[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Proposed Rules]
[Pages 61070-61077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29717]


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NATIONAL RAILROAD PASSENGER CORPORATION

49 CFR Part 701


Revision of the Freedom of Information Act Regulations of the 
National Railroad Passenger Corporation and Implementation of the 
Electronic Freedom of Information Act Amendments of 1996 (Public Law 
104-231)

AGENCY: National Railroad Passenger Corporation.

ACTION: Proposed rule.

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SUMMARY: This notice sets forth proposed revisions of the Freedom of 
Information Act (FOIA) regulations of the National Railroad Passenger 
Corporation (``Amtrak''). The rules reflect recent developments in the 
statute and case law, including the Electronic Freedom of Information 
Act Amendments of 1996 (Public Law 104-231). The proposed revisions 
provide substantive and procedural changes to conform to the 
amendments. Amtrak has also taken this opportunity to streamline its 
rules and include updated cost figures to be used in calculating and 
charging fees.

DATES: Submit comments on or before December 15, 1997.

ADDRESSES: Address all comments concerning this proposed rule to 
Medaris Oliveri, Freedom of Information Office, National Railroad 
Passenger Corporation, 60 Massachusetts Avenue, N.E., Washington, DC 
20002.

FOR FURTHER INFORMATION CONTACT: Medaris Oliveri at 202/906-2728.

SUPPLEMENTARY INFORMATION: These revisions incorporate changes to the 
language and structure of Amtrak's regulations and also add new 
provisions

[[Page 61071]]

to implement the Electronic Freedom of Information Act Amendments of 
1996 (Public Law 104-231). New provisions implementing the amendments 
are found at Sec. 701.2 definitions, Sec. 701.3 policy, Sec. 701.4 (c) 
and (d) reading room records, Sec. 701.5 requirements for making 
requests, Sec. 701.6(f) electronic records, Sec. 701.7 timing of 
responses to requests, Sec. 701.8 (a) and (b) content of responses, 
Sec. 701.9 business information, Sec. 701.10 appeals, and Sec. 701.11 
fees.
    Proposed revisions of the fee schedule can be found at 
Sec. 701.11(e). The duplication charge will remain the same at 25 cents 
per page, while document search and review charges will increase from 
$27 to $38 per hour. The amount at or below which a requester will not 
be charged will remain the same.

List of Subjects in 49 CFR Part 701

    Freedom of Information.

    For the reasons stated in the preamble, Amtrak proposes to revise 
49 CFR part 701 as follows:

PART 701--AMTRAK FREEDOM OF INFORMATION ACT PROGRAM

Sec.
701.1  General provisions.
701.2  Definitions.
701.3  Policy.
701.4  Amtrak public information.
701.5  Requirements for making requests.
701.6  Release and processing procedures.
701.7  Timing of responses to requests.
701.8  Responses to requests.
701.9  Business information.
701.10  Appeals.
701.11  Fees.
701.12  Other rights and services.

    Authority: 5 U.S.C. 552; 49 U.S.C. 24301(e).


Sec. 701.1  General provisions.

    This part contains the rules that the National Railroad Passenger 
Corporation (``Amtrak'') follows in processing requests for records 
under the Freedom of Information Act (FOIA), Title 5 of the United 
States Code, section 552. Information routinely provided to the public 
(i.e., train timetables, press releases) may be obtained without 
following Amtrak's FOIA procedures. As a matter of policy, Amtrak may 
make discretionary disclosures of records or information exempt under 
the FOIA whenever disclosure would not foreseeably harm an interest 
protected by a FOIA exemption; however, this policy does not create any 
right enforceable in court.


Sec. 701.2  Definitions.

