[Federal Register Volume 61, Number 124 (Wednesday, June 26, 1996)]
[Proposed Rules]
[Pages 33075-33082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16248]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 7
[Docket No. OST-96-1430; Notice 96-17]
RIN 2105-AC58
Public Availability of Information
AGENCY: Office of the Secretary, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Department of Transportation proposes to revise regulations
implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552. This
revision updates organizational changes since the last revision and
streamlines the regulations in order to make the regulations more
useful.
DATES: Comments are due August 26, 1996.
ADDRESSES: Comments should be addressed to Documentary Services
Division, Attention: Docket Section, Room PL401, Docket No. OST-96-
1430, Department of Transportation, C-55, Washington, DC 20590. Any
person wishing acknowledgment that his/her comments have been received
should include a self-addressed stamped postcard. Comments received
will be available for public inspection and copying in the Documentary
Services Division, Room PL401, Department of Transportation Building,
400 Seventh Street, SW, Washington, DC, from 10:00 AM to 5:00 PM ET
Monday through Friday except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Dorothy A. Chambers, Chief, FOIA
Division, Office of the General Counsel, C-12, Department of
Transportation, Washington, DC 20590, telephone (202) 366-4542, FAX
(202) 366-7152.
SUPPLEMENTARY INFORMATION: The President instituted a Regulatory Review
initiative, for the reinvention of regulations by eliminating
duplicate, redundant, or unnecessary language and revising regulations
to meet the needs of users. In response to this initiative, we have
reviewed part 7 and are proposing to revise this section to update and
streamline information on public availability of information. We
propose to reorganize this part by combining in subpart B sections that
relate to information that is publicly available without a specific
request. Similarly, we have combined sections in subpart C that address
information that must be requested under FOIA. We have shortened the
descriptions of FOIA exemptions and propose to delete the Appendices
that set forth redundant information concerning document inspection
facilities. We propose to replace these appendices with provisions in
Secs. 7.10 and 7.15, which set forth necessary information regarding
public records available at Department Docket locations and FOIA
contacts for records requested under the FOIA.
Analysis of Regulatory Impacts
This amendment is not a ``significant regulatory action'' within
the meaning of Executive Order 12866. It is also not significant within
the definition in DOT's Regulatory Policies and Procedures, 49 FR 11034
(1979), in part because it does not involve any change in important
Departmental policies. Because the economic impact should be minimal,
further regulatory evaluation is not necessary. Moreover, I certify
that this proposal will not have a significant economic impact on a
substantial number of small entities.
This proposal does not significantly affect the environment, and
therefore an environmental impact statement is not required under the
National Environmental Policy Act of 1969. It has also been reviewed
under Executive Order 12612, Federalism, and it has been determined
that it does not have sufficient implications for federalism to warrant
preparation of a Federalism Assessment.
Finally, the proposal does not contain any collection of
information requirements, requiring review under the Paperwork
Reduction Act, as amended.
List of Subjects in 49 CFR Part 7
Freedom of information.
In accordance with the above, DOT proposes to revise 49 CFR part 7
to read as follows:
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 the Department
7.3 Publication in the Federal Register.
7.4 Publication Required.
[[Page 33076]]
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 Available at Department Docket Locations.
Subpart C--Availability of Reasonably Described Records Under the
Freedom of Information Act
7.11 Applicability.
7.12 Administration of Part.
7.13 Records Available.
7.14 Requests for Records.
7.15 Contacts for Records Requested Under the FOIA.
7.16 Requests for Records of Concern to More than One Government
Organization.
7.17 Consultation with Submitters of Commercial and Financial
Information.
Subpart D--Procedures for Appealing Decisions Not To Disclose Records
and/or Waive Fees
7.21 General.
Subpart E--Time Limits
7.31 Initial Determinations.
7.32 Final 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
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 records of the Department
of Transportation. Many documents are made available to the public for
inspection and copying through the Department Docket locations that are
listed in subpart B, which contains the regulations of the Department
of Transportation 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.
