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(4910-62-P) AGENCY: Office of the Secretary, DOT. ACTION: Final Rule SUMMARY: The Department of Transportation revises its regulations implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552. This amendment provides changes to conform to the requirements of the Electronic Freedom of Information Act Amendments of 1996 (EFOIA), Public Law 104-231, provides changes to DOT's fee schedule, and reflects certain organizational changes. DATES: This amendment takes effect on August 17, 1998. FOR FURTHER INFORMATION CONTACT: Robert I. Ross, Office of the General Counsel, C-10, Department of Transportation, Washington, DC 20590, telephone (202) 366-9156, FAX (202) 366-9170; electronic mail bob.ross@ost.dot.gov. SUPPLEMENTARY INFORMATION: These revisions reflect changes required by the Electronic Freedom of Information Act Amendments of l996 (Public Law 104-231). New provisions implementing the amendments are found at §§7.5 (frequently requested documents), 7.8 (electronic reading room requirements), 7.21 (deletion markings and volume estimation), 7.31 (timing of responses, multi-track and expedited processing), and 7.33 (unusual circumstances). Revisions to DOT's fee schedule can be found at §7.43. DOT will be charging fees at rates based on an average of hourly rates for three pay scale levels. Finally, references to DOT's Urban Mass Transportation Administration (UMTA) are changed to the Federal Transit Administration (FTA) to reflect a statutory revision to the name of the agency. This amendment was published for public comment (63 FR 18855; April 16, 1998), but none was received. We are therefore issuing this amendment as proposed. Regulatory Notices and Analysis. This amendment is not a "significant regulatory action" within the meaning of Executive Order 12866 or the Unfunded Mandates Reform Act of 1995 (2 USC 1531 et seq.). It is also not significant within the definition in DOT's Regulatory Policies and Procedures, 49 FR 11034 (1979), in part because it does not involve any change in important DOT policies. Because the economic impact should be minimal, further regulatory evaluation is not necessary. Under the Regulatory Flexibility Act, the group of persons who will be directly affected by this amendment are the public, who will find it easier to obtain information from the DOT under FOIA. Individual members of the public do not qualify as small entities, but small organizations, businesses, etc., do and all will have burdens lessened by this amendment, as its effect will be to make records available through electronic media and to streamline FOIA processing activities; however, it is not likely that any such burden reduction will be large nor that it will be convertible into economic equivalents. Hence, I certify that this amendment will not have a significant economic impact on a substantial number of small entities. This amendment does not significantly affect the environment, and therefore an environmental impact statement is not required under the National Environmental Policy Act of 1969. It has also been reviewed under Executive Order 12612, Federalism, and it has been determined that it does not have sufficient implications for federalism to warrant preparation of a Federalism Assessment. Finally, the amendment does not contain any collection of information requirements, requiring review under the Paperwork Reduction Act, as amended. List of Subjects in 49 CFR Part 7: Freedom of information. In accordance with the above, DOT revises 49 CFR Part 7 to read as follows: PART 7 -- PUBLIC AVAILABILITY OF INFORMATION Subpart A--General Provisions. Sec. 7.1 General. 7.2 Definitions. Subpart B--Information Required to be Made Public by DOT 7.3 Publication in the FEDERAL REGISTER. 7.4 Publication Required. 7.5 Availability of Opinions, Orders, Staff Manuals, Statements of Policy, and Interpretations and Indices. 7.6 Deletion of Identifying Detail. 7.7 Access to Materials and Indices. 7.8 Copies. 7.9 Protection of Records. 7.10 Public Records. Subpart C--Availability of Reasonably Described Records under the Freedom of Information Act 7.11 Applicability. 7.12 Administration of Subpart. 7.13 Records Available. 7.14 Requests for Records. 7.15 Contacts for Records Requested Under the FOIA. 7.16 Requests for Records of Concern to More than One Government Organization. 7.17 Consultation with Submitters of Commercial and Financial Information. Subpart D--Procedures for Appealing Decisions Not to Disclose Records and/or Waive Fees 7.21 General. Subpart E--Time Limits 7.31 Initial Determinations. 7.32 Final Determinations. 7.33 Extension. Subpart F--Fees. 7.41 General. 7.42 Payment of Fees. 7.43 Fee Schedule. 7.44 Services Performed Without Charge or at a Reduced Charge. 7.45 Transcripts. 7.46 Alternative Sources of Information. Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600, 3 CFR, 1987 Comp., p. 235. Subpart A--General Provisions §7.1 General. (a) This part implements 5 U.S.C. 552, and prescribes rules governing the availability to the public of DOT records. Many documents are made available to the public for inspection and copying through DOT's Primary Electronic Access Facility and public record unit locations that are discussed in Subpart B, which contains the DOT regulations concerning the availability to the public of opinions issued in the adjudication of cases, policy issuances, administrative manuals, and other information made available to the public, without need for a specific request. (b) Subpart C of this part describes the records that are not required to be disclosed on DOT's own action under this part, but that may be available upon request under FOIA. (c) Indices are maintained to reflect all records subject to Subpart B of this part, and are available for public inspection and copying as provided in Subpart B. §7.2 Definitions. As used in this part -- "Act" and "FOIA" mean the Freedom of Information Act, 5 U.S.C. 552, as amended. "Administrator" means the head of each DOT component of DOT and includes the Commandant of the Coast Guard, the Inspector General, and the Director of the Bureau of Transportation Statistics. "Concurrence" means that the approval of the person being consulted is required in order for the subject action to be taken. "Consultation" means that the approval of the person being consulted is not required in order for the subject action to be taken. "Department" or "DOT" means the Department of Transportation, including the Office of the Secretary of Transportation, the Office of the Inspector General, and the following DOT components, all of which may be referred to as DOT components. Means of contacting each of these DOT components appear in §7.15. This