    Unless the context requires otherwise in this part, masculine 
pronouns include the feminine gender and ``includes'' means ``includes 
but is not limited to.''
    (a) Amtrak or Corporation means the National Railroad Passenger 
Corporation.
    (b) Appeal means a request submitted to the President of Amtrak or 
designee for review of an adverse initial determination.
    (c) Business days means working days; Saturdays, Sundays, and legal 
public holidays are excluded in computing response time for processing 
FOIA requests.
    (d) Disclose or disclosure means making records available for 
examination or copying, or furnishing a copy of nonexempt responsive 
records.
    (e) Electronic data means records and information (including E-
mail) that are created, stored, and retrievable by electronic means.
    (f) Exempt information means information that is exempt from 
disclosure under one or more of the nine exemptions to the FOIA.
    (g) Final determination means a decision by the President of Amtrak 
or designee concerning a request for review of an adverse initial 
determination received in response to a FOIA request.
    (h) Freedom of Information Act or ``FOIA'' means the statute as 
codified in section 552 of Title 5 of the United States Code as 
amended.
    (i) Freedom of Information Officer means the Amtrak official 
designated to fulfill the responsibilities of implementing and 
administering the Freedom of Information Act as specifically designated 
under this part.
    (j) Initial determination means a decision by an Amtrak FOIA 
Officer in response to a request for information under the FOIA.
    (k) Pages means paper copies of standard office size or the cost 
equivalent in other media.
    (l) President means the Chairman, President and Chief Executive 
Officer (CEO) of the National Railroad Passenger Corporation (Amtrak) 
or designee.
    (m) Record means any writing, drawing, map, recording, tape, film, 
photograph, or other documentary material by which information is 
preserved in any format, including electronic format. A record must 
exist and be in the possession and control of Amtrak at the time of the 
request to be subject to this part and the FOIA. The following are not 
included within the definition of the word ``record'':
    (1) Library materials compiled for reference purposes or objects of 
substantial intrinsic value.
    (2) Routing and transmittal sheets, notes, and filing notes which 
do not also include information, comments, or statements of substance.
    (3) Anything that is not a tangible or documentary record such as 
an individual's memory or oral communication.
    (4) Objects or articles, whatever their historical or value as 
evidence.
    (n) Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    (o) Requester or requesting party means any person who has 
submitted a request to Amtrak.
    (p) Responsive records means documents determined to be within the 
scope of a FOIA request.


Sec. 701.3  Policy.

    (a) Amtrak will make records of the Corporation available to the 
public to the greatest practicable extent in keeping with the spirit of 
the law. Therefore, records of the Corporation are available for public 
inspection and copying as provided in this part with the exception of 
those that the Corporation specifically determines should not be 
disclosed either in the public interest, for the protection of private 
rights, or for the efficient conduct of public or corporate business, 
but only to the extent withholding is permitted by law.
    (b) A record of the Corporation, or parts thereof, may be withheld 
from disclosure if it comes under one or more exemptions in 5 U.S.C. 
552(b) or is otherwise exempted by law. Disclosure to a properly 
constituted advisory committee, to Congress, or to federal agencies 
does not waive the exemption.
    (c) In the event one or more exemptions apply to a record, any 
reasonably segregable portion of the record will be made available to 
the requesting person after deletion of the exempt portions. The entire 
record may be withheld if a determination is made that nonexempt 
material is so inextricably intertwined that disclosure would leave 
only essentially meaningless words or phrases, or when it can be 
reasonably assumed that a skillful and knowledgeable person could 
reconstruct the deleted information.
    (d) The procedures in this part apply only to records in existence 
at the time of a request. The Corporation has no obligation to create a 
record solely for the purpose of making it available under the FOIA or 
to provide a record that will be created in the future.
    (e) Each officer and employee of the Corporation dealing with FOIA 
requests is directed to cooperate in making

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records available for disclosure under the Act in a prompt manner 
consistent with this part.
    (f) The FOIA time limits will not begin to run until a request has 
been identified as being made under the Act and deemed received by the 
Freedom of Information Office.
    (g) Generally, when a member of the public complies with the 
procedures established in this part for obtaining records under the 
FOIA, the request shall receive prompt attention, and a response shall 
be made within twenty business days.


Sec. 701.4  Amtrak public information.

    (a) Public reading room. Amtrak maintains a public reading room at 
its headquarters at 60 Massachusetts Avenue, N.E. in Washington, D.C. 
The public reading room contains records required under the FOIA to be 
regularly available for public inspection and copying. A current 
subject-matter index shall be maintained of records in the public 
reading room that are available for inspection and copying. The index 
shall be updated at least quarterly with respect to newly included 
records. A copy of the index shall be provided upon request at a cost 
not to exceed the direct cost of duplication.
    (b) Electronic reading room. Amtrak will make available 
electronically reading room records created by the Corporation on or 
after November 1, 1996 on its World Wide Web site which can be accessed 
at http://www.Amtrak.com. An index of the Corporation's reading room 
records will also be made available at the web site. The index will 
indicate reading room records that are available electronically.
    (c) Frequently requested information. The FOIA requires that copies 
of records, regardless of form or format, released pursuant to a FOIA 
request under 5 U.S.C. 552(a)(3) that have become or are likely to 
become the subject of subsequent requests for substantially the same 
records be made publicly available. Such records created by the 
Corporation after November 1, 1996 will be made available 
electronically while records created prior to this date will be made 
available for inspection and copying in Amtrak's public reading room.
    (1) Amtrak shall decide on a case-by-case basis whether records 
fall into the category of ``frequently requested FOIA records'' based 
on the following factors:
    (i) Previous experience with similar records;
    (ii) The nature and type of information contained in the records;
    (iii) The identity and number of requesters and whether there is 
widespread media or commercial interest in the records.
    (2) The provision in this paragraph is intended for situations 
where public access in a timely manner is important. It is not intended 
to apply where there may be a limited number of requests over a short 
period of time from a few requesters. Amtrak may remove the records 
from this category when it is determined that access is no longer 
necessary.
    (d) Guide for making requests. A guide on how to use the FOIA for 
requesting records from Amtrak shall be made available to the public 
upon request. Amtrak's major information systems will be described in 
the guide.