(b) Subpart C of this part describes the records that are not
required to be disclosed on the Department's own action under this
part, but that may be available upon request under the Freedom of
Information Act.
(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.
Administrator means the head of each operating element of the
Department and includes the Commandant of the Coast Guard and the
Director of the Bureau of Transportation Statistics.
Department or DOT means the Department of Transportation, including
the Office of the Secretary of Transportation, the Office of the
Inspector General, and the following operating elements:
(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.
(10) Bureau of Transportation Statistics.
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.
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 the Department
Sec. 7.3 Publication in the Federal Register.
This section implements 5 U.S.C. 552(a)(1), and prescribes rules
governing the publication in the Federal Register of the following:
(a) Descriptions of the organization of the Department, including
its operating elements 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 the
Department'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 the Department; 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 shall 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 therein with the approval of the
Director of the Federal Register.
(b) Effect of nonpublication. Except to the extent that a person
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:
(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 the
authority of the Department, 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
Departmental inspectors, investigators, law enforcement officers,
examiners, auditors, and negotiators and other information developed
predominantly for internal use, the release of which
[[Page 33077]]
could significantly risk circumvention of agency regulations or
statutes.
(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 the Department 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. 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 document inspection facilities of the
Department. It has been determined that it is unnecessary and
impracticable to publish the index of materials in the Federal
Register. Information as to the kinds of materials available at each
facility may be obtained from the facility or the headquarters of the
operating element 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 any document inspection facility
maintained by the Office of the Secretary or an operating element, as
appropriate.
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.
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, in pertinent part, for criminal
penalties for embezzlement or theft of government records.
(c) 18 U.S.C. 2071 provides, in pertinent part, 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 Available at Department Docket Locations.
Publicly available records are located in DOT Docket Units as
follows (all times are eastern time zone, and are Monday--Friday except
Federal holidays):
(a) Docket Units located at 400 7th Street, S.W., Washington, D.C.
20590 include:
(1) Office of the Secretary and former Civil Aeronautics Board
material, Plaza 401, Hours 10:00-5:00.
(2) Federal Highway Administration, Room 4232, Hours 8:30-5:00.
(3) Federal Railroad Administration, Room 8209, Hours 9:30-4:00
(4) National Highway Traffic Safety Administration, Room 5111,
Hours 9:30-4:00.
(5) Federal Transit Administration, Room 9316A, Hours 8:30-5:00.
(6) Maritime Administration, Room 7210, Hours 8:30-5:00.
(7) Research and Special Programs Administration, Room 8421, Hours
8:30-5:00.
(b) Federal Aviation Administration, 800 Independence Avenue, S.W.,
Washington, D. C. 20591:
(1) Rules Dockets Room 915-G, Hours 8:30-5:00.
(2) Enforcement Dockets, Room 924-C, Hours 8:30-5:00.
(c) United States Coast Guard, Room 3406, Hours 8:30-5:00, 2100 2nd
Street, S.W., Washington, D. C. 20593-0001.
(d) Operating elements 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.
(e) Additional information on the location and hours of operations
for Department Docket Offices can be obtained through the Office of the
Secretary Docket Unit, mentioned above, 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 the Freedom of Information Act.
(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 the Department under an informant's name or personal
identifier, if requested by a third party according to the informant's
name or personal identifier, unless the informant's status as an
informant has been officially confirmed.
Sec. 7.12 Administration of Part.
Authority to administer this part and to issue determinations with
respect to initial requests is delegated as follows:
(a) to the General Counsel for the records of the Office of the
Secretary other than the Office of the Inspector General.
(b) to the Inspector General for records of the Office of the
Inspector General.
(c) to the Administrator of each operating element, who may
redelegate to officers of that element the authority to administer this
part in connection with defined groups of records. However, each
Administrator may redelegate the duties under subpart D of this part to
consider appeals of initial denials of requests for records only to his
or her deputy or to not more than one other officer who reports
directly to the Administrator and who is located at the headquarters of
that operating element.
Sec. 7.13 Records Available.