definition specifically excludes the Surface Transportation Board, which has its own FOIA regulations (49 CFR Part 1001): (1) United States Coast Guard, (2) Federal Aviation Administration, (3) Federal Highway Administration, (4) Federal Railroad Administration, (5) National Highway Traffic Safety Administration, (6) Federal Transit Administration, (7) Saint Lawrence Seaway Development Corporation, (8) Maritime Administration, (9) Research and Special Programs Administration, and (10) Bureau of Transportation Statistics. "Primary Electronic Access Facility" means the electronic docket facility in the DOT Headquarters Building, 400 7th Street, S.W., Washington, D.C. 20590. "Reading room records" are those records required to be made available to the public under 5 U.S.C. 552(a)(2) as described in §7.5 of Subpart B. These records are made available through DOT's Primary Electronic Access Facility. Other records may also be made available at DOT's discretion at DOT inspection facilities, including DOT's Primary Electronic Access Facility. "Record" includes any writing, drawing, map, recording, tape, film, photograph, or other documentary material by which information is preserved. The term also includes any such documentary material stored by computer. "Responsible DOT official" means the head of the DOT component concerned, or the General Counsel or the Inspector General, as the case may be, or the designee of any of them, authorized to take an action under this part. "Secretary" means the Secretary of Transportation or any person to whom the Secretary has delegated authority in the matter concerned. Subpart B--Information Required to be Made Public by DOT §7.3 Publication in the Federal Register. This section implements 5 U.S.C. 552(a)(1), and prescribes rules governing publication in the FEDERAL REGISTER of the following: (a) Descriptions of DOT's organization, including its DOT components and the established places at which, the officers from whom, and the methods by which, the public may secure information and make submittals or obtain decisions; (b) Statements of the general course and methods by which DOT's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (d) Substantive rules of general applicability adopted as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by DOT; and (e) Each amendment, revision, or repeal of any material listed in paragraphs (a) through (d) of this section. §7.4 Publication Required. (a) General. The material described in §7.3 will be published in the FEDERAL REGISTER. For the purposes of this paragraph, material that will reasonably be available to the class of persons affected by it will be considered to be published in the FEDERAL REGISTER if it has been incorporated by reference with the approval of the Director of the Federal Register. (b) Effect of nonpublication. Except to the extent that he/she has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, any procedure or matter required to be published in the FEDERAL REGISTER, but not so published. §7.5 Availability of Opinions, Orders, Staff Manuals, Statements of Policy, and Interpretations and Indices. (a) This section implements 5 U.S.C. 552(a)(2). It prescribes the rules governing the availability for public inspection and copying of the following reading room materials: (1) Any final opinion (including a concurring or dissenting opinion) or order made in the adjudication of a case. (2) Any policy or interpretation that has been adopted under DOT authority, including any policy or interpretation concerning a particular factual situation, if that policy or interpretation can reasonably be expected to have precedential value in any case involving a member of the public in a similar situation. (3) Any administrative staff manual or instruction to staff that affects any member of the public, including the prescribing of any standard, procedure, or policy that, when implemented, requires or limits any action of any member of the public or prescribes the manner of performance of any activity by any member of the public. However, this does not include staff manuals or instructions to staff concerning internal operating rules, practices, guidelines, and procedures for DOT inspectors, investigators, law enforcement officers, examiners, auditors, and negotiators and other information developed predominantly for internal use, the release of which could significantly risk circumvention of agency regulations or statutes. (4) Copies of all records, regardless of form or format, that have been released to any person under Subpart C and which, because of the nature of their subject matter, a DOT component determines have become or are likely to become the subject of subsequent requests for substantially the same records. (5) A general index of the records listed in this paragraph. (b) Any material listed in paragraph (a) of this section that is not made available for public inspection and copying, or that is not indexed as required by §7.7, may not be cited, relied on, or used as precedent by DOT to affect any member of the public adversely unless the person to whose detriment it is relied on, used, or cited has had actual timely notice of the material. (c) This section does not apply to material that is published in the FEDERAL REGISTER or covered by Subpart C of this part. §7.6 Deletion of Identifying Detail. Whenever it is determined to be necessary to prevent a clearly unwarranted invasion of personal privacy, identifying details will be deleted from any record covered by this subpart that is published or made available for inspection. Whenever it is determined to be necessary to prevent the disclosure of information required or authorized to be withheld by another Federal statute, such information shall be deleted from any record covered by this subpart that is published or made available for inspection. A full explanation of the justification for the deletion will accompany the record published or made available for inspection. §7.7 Access to Materials and Indices. (a) Except as provided in paragraph (b) of this section, material listed in §7.5 will be made available for inspection and copying to any member of the public at DOT document inspection facilities. It has been determined that it is unnecessary and impracticable to publish the index of materials in the FEDERAL REGISTER. Information as to the kinds of materials available at each facility may be obtained from the facility or the headquarters of the DOT component of which it is a part. (b) The material listed in §7.5 that is published and offered for sale will be indexed, but is not required to be kept available for public inspection. Whenever practicable, however, it will be made available for public