Sec. 701.5  Requirements for making requests.

    (a) General requirements. (1) A FOIA request can be made by ``any 
person'' as defined in 5 U.S.C. 551(2), which encompasses individuals 
(including foreign citizens; partnerships; corporations; associations; 
and local, state, tribal, and foreign governments). A FOIA request may 
not be made by a federal agency.
    (2) A request must be in writing, indicate that it is being made 
under the FOIA, and provide an adequate description of the records 
sought. The request should also include applicable information 
regarding fees as specified in paragraphs (d) and (e) of this section.
    (b) How to submit a request. (1) A request must clearly state on 
the envelope and in the letter that it is a Freedom of Information Act 
or ``FOIA'' request.
    (2) The request must be addressed to the Freedom of Information 
Office; National Railroad Passenger Corporation; 60 Massachusetts 
Avenue, N.E.; Washington, D.C. 20002. Requests will also be accepted by 
facsimile at (202) 906-2169. Amtrak cannot assure that a timely or 
satisfactory response under this part will be given to written requests 
addressed to Amtrak offices, officers, or employees other than the 
Freedom of Information Office. Amtrak employees receiving a 
communication in the nature of a FOIA request shall forward it to the 
FOIA Office expeditiously. Amtrak shall advise the requesting party of 
the date that an improperly addressed request is received by the FOIA 
Office.
    (c) Content of the request. (1) Description of records--
Identification of records sought under the FOIA is the responsibility 
of the requester. The records sought should be described in sufficient 
detail so that Amtrak personnel can locate them with a reasonable 
amount of effort. When possible, the request should include specific 
information such as dates, title or name, author, recipient, subject 
matter of the record, file designation or number, or other pertinent 
details for each record or category of records sought.
    (2) Reformulation of a request. Amtrak is not obligated to act on a 
request until the requester provides sufficient information to locate 
the record. Amtrak may offer assistance in identifying records and 
reformulating a request where the description is considered 
insufficient, the production of voluminous records is required, or a 
considerable number of work hours would be required that would 
interfere with the business of the Corporation. The Freedom of 
Information Office shall notify the requester within ten business days 
of the type of information that will facilitate the search. The 
requesting party shall be given an opportunity to supply additional 
information and may submit a revised request, which will be treated as 
a new request.
    (d) Payment of fees. The submission of a FOIA request constitutes 
an agreement to pay applicable fees accessed up to $25.00 unless the 
requesting party specifies a willingness to pay a greater or lesser 
amount or seeks a fee waiver or reduction in fees.
    (1) Fees in excess of $25.00. When Amtrak determines or estimates 
that applicable fees are likely to exceed $25.00, the requesting party 
shall be notified of estimated or actual fees, unless a commitment has 
been made in advance to pay all fees. If only a portion of the fee can 
be estimated readily, Amtrak shall advise the requester that the 
estimated fee may be a portion of the total fee.
    (i) In order to protect requesters from large and/or unexpected 
fees, Amtrak will request a specific commitment when it estimates or 
determines that fees will exceed $100.00.
    (ii) A request shall not be considered received, and further 
processing carried out until the requesting party agrees to pay the 
anticipated total fee. Any such agreement must be memorialized in 
writing. A notice under this paragraph will offer the requesting party 
an opportunity to discuss the matter in order to reformulate the 
request to meet the requester's needs at a lower cost.
    (iii) Amtrak will hold in abeyance for forty-five (45) days 
requests requiring agreement to pay fees and will thereafter deem the 
request closed. This action will not prevent the requesting party from 
refiling the FOIA request with a fee commitment at a subsequent date.
    (2) Fees in excess of $250. When Amtrak estimates or determines 
that allowable charges are likely to exceed

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$250, an advance deposit of the entire fee may be required before 
continuing to process the request.
    (e) Information regarding fee category. In order to determine the 
appropriate fee category, a request should indicate whether the 
information sought is intended for commercial use or whether the 
requesting party is a member of the staff of an educational or 
noncommercial scientific institution or a representative of the news 
media.
    (f) Records concerning other individuals. If the request is for 
records concerning another individual, either a written authorization 
signed by that individual permitting disclosure of those records to the 
requesting party or proof that the individual is deceased (i.e., a copy 
of a death certificate or an obituary) will help to expedite processing 
of the request.


Sec. 701.6  Release and processing procedures.

