2) In general, when requests are received, Amtrak's FOIA Office
will review and categorize them for tracking purposes. Requests within
each track will be processed according to date of receipt.
(3) The FOIA Office may contact a requester when a request does not
appear to qualify for fast track processing to provide an opportunity
to limit the scope of the request and qualify for a faster track. Such
notification shall be at the discretion of the FOIA Office and will
depend largely on whether it is believed that a narrowing of the
request could place the request on a faster track.
(d) Unusual circumstances. (1) The requesting party shall be
notified in writing if the time limits for processing a request cannot
be met because of unusual circumstances, and it will be necessary to
extend the time limits for processing the request. The notification
shall include the date by which the request can be expected to be
completed. Where the extension is for more than ten business days, the
requesting party will be afforded an opportunity to either modify the
request so that it may be processed within the time limits or to
arrange an alternative time period for processing the initial request
or modified request.
(2) If Amtrak believes that multiple requests submitted by a
requester or by a group of requesters acting in concert constitute a
single request that would otherwise involve unusual circumstances and
the requests involve clearly related matters, the requests may be
aggregated. Multiple requests concerning unrelated matters may not be
aggregated.
(3) Unusual circumstances that may justify delay include:
(i) The need to search for and collect the requested records from
other facilities that are separate from Amtrak's headquarters offices.
(ii) The need to search for, collect, and examine a voluminous
amount of separate and distinct records sought in a single request.
(iii) The need for consultation, which shall be conducted with all
practicable speed, with agencies having a substantial interest in the
determination of the request, or among two or more Amtrak components
having a substantial subject-matter interest in the request.
(e) Expedited processing. (1) Requests and appeals may be taken out
of order and given expedited treatment whenever it is determined that
they involve a compelling need, which means:
(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; and
(ii) An urgency to inform the public about an actual or alleged
Amtrak activity, if made by a person primarily engaged in disseminating
information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at a later date.
(3) A requester seeking 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. This statement must accompany the
request in order to be considered and responded to within the ten
calendar days required for decisions on expedited access.
(4) A requester who is not a full-time member of the news media
must establish that he is a person whose main professional activity or
occupation is information dissemination, though it need not be his sole
occupation. A requester must establish a particular urgency to inform
the public about the Amtrak activity involved in the request.
(5) Within ten business days of receipt of a request for expedited
processing, Amtrak shall determine whether to grant such a request and
notify the requester of the decision. If a request for expedited
treatment is granted, the request shall be given priority and shall be
processed as soon as practicable.
(6) Amtrak shall provide prompt consideration of appeals of
decisions denying expedited processing.
Sec. 701.8 Responses to requests.
(a) Granting of requests. When an initial determination is made to
grant a request in whole or in part, the requesting party shall be
notified in writing and advised of any fees charged under
Sec. 701.11(e). The records shall be disclosed to the requesting party
promptly upon payment of applicable fees.
(b) Adverse determination of requests. (1) Types of denials--The
requesting party shall be notified in writing of a determination to
deny a request in any respect. Adverse determinations or denials of
records consist of:
(i) A determination to withhold any requested record in whole or in
part;
(ii) A determination that a requested record does not exist or
cannot be located;
(iii) A denial of a request for expedited treatment; and
(iv) A determination on any disputed fee matter including a denial
of a request for a fee waiver.
(2) Deletions. When practical, records disclosed in part shall be
marked or annotated to show both the amount and location of the
information deleted.
(3) Content of denial letter. The denial letter shall be signed by
the Freedom of Information Officer or designee and shall include:
(i) A brief statement of the reason(s) for the adverse
determination including any FOIA exemptions applied in denying the
request;
(ii) An estimate of the volume of information withheld (number of
pages or some other reasonable form of estimation). An estimate does
not need to be provided if the volume is indicated through deletions on
records disclosed in part, or if providing an estimate would harm an
interest protected by an applicable exemption;
(iii) A statement that an appeal may be filed under Sec. 701.10 and
a description of the requirements of that section; and
(iv) The name and title or position of the person responsible for
the denial.
701.9 Business information.
(a) General. Business information held by Amtrak will be disclosed
under the FOIA only under this section.
(b) Definitions. For purposes of this section, the following
definitions apply:
(1) Business information means commercial or financial information
[[Page 7315]]
held by Amtrak that may be protected from disclosure under Exemption 4
of the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity including partnerships;
corporations; associations; and local, state, tribal, and foreign
governments.