inspection at the appropriate DOT reading room. (c) Each DOT component will also make the reading room records identified in section 7.5(a) that are created by DOT on or after November 1, 1996, available electronically. This includes indices of its reading room records as required by law after December 1, 1999. §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 §7.10. Copies will be certified upon request and payment of the fee prescribed in §7.43(f). §7.9 Protection of Records. (a) Records made available for inspection and copying may not be removed, altered, destroyed, or mutilated. (b) 18 U.S.C. 641 provides for criminal penalties for embezzlement or theft of government records. (c) 18 U.S.C. 2071 provides for criminal penalties for the willful and unlawful concealment, mutilation or destruction of, or the attempt to conceal, mutilate, or destroy, government records. §7.10 Public Records. Publicly available records are located in DOT's Primary Electronic Access Facility at 400 7th Street, S.W., Washington, D.C. 20590. (a) The Primary Electronic Access Facility maintains materials for the Office of the Secretary, including former Civil Aeronautics Board material, and materials for the DOT components. This facility is located at Plaza Level 401, and the hours of operation are 10:00-17:00. (b) Certain DOT components also maintain public record units at regional offices and at the offices of the Commandant and District Commanders of the United States Coast Guard. These facilities are open to the public Monday through Friday except Federal holidays, during regular working hours. The Saint Lawrence Seaway Development Corporation has facilities at 180 Andrews Street, Massena, New York 13662-0520. (c) Operating Administrations may have separate facilities for manual records. Additional information on the location and hours of operations for Docket Offices and inspection facilities can be obtained through DOT's Primary Electronic Access Facility, at (202) 366-9322. Subpart C--Availability of Reasonably Described Records Under the Freedom of Information Act §7.11 Applicability . (a) This subpart implements 5 U.S.C 552(a)(3), and prescribes the regulations governing public inspection and copying of reasonably described records under FOIA. (b) This subpart does not apply to: (1) Records published in the FEDERAL REGISTER, opinions in the adjudication of cases, statements of policy and interpretations, and administrative staff manuals that have been published or made available under Subpart B of this part. (2) Records or information compiled for law enforcement purposes and covered by the disclosure exemption described in §7.13(c)(7) if-- (i) The investigation or proceeding involves a possible violation of criminal law; and (ii) There is reason to believe that-- (A) The subject of the investigation or proceeding is not aware of its pendency, and (B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings. (3) Informant records maintained by a criminal law enforcement component of DOT under an informant's name or personal identifier, if requested by a third party according to the informant's name or personal identifier, unless the informant's status as an informant has been officially confirmed. §7.12 Administration of Subpart. Authority to administer this subpart and to issue determinations with respect to initial requests is delegated as follows: (a) to the General Counsel for the records of the Office of the Secretary other than the Office of Inspector General. (b) to the Inspector General for records of the Office of Inspector General. (c) to the Administrator of each DOT component, who may redelegate to officers of that administration the authority to administer this part in connection with defined groups of records. However, each Administrator may redelegate the duties under Subpart D of this part to consider appeals of initial denials of requests for records only to his or her deputy or to not more than one other officer who reports directly to the Administrator and who is located at the headquarters of that DOT component. §7.13 Records Available. (a) Policy. It is DOT policy to make its records available to the public to the greatest extent possible, in keeping with the spirit of FOIA. This includes providing reasonably segregable information from documents that contain information that may be withheld. (b) Statutory disclosure requirement. FOIA requires that DOT, on a request from a member of the public submitted in accordance with this subpart, make requested records available for inspection and copying. (c) Statutory exemptions. Exempted from FOIA's statutory disclosure requirement are matters that are: (1)(i) Specifically authorized under criteria established by Executive Order to be kept secret in the interest of national defense or foreign policy, and (ii) In fact properly classified pursuant to such Executive order; (2) Related solely to the internal personnel rules and practices of an agency; (3) Specifically exempted from mandatory disclosure by statute (other than the Privacy Act or the Government in the Sunshine Act), provided that such statute-- (i) Requires that the matters be withheld from the public in such a manner as to leave not any discretion on the issue, or (ii) Establishes particular criteria for withholding or refers to particular criteria for withholding or refers to particular types of matters to be withheld; (4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency; (6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information-- (i) Could reasonably be expected to interfere with enforcement proceedings, (ii)Would deprive a person of a right to a fair or an impartial adjudication, (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy, (iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, Tribal, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (vi) Could reasonably be expected to endanger the life or physical safety of any individual; (8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, concerning wells. (d) Deleted information. The amount of information deleted from frequently-requested electronic records that are available in a public reading room will be indicated on the released portion of the record, unless doing so would harm an interest protected by the exemption concerned. If technically feasible, the amount of information deleted will be indicated at the place in the record where the deletion is made. §7.14 Requests for Records. (a) Each person desiring access to or a copy of a record covered by this subpart shall comply with the following provisions: (1) A written request must be made for the record. (2) Such request should indicate that it is being made under FOIA. (3) The envelope in