    (a) General provisions. In determining records that are responsive 
to a request, Amtrak will ordinarily include only records that exist 
and are in the possession and control of the Corporation as of the date 
that the search is begun. If any other date is used, the requesting 
party will be informed of that date.
    (b) Authority to grant or deny requests. Amtrak's FOIA officer is 
authorized to grant or deny any request for records.
    (c) Notice of referral. If Amtrak refers all or any part of the 
responsibility for responding to a request to another organization, the 
requesting party will be notified. A referral shall not be considered a 
denial of access within the meaning of this part. All consultations and 
referrals of requests will be handled according to the date that the 
FOIA request was initially received.
    (d) Creating a record. There is no obligation on the part of Amtrak 
to create, compile, or obtain a record to satisfy an FOIA request. The 
FOIA also does not require that a new computer program be developed to 
extract the records requested. Amtrak may compile or create a new 
record, however, when doing so would result in a more useful response 
to the requesting party or would be less burdensome to Amtrak than 
providing existing records. The cost of creating or compiling such a 
record may not be charged to the requester unless the fee for creating 
the record is equal to or less than the fee that would be charged for 
providing the existing record.
    (e) Incomplete records. If the records requested are not complete 
at the time of a request, Amtrak may, at its discretion, inform the 
requester that complete nonexempt records will be provided when 
available without having to submit an additional request.
    (f) Electronic records. Amtrak is not obligated to process a 
request for electronic records where creation of a record, programming 
or a particular format would result in a significant expenditure of 
resources or interfere with the corporation's operations.


Sec. 701.7  Timing of responses to requests.

    (a) General. (1) The time limits of the FOIA will begin only after 
the requirements for submitting a request as established in Sec. 701.5 
have been met, and the request is deemed received by the Freedom of 
Information Office.
    (2) A request for records shall be considered to have been received 
on the later of the following dates:
    (i) The requester has agreed in writing to pay applicable fees in 
accordance with Sec. 701.5(d), or
    (ii) The fees have been waived in accordance with Sec. 701.11(k), 
or
    (iii) Payment in advance has been received from the requester when 
required in accordance with Sec. 701.11(i).
    (3) The time for responding to requests set forth in paragraph (b) 
of this section may be delayed if:
    (i) The request does not sufficiently identify the fee category 
applicable to the request;
    (ii) The request does not state a willingness to pay all fees;
    (iii) A request seeking a fee waiver does not address the criteria 
for fee waivers set forth in Sec. 701.11(k);
    (iv) A fee waiver request is denied, and the request does not 
include an alternative statement indicating that the requesting party 
is willing to pay all fees.
    (b) Initial determination. Whenever possible, an initial 
determination to release or deny a record shall be made within twenty 
business days after receipt of the request. In ``unusual 
circumstances'' as described in paragraph (d) of this section, the time 
for an initial determination may be extended for ten business days.
    (c) Multitrack processing. (1) Amtrak may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process a 
request or the number of pages involved.
    (2) In general, when requests are received, Amtrak's FOIA Office 
will review and categorize them for tracking purposes. Requests within 
each track will be processed according to date of receipt.
    (3) The FOIA Office may contact a requester when a request does not 
appear to qualify for fast track processing to provide an opportunity 
to limit the scope of the request and qualify for a faster track. Such 
notification shall be at the discretion of the FOIA Office and will 
depend largely on whether it is believed that a narrowing of the 
request could place the request on a faster track.
    (d) Unusual circumstances. (1) The requesting party shall be 
notified in writing if the time limits for processing a request cannot 
be met because of unusual circumstances, and it will be necessary to 
extend the time limits for processing the request. The notification 
shall include the date by which the request can be expected to be 
completed. Where the extension is for more than ten business days, the 
requesting party will be afforded an opportunity to either modify the 
request so that it may be processed within the time limits or to 
arrange an alternative time period for processing the initial request 
or modified request.
    (2) If Amtrak believes that multiple requests submitted by a 
requester or by a group of requesters acting in concert constitute a 
single request that would otherwise involve unusual circumstances and 
the requests involve clearly related matters, the requests may be 
aggregated. Multiple requests concerning unrelated matters may not be 
aggregated.
    (3) Unusual circumstances that may justify delay include:
    (i) The need to search for and collect the requested records from 
other facilities that are separate from Amtrak's headquarters offices.
    (ii) The need to search for, collect, and examine a voluminous 
amount of separate and distinct records sought in a single request.
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with agencies having a substantial interest in the 
determination of the request, or among two or more Amtrak components 
having a substantial subject-matter interest in the request.
    (e) Expedited processing. (1) Requests and appeals may be taken out 
of order and given expedited treatment whenever it is determined that 
they involve a compelling need, which means:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; and
    (ii) An urgency to inform the public about an actual or alleged 
Amtrak activity, if made by a person primarily engaged in disseminating 
information.