(c) Designation of business information. A submitter of business
information will use good faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4. These designations will
expire ten years after the date of the submission unless the submitter
requests and provides justification for a longer designation period.
(d) Notice to submitters. Amtrak shall provide a submitter with
prompt written notice of an FOIA request or an appeal that seeks its
business information when required under paragraph (e) of this section,
except as provided in paragraph (h), in order to give the submitter an
opportunity to object to disclosure of any specified portion of the
information under paragraph (f). The notice shall either describe the
business information requested or include copies of the requested
records or portions of records containing the information.
(e) When notice is required. Notice shall be given to a submitter
when:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(2) Amtrak has reason to believe that the information may be
protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. Amtrak will allow a
submitter a reasonable amount of time to respond to the notice
described in paragraph (d) of this section.
(1) A detailed written statement must be submitted to Amtrak if the
submitter has any objection to disclosure. The statement must specify
all grounds for withholding any specified portion of the information
sought under the FOIA. In the case of Exemption 4, it must show why the
information is a trade secret or commercial or financial information
that is privileged or confidential.
(2) In the event that a submitter fails to respond within the time
specified in the notice, the submitter will be considered to have no
objection to disclosure of the information sought under the FOIA.
(3) Information provided by a submitter in response to the notice
may be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. Amtrak shall consider a
submitter's objections and specific grounds for disclosure in making a
determination whether to disclose the information. In any instance,
when a decision is made to disclose information over the objection of a
submitter, Amtrak shall give the submitter written notice which shall
include:
(1) A statement of the reason(s) why each of the submitter's
objections to disclosure was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of
this section shall not apply if:
(1) Amtrak determines that the information should not be disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is required by law (other than
the FOIA);
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous. In such a case, Amtrak shall
within a reasonable time prior to a specified disclosure date, give the
submitter written notice of the final decision to disclose the
information; or
(5) The information requested is not designated by the submitter as
exempt from disclosure in accordance with this part, unless Amtrak has
substantial reason to believe that disclosure of the information would
result in competitive harm.
(i) Notice of a FOIA lawsuit. Whenever a FOIA requester files a
lawsuit seeking to compel disclosure of business information, Amtrak
shall promptly notify the submitter.
(j) Notice to requesters. (1) When Amtrak provides a submitter with
notice and an opportunity to object to disclosure under paragraph (f)
of this section, the FOIA Office shall also notify the requester(s).
(2) When Amtrak notifies a submitter of its intent to disclose
requested information under paragraph (g) of this section, Amtrak shall
also notify the requester(s).
(3) When a submitter files a lawsuit seeking to prevent the
disclosure of business information, Amtrak shall notify the
requester(s).
Sec. 701.10 Appeals.
(a) Appeals of adverse determinations. (1) The requesting party may
appeal:
(i) A decision to withhold any requested record in whole or in
part;
(ii) A determination that a requested record does not exist or
cannot be located;
(iii) A denial of a request for expedited treatment; or
(iv) Any disputed fee matter or the denial of a request for a fee
waiver.
(2) The appeal must be addressed to the President and Chief
Executive Officer (CEO); National Railroad Passenger Corporation; 60
Massachusetts Avenue, N.E., Washington, D.C. 20002.
(3) The appeal must be in writing and specify the relevant facts
and the basis for the appeal. The appeal letter and envelope must be
marked prominently ``Freedom of Information Act Appeal'' to ensure that
it is properly routed.
(4) The appeal must be received by the President's Office within
thirty (30) days of the date of denial.
(5) An appeal will not be acted upon if the request becomes a
matter of FOIA litigation.
(b) Responses to appeals. The decision on any appeal shall be made
in writing.
(1) A decision upholding an adverse determination in whole or in
part shall contain a statement of the reason(s) for such action,
including any FOIA exemption(s) applied. The requesting party shall
also be advised of the provision for judicial review of the decision
contained in 5 U.S.C. 552(a)(4)(B).
(2) If the adverse determination is reversed or modified on appeal
in whole or in part, the requesting party shall be notified, and the
request shall be reprocessed in accordance with the decision.
(c) When appeal is required. The requesting party must appeal any
adverse determination prior to seeking judicial review.
Sec. 701.11 Fees.
