Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations 19515

International table United States table FCC use designators

Region 1—

allocation MHz

Region 2—

allocation MHz

Region 3—

allocation MHz

Government Non-Government

Rule part(s) Special-use

frequencies Allocation MHz Allocation MHz

(1) (2) (3) (4) (5) (6) (7)

2170–2200 2170–2200 2170–2200 2170–2200 2170–2200

FIXED FIXED FIXED MOBILE-SATELLITE (spaceto-Earth)FIXED MIRCOWAVE (101)

MOBILE MOBILE MOBILE PUBLIC MOBILE

(22)

MOBILE-SATELLITE (spaceto Earth)MOBILE-SATELLITE (spaceto Earth)MOBILE-SATELLITE (spaceto Earth)SATELLITE COMMUNICATIONS

(25)

S5.388 S5.389A

S5.389F

S5.392A

S5.388 S5.389A S5.388 S5.389A NG23

* * * * * * *

International Footnotes

* * * * *

I. New ‘‘S’’ Numbering Scheme

* * * * *

S5.388 The bands 1885–2025 MHz and

2110–2200 MHz are intended for use, on a

worldwide basis, by administrations wishing

to implement the future public land mobile

telecommunication systems (FPLMTS). Such

use does not preclude the use of these bands

by other services to which these bands are

allocated. The bands should be made

available for FPLMTS in accordance with

Resolution 212 (Rev.WRC–95).

S5.389A The use of the bands 1980–2010

MHz and 2170–2200 MHz by the mobilesatellite service is subject to coordination

under Resolution 46 (Rev.WRC–95)/No.

S9.11A and to the provisions of Resolution

716 (WRC–95). The use of these bands shall

not commence before 1 January 2000;

however the use of the band 1980–1990 MHz

in Region 2 shall not commence before 1

January 2005.

S5.389B The use of the band 1980–1990

MHz by the mobile-satellite service shall not

cause harmful interference to or constrain the

development of the fixed and mobile services

in Argentina, Brazil, Canada, Chile, Ecuador,

the United States, Honduras, Jamaica,

Mexico, Peru, Suriname, Trinidad and

Tobago, Uruguay and Venezuela.

S5.389C The use of the bands 2010–2025

MHz and 2160–2170 MHz in Region 2 by the

mobile-satellite service shall not commence

before 1 January 2005 and is subject to

coordination under Resolution 46 (Rev.WRC–

95)/No. S9.11A and to the provisions of

Resolution 716 (WRC–95).

S5.389D In Canada and the United States

the use of the bands 2010–2025 MHz and

2160–2170 MHz by the mobile-satellite

service shall not commence before 1 January

2000.

S5.389E The use of the bands 2010–2025

MHz and 2160–2170 MHz by the mobilesatellite service in Region 2 shall not cause

harmful interference to or constrain the

development of the fixed and mobile services

in Regions 1 and 3.

S5.389F In Algeria, Benin, Cape Verde,

Egypt, Mali, Syria and Tunisia, the use of the

bands 1980–2010 MHz and 2170–2200 MHz

by the mobile-satellite service shall neither

cause harmful interference to the fixed and

mobile services, nor hamper the development

of those services prior to 1 January 2005, nor

shall the former service request protection

from the latter services.

S5.391 In making assignments to the

mobile service in the bands 2025–2110 MHz

and 2200–2290 MHz, administrations shall

take into account Resolution 211 (WARC–

92).

S5.392 Administrations are urged to take

all practicable measures to ensure that spaceto-space transmissions between two or more

non-geostationary satellites, in the space

research, space operations and Earth

exploration-satellite services in the bands

2025–2110 MHz and 2200–2290 MHz, shall

not impose any constraints on Earth-to-space,

space-to-Earth and other space-to-space

transmissions of those services and in those

bands between geostationary and nongeostationary satellites.

S5.392A Additional allocation: in Russia,

the band 2160–2200 MHz is also allocated to

the space research service (space-to-Earth) on

a primary basis until 1 January 2005. Stations

in the space research service shall not cause

harmful interference to, or claim protection

from, stations in the fixed and mobile

services operating in this frequency band.

* * * * *

Non-Government (NG) Footnotes

* * * * *

NG118 Television translator relay

stations may be authorized to use frequencies

in the 2025–2130 MHz band on a secondary

basis to stations operating in accordance with

the Table of Frequency Allocations.

