Public Availability of Information

Federal RegisterApr 22, 1997

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

[Docket No. OST-96-1430]

RIN 2105-AC58

Public Availability of Information

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Department of Transportation revises its 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: This rule is effective June 23, 1997.

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 reviewed Part 7 and

are revising it to update and streamline information on public

availability of information. We

[[Page 19516]]

are reorganizing 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 deleted the Appendices that set

forth redundant information concerning document inspection facilities.

We are replacing 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. Public comment was invited (61 FR 33075; June

26, 1996), but none was received; however, as explained below, based

upon further review within DOT, some changes were made to the Notice of

Proposed Rulemaking (NPRM) after publication, and, as so amended, the

NPRM is being adopted as the Final Rule. This amendment does not

reflect changes in FOIA wrought by the Electronic FOIA Act of 1996,

which DOT will address later.

Changes from Proposal

Many of the changes are minor, being nothing more significant than

renumberings. Substantive changes are made, however, to clarify the

division of responsibility for FOIA matters at the Saint Lawrence

Seaway Development Corporation between its headquarters in Washington,

DC and its operating office in Massena, NY; and to reflect that the

Inspector General has the same authority under this part as does any

Administrator. It also clarifies that the Surface Transportation Board,

a successor to the Interstate Commerce Commission within DOT, is not

covered by these FOIA regulations, but, rather, by its own.

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. 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. They qualify as small entities and

will have burdens lessened by this amendment, as the effect of the

amendment will be to make our FOIA regulations easier to understand;

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 is revising 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.

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--Procedure for Appealing Decisions Not to Disclose Records

and/or Waive Fees

7.21 General.

Subpart E--Time Limits

7.31 Initial determinations.

7.32 Final determinations.

7.33 Extension.

Subpart F--Fees

7.41 General.

7.42 Payment of fees.

7.43 Fee schedule.

7.44 Services performed without charge or at a reduced charge.

7.45 Transcripts.

7.46 Alternative sources of information.

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

12600, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Provisions

Sec. 7.1 General

(a) This part implements 5 U.S.C. 552, and prescribes rules

governing the availability to the public of 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 of this part, 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.

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 administration of

the Department and includes the Commandant of the Coast Guard, the

Inspector General, 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 administrations:

(This definition specifically excludes the Surface Transportation

Board, which has its own Freedom of Information Act regulations (49

CFR part 1001).

(1) United States Coast Guard,

(2) Federal Aviation Administration,

(3) Federal Highway Administration,

[[Page 19517]]

(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.

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 subpart 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 administrations and the established places at which, the

officer 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.

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.

(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 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.

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

facility may be obtained from the facility or the headquarters of the

operating administration 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, Office of Inspector General,

or an operating administrator, 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(f).

Sec. 7.9 Protection of records.

(a) Records made available for inspection and copying may not be

removed, altered, destroyed, or mutilated.

(b) 18 U.S.C. 641 provides, in pertinent part, for criminal

penalties for embezzlement or theft of government records.

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):

[[Page 19518]]

(a) Docket Units located at 400 7th Street, SW., Washington, DC

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) National Highway Traffic Safety Administration, Room 5111,

Hours 9:30-4:00.

(4) Federal Transit Administration, Room 9400, Hours 8:30-5:00.

(5) Maritime Administration, Room 7210, Hours 8:30-5:00.

(6) Research and Special Programs Administration, Room 8421, Hours

8:30-5:00.

(b) Federal Aviation Administration, 800 Independence Avenue, SW.,

Washington, DC 20591:

(1) Rules Docket Room 915-G, Hours 8:30-5:00, and (2) Enforcement

Dockets, Room 924-C, Hours 8:30-5:00.

Street, SW., Washington, DC 20593-0001.

(d) Saint Lawrence Seaway Development Corporation, 180 Andrews

Street, Massena, New York 12662-0520.