(a) General. Amtrak shall charge for processing requests under the
FOIA in accordance with this section. A fee of $9.50 per quarter hour
shall be charged for search and review. For information concerning
other processing fees, refer to paragraph (e) of this section. Amtrak
shall collect all applicable fees before releasing copies of requested
records to the requesting party. Payment of fees shall be made by check
or money order payable to the National Railroad Passenger Corporation.
(b) Definitions. For purposes of this section:
(1) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within
[[Page 7316]]
records and also includes reasonable efforts to locate and retrieve
information from records maintained in electronic form or format.
(2) Review means the process of examining a record located in
response to a request to determine whether one or more of the statutory
exemptions of the FOIA apply. Processing any record for disclosure
includes doing all that is necessary to redact the record and prepare
it for release. Review time includes time spent considering formal
objection to disclosure by a commercial submitter under Sec. 701.9, but
does not include time spent resolving general legal or policy issues
regarding the application of exemptions. Review costs are recoverable
even if a record ultimately is not disclosed.
(3) Reproduction means the making of a copy of a record or the
information contained in it in order to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (i.e., magnetic tape or disk) among others. Amtrak
shall honor a requester's specified preference for the form or format
of disclosure if the record is readily reproducible with reasonable
effort in the requested form or format by the office responding to the
request.
(4) Direct costs means those expenses actually incurred in
searching for and reproducing (and, in the case of commercial use
requests, reviewing) records to respond to a FOIA request. Direct costs
include such costs as the salary of the employee performing the work
(the basic rate of pay for the employee plus applicable benefits and
the cost of operating reproduction equipment). Direct costs do not
include overhead expenses such as the costs of space and heating or
lighting of the facility.
(c) Fee categories. There are four categories of FOIA requesters
for fee purposes: ``commercial use requesters,'' ``representatives of
the news media,'' ``educational and non-commercial scientific
institution requesters,'' and ``all other requesters.'' The categories
are defined in paragraphs (c)(1) through (5), and applicable fees,
which are the same for two of the categories, will be assessed as
specified in paragraph (d) of this section.
(1) Commercial requesters. The term ``commercial use'' request
refers to a request from or on behalf of a person who seeks information
for a use or purpose that furthers his commercial, trade, or profit
interests, including furthering those interests through litigation.
Amtrak shall determine, whenever reasonably possible, the use to which
a requester will put the records sought by the request. When it appears
that the requesting party will put the records to a commercial use,
either because of the nature of the request itself or because Amtrak
has reasonable cause to doubt the stated intended use, Amtrak shall
provide the requesting party with an opportunity to submit further
clarification. Where a requester does not explain the use or where
explanation is insufficient, Amtrak may draw reasonable inferences from
the requester's identity and charge accordingly.
(2) Representative of the news media or news media requester refers
to any person actively gathering news for an entity that is organized
and operated to publish or broadcast news to the public. The term
``news'' means information that is about current events or that would
be of current interest to the public. Examples of news media entities
include television or radio stations broadcasting to the public at
large and publishers of periodicals (but only in those instances where
they can qualify as disseminators of news). For ``freelance''
journalists to be regarded as working for a news organization, they
must demonstrate a solid basis for expecting publication through an
organization. A publication contract would be the clearest proof, but
Amtrak shall also look to the past publication record of a requester in
making this determination. A request for records supporting the news
dissemination function of the requester shall not be considered to be
for commercial use.
(3) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of undergraduate
higher education, an institution of graduate higher education, an
institution of professional education, or an institution of vocational
education that operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for commercial use but to further scholarly
research.
(4) Noncommercial scientific institution refers to an institution
that is not operated on a ``commercial'' basis, as that term is defined
in paragraph (c)(1) of this section, and that is operated solely for
the purpose of conducting scientific research, the results of which are
not intended to promote any particular product or industry. To be in
this category, the requesting party must show that the request is
authorized by and is made under the auspices of a qualifying
institution and that the records are not sought for commercial use but
to further scientific research.
(5) Other requesters refers to requesters who do not come under the
purview of paragraphs (c)(1) through (4) of this section.
(d) Assessing fees. In responding to FOIA requests, Amtrak shall
charge the following fees unless a waiver or a reduction in fees has
been granted under paragraph (k) of this section:
(1) ``Commercial use'' requesters: The full allowable direct costs
for search, review, and duplication of records.