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    (2) A request for expedited processing may be made at the time of 
the initial request for records or at a later date.
    (3) A requester seeking expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. This statement must accompany the 
request in order to be considered and responded to within the ten 
calendar days required for decisions on expedited access.
    (4) A requester who is not a full-time member of the news media 
must establish that he is a person whose main professional activity or 
occupation is information dissemination, though it need not be his sole 
occupation. A requester must establish a particular urgency to inform 
the public about the Amtrak activity involved in the request.
    (5) Within ten business days of receipt of a request for expedited 
processing, Amtrak shall determine whether to grant such a request and 
notify the requester of the decision. If a request for expedited 
treatment is granted, the request shall be given priority and shall be 
processed as soon as practicable.
    (6) Amtrak shall provide prompt consideration of appeals of 
decisions denying expedited processing.


Sec. 701.8  Responses to requests.

    (a) Granting of requests. When an initial determination is made to 
grant a request in whole or in part, the requesting party shall be 
notified in writing and advised of any fees charged under 
Sec. 701.11(e). The records shall be disclosed to the requesting party 
promptly upon payment of applicable fees.
    (b) Adverse determination of requests. (1) Types of denials.--The 
requesting party shall be notified in writing of a determination to 
deny a request in any respect. Adverse determinations or denials of 
records consist of:
    (i) A determination to withhold any requested record in whole or in 
part;
    (ii) A determination that a requested record does not exist or 
cannot be located;
    (iii) A denial of a request for expedited treatment; and
    (iv) A determination on any disputed fee matter including a denial 
of a request for a fee waiver.
    (2) Deletions. When practical, records disclosed in part shall be 
marked or annotated to show both the amount and location of the 
information deleted.
    (3) Content of denial letter. The denial letter shall be signed by 
the Freedom of Information Officer or designee and shall include:
    (i) A brief statement of the reason(s) for the adverse 
determination including any FOIA exemptions applied in denying the 
request;
    (ii) An estimate of the volume of information withheld (number of 
pages or some other reasonable form of estimation). An estimate does 
not need to be provided if the volume is indicated through deletions on 
records disclosed in part, or if providing an estimate would harm an 
interest protected by an applicable exemption;
    (iii) A statement that an appeal may be filed under Sec. 701.10 and 
a description of the requirements of that section; and
    (iv) The name and title or position of the person responsible for 
the denial.


Sec. 701.9  Business information.

    (a) General. Business information held by Amtrak will be disclosed 
under the FOIA only under this section.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Business information means commercial or financial information 
held by Amtrak that may be protected from disclosure under Exemption 4 
of the FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity including partnerships; 
corporations; associations; and local, state, tribal, and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests and provides justification for a longer designation period.
    (d) Notice to submitters. Amtrak shall provide a submitter with 
prompt written notice of a FOIA request or an appeal that seeks its 
business information when required under paragraph (e) of this section, 
except as provided in paragraph (h), in order to give the submitter an 
opportunity to object to disclosure of any specified portion of the 
information under paragraph (f). The notice shall either describe the 
business information requested or include copies of the requested 
records or portions of records containing the information.
    (e) When notice is required. Notice shall be given to a submitter 
when:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) Amtrak has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. Amtrak will allow a 
submitter a reasonable amount of time to respond to the notice 
described in paragraph (d) of this section.
    (1) A detailed written statement must be submitted to Amtrak if the 
submitter has any objection to disclosure. The statement must specify 
all grounds for withholding any specified portion of the information 
sought under the FOIA. In the case of Exemption 4, it must show why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential.
    (2) In the event that a submitter fails to respond within the time 
specified in the notice, the submitter will be considered to have no 
objection to disclosure of the information sought under the FOIA.
    (3) Information provided by a submitter in response to the notice 
may be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. Amtrak shall consider a 
submitter's objections and specific grounds for disclosure in making a 
determination whether to disclose the information. In any instance, 
when a decision is made to disclose information over the objection of a 
submitter, Amtrak shall give the submitter written notice which shall 
include:
    (1) A statement of the reason(s) why each of the submitter's 
objections to disclosure was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (1) Amtrak determines that the information should not be disclosed;
    (2) The information has been published or has been officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 
the FOIA);
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous. In such a case, Amtrak shall 
within a reasonable time prior to a specified disclosure date, give the 
submitter written notice of the final decision to disclose the 
information; or
    (5) The information requested is not designated by the submitter as 
exempt from disclosure in accordance with this part, unless Amtrak has 
substantial reason to believe that disclosure of the

[[Page 61075]]

information would result in competitive harm.
    (i) Notice of a FOIA lawsuit. Whenever a FOIA requester files a 
lawsuit seeking to compel disclosure of business information, Amtrak 
shall promptly notify the submitter.
    (j) Notice to requesters. (1) When Amtrak provides a submitter with 
notice and an opportunity to object to disclosure under paragraph (f) 
of this section, the FOIA Office shall also notify the requester(s).
    (2) When Amtrak notifies a submitter of its intent to disclose 
requested information under paragraph (g) of this section, Amtrak shall 
also notify the requester(s).
    (3) When a submitter files a lawsuit seeking to prevent the 
disclosure of business information, Amtrak shall notify the 
requester(s).