(e) Federal Railroad Administration, Room 7059, 1120 Vermont

Avenue, NW, Washington, DC, Hours 9:30-4:00

(f) Certain operating administrations 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.

(g) Additional information on the location and hours of operations

for Department Docket Offices can be obtained through the DOT Docket

Unit, mentioned in paragraphs (a) through (e) of the section, 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 Inspector General.

(b) To the Inspector General for records of the Office of Inspector

General.

redelegate to officers of that administration the authority to

administer this part in connection with defined groups of records.

However, each Administrator may delegate 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 administration.

Sec. 7.13 Records available.

(a) Policy. It is the policy of the Department of Transportation to

make 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.

requirement are matters that are:

(1)(i) Specifically authorized under criteria established by

Executive Order to keep 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 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 of 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 identify 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

[[Page 19519]]

the use of an agency responsible for the regulation or supervision of

financial institutions.

(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 requirement 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.

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 of this part 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.

(3) Requesters are advised that the time for responding to requests

set forth in subpart E of this part may be delayed--

(i) If a requester has not sufficiently identified the fee category

applicable to the request,

(ii) If a requester has not stated a willingness to pay fees as

high as anticipated by the Department, or

(iii) 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 the 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

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 be 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 administration where the records

are located:

(a) FOIA Offices at 400 7th Street, SW., Washington, DC 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) Bureau of Transportation Statistics, Room 2104.

(9) Office of Inspector General, Room 9210.

(b) Federal Aviation Administration, 800 Independence Avenue, SW.,

Room 906A, Washington, DC 20591.

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) Certain operating administrations also maintain FOIA contacts

at regional offices and at the offices of the Commandant and District

Commanders of the United States Coast Guard. Additional information on

the location of these offices can be obtained through the FOIA contact

offices listed in paragraphs (a) through (d) of this section.

(f) 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.

[[Page 19520]]

(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.

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, the Office of Inspector General,

or the responsible operating administration, 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.

(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,

the Office of Inspector General, or the responsible operating

administration, 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 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.

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

administration 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, or the

designee of any of them. 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 administration

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 administration 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 administration

concerned, or the General Counsel or

[[Page 19521]]

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 administration

concerned, or the General Counsel or the 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

administration, 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 of this part 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 determinations.

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 paragraph, ``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.

practicable speed, with any other agency of 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.

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 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

administration 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.

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

[[Page 19522]]

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 in paragraphs (g)

and (h) of this section. 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 of this part, 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 actural 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 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 standard fee schedule in paragraphs (a) through (d)

of this section will either be reduced or not charged, as prescribed by

other provisions of this subpart.

(f) The following special services not required by the FOIA may be

made available upon request, at the stated fees: Certified copies of

documents, with Department of Transportation or operating

administration seal (where authorized)-$4.00; or true copy, without

seal-$2.00.

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 of this part for the first two hours of search time

unless the records are requested for commercial use. For purposes of

this subpart, when a computer search is required, two hours of search

time will be considered spent when the hourly costs of operating the

central processing unit used to perform the search added to the

computer operator's salary cost (hourly rate plus 16 percent) equals

two hours of the computer operator's salary costs (hourly rate plus 16

percent).

(b) A fee is not to be charged for any time spent searching for a

record requested under subpart C if the records are not for commercial

use and the 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.

(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;

[[Page 19523]]

(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.

(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, an employee of the

Department or a member of the Coast Guard.

(h) Documents will be furnished without charge or at a reduced

charge if the official having initial denial authority determines that

the request is by the victim of a crime who seeks the record of the

trial or court-martial at which the requestor testified.

Sec. 7.45 Transcripts.

Transcripts of hearings or oral arguments are available for

inspection. Where transcripts are prepared by a nongovernmental

contractor, and the contract permits the Department to handle the

reproduction of further copies, Sec. 7.43 applies. Where 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 as 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 March 24, 1997.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 97-9786 Filed 4-21-97; 8:45 am]

BILLING CODE 4910-62-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.