(2) ``Representatives of the news media'' and ``educational and
non-commercial scientific institution'' requesters: Duplication charges
only, excluding charges for the first 100 pages.
(3) ``All other'' requesters: The direct costs of search and
duplication of records. The first 100 pages of duplication and the
first two hours of search time shall be provided without charge.
(e) Schedule of fees. (1) Manual searches--Personnel search time
includes time expended in either manual searches for paper records,
searches using indices, review of computer search results for relevant
records, and personal computer system searches.
(2) Computer searches. The direct costs of conducting a computer
search will be charged. These direct costs will include the cost of
operating a central processing unit for that portion of the operating
time that is directly attributable to searching for responsive records
as well as the costs of operator/programmer salary apportionable to the
search.
(3) Duplication fees. Duplication fees will be charged all
requesters subject to limitations specified in paragraph (d) of this
section. Amtrak shall charge 25 cents per page for a paper photocopy of
a record. For copies produced by computer (such as tapes or printouts),
Amtrak will charge the direct costs, including the operator time in
producing the copy. For other forms of duplication, Amtrak will charge
the direct costs of that duplication.
(4) Review fees. Review fees will be assessed for commercial use
requests. Such fees will be assessed for review conducted in making an
initial determination, or upon appeal, when review is conducted to
determine whether an exemption not previously considered is applicable.
(5) Charges for other services. The actual cost or amount shall be
charged for all other types of output, production, and duplication
(e.g., photographs, maps, or printed materials).
[[Page 7317]]
Determinations of actual cost shall include the commercial cost of the
media, the personnel time expended in making the item available for
release, and an allocated cost for the equipment used in producing the
item. The requesting party will be charged actual production costs when
a commercial service is required. Items published and available through
Amtrak will be made available at the publication price.
(6) Charges for special services. Apart from the other provisions
of this section, when Amtrak chooses as a matter of discretion to
provide a special service such as certifying that records are true
copies or sending records by other than ordinary mail, the direct costs
of providing such services shall be charged.
(f) Commitment to pay fees. When Amtrak determines or estimates
that applicable fees will likely exceed $25.00, the requesting party
will be notified of the actual or estimated amount unless a written
statement has been received indicating a willingness to pay all fees.
To protect requesters from large and/or unexpected fees, Amtrak will
request a specific commitment when it is estimated or determined that
fees will exceed $100.00. See Sec. 701.5(d) for additional information.
(g) Restrictions in accessing fees. (1) General-- Fees for search
and review will not be charged for a quarter-hour period unless more
than half of that period is required.
(2) Minimum fee. No fees will be charged if the cost of collecting
the fee is equal to or greater than the fee itself. That cost includes
the costs to Amtrak for billing, receiving, recording, and processing
the fee for deposit, which has been deemed to be $10.00.
(3) Computer searches. With the exception of requesters seeking
documents for commercial use, Amtrak shall not charge fees for computer
search until the cost of search equals the equivalent dollar amount of
two hours of the salary of the operator performing the search.
(h) Nonproductive searches. Amtrak may charge for time spent for
search and review even if responsive records are not located or if the
records located are determined to be entirely exempt from disclosure.
(i) Advance payments. (1) When Amtrak estimates or determines that
charges are likely to exceed $250, an advance payment of the entire fee
may be required before continuing to process the request.
(2) When there is evidence that the requester may not pay the fees
that would be incurred by processing the request, an advance deposit
may be required. Amtrak may require the full amount due plus applicable
interest and an advance payment of the full amount of anticipated fees
before beginning to process a new request or continuing to process a
pending request where a requester has previously failed to pay a
properly charged FOIA fee within thirty (30) days of the date of
billing. The time limits of the FOIA will begin only after Amtrak has
received such payment.
(3) Amtrak will hold in abeyance for forty-five (45) days requests
where deposits are due.
(4) Monies owed for work already completed (i.e., before copies are
sent to a requester) shall not be considered an advance payment.
(5) Amtrak shall not deem a request as being received in cases in
which an advance deposit or payment is due, and further work will not
be done until the required payment is received.
(j) Charging interest. Amtrak may charge interest on any unpaid
bill for processing charges starting on the 31st day following the date
of billing the requester. Interest charges will be assessed at the rate
that Amtrak pays for short-term borrowing.