(a) Policy. It is the policy of the Department of Transportation to
make
[[Page 33078]]
the records of the Department available to the public to the greatest
extent possible, in keeping with the spirit of the Freedom of
Information Act. This includes providing reasonably segregable
information from documents that contain information that may be
withheld.
(b) Statutory disclosure requirement. The Act requires that the
Department, on a request from a member of the public submitted in
accordance with the procedures in this subpart, make requested records
available for inspection and copying.
(c) Statutory exemptions. Exempted from the Act'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), 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,
(vi) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, 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.
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 the
Freedom of Information Act.
(3) The envelope in which the 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.
(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 ten-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 the Department as a request pursuant to the Freedom of Information
Act 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 person making the request 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 requester claims the request to fall and the basis
of this claim (see subpart F for fees and fee waiver requirements), and
(ii) State the maximum amount of fees that the requester is willing
to pay or include a request for a fee waiver.
(iii) Requesters are advised that the time for responding to
requests set forth in subpart E may be delayed--
(A) If a requester has not sufficiently identified the fee category
applicable to the request,
(B) If a requester has not stated a willingness to pay fees as high
as anticipated by the Department, or
(C) If a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by the Department.
(iv) A request seeking a fee waiver shall, to the extent possible,
address why the requester believes that the criteria for fee waivers
set out in Sec. 7.44(f) are met.
(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 the Department determines that
creating a new record will be less burdensome than disclosing large
volumes of unassembled material, the Department may, in its discretion,
agree to creation of a new record as an alternative to disclosing
existing records.
(e) 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 requester upon payment of the
appropriate fee. Original records ordinarily will be copied except in
this instances where, in the Department'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
[[Page 33079]]
event, original records will not be released from Department custody.
(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
requester will be so notified.
(g) Fees will be determined in accordance with subpart F of this
part.
(h) Notwithstanding paragraphs (a) through (g) of this section,
informational material, such as news releases, pamphlets, and other
materials of that nature that are ordinarily made available to the
public as a part of any information program of the Government will be
available upon oral or written request. A fee will not be charged for
individual copies of that material so long as the material is in
supply. In addition the Department 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 to the Departmental element where the records are
located:
(a) FOIA Offices at 400 7th Street, S.W., Washington, D.C. 20590:
(1) Office of the Secretary of Transportation, Room 5432
(2) Federal Highway Administration, Room 4428
(3) Federal Railroad Administration, Room 8201
(4) National Highway Traffic Safety Administration, Room 5219
(5) Federal Transit Administration, Room 9400
(6) Maritime Administration, Room 7221
(7) Research and Special Programs Administration, Room 8419
(8) St. Lawrence Seaway Development Corporation, Room 5424
(9) Bureau of Transportation Statistics, Room 2104
(10) Office of the Inspector General, Room 9210
(b) Federal Aviation Administration, 800 Independence Avenue, S.W.,
Room 906A, Washington, D. C. 20591.
(c) United States Coast Guard, 2100 2nd Street, S.W., Room 6418,
Washington, D. C. 20593-0001.
(d) Operating elements also maintain FOIA contacts at regional
offices and at the offices of the Commandant and District Commanders of
the United States Coast Guard. Additional information on the location
of these offices can be obtained through the FOIA contact offices
listed above.
(e) If the person making the request does not know where in the
Department the record is located, he or she may make inquiry to the
Chief, FOIA Division, Office of the General Counsel.
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 this Department and another Federal agency, the
determination as to release will be made 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 this Department and a State or local government, a
territory or possession of the United States, or a foreign government,
the determination as to release will be made by the Department only
after consultation with the other interested State or local government
or foreign government.