which a mailed request is sent should be prominently marked: "FOIA." (4) The request should be addressed to the appropriate office as set forth in §7.15. (5) The request should state the format (e.g., paper, microfiche, computer diskette, etc.) in which the information is sought, if the requestor has a preference. (b) If the requirements of paragraph (a) of this section are not met, treatment of the request will be at the discretion of the agency. The twenty-day limit for responding to requests, described in §7.31, will not start to run until the request has been identified, or would have been identified with the exercise of due diligence, by an employee of DOT as a request pursuant to FOIA and has been received by the office to which it should have been originally sent. (c) Form of Requests. (1) Each request should describe the particular record to the fullest extent possible. The request should describe the subject matter of the record, and, if known, indicate the date when it was made, the place where it was made, and the person or office that made it. If the description does not enable the office handling the request to identify or locate the record sought, that office will notify the requestor and, to the extent possible, indicate the additional data required. (2) Each request shall-- (i) Specify the fee category (commercial use, news media, educational institution, noncommercial scientific institution, or other) in which the requestor claims the request to fall and the basis of this claim (see Subpart F for fees and fee waiver requirements), (ii) State the maximum amount of fees that the requestor is willing to pay or include a request for a fee waiver, and (iii) A request seeking a fee waiver shall, to the extent possible, address why the requestor believes that the criteria for fee waivers set out in §7.44(f) are met. (3) Requesters are advised that the time for responding to requests set forth in Subpart E will not begin to run -- (i) If a requestor has not sufficiently identified the fee category applicable to the request, (ii) If a requestor has not stated a willingness to pay fees as high as anticipated by DOT, (iii) If a fee waiver request is denied and the requestor has not included an alternative statement of willingness to pay fees as high as anticipated by DOT, or (iv) If a fee waiver request does not address fee waiver criteria. (d) Creation of records. A request may seek only records that are in existence at the time the request is received. A request may not seek records that come into existence after the date on which it is received and may not require that new records be created in response to the request by, for example, combining or compiling selected items from manual files, preparing a new computer program, or calculating proportions, percentages, frequency distributions, trends, or comparisons. In those instances where DOT determines that creating a new record will be less burdensome than disclosing large volumes of unassembled material, DOT may, in its discretion, agree to creation of a new record as an alternative to disclosing existing records. Records will be provided in the form or format sought by the requestor if the record is readily reproducible in the requested format. (e) Search for records. (1) Each record made available under this subpart will be made available for inspection and copying during regular business hours at the place where it is located, or photocopying may be arranged with the copied materials being mailed to the requestor upon payment of the appropriate fee. Original records ordinarily will be copied except in this instances where, in DOT's judgment, copying would endanger the quality of the original or raise the reasonable possibility of irreparable harm to the record. In these instances, copying of the original would not be in the public interest. In any event, original records will not be released from DOT custody. Original records, regardless of format, may be returned to agency service upon provision of a copy of the record to the requestor, or, in the case of a denial, upon creation and retention of a copy of the original for purposes of FOIA processing. (2) DOT will make a reasonable effort to search for requested records in electronic form or format, unless doing so would significantly interfere with operation of the affected automated information system. (f) If a requested record is known not to exist in the files of the agency, or to have been destroyed or otherwise disposed of, the requestor will be so notified. (g) Fees will be determined in accordance with Subpart F of this part. (h) Notwithstanding paragraphs (a) through (g) of this section, informational material, such as news releases, pamphlets, and other materials of that nature that are ordinarily made available to the public as a part of any information program of the Government will be available upon oral or written request. A fee will be not be charged for individual copies of that material so long as the material is in supply. In addition DOT will continue to respond, without charge, to routine oral or written inquiries that do not involve the furnishing of records. §7.15 Contacts for Records Requested Under the FOIA. Each person desiring a record under this subpart should submit a request in writing (via paper, facsimile, or electronic mail) to the DOT component where the records are located: (a) FOIA Offices at 400 7th Street, S. W., Washington, DC 20590: (1) Office of the Secretary of Transportation, Room 5432. (2) Federal Highway Administration, Room 4428. (3) National Highway Traffic Safety Administration, Room 5221. (4) Federal Transit Administration, Room 9400. (5) Maritime Administration, Room 7221. (6) Research and Special Programs Administration, Room 8419. (7) Bureau of Transportation Statistics, Room 3430. (8) Office of Inspector General, Room 9210. (b) Federal Aviation Administration, 800 Independence Avenue, S.W., Room 906A, Washington, DC 20591. (c) United States Coast Guard, 2100 2nd Street, S.W., Room 6106, Washington, DC 20593-0001. (d) Director, Office of Finance, Saint Lawrence Seaway Development Corporation, 180 Andrews Street, P.O. Box 520, Massena, New York 13662-0520. (e) Federal Railroad Administration, 1120 Vermont Avenue NW, 7th Floor, Washington, DC. (Mailing address: 400 Seventh St., SW, Washington, DC 20590.) (f) Certain DOT components also maintain FOIA contacts at regional offices and at the offices of the Commandant and District Commanders of the United States Coast Guard. Additional information on the location of these offices can be obtained through the FOIA contact offices listed above. (g) If the person making the request does not know where in DOT the record is located, he or she