* * * * *

NG153 The 2145–2150 MHz and 2160–

2165 MHz bands are reserved for future

emerging technologies on a co-primary basis

with the fixed and mobile services.

Allocations to specific services will be made

in future proceedings.

* * * * *

[FR Doc. 97–9827 Filed 4–21–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

[Docket No. OST–96–1430]

RIN 2105–AC58

Public Availability of Information

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

SUMMARY: Department of Transportation

revises its regulations implementing the

Freedom of Information Act (FOIA), 5

U.S.C. 552. This revision updates

organizational changes since the last

revision and streamlines the regulations

in order to make the regulations more

useful.

DATES: This rule is effective June 23,

1997.

FOR FURTHER INFORMATION CONTACT:

Dorothy A. Chambers, Chief, FOIA

Division, Office of the General Counsel,

C–12, Department of Transportation,

Washington, DC 20590, telephone (202)

366–4542, FAX (202) 366–7152.

SUPPLEMENTARY INFORMATION: The

President instituted a Regulatory

Review initiative for the reinvention of

regulations by eliminating duplicate,

redundant, or unnecessary language and

revising regulations to meet the needs of

users. In response to this initiative, we

reviewed Part 7 and are revising it to

update and streamline information on

public availability of information. We
19516 Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations

are reorganizing this part by combining

in subpart B sections that relate to

information that is publicly available

without a specific request. Similarly, we

have combined sections in subpart C

that address information that must be

requested under FOIA. We have

shortened the descriptions of FOIA

exemptions and deleted the Appendices

that set forth redundant information

concerning document inspection

facilities. We are replacing these

appendices with provisions in §§ 7.10

and 7.15, which set forth necessary

information regarding public records

available at Department Docket

locations and FOIA contacts for records

requested under the FOIA. Public

comment was invited (61 FR 33075;

June 26, 1996), but none was received;

however, as explained below, based

upon further review within DOT, some

changes were made to the Notice of

Proposed Rulemaking (NPRM) after

publication, and, as so amended, the

NPRM is being adopted as the Final

Rule. This amendment does not reflect

changes in FOIA wrought by the

Electronic FOIA Act of 1996, which

DOT will address later.

Changes from Proposal

Many of the changes are minor, being

nothing more significant than

renumberings. Substantive changes are

made, however, to clarify the division of

responsibility for FOIA matters at the

Saint Lawrence Seaway Development

Corporation between its headquarters in

Washington, DC and its operating office

in Massena, NY; and to reflect that the

Inspector General has the same

authority under this part as does any

Administrator. It also clarifies that the

Surface Transportation Board, a

successor to the Interstate Commerce

Commission within DOT, is not covered

by these FOIA regulations, but, rather,

by its own.

Analysis of Regulatory Impacts

This amendment is not a ‘‘significant

regulatory action’’ within the meaning

of Executive Order 12866. It is also not

significant within the definition in

DOT’s Regulatory Policies and

Procedures, 49 FR 11034 (1979), in part

because it does not involve any change

in important Departmental policies.

Because the economic impact should be

minimal, further regulatory evaluation

is not necessary. Under the Regulatory

Flexibility Act, the group of persons

who will be directly affected by this

amendment are the public, who will

find it easier to obtain information from

the DOT under FOIA. They qualify as

small entities and will have burdens

lessened by this amendment, as the

effect of the amendment will be to make

our FOIA regulations easier to

understand; however, it is not likely

that any such burden reduction will be

large nor that it will be convertible into

economic equivalents. Hence, I certify

that this amendment will not have a

significant economic impact on a

substantial number of small entities.

This amendment does not

significantly affect the environment, and

therefore an environmental impact

statement is not required under the

National Environmental Policy Act of

1969. It has also been reviewed under

Executive Order 12612, Federalism, and

it has been determined that it does not

have sufficient implications for

federalism to warrant preparation of a

Federalism Assessment.

Finally, the amendment does not

contain any collection of information

requirements, requiring review under

the Paperwork Reduction Act, as

amended.

List of Subjects in 49 CFR part 7

Freedom of information.

In accordance with the above, DOT is

revising 49 CFR part 7 to read as

follows:

PART 7—PUBLIC AVAILABILITY OF

INFORMATION

Subpart A—General Provisions

Sec.

