61070 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

Census Bureau, there were 26,960

operators of nonresidential buildings

generating less than $5 million in

revenue that were in operation for at

least one year at the end of 1992. Also

according to the Census Bureau, there

were 39,903 operators of apartment

dwellings generating less than $5

million in revenue that were in

operation for at least one year at the end

of 1992. The Census Bureau provides no

separate data regarding operators of

dwellings other than apartment

buildings, and we are unable at this

time to estimate the number of such

operators that would qualify as small

entities.

Reporting, Recordkeeping, and Other

Compliance Requirements

34. The Second Further Notice seeks

comment on whether small broadband

service providers, including small cable

operators, should be exempt from the

signal leakage reporting requirements in

§ 76.615(b)(7). Such an exemption

would relieve qualifying providers from

only the relevant filing requirements,

but not from the signal leakage testing

requirements.

Significant Alternatives and Steps

Taken to Minimize the Significant

Economic Impact on a Substantial

Number of Small Entities Consistent

With the Stated Objectives

This section analyzes the impact on

small entities of the regulations

proposed or considered in the Second

Further Notice.

35. The Second Further Notice seeks

comment on several proposals which

could minimize the economic impact on

a substantial number of small entities.

For instance, in seeking comment on

what policies should be adopted with

respect to exclusive contracts, the

Commission raises the option of a limit

on the length of exclusive contracts that

would still permit a small MVPD to

obtain exclusive contracts for the period

of time necessary to recover its

investment costs in the MDU building.

In addition, the Commission seeks

comment on whether small broadband

service providers, including small cable

operators, should be exempt from the

signal leakage reporting requirements in

§ 76.615(b)(7). The issue of whether

competing providers should be required

to share home run wiring explores the

possibility of another means by which

small MVPDs may be able to access

MDUs. Commenters are invited to

address the economic impact of these

proposals on small entities and offer any

alternatives.

Federal Rules That May Duplicate,

Overlap, or Conflict With the Proposed

Rules

None.

IV. Procedural Provisions

36. Ex parte Rules—‘‘Permit-butDisclose’’ Proceeding. This proceeding

will be treated as a ‘‘permit-butdisclose’’ proceeding subject to the

‘‘permit-but-disclose’’ requirements

under § 1.1206(b) of the rules. 47 CFR

1.1206(b), as revised. Ex parte

presentations are permissible if

disclosed in accordance with

Commission rules, except during the

Sunshine Agenda period when

presentations, ex parte or otherwise, are

generally prohibited. Persons making

oral ex parte presentations are reminded

that a memorandum summarizing a

presentation must contain a summary of

the substance of the presentation and

not merely a listing of the subjects

discussed. More than a one or two

sentence description of the views and

arguments presented is generally

required. See 47 CFR 1.1206(b)(2), as

revised. Additional rules pertaining to

oral and written presentations are set

forth in § 1.1206(b). 47 CFR 1.1206(b).

37. Filing of Comments and Reply

Comments. Pursuant to applicable

procedures set forth in §§ 1.415 and

1.419 of the Commission’s Rules,

interested parties may file comments on

or before December 23, 1997, and reply

comments on or before January 22,

1998. 47 CFR 1.415 and 1.419. To file

formally in this proceeding, you must

file an original plus four copies of all

comments, reply comments, and

supporting comments. If you want each

Commissioner to receive a personal

copy of your comments and reply

comments, you must file an original

plus nine copies. You should send

comments and reply comments to Office

of the Secretary, Federal

Communications Commission, 1919 M

Street, NW, Washington, DC 20554.

Comments and reply comments will be

available for public inspection during

regular business hours in the FCC

Reference Center, Room 239, Federal

Communications Commission, 1919 M

Street NW, Washington DC 20554.

V. Ordering Clauses

38. It is ordered that, pursuant to

sections 1, 4(i), 201–205, 214–215, 220,

303, 623, 624 and 632 of the

Communications Act of 1934, as

amended, 47 U.S.C. §§ 151, 154(i), 201–

205, 214–215, 220, 303, 543, 544 and

552, NOTICE IS HEREBY GIVEN of

proposed amendments to the

Commission’s rules, in accordance with

the proposals, discussions and

statements of issues in the Second

Further Notice of Proposed Rulemaking,

and COMMENT IS SOUGHT regarding

such proposals, discussions and

statements of issues.

39. It is further ordered that the

Commission SHALL SEND a copy of

this Second Further Notice of Proposed

Rulemaking, including the Initial

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–29513 Filed 11–13–97; 8:45 am]

BILLING CODE 6712–01–P

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.

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
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61071

to implement the Electronic Freedom of

Information Act Amendments of 1996

(Public Law 104–231). New provisions

implementing the amendments are

found at § 701.2 definitions, § 701.3

policy, § 701.4 (c) and (d) reading room

records, § 701.5 requirements for

making requests, § 701.6(f) electronic

records, § 701.7 timing of responses to

requests, § 701.8 (a) and (b) content of

responses, § 701.9 business information,

§ 701.10 appeals, and § 701.11 fees.

Proposed revisions of the fee schedule

can be found at § 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).

§ 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.

§ 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.

§ 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
61072 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

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.

§ 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-bycase 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.

§ 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
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61073

$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.

§ 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.

§ 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 § 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 § 701.5(d), or

(ii) The fees have been waived in

accordance with § 701.11(k), or

(iii) Payment in advance has been

received from the requester when

required in accordance with § 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 § 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.
61074 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

(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.

§ 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 § 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 § 701.10 and a

description of the requirements of that

section; and

(iv) The name and title or position of

the person responsible for the denial.

§ 701.9 Business information.

(a) General. Business information

held by Amtrak will be disclosed under

the FOIA only under this section.

(b) Definitions. For purposes of this

section, the following definitions apply:

(1) Business information means

commercial or financial information

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
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 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).

§ 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.

§ 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 § 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.
61076 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

(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 noncommercial 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 § 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
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 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.

§ 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 971023253–7253–01; I.D.

093097E]

Taking and Importing Marine

Mammals; Taking Marine Mammals

Incidental to Rocket Launches

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of receipt of a petition for

regulations and an application for a

small take exemption; request for

comment and information.

SUMMARY: NMFS has received a request

from the 30th Space Wing, U.S. Air

Force for a small take of marine

mammals incidental to missile and

rocket launches, aircraft flight test

operations and helicopter operations at

Vandenberg Air Force Base, CA

(Vandenberg). As a result of that

request, NMFS is considering whether

to propose regulations that would

authorize the incidental taking of a

small number of marine mammals. In

order to issue such regulations, NMFS

must determine that these takings will

have a negligible impact on the affected

species and stocks of marine mammals.

NMFS invites comment on the

application and suggestions on the

content of the regulations.

DATES: Comments and information must

be postmarked no later than December

15, 1997.

ADDRESSES: Comments should be

addressed to Michael Payne, Chief,

Marine Mammal Division, Office of

Protected Resources, National Marine

Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910–

3226. A copy of the application may be