may make inquiry to the Chief, FOIA Division, Office of the General Counsel (voice: 202.366.4542; facsimile: 202.366.8536). (h) Requests for records under this part, and Freedom of Information Act inquiries generally, may be made by accessing the DOT Home Page on the Internet (www.dot.gov) and clicking on the Freedom of Information Act link (www.dot.gov/foia). §7.16 Requests for Records of Concern to More Than One Government Organization. (a) If the release of a record covered by this subpart would be of concern to both DOT and another Federal agency, the determination as to release will be made by DOT only after consultation with the other interested agency. (b) If the release of the record covered by this subpart would be of concern to both DOT and a State, local, or Tribal government, a territory or possession of the United States, or a foreign government, the determination as to release will be made by DOT only after consultation with the interested government. (c) Alternatively, DOT may refer the request (or relevant portion thereof) for decision by a Federal agency that originated or is substantially concerned with the records, but only if that agency is subject to FOIA. Such referrals will be made expeditiously and the requestor notified in writing that a referral has been made. §7.17 Consultation with Submitters of Commercial and Financial Information. (a) If a request is received for information that has been designated by the submitter as confidential commercial information, or which DOT has some other reason to believe may contain information of the type described in §7.13(c)(4), the submitter of such information will, except as is provided in paragraphs (c) and (d) of this section, be notified expeditiously and asked to submit any written objections to release. At the same time, the requestor will be notified that notice and an opportunity to comment are being provided to the submitter. The submitter will, to the extent permitted by law, be afforded a reasonable period of time within which to provide a detailed statement of any such objections. The submitter's statement shall specify all grounds for withholding any of the information. The burden shall be on the submitter to identify all information for which exempt treatment is sought and to persuade the agency that the information should not be disclosed. (b) The responsible DOT component will, to the extent permitted by law, consider carefully a submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information. Whenever a decision is made to disclose such information over the objection of a submitter, the office responsible for the decision will forward to the submitter a notice of intent to disclose that will, to the extent permitted by law, be forwarded to the submitter a reasonable number of days prior to the specified date upon which disclosure is intended. At the same time the submitter is notified, the requestor will be notified of the decision to disclose information. The written notice 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. (c) The notice requirements of this section will not apply if: (1) The office responsible for the decision determines that the information should not be disclosed; (2) The information lawfully has been published or otherwise made available to the public; or (3) Disclosure of the information is required by law (other than 5 U.S.C. 552). (d) The procedures established in this section will not apply in the case of: (1) Business information submitted to the National Highway Traffic Safety Administration and addressed in 49 CFR Part 512. (2) Information contained in a document to be filed or in oral testimony that is sought to be withheld pursuant to Rule 39 of the Rules of Practice in Aviation Economic Proceedings (14 CFR 302.39). (e) Whenever a requestor brings suit seeking to compel disclosure of confidential commercial information, the responsible DOT component will promptly notify the submitter. Subpart D--Procedures for Appealing Decisions Not to Disclose Records and/or Waive Fees §7.21 General. (a) Each officer or employee of DOT who, upon a request by a member of the public for a record under this part, makes a determination that the record is not to be disclosed, either because it is subject to an exemption or not in DOT's custody and control, will give a written statement of the reasons for that determination to the person making the request; and indicate the names and titles or positions of each person responsible for the initial determination not to comply with such request, and the availability of an appeal within DOT. The denial letter will include an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption. Records disclosed in part will be marked or annotated to show both the amount and the location of the information deleted whenever practicable. (b) When a request for a waiver of fees pursuant to §7.44 has been denied in whole or in part, the requestor may appeal the denial. (c) Any person to whom a record has not been made available within the time limits established by §7.31 and any person who has been given a determination pursuant to paragraph (a) of this section that a record will not be disclosed may appeal to the responsible DOT official. Any person who has not received an initial determination on his or her request within the time limits established by §7.31 can seek immediate judicial review, which may be sought without the need first to submit an administrative appeal. Judicial review may be sought in the United States District Court for the judicial district in which the requestor resides or has his or her principal place of business, the judicial district in which the records are located, or in the District of Columbia. A determination that a record will not be disclosed and/or that a request for a fee waiver or reduction will not be granted does not constitute final agency action for the purposes of judicial review unless: (1) It was made by the responsible DOT official; or (2) The applicable time limit has passed without a determination on the initial request or the appeal, as the case may be, having been made. (d) Each appeal must be made in writing within thirty days from the date of receipt of the original denial and should include the DOT file or reference number assigned to the request and all information and arguments relied upon by the person making the request. (Appeals may be submitted via facsimile and conventional mail, but not via electronic mail.) Such letter should indicate that it is an appeal from a denial of a request made under FOIA. The envelope in which a mailed appeal is sent should be prominently marked: "FOIA Appeal." If these requirements are not met, the twenty-day limit described