7.1 General.

7.2 Definitions.

Subpart B—Information Required to be

Made Public by the Department

7.3 Publication in the Federal Register.

7.4 Publication required.

7.5 Availability of opinions, orders, staff

manuals, statements of policy and

interpretations and indices.

7.6 Deletion of identifying detail.

7.7 Access to materials and indices.

7.8 Copies.

7.9 Protection of records.

7.10 Public records available at Department

docket locations.

Subpart C—Availability of Reasonably

Described Records Under the Freedom of

Information Act

7.11 Applicability.

7.12 Administration of part.

7.13 Records available.

7.14 Requests for records.

7.15 Contacts for records requested under

the FOIA.

7.16 Requests for records of concern to

more than one government organization.

7.17 Consultation with submitters of

commercial and financial information.

Subpart D—Procedure for Appealing

Decisions Not to Disclose Records and/or

Waive Fees

7.21 General.

Subpart E—Time Limits

7.31 Initial determinations.

7.32 Final determinations.

7.33 Extension.

Subpart F—Fees

7.41 General.

7.42 Payment of fees.

7.43 Fee schedule.

7.44 Services performed without charge or

at a reduced charge.

7.45 Transcripts.

7.46 Alternative sources of information.

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

U.S.C. 322; E.O. 12600, 3 CFR, 1987 Comp.,

p. 235.

Subpart A—General Provisions

§ 7.1 General

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

and prescribes rules governing the

availability to the public of records of

the Department of Transportation. Many

documents are made available to the

public for inspection and copying

through the Department Docket

locations that are listed in subpart B of

this part, which contains the regulations

of the Department of Transportation

concerning the availability to the public

of opinions issued in the adjudication of

cases, policy issuances, administrative

manuals, and other information made

available to the public.

(b) Subpart C of this part, describes

the records that are not required to be

disclosed on the Department’s own

action under this part, but that may be

available upon request under the

Freedom of Information Act.

(c) Indices are maintained to reflect

all records subject to subpart B of this

part, and are available for public

inspection and copying as provided in

subpart B.

§ 7.2 Definitions.

As used in this part—

Act and FOIA mean the Freedom of

Information Act, 5 U.S.C. 552.

Administrator means the head of each

operating administration of the

Department and includes the

Commandant of the Coast Guard, the

Inspector General, and the Director of

the Bureau of Transportation Statistics.

Department or DOT means the

Department of Transportation, including

the Office of the Secretary of

Transportation, the Office of the

Inspector General, and the following

operating administrations:

(This definition specifically excludes the

Surface Transportation Board, which has its

own Freedom of Information Act regulations

(49 CFR part 1001).

(1) United States Coast Guard,

(2) Federal Aviation Administration,

(3) Federal Highway Administration,
Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations 19517

(4) Federal Railroad Administration,

(5) National Highway Traffic Safety

Administration,

(6) Federal Transit Administration,

(7) Saint Lawrence Seaway

Development Corporation,

(8) Maritime Administration,

(9) Research and Special Programs

Administration, and

(10) Bureau of Transportation

Statistics.

Record includes any writing, drawing,

map, recording, tape, film, photograph,

or other documentary material by which

information is preserved. The term also

includes any such documentary

material stored by computer.

Secretary means the Secretary of

Transportation or any person to whom

the Secretary has delegated authority in

the matter concerned.

Subpart B—Information Required To

Be Made Public by the Department

§ 7.3 Publication in the Federal Register.

This subpart implements 5 U.S.C.

552(a)(1), and prescribes rules governing

the publication in the Federal Register

of the following:

(a) Descriptions of the organization of

the Department, including its operating

administrations and the established

places at which, the officer from whom,

and the methods by which, the public

may secure information and make

submittals or obtain decisions.

(b) Statements of the general course

and methods by which the Department’s

functions are channeled and

determined, including the nature and

requirements of all formal and informal

procedures available.

(c) Rules of procedure, descriptions of

forms available or the places at which

forms may be obtained, and instructions

as to the scope and contents of all

papers, reports, or examinations.

(d) Substantive rules of general

applicability adopted as authorized by

law and statements of general policy or

interpretations of general applicability

formulated and adopted by the

Department.