Sec. 701.10  Appeals.

    (a) Appeals of adverse determinations. (1) The requesting party may 
appeal:
    (i) A decision to withhold any requested record in whole or in 
part;
    (ii) A determination that a requested record does not exist or 
cannot be located;
    (iii) A denial of a request for expedited treatment; or
    (iv) Any disputed fee matter or the denial of a request for a fee 
waiver.
    (2) The appeal must be addressed to the Chairman, President and 
CEO; National Railroad Passenger Corporation; 60 Massachusetts Avenue, 
N.E.; Washington, D.C. 20002.
    (3) The appeal must be in writing and specify the relevant facts 
and the basis for the appeal. The appeal letter and envelope must be 
marked prominently ``Freedom of Information Act Appeal'' to ensure that 
it is properly routed.
    (4) The appeal must be received by the President's Office within 
thirty (30) days of the date of denial.
    (5) An appeal will not be acted upon if the request becomes a 
matter of FOIA litigation.
    (b) Responses to appeals. The decision on any appeal shall be made 
in writing.
    (1) A decision upholding an adverse determination in whole or in 
part shall contain a statement of the reason(s) for such action, 
including any FOIA exemption(s) applied. The requesting party shall 
also be advised of the provision for judicial review of the decision 
contained in 5 U.S.C. 552(a)(4)(B).
    (2) If the adverse determination is reversed or modified on appeal 
in whole or in part, the requesting party shall be notified, and the 
request will be reprocessed in accordance with the decision.
    (c) When appeal is required. The requesting party must appeal any 
adverse determination prior to seeking judicial review.


Sec. 701.11  Fees.

    (a) General. Amtrak shall charge for processing requests under the 
FOIA in accordance with this section. A fee of $9.50 per quarter hour 
shall be charged for search and review. For information concerning 
other processing fees, refer to paragraph (e) of this section. Amtrak 
shall collect all applicable fees before releasing copies of requested 
records to the requesting party. Payment of fees shall be made by check 
or money order payable to the National Railroad Passenger Corporation.
    (b) Definitions. For purposes of this section:
    (1) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format.
    (2) Review means the process of examining a record located in 
response to a request to determine whether one or more of the statutory 
exemptions of the FOIA apply. Processing any record for disclosure 
includes doing all that is necessary to redact the record and prepare 
it for release. Review time includes time spent considering formal 
objection to disclosure by a commercial submitter under Sec. 701.9, but 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions. Review costs are recoverable 
even if a record ultimately is not disclosed.
    (3) Reproduction means the making of a copy of a record or the 
information contained in it in order to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (i.e., magnetic tape or disk) among others. Amtrak 
shall honor a requester's specified preference for the form or format 
of disclosure if the record is readily reproducible with reasonable 
effort in the requested form or format by the office responding to the 
request.
    (4) Direct costs means those expenses actually incurred in 
searching for and reproducing (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include such costs as the salary of the employee performing the work 
(the basic rate of pay for the employee plus applicable benefits and 
the cost of operating reproduction equipment). Direct costs do not 
include overhead expenses such as the costs of space and heating or 
lighting of the facility.
    (c) Fee categories. There are four categories of FOIA requesters 
for fee purposes: ``commercial use requesters,'' ``representatives of 
the news media,'' ``educational and non-commercial scientific 
institution requesters,'' and ``all other requesters.'' The categories 
are defined in paragraphs (c)(1) through (5), and applicable fees, 
which are the same for two of the categories, will be assessed as 
specified in paragraph (d) of this section.
    (1) Commercial requesters. The term ``commercial use'' request 
refers to a request from or on behalf of a person who seeks information 
for a use or purpose that furthers his commercial, trade, or profit 
interests, including furthering those interests through litigation. 
Amtrak shall determine, whenever reasonably possible, the use to which 
a requester will put the records sought by the request. When it appears 
that the requesting party will put the records to a commercial use, 
either because of the nature of the request itself or because Amtrak 
has reasonable cause to doubt the stated intended use, Amtrak shall 
provide the requesting party with an opportunity to submit further 
clarification. Where a requester does not explain the use or where 
explanation is insufficient, Amtrak may draw reasonable inferences from 
the requester's identity and charge accordingly.
    (2) Representative of the news media or news media requester refers 
to any person actively gathering news for an entity that is organized 
and operated to publish or broadcast news to the public. The term 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations broadcasting to the public at 
large and publishers of periodicals (but only in those instances where 
they can qualify as disseminators of news). For ``freelance'' 
journalists to be regarded as working for a news organization, they 
must demonstrate a solid basis for expecting publication through an 
organization. A publication contract would be the clearest proof, but 
Amtrak shall also look to the past publication record of a requester in 
making this determination. A request for records supporting the news 
dissemination function of the requester shall not be considered to be 
for commercial use.