in §7.32 will not begin to run until the appeal has been identified, or would have been identified with the exercise of due diligence, by a DOT employee as an appeal under FOIA, and has been received by the appropriate office. (e) Whenever the responsible DOT official determines it necessary, he/she may require the requestor to furnish additional information, or proof of factual allegations, and may order other proceedings appropriate in the circumstances; in any case in which a request or order is made, DOT's time for responding ceases to count while the requestor responds to the request or order. The decision of the responsible DOT official as to the availability of the record or the appropriateness of a fee waiver or reduction constitutes final agency action for the purpose of judicial review. (f) The decision of the responsible DOT official not to disclose a record under this part or not to grant a request for a fee waiver or reduction is considered to be a denial by the Secretary for the purpose of 5 U.S.C. 552(a)(4)(B). (g) Any final determination by the head of an DOT component not to disclose a record under this part, or not to grant a request for a fee waiver or reduction, is subject to concurrence by a representative of the General Counsel. (h) Upon a determination that an appeal will be denied, the requestor will be informed in writing of the reasons for the denial of the request and the names and titles or positions of each person responsible for the determination, and that judicial review of the determination is available in the United States District Court for the judicial district in which the requestor resides or has his or her principal place of business, the judicial district in which the requested records are located, or the District of Columbia. Subpart E--Time Limits §7.31 Initial Determinations. An initial determination whether to release a record requested pursuant to Subpart C will be made within twenty Federal working days after the request is received by the appropriate office in accordance with §7.14, except that this time limit may be extended by up to ten Federal working days in accordance with §7.33. The person making the request will be notified immediately of such determination. If the determination is to grant the request, the desired record will be made available as promptly as possible. If the determination is to deny the request, the person making the request will be notified in writing, at the same time he or she is notified of such determination, of the reason for the determination, the right of such person to appeal the determination, and the name and title of each person responsible for the initial determination to deny the request. (a) In general. Components ordinarily will respond to requests according to their order of receipt. (b) Multitrack processing. (1) A component may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request, or on the number of pages involved. (2) A component using multitrack processing may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the component's faster track(s). A component doing so will contact the requestor either by telephone, letter, facsimile, or electronic mail, whichever is most efficient in each case. (c) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever a compelling need is demonstrated and it is determined that the compelling need involves: (i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) Requests made by a person primarily engaged in disseminating information, with an urgency to inform the public of actual or alleged Federal Government activity. (2) A request for expedited processing may be made at the time of the initial request for records or at any later time. For a prompt determination, a request for expedited processing must be received by the proper component. Requests must be submitted to the component that maintains the records requested. (3) A requestor who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requestor within the category in paragraph (c)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A requestor within the category in paragraph (c)(1)(ii) of this section also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of discretion. (4) Within ten calendar days of receipt of a request for expedited processing, the proper component will decide whether to grant it and will notify the requestor of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously. §7.32 Final Determination. (a) A determination with respect to any appeal made pursuant to §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 §7.33. The person making the request will be notified immediately of such determination pursuant to §7.21. (b) In general. Components ordinarily will respond to appeals according to their order of receipt. (c) Multitrack processing. (1) A component may use two or more processing tracks by distinguishing between simple and more complex appeals based on the amount of work and/or time needed to process the appeal, or on the number of pages involved. (2) A component using multitrack processing may provide persons making appeals in its slower track(s) with an opportunity to limit the scope of their appeals in order to qualify for faster processing within the specified limits of the component's faster track(s). A component doing so will contact the person making the appeal either by telephone, letter, facsimile, or electronic mail, whichever is most efficient in each case. (d) Expedited processing. (1) An appeal will be taken out of order and given expedited treatment whenever a compelling need is demonstrated and it is determined that the compelling need involves: (i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) A request made by a person primarily engaged in disseminating information, with an urgency to inform the public of actual or alleged Federal Government activity. (2) A request for expedited processing may be made at the time of the appeal or at any later time. For a prompt determination, a request for expedited processing must be received by the proper component, which is the component that is processing the appeal for the records requested. (3) A requestor who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requestor within the category in §7.31(c)(1)(ii), if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A requestor within the category in §7.31(c)(1)(ii) also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of discretion. A person who was granted expedited processing under §7.31 need merely certify that the same circumstances apply. (4) Within ten calendar days of receipt of a request for expedited processing, the proper component will decide whether to grant it and will notify the requestor of the decision. If a request for expedited treatment is granted, the appeal will be given priority and will be processed as soon as practicable. If a request for expedited processing of an appeal is denied, no further administrative recourse is available. §7.33 Extension. (1) In unusual circumstances as specified in this section, the time limits prescribed in §7.31 and §7.32 may be extended by written notice to the person making the request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. Such notice may not specify a date that would result in a cumulative extension of more than 10 Federal working days without providing the requestor an opportunity to modify the request as noted below. 