(e) Each amendment, revision, or

repeal of any material listed in

paragraphs (a) through (d) of this

section.

§ 7.4 Publication required.

(a) General. The material described in

§ 7.3 shall be published in the Federal

Register. For the purposes of this

paragraph, material that will reasonably

be available to the class of persons

affected by it will be considered to be

published in the Federal Register if it

has been incorporated by reference

therein with the approval of the Director

of the Federal Register.

(b) Effect of nonpublication. Except to

the extent that a person has actual and

timely notice of the terms thereof, a

person may not in any manner be

required to resort to, or be adversely

affected by, any procedure or matter

required to be published in the Federal

Register, but not so published.

§ 7.5 Availability of opinions, orders, staff

manuals, statements of policy, and

interpretations and indices.

(a) This section implements 5 U.S.C.

552(a)(2). It prescribes the rules

governing the availability for public

inspection and copying of the following:

(1) Any final opinion (including a

concurring or dissenting opinion) or

order made in the adjudication of a case.

(2) Any policy or interpretation that

has been adopted under the authority of

the Department, including any policy or

interpretation concerning a particular

factual situation, if that policy or

interpretation can reasonably be

expected to have precedential value in

any case involving a member of the

public in a similar situation.

(3) Any administrative staff manual or

instruction to staff that affects any

member of the public, including the

prescribing of any standard, procedure,

or policy that, when implemented,

requires or limits any action of any

member of the public or prescribes the

manner of performance of any activity

by any member of the public. However,

this does not include staff manuals or

instructions to staff concerning internal

operating rules, practices, guidelines,

and procedures for Departmental

inspectors, investigators, law

enforcement officers, examiners,

auditors, and negotiators and other

information developed predominantly

for internal use, the release of which

could significantly risk circumvention

of agency regulations or statutes.

(b) Any material listed in paragraph

(a) of this section that is not made

available for public inspection and

copying, or that is not indexed as

required by § 7.7, may not be cited,

relied on, or used as precedent by the

Department to affect any member of the

public adversely unless the person to

whose detriment it is relied on, used, or

cited has had actual timely notice of the

material.

(c) This section does not apply to

material that is published in the Federal

Register or covered by subpart C of this

part.

§ 7.6 Deletion of identifying detail.

Whenever it is determined to be

necessary to prevent a clearly

unwarranted invasion of personal

privacy, identifying details will be

deleted from any record covered by this

subpart that is published or made

available for inspection. A full

explanation of the justification for the

deletion will accompany the record

published or made available for

inspection.

§ 7.7 Access to materials and indices.

(a) Except as provided in paragraph

(b) of this section, material listed in

§ 7.5 will be made available for

inspection and copying to any member

of the public at document inspection

facilities of the Department. It has been

determined that it is unnecessary and

impracticable to publish the index of

materials in the Federal Register.

Information as to the kinds of materials

available at each facility may be

obtained from the facility or the

headquarters of the operating

administration of which it is a part.

(b) The material listed in § 7.5 that is

published and offered for sale will be

indexed, but is not required to be kept

available for public inspection.

Whenever practicable, however, it will

be made available for public inspection

at any document inspection facility

maintained by the Office of the

Secretary, Office of Inspector General, or

an operating administrator, as

appropriate.

§ 7.8 Copies.

Copies of any material covered by this

subpart that is not published and

offered for sale may be ordered, upon

payment of the appropriate fee, from the

Docket Offices listed in § 7.10. Copies

will be certified upon request and

payment of the fee prescribed in

§ 7.43(f).

§ 7.9 Protection of records.

(a) Records made available for

inspection and copying may not be

removed, altered, destroyed, or

mutilated.

(b) 18 U.S.C. 641 provides, in

pertinent part, for criminal penalties for

embezzlement or theft of government

records.

(c) 18 U.S.C. 2071 provides, in

pertinent part, for criminal penalties for

the willful and unlawful concealment,

mutilation or destruction of, or the

attempt to conceal, mutilate, or destroy,

government records.

§ 7.10 Public records available at

Department docket locations.

Publicly available records are located

in DOT Docket Units as follows (all

times are eastern time zone, and are

Monday-Friday except Federal

holidays):
19518 Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations

(a) Docket Units located at 400 7th

Street, SW., Washington, DC 20590

include:

(1) Office of the Secretary and former

Civil Aeronautics Board material, Plaza

401, Hours 10:00–5:00.