(c) As an alternative to consultation, the Department may refer the
request (or relevant portion thereof) to a Federal agency that
originated or is substantially concerned with the records. Such
referrals shall be made expeditiously and the requester shall be
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 the Department has some other reason to believe may contain trade
secrets or other commercial or financial information of the type
described in Sec. 7.13(c)(4), the submitter of such information will,
except as is provided in paragraphs (c) and (d) of this section, be
notified expeditiously and asked to submit any written objections to
release. At the same time, the requester will be notified that notice
and an opportunity to comment are 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 Office of the Secretary or the responsible operating
element, as appropriate, will, to the extent permitted by law, consider
carefully a submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose business
information. Whenever a decision is made to disclose such information
over the objection of a submitter, the office responsible for the
decision will forward to the submitter a written notice that will
include:
(1) A statement of the reasons for which the submitter's disclosure
objections were not accepted;
(2) A description of the business information to be disclosed; and
(3) A specific disclosure date. Such notice of intent to disclose
will, to the extent permitted by law, be forwarded to the submitter a
reasonable number of days prior to the specified date upon which
disclosure is intended. At the same time the submitter is notified, the
requester will be notified of the decision to disclose information.
(c) The notice requirements of this section will not apply if:
(1) The office responsible for the decision determines that the
information should not be disclosed;
(2) The information lawfully has been published or otherwise made
available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552).
(d) The procedures established in this section shall 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 (14 CFR 302.39) in Aviation Economic Proceedings.
(e) Whenever a requester brings suit seeking to compel disclosure
of confidential commercial information, the Office of the Secretary or
the responsible operating element, whichever the case may be, 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 the Department 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 the Department'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
[[Page 33080]]
request, and the availability of an appeal within the Department.
(b) When a request for a waiver of fees, pursuant to Sec. 7.44, has
been denied in whole or in part, the requester 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 head of the operating
element concerned or, in the case of the Office of the Secretary, to
the General Counsel of the Department, and in the case of the Office of
Inspector General, to the Inspector General. 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 requester 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 head of the operating element concerned (or
his or her designee), or the General Counsel or the Inspector General,
as the case may be; 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 all
information and arguments relied upon by the person making the request.
Such letter should indicate that it is an appeal from a denial of a
request made under the Freedom of Information Act. The envelope in
which the 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 an
employee of the Department as an appeal under the Freedom of
Information Act, and has been received by the appropriate office.
(e) Whenever the head of the operating element concerned, or the
General Counsel or the Inspector General, as the case may be,
determines it to be necessary, he/she may require the person making the
request to furnish additional information, or proof of factual
allegations, and may order other proceedings appropriate in the
circumstances. The decision of the head of the operating element
concerned, or the General Counsel or the Inspector General, as the case
may be, 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 head of the operating element concerned, or
the General Counsel or Inspector General, as the case may be, not to
disclose a record under this part or not to grant a request for a fee
waiver or reduction is considered to be a denial by the Secretary for
the purpose of 5 U.S.C. 552(a)(4)(B).
(g) Any final determination by the head of an operating element or
his or her delegate, 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 the General Counsel or his/her designee.
(h) Upon a determination that an appeal will be denied, the
requester 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 requester resides or has his or her
principal place of business, the judicial district in which the
requested records are located, or the District of Columbia.
Subpart E--Time Limits
Sec. 7.31 Initial Determinations.
An initial determination whether to release a record requested
pursuant to subpart C will be made within ten Federal working days
after the request is received by the appropriate office in accordance
with Sec. 7.14, except that this time limit may be extended by up to
ten Federal working days in accordance with Sec. 7.33. The person
making the request will be notified immediately of such determination.
If the determination is to grant this request, the desired record will
be made available as promptly as possible. If the determination is to
deny the request, the person making the request will be notified in
writing, at the same time he or she is notified of such determination,
of the reason for the determination, the right of such person to appeal
the determination, and the name and title of each person responsible
for the initial determination to deny the request.
Sec. 7.32 Final Determination.
A determination with respect to any appeal made pursuant to
Sec. 7.21 will be made within twenty Federal working days after receipt
of such appeal except that this time limit may be extended by up to ten
Federal working days in accordance with Sec. 7.33. The person making
the request will be notified immediately of such determination pursuant
to Sec. 7.21.
Sec. 7.33 Extension.
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 ten Federal working days. As used in
this subparagraph, ``unusual circumstances'' means, but only to the
extent reasonably necessary to the proper processing of the particular
request:
(a) 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.