(k) Waiver or reduction of fees. (1) Automatic waiver of fees--When
the costs for a FOIA request total $10.00 or less, fees shall be waived
automatically for all requesters regardless of category.
(2) Other fee waivers. Decisions to waive or reduce fees that
exceed the automatic waiver threshold shall be made on a case-by-case
basis. Records responsive to a request will be furnished without charge
or at below the established charge where Amtrak determines, based on
all available information, that disclosure of the requested information
is in the public interest because:
(i) It is likely to contribute significantly to public
understanding of the operations or activities of Amtrak, and
(ii) It is not primarily in the commercial interest of the
requesting party.
(3) To determine whether the fee waiver requirement in paragraph
(k)(2)(i) of this section is met, Amtrak will consider the following
factors:
(i) The subject of the request--whether the subject of the
requested records concerns the operations or activities of Amtrak. The
subject of the requested records must concern identifiable operations
or activities of Amtrak with a connection that is direct and clear, not
remote or attenuated.
(ii) The informative value of the information to be disclosed--
whether the disclosure is likely to contribute to an understanding of
Amtrak operations or activities. The disclosable portions of the
requested records must be meaningfully informative about Amtrak's
operations or activities in order to be found to be likely to
contribute to an increased public understanding of those operations or
activities. The disclosure of information that already is in the public
domain, in either a duplicative or a substantially identical form,
would not be as likely to contribute to such understanding where
nothing new would be added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure--whether disclosure of the
requested information will contribute to public understanding. The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject as opposed to the
individual understanding of the requester. A requester's ability and
expertise in the subject area as well as the requester's intention to
effectively convey information to the public shall be considered. It
shall be presumed that a representative of the news media will satisfy
this consideration.
(iv) The significance of the contribution to public understanding--
whether the disclosure is likely to contribute significantly to public
understanding of Amtrak operations or activities. The public's
understanding of the subject in question, as compared to the level of
public understanding existing prior to the disclosure, must be enhanced
by the disclosure to a significant extent.
(4) To determine whether the fee waiver requirement in paragraph
(k)(2)(ii) of this section is met, Amtrak will consider the following
factors:
(i) The existence and magnitude of a commercial interest--whether
the requesting party has a commercial interest that would be furthered
by the requested disclosure. Amtrak shall consider any commercial
interest of the requesting party (with reference to the definition of
``commercial use'' in paragraph (c)(1) of this section), or any person
on whose behalf the requesting party may be acting that would be
furthered by the requested disclosure. Requesters shall be given an
opportunity to provide explanatory information regarding this
consideration.
(ii) The primary interest in disclosure--whether the magnitude of
the identified commercial interest of the requester is sufficiently
large in comparison with the public interest in disclosure, that
disclosure is ``primarily
[[Page 7318]]
in the commercial interest of the requester.'' A fee waiver or
reduction is justified where the public interest standard is satisfied
and public interest is greater in magnitude than any identified
commercial interest in disclosure.
(5) Requests for a fee waiver will be considered on a case-by-case
basis, based upon the merits of the information provided. Where it is
difficult to determine whether the request is commercial in nature,
Amtrak may draw inference from the requester's identity and the
circumstances of the request.
(6) Requests for a waiver or reduction of fees must address the
factors listed in paragraphs (k) (3) and (4) of this section. In all
cases, the burden shall be on the requesting party to present evidence
of information in support of a request for a waiver of fees.
(l) Aggregating requests. A requester may not file multiple
requests at the same time in order to avoid payment of fees. Where
Amtrak reasonably believes that a requester or a group of requesters
acting in concert is attempting to divide a request into a series of
requests for the purpose of avoiding fees, Amtrak may aggregate those
requests and charge accordingly. Amtrak may presume that multiple
requests of this type made within a thirty-day period have been made in
order to avoid fees. Where requests are separated by a longer period,
Amtrak may aggregate them only when there exists a solid basis for
determining that aggregation is warranted. Multiple requests involving
unrelated matters may not be aggregated.
Sec. 701.12 Other rights and services.
Nothing in this part shall be construed as entitling any person, as
of right, to any service or the disclosure of any record to which such
person is not entitled under the FOIA.
Dated: January 30, 1998.
Sarah H. Duggin,
Vice President & General Counsel.
[FR Doc. 98-3529 Filed 2-12-98; 8:45 am]
BILLING CODE 7531-01-P