(2) Federal Highway Administration,

Room 4232, Hours 8:30–5:00.

(3) National Highway Traffic Safety

Administration, Room 5111, Hours

9:30–4:00.

(4) Federal Transit Administration,

Room 9400, Hours 8:30–5:00.

(5) Maritime Administration, Room

7210, Hours 8:30–5:00.

(6) Research and Special Programs

Administration, Room 8421, Hours

8:30–5:00.

(b) Federal Aviation Administration,

800 Independence Avenue, SW.,

Washington, DC 20591:

(1) Rules Docket Room 915–G, Hours

8:30–5:00, and (2) Enforcement Dockets,

Room 924–C, Hours 8:30–5:00.

(c) United States Coast Guard, Room

3406, Hours 8:30–5:00, 2100 2nd Street,

SW., Washington, DC 20593–0001.

(d) Saint Lawrence Seaway

Development Corporation, 180 Andrews

Street, Massena, New York 12662–0520.

(e) Federal Railroad Administration,

Room 7059, 1120 Vermont Avenue, NW,

Washington, DC, Hours 9:30–4:00

(f) Certain operating administrations

also maintain public record units at

regional offices and at the offices of the

Commandant and District Commanders

of the United States Coast Guard. These

facilities are open to the public Monday

through Friday except Federal holidays,

during regular working hours.

(g) Additional information on the

location and hours of operations for

Department Docket Offices can be

obtained through the DOT Docket Unit,

mentioned in paragraphs (a) through (e)

of the section, at (202) 366–9322.

Subpart C—Availability of Reasonably

Described Records Under the Freedom

of Information Act

§ 7.11 Applicability.

(a) This subpart implements 5 U.S.C.

552(a)(3), and prescribes the regulations

governing public inspection and

copying of reasonably described records

under the Freedom of Information Act.

(b) This subpart does not apply to:

(1) Records published in the Federal

Register, opinions in the adjudication of

cases, statements of policy and

interpretations, and administrative staff

manuals that have been published or

made available under subpart B of this

part.

(2) Records or information compiled

for law enforcement purposes and

covered by the disclosure exemption

described in § 7.13(c)(7) if—

(i) The investigation or proceeding

involves a possible violation of criminal

law; and

(ii) There is reason to believe that—

(A) The subject of the investigation or

proceeding is not aware of its pendency,

and

(B) Disclosure of the existence of the

records could reasonably be expected to

interfere with enforcement proceedings.

(3) Informant records maintained by a

criminal law enforcement component of

the Department under an informant’s

name or personal identifier, if requested

by a third party according to the

informant’s name or personal identifier,

unless the informant’s status as an

informant has been officially confirmed.

§ 7.12 Administration of part.

Authority to administer this part and

to issue determinations with respect to

initial requests is delegated as follows:

(a) To the General Counsel for the

records of the Office of the Secretary

other than the Office of Inspector

General.

(b) To the Inspector General for

records of the Office of Inspector

General.

(c) To the Administrator of each

operating administration, who may

redelegate to officers of that

administration the authority to

administer this part in connection with

defined groups of records. However,

each Administrator may delegate the

duties under subpart D of this part to

consider appeals of initial denials of

requests for records only to his or her

deputy or to not more than one other

officer who reports directly to the

Administrator and who is located at the

headquarters of that operating

administration.

§ 7.13 Records available.

(a) Policy. It is the policy of the

Department of Transportation to make

the records of the Department available

to the public to the greatest extent

possible, in keeping with the spirit of

the Freedom of Information Act. This

includes providing reasonably

segregable information from documents

that contain information that may be

withheld.

(b) Statutory disclosure requirement.

The Act requires that the Department,

on a request from a member of the

public submitted in accordance with the

procedures in this subpart, make

requested records available for

inspection and copying.

(c) Statutory exemptions. Exempted

from the Act’s disclosure requirement

are matters that are:

(1)(i) Specifically authorized under

criteria established by Executive Order

to keep secret in the interest of national

defense or foreign policy, and

(ii) In fact properly classified

pursuant to such Executive order.

(2) Related solely to the internal

personnel rules and practices of an

agency.