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 component having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. Where the extension is for more than 10 working days, the DOT component will provide the requestor with an opportunity either to modify the request so that it may be processed within the time limits or to arrange an alternative time period with the component for processing the request or a modified request. (2) Where a component reasonably believes that multiple requests submitted by a requestor, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated for the purposes of fees and processing activities. Multiple requests involving unrelated matters will not be aggregated. Subpart F--Fees §7.41 General. (a) This subpart prescribes fees for services performed for the public under Subparts B and C of this part by DOT. (b) All terms defined by FOIA apply to this subpart, and the term "hourly rate" means the actual hourly base pay for a civilian employee or, for members of the Coast Guard, the equivalent hourly pay rate computed using a 40-hour week and the member's normal basic pay and allowances. (c) This subpart applies to all employees of DOT, including those of non-appropriated fund activities of the Coast Guard and the Maritime Administration. (d) This subpart does not apply to any special study, special statistical compilation, table, or other record requested under 49 U.S.C. 329(c). The fee for the performance of such a service is the actual cost of the work involved in compiling the record. All such fees received by DOT in payment of the cost of such work are deposited in a separate account administered under the direction of the Secretary, and may be used for the ordinary expenses incidental to providing the information. (e) This subpart does not apply to requests from record subjects for records about themselves in DOT systems of records, which are determined in accordance with the Privacy Act, as implemented by DOT regulations (49 CFR part 10). §7.42 Payment of Fees. (a) The fees prescribed in this subpart may be paid by check, draft, or money order, payable to the DOT component where fees were incurred, for deposit in the General Fund of the Treasury of the United States, e.g. DOT/FAA. (b) Charges may be assessed by DOT for time spent searching for requested records even if the search fails to locate records or the records located are determined to be exempt from disclosure. In addition, if records are requested for commercial use, DOT may assess a fee for time spent reviewing any responsive records located to determine whether they are exempt from disclosure. (c) When it is estimated that the search charges, review charges, duplication fees, or any combination of fees that could be charged to the requestor will likely exceed US $25, the requestor will be notified of the estimated amount of the fees, unless the requestor has indicated in advance his or her willingness to pay fees as high as those anticipated. In cases where a requestor has been notified that actual or estimated fees may amount to more than US $25, the request will be deemed not to have been received until the requestor has agreed to pay the anticipated total fee. The notice will also inform the requestor how to consult with the appropriate DOT officials with the object of reformulating the request to meet his or her needs at a lower cost. (d) Payment of fees may be required prior to actual duplication or delivery of any releasable records to a requestor. However, advance payment, i.e., before work is commenced or continued on a request, may not be required unless: (1) Allowable charges that a requestor may be required to pay are likely to exceed US $250; or (2) The requestor has failed to pay within 30 days of the billing date fees charged for a previous request to any part of DOT. (e) When paragraph (d)(1) of this section applies, the requestor will be notified of the likely cost and, where he/she has a history of prompt payment of FOIA fees, requested to furnish satisfactory assurance of full payment of FOIA fees. Where the requestor does not have any history of payment, he or she may be required to make advance payment of any amount up to the full estimated charges. (f) When paragraph (d)(2) of this section applies, the requestor will be required to demonstrate that the fee has, in fact, been paid or to pay the full amount owed, including any applicable interest, late handling charges, and penalty charges as discussed below. The requestor will also be required to make an advance payment of the full amount of the estimated fee before processing of a new request or continuation of a pending request is begun. (g) DOT will assess interest on an unpaid bill starting on the 31st day following the day on which the notice of the amount due is first mailed to the requestor. Interest will accrue from the date of the notice of amount due and will be at the rate prescribed in 31 U.S.C. 3717. Receipt by DOT of a payment for the full amount of the fees owed within 30 calendar days after the date of the initial billing will stay the accrual of interest, even if the payment has not been processed. (h) If payment of fees charged is not received within 30 calendar days after the date the initial notice of the amount due is first mailed to the requestor, an administrative charge will be assessed by DOT to cover the cost of processing and handling the delinquent claim. In addition, a penalty charge will be applied with respect to any principal amount of a debt that is more than 90 days past due. Where appropriate, other steps permitted by Federal debt collection statutes, including disclosure to consumer reporting agencies and use of collection agencies, will be used by DOT to encourage payment of amounts overdue. (i) Notwithstanding any other provision of this subpart, when the total amount of fees that could be charged for a particular request (or aggregation of requests) under Subpart C, after taking into account all services that must be provided free of, or at a reduced, charge, is