[[Page 61076]]

    (3) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education that operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for commercial use but to further scholarly 
research.
    (4) Noncommercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis, as that term is defined 
in paragraph (c)(1) of this section, and that is operated solely for 
the purpose of conducting scientific research, the results of which are 
not intended to promote any particular product or industry. To be in 
this category, the requesting party must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for commercial use but 
to further scientific research.
    (5) Other requesters refers to requesters who do not come under the 
purview of paragraphs (c) (1) through (4) of this section.
    (d) Assessing fees. In responding to FOIA requests, Amtrak shall 
charge the following fees unless a waiver or a reduction in fees has 
been granted under paragraph (k) of this section:
    (1) ``Commercial use'' requesters: The full allowable direct costs 
for search, review, and duplication of records.
    (2) ``Representatives of the news media'' and ``educational and 
non-commercial scientific institution'' requesters: Duplication charges 
only, excluding charges for the first 100 pages.
    (3) ``All other'' requesters: The direct costs of search and 
duplication of records. The first 100 pages of duplication and the 
first two hours of search time shall be provided without charge.
    (e) Schedule of fees. (1) Manual searches--Personnel search time 
includes time expended in either manual searches for paper records, 
searches using indices, review of computer search results for relevant 
records, and personal computer system searches.
    (2) Computer searches. The direct costs of conducting a computer 
search will be charged. These direct costs will include the cost of 
operating a central processing unit for that portion of the operating 
time that is directly attributable to searching for responsive records 
as well as the costs of operator/programmer salary apportionable to the 
search.
    (3) Duplication fees. Duplication fees will be charged all 
requesters subject to limitations specified in paragraph (d) of this 
section. Amtrak shall charge 25 cents per page for a paper photocopy of 
a record. For copies produced by computer (such as tapes or printouts), 
Amtrak will charge the direct costs, including the operator time in 
producing the copy. For other forms of duplication, Amtrak will charge 
the direct costs of that duplication.
    (4) Review fees. Review fees will be assessed for commercial use 
requests. Such fees will be assessed for review conducted in making an 
initial determination, or upon appeal when review is conducted to 
determine whether an exemption not previously considered is applicable.
    (5) Charges for other services. The actual cost or amount shall be 
charged for all other types of output, production, and duplication 
(e.g., photographs, maps, or printed materials). Determinations of 
actual cost shall include the commercial cost of the media, the 
personnel time expended in making the item available for release, and 
an allocated cost for the equipment used in producing the item. The 
requesting party will be charged actual production costs when a 
commercial service is required. Items published and available through 
Amtrak will be made available at the publication price.
    (6) Charges for special services. Apart from the other provisions 
of this section, when Amtrak chooses as a matter of discretion to 
provide a special service such as certifying that records are true 
copies or sending records by other than ordinary mail, the direct costs 
of providing such services shall be charged.
    (f) Commitment to pay fees. When Amtrak determines or estimates 
that applicable fees will likely exceed $25.00, the requesting party 
will be notified of the actual or estimated amount unless a written 
statement has been received indicating a willingness to pay all fees. 
To protect requesters from large and/or unexpected fees, Amtrak will 
request a specific commitment when it is estimated or determined that 
fees will exceed $100.00. See Sec. 701.5(d) for additional information.
    (g) Restrictions in accessing fees. (1) General--Fees for search 
and review will not be charged for a quarter-hour period unless more 
than half of that period is required.
    (2) Minimum fee. No fees will be charged if the cost of collecting 
the fee is equal to or greater than the fee itself. That cost includes 
the costs to Amtrak for billing, receiving, recording, and processing 
the fee for deposit, which has been deemed to be $10.00.
    (3) Computer searches. With the exception of requesters seeking 
documents for commercial use, Amtrak shall not charge fees for computer 
search until the cost of search equals the equivalent dollar amount of 
two hours of the salary of the operator performing the search.
    (h) Nonproductive searches. Amtrak may charge for time spent for 
search and review even if responsive records are not located or if the 
records located are determined to be entirely exempt from disclosure.
    (i) Advance payments. (1) When Amtrak estimates or determines that 
charges are likely to exceed $250, an advance payment of the entire fee 
may be required before continuing to process the request.
    (2) When there is evidence that the requester may not pay the fees 
that would be incurred by processing the request, an advance deposit 
may be required. Amtrak may require the full amount due plus applicable 
interest and an advance payment of the full amount of anticipated fees 
before beginning to process a new request or continuing to process a 
pending request where a requester has previously failed to pay a 
properly charged FOIA fee within thirty (30) days of the date of 
billing. The time limits of the FOIA will begin only after Amtrak has 
received such payment.
    (3) Amtrak will hold in abeyance for forty-five (45) days requests 
where deposits are due.
    (4) Monies owed for work already completed (i.e., before copies are 
sent to a requester) is not considered an advance payment.
    (5) Amtrak shall not deem a request as being received in cases in 
which an advance deposit or payment is due, and further work will not 
be done until the required payment is received.
    (j) Charging interest. Amtrak may charge interest on any unpaid 
bill for processing charges starting on the 31st day following the date 
of billing the requester. Interest charges will be assessed at the rate 
that Amtrak pays for short-term borrowing.
    (k) Waiver or reduction of fees. (1) Automatic waiver of fees--When 
the costs for a FOIA request total $10.00 or less, fees shall be waived 
automatically for all requesters regardless of category.
    (2) Other fee waivers. Decisions to waive or reduce fees that 
exceed the automatic waiver threshold shall be