(3) Specifically exempted from

mandatory disclosure by statute (other

than the Privacy Act), provided that

such statute—

(i) Requires that the matters be

withheld from the public in such a

manner as to leave not any discretion on

the issue, or

(ii) Establishes particular criteria for

withholding or refers to particular

criteria for withholding or refers to

particular types of matters to be

withheld.

(4) Trade secrets and commercial or

financial obtained from a person and

privileged or confidential.

(5) Inter-agency or intra-agency

memorandums or letters that would not

be available by law to a party other than

an agency in litigation with the agency.

(6) Personnel and medical files and

similar files the disclosure of which

would constitute a clearly unwarranted

invasion of personal privacy.

(7) Records of information compiled

for law enforcement purposes, but only

to the extent that the production of such

law enforcement records or

information—

(i) Could reasonably be expected to

interfere with enforcement proceedings,

(ii) Would deprive a person of a right

to a fair or an impartial adjudication,

(iii) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy,

(iv) Could reasonably be expected to

disclose the identify of a confidential

source, including a State, local, or

foreign agency or authority or any

private institution that furnished

information on a confidential basis, and,

in the case of a record or information

compiled by a criminal law enforcement

authority in the course of a criminal

investigation, or by an agency

conducting a lawful national security

intelligence investigation, information

furnished by a confidential source.

(v) Would disclose techniques and

procedures for law enforcement

investigations or prosecutions or would

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law, or

(vi) Could reasonably be expected to

endanger the life or physical safety of

any individual;

(8) Contained in or related to

examination, operating, or condition

reports prepared by, on behalf of, or for
Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations 19519

the use of an agency responsible for the

regulation or supervision of financial

institutions.

(9) Geological and geophysical

information and data, including maps,

concerning wells.

§ 7.14 Requests for records.

(a) Each person desiring access to, or

a copy of, a record covered by this

subpart shall comply with the following

provisions:

(1) A written request must be made

for the record.

(2) Such request should indicate that

it is being made under the Freedom of

Information Act.

(3) The envelope in which the request

is sent should be prominently marked:

‘‘FOIA.’’

(4) The request should be addressed

to the appropriate office as set forth in

§ 7.15.

(b) If the requirement of paragraph (a)

of this section are not met, treatment of

the request will be at the discretion of

the agency. The ten-day limit for

responding to requests, described in

§ 7.31, will not start to run until the

request has been identified, or would

have been identified with the exercise of

due diligence, by an employee of the

Department as a request pursuant to the

Freedom of Information Act and has

been received by the office to which it

should have been originally sent.

(c) Form of requests. (1) Each request

should describe the particular record to

the fullest extent possible. The request

should describe the subject matter of the

record, and, if known, indicate the date

when it was made, the place where it

was made, and the person or office that

made it. If the description does not

enable the office handling the request to

identify or locate the record sought, that

office will notify the person making the

request and, to the extent possible,

indicate the additional data required.

(2) Each request shall—

(i) Specify the fee category

(commercial use, news media,

educational institution, noncommercial

scientific institution, or other) in which

the requester claims the request to fall

and the basis of this claim (see subpart

F of this part for fees and fee waiver

requirements), and

(ii) State the maximum amount of fees

that the requester is willing to pay or

include a request for a fee waiver.

(3) Requesters are advised that the

time for responding to requests set forth

in subpart E of this part may be

delayed—

(i) If a requester has not sufficiently

identified the fee category applicable to

the request,

(ii) If a requester has not stated a

willingness to pay fees as high as

anticipated by the Department, or

(iii) If a fee waiver request is denied

and the requester has not included an

alternative statement of willingness to

pay fees as high as anticipated by the

Department.

(iv) A request seeking a fee waiver

shall, to the extent possible, address

why the requester believes that the

criteria for fee waivers set out in

§ 7.44(f) are met.

(d) Creation of records. A request may

seek only records that are in existence

at the time the request is received. A

request may not seek records that come

into existence after the date on which it

is received and may not require that

new records be created in response to

the request by, for example, combining

or compiling selected items from

manual files, preparing a new computer

program, or calculating proportions,

percentages, frequency distributions,

trends, or comparisons. In those

instances where the Department

determines that creating a new record

will be less burdensome than disclosing

large volumes of unassembled material,

the Department may, in its discretion,

agree to the creation of a new record as

an alternative to disclosing existing

records.