(b) 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
(c) The need for consultation, which will be conducted with all
practicable speed, with any other agency or DOT element 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.
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 the Department.
(b) All terms defined by the Freedom of Information Act 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 the Department,
including those of non-appropriated fund
[[Page 33081]]
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 the Department 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 Departmental systems of records. Fees
for such requests are to be determined in accordance with the Privacy
Act of 1974, as implemented by Department of Transportation 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 Treasury of the United States;
except that, in the case of the Saint Lawrence Seaway Development
Corporation, all fees resulting from a request to that operating
element shall be made payable to the Saint Lawrence Seaway Development
Corporation.
(b) Charges may be assessed by the Department 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,
the Department 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 requester will likely exceed $25, the requester will be notified of
the estimated amount of the fees, unless the requester has indicated in
advance his or her willingness to pay fees as high as those
anticipated. The notice will also inform the requester how to consult
with the appropriate Departmental 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 by the Department prior to
actual duplication or delivery of any releasable records to a
requester. However, advance payment of fees, i.e., payment before work
is commenced or continued on a request, may not be required unless:
(1) Allowable charges that a requester may be required to pay are
likely to exceed $250; or
(2) The requester has failed to pay within 30 days of the billing
date fees charged for a previous request to any part of the Department.
(e) When paragraph (d)(1) of this section applies, the requester
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 requester
will be required to demonstrate that the fee has, in fact, been paid or
to pay the full amount owed, including any applicable interest, late
handling charges, and penalty charges as discussed below. The requester
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) The Department 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 requester. 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 the Department 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 requester, an administrative charge will be assessed by
the Department 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 the Department
to encourage payment of amounts overdue.
(i) In any instance where the Department reasonably believes that a
requester or a group of requesters acting in concert is attempting to
break down a single FOIA request into a series of requests for the sole
purpose of evading the payment of otherwise applicable fees, the
Department will aggregate the requests and determine the applicable
fees on the basis of the aggregation.
(j) 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, after taking into account all
services that must be provided free of, or at a reduced, charge, is
less than $10.00 the Department will not make any charge for fees.
Sec. 7.43 Fee Schedule.
(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 each searcher's
hourly rate plus 16 percent by 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 salary (hourly plus 16 percent) costs
apportionable to the search.
(c) The standard fee for review of records requested under subpart
C of this part is the reviewer's hourly rate plus 16 percent multiplied
by the time he or 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 1/2 x 14 inches)
reproduced by photocopy or similar methods (includes costs of personnel
and equipment)--$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 requester, and the use for which
the records are requested, in some cases the fees computed in
accordance with the above standard fee schedule will either be reduced
or not charged, as prescribed by other provisions of this subpart.
(f) The following special services not required by the FOIA may be
made available upon request, at the stated fees: Certified copies of
documents, with Department of Transportation or operating element seal
(where authorized)--$4.00; or true copy, without seal--$2.00
[[Page 33082]]
Sec. 7.44 Services Performed Without Charge or at a Reduced Charge.
(a) A fee is not to be charged to any requester making a request
under subpart C 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 requester 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 requester 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 requester 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 requester.
(f) Factors to be considered by officials of the Department
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 requester 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 requester has a commercial interest that would be
furthered by the requested disclosure; and
(6) Whether the magnitude of any identified commercial interest to
the requester is sufficiently large in comparison with the public
interest in disclosure that disclosure is primarily in the commercial
interest of the requester.
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 the Department 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 shall be
arranged whenever possible. In appropriate instances, material that is
published and offered for sale may be obtained from the Superintendent
of Documents, U.S. Government Printing Office, Washington, DC 20402;
U.S. Department of Commerce's National Technical Information Service
(NTIS), Springfield, Virginia 22151; or National Audio-Visual Center,
National Archives and Records Administration, Capital Heights, MD
20743-3701.
Issued in Washington, DC, on May 31, 1996.
Federico Pena,
Secretary of Transportation.
[FR Doc. 96-16248 Filed 6-25-96; 8:45 am]
BILLING CODE 4910-62-P