less than US $10.00 DOT will not make any charge for fees. §7.43 Fee Schedule. The rates for manual searching, computer operator/programmer time and time spent reviewing records will be calculated based on the grades and rates established by the Washington-Baltimore Federal White-Collar Pay Schedule or equivalent grades, as follows: When performed by employees: GS-1 through GS-8 Hourly rate of GS-5 step 7 plus 16% GS-9 through GS-14 Hourly rate of GS-12 step 7 plus 16% GS-15 and above Hourly rate of GS-15 step 7 plus 16% (a) The standard fee for a manual search to locate a record requested under Subpart C of this part, including making it available for inspection, will be determined by multiplying the searcher's rate as calculated from the above chart and the time spent conducting the search. (b) The standard fee for a computer search for a record requested under subpart C of this part is the actual cost. This includes the cost of operating the central processing unit for the time directly attributable to searching for records responsive to a FOIA request and the operator/programmer's rate as calculated from the above chart for costs apportionable to the search. (c) The standard fee for review of records requested under Subpart C of this part is the reviewer's rate as calculated above multiplied by the time he/she spent determining whether the requested records are exempt from mandatory disclosure. (d) The standard fee for duplication of a record requested under Subpart C of this part is determined as follows: (1) Per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment) - US $0.10. (2) Per copy prepared by computer such as tapes or printout - actual costs, including operator time. (3) Per copy prepared by any other method of duplication - actual direct cost of production. (e) Depending upon the category of requestor, and the use for which the records are requested, in some cases the fees computed in accordance with the above standard fee schedule will either be reduced or not charged, as prescribed by other provisions of this subpart. (f) The following special services not required by FOIA may be made available upon request, at the stated fees: Certified copies of documents, with DOT or DOT component seal (where authorized) - US $4.00; or true copy, without seal - US $2.00 §7.44 Services Performed Without Charge or at a Reduced Charge. (a) A fee is not to be charged to any requestor making a request under Subpart C for the first two hours of search time unless the records are requested for commercial use. For purposes of this subpart, when a computer search is required two hours of search time will be considered spent when the hourly costs of operating the central processing unit used to perform the search added to the computer operator's salary cost (hourly rate plus 16 percent) equals two hours of the computer operator's salary costs (hourly rate plus 16 percent). (b) A fee is not to be charged for any time spent searching for a record requested under Subpart C if the records are not for commercial use and the requestor is a representative of the news media, an educational institution whose purpose is scholarly research, or a non-commercial scientific institution whose purpose is scientific research. (c) A fee is not to be charged for duplication of the first 100 pages (standard paper, not larger than 8.5 x 14 inches) of records provided to any requestor in response to a request under Subpart C unless the records are requested for commercial use. (d) A fee is not to be charged to any requestor under Subpart C to determine whether a record is exempt from mandatory disclosure unless the record is requested for commercial use. A review charge may not be charged except with respect to an initial review to determine the applicability of a particular exemption to a particular record or portion of a record. A review charge may not be assessed for review at the administrative appeal level. When records or portions of records withheld in full under an exemption that is subsequently determined not to apply are reviewed again to determine the applicability of other exemptions not previously considered, this is considered an initial review for purposes of assessing a review charge. (e) Documents will be furnished without charge or at a reduced charge if the official having initial denial authority determines that disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor. (f) Factors to be considered by DOT officials authorized to determine whether a waiver or reduction of fees will be granted include: (1) Whether the subject matter of the requested records concerns the operations or activities of the Federal government; (2) Whether the disclosure is likely to contribute to an understanding of Federal government operations or activities; (3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons; (4) Whether the contribution to public understanding of Federal government operations or activities will be significant; (5) Whether the requestor has a commercial interest that would be furthered by the requested disclosure; and (6) Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure that disclosure is primarily in the commercial interest of the requestor. (g) Documents will be furnished without charge or at a reduced charge if the official having initial denial authority determines that the request concerns records related to the death of an immediate family member who was, at the time of death, a DOT employee or a member of the Coast Guard. (h) Documents will be furnished without charge or at a reduced charge if the official having initial denial authority determines that the request is by the victim of a crime who seeks the record of the trial or court-martial at which the requestor testified. §7.45 Transcripts. Transcripts of hearings or oral arguments are available for inspection. Where transcripts are prepared by a nongovernmental contractor, and the contract permits DOT to handle the reproduction of further copies, §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. §7.46 Alternative Sources of Information. In the interest of making documents of general interest publicly available at as low a cost as possible, alternative sources will be arranged whenever possible. In appropriate instances, material that is published and offered for sale may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402; U.S. Department of Commerce's National Technical Information Service (NTIS), Springfield, Virginia 22151; or National Audio-Visual Center, National Archives and Records Administration, Capital Heights, MD 20743-3701. Issued in Washington, DC, on Rodney E. Slater Secretary of Transportation |
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