[[Page 61077]]

made on a case-by-case basis. Records responsive to a request will be 
furnished without charge or at below the established charge where 
Amtrak determines, based on all available information, that disclosure 
of the requested information is in the public interest because:
    (i) It is likely to contribute significantly to public 
understanding of the operations or activities of Amtrak and
    (ii) It is not primarily in the commercial interest of the 
requesting party.
    (3) To determine whether fee waiver requirement in paragraph 
(k)(2)(i) of this section is met, Amtrak will consider the following 
factors:
    (i) The subject of the request--whether the subject of the 
requested records concerns the operations or activities of Amtrak. The 
subject of the requested records must concern identifiable operations 
or activities of Amtrak with a connection that is direct and clear, not 
remote or attenuated.
    (ii) The informative value of the information to be disclosed--
whether the disclosure is likely to contribute to an understanding of 
Amtrak operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about Amtrak's 
operations or activities in order to be found to be likely to 
contribute to an increased public understanding of those operations or 
activities. The disclosure of information that already is in the public 
domain, in either a duplicative or a substantially identical form, 
would not be as likely to contribute to such understanding where 
nothing new would be added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure --whether disclosure of the 
requested information will contribute to public understanding. The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject as opposed to the 
individual understanding of the requester. A requester's ability and 
expertise in the subject area as well as the requester's intention to 
effectively convey information to the public shall be considered. It 
shall be presumed that a representative of the news media will satisfy 
this consideration.
    (iv) The significance of the contribution to public understanding--
whether the disclosure is likely to contribute significantly to public 
understanding of Amtrak operations or activities. The public's 
understanding of the subject in question, as compared to the level of 
public understanding existing prior to the disclosure, must be enhanced 
by the disclosure to a significant extent.
    (4) To determine whether the fee waiver requirement in paragraph 
(k)(2)(ii) of this section is met, Amtrak will consider the following 
factors:
    (i) The existence and magnitude of a commercial interest--whether 
the requesting party has a commercial interest that would be furthered 
by the requested disclosure. Amtrak shall consider any commercial 
interest of the requesting party (with reference to the definition of 
``commercial use'' in paragraph (c)(1) of this section), or any person 
on whose behalf the requesting party may be acting that would be 
furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure--whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the 
requester.'' A fee waiver or reduction is justified where the public 
interest standard is satisfied and that public interest is greater in 
magnitude than any identified commercial interest in disclosure.
    (5) Requests for a fee waiver will be considered on a case-by-case 
basis, based upon the merits of the information provided. Where it is 
difficult to determine whether the request is commercial in nature, 
Amtrak may draw inference from the requester's identity and the 
circumstances of the request.
    (6) Requests for a waiver or reduction of fees must address the 
factors listed in paragraphs (k)(3) and (4) of this section. In all 
cases, the burden shall be on the requesting party to present evidence 
of information in support of a request for a waiver of fees.
    (l) Aggregating requests. A requester may not file multiple 
requests at the same time in order to avoid payment of fees. Where 
Amtrak reasonably believes that a requester or a group of requesters 
acting in concert is attempting to divide a request into a series of 
requests for the purpose of avoiding fees, Amtrak may aggregate those 
requests and charge accordingly. Amtrak may presume that multiple 
requests of this type made within a 30-day period have been made in 
order to avoid fees. Where requests are separated by a longer period, 
Amtrak may aggregate them only when there exists a solid basis for 
determining that aggregation is warranted. Multiple requests involving 
unrelated matters may not be aggregated.


Sec. 701.12  Other rights and services.

    Nothing in this part shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

    Dated: November 6, 1997.
Sarah H. Duggin,
Vice President and General Counsel.
[FR Doc. 97-29717 Filed 11-13-97; 8:45 am]
BILLING CODE 7531-01-P