(e) Each record made available under

this subpart will be made available for

inspection and copying during regular

business hours at the place where it is

located, or photocopying may be

arranged with the copied materials

being mailed to the requester upon

payment of the appropriate fee. Original

records ordinarily will be copied except

in this instances where, in the

Department’s judgment, copying would

endanger the quality of the original or

raise the reasonable possibility of

irreparable harm to the record. In these

instances, copying of the original would

not be in the public interest. In any

event, original records will not be

released from Department custody.

(f) If a requested record is known not

to exist in the files of the agency, or to

have been destroyed or otherwise

disposed of, the requester will be so

notified.

(g) Fees will be determined in

accordance with subpart F of this part.

(h) Notwithstanding paragraphs (a)

through (g) of this section, informational

material, such as news releases,

pamphlets, and other materials of that

nature that are ordinarily made

available to the public as a part of any

information program of the Government

will be available upon oral or written

request. A fee will be not be charged for

individual copies of that material so

long as the material is in supply. In

addition the Department will continue

to respond, without charge, to routine

oral or written inquiries that do not

involve the furnishing of records.

§ 7.15 Contacts for records requested

under the FOIA.

Each person desiring a record under

this subpart should submit a request in

writing to the Departmental

administration where the records are

located:

(a) FOIA Offices at 400 7th Street,

SW., Washington, DC 20590:

(1) Office of the Secretary of

Transportation, Room 5432.

(2) Federal Highway Administration,

Room 4428.

(3) Federal Railroad Administration,

Room 8201.

(4) National Highway Traffic Safety

Administration, Room 5219.

(5) Federal Transit Administration,

Room 9400.

(6) Maritime Administration, Room

7221.

(7) Research and Special Programs

Administration, Room 8419.

(8) Bureau of Transportation

Statistics, Room 2104.

(9) Office of Inspector General, Room

9210.

(b) Federal Aviation Administration,

800 Independence Avenue, SW., Room

906A, Washington, DC 20591.

(c) United States Coast Guard, 2100

2nd Street, SW., Room 6106,

Washington, DC 20593–0001.

(d) Director, Office of Finance, Saint

Lawrence Seaway Development

Corporation, 180 Andrews Street, P.O.

Box 520, Massena, New York 13662–

0520.

(e) Certain operating administrations

also maintain FOIA contacts at regional

offices and at the offices of the

Commandant and District Commanders

of the United States Coast Guard.

Additional information on the location

of these offices can be obtained through

the FOIA contact offices listed in

paragraphs (a) through (d) of this

section.

(f) If the person making the request

does not know where in the Department

the record is located, he or she may

make inquiry to the Chief, FOIA

Division, Office of the General Counsel.

§ 7.16 Requests for records of concern to

more than one government organization.

(a) If the release of a record covered

by this subpart would be of concern to

both this Department and another

Federal agency, the determination as to

release will be made only after

consultation with the other interested

agency.
19520 Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations

(b) If the release of the record covered

by this subpart would be of concern to

both this Department and a State or

local government, a territory or

possession of the United States, or a

foreign government, the determination

as to release will be made by the

Department only after consultation with

the other interested State or local

government or foreign government.

(c) As an alternative to consultation,

the Department may refer the request (or

relevant portion thereof) to a Federal

agency that originated or is substantially

concerned with the records. Such

referrals shall be made expeditiously

and the requester shall be notified in

writing that a referral has been made.

§ 7.17 Consultation with submitters of

commercial and financial information.

(a) If a request is received for

information that has been designated by

the submitter as confidential

commercial information, or which the

Department has some other reason to

believe may contain trade secrets or

other commercial or financial

information of the type described in

§ 7.13(c)(4), the submitter of such

information will, except as is provided

in paragraphs (c) and (d) of this section,

be notified expeditiously and asked to

submit any written objections to release.

At the same time, the requester will be

notified that notice and an opportunity

to comment are being provided to the

submitter. the submitter will, to the

extent permitted by law, be afforded a

reasonable period of time within which

to provide a detailed statement of any

such objections. The submitter’s

statement shall specify all grounds for

withholding any of the information. The

burden shall be on the submitter to

identify all information for which

exempt treatment is sought and to

persuade the agency that the

information should not be disclosed.

(b) The Office of the Secretary, the

Office of Inspector General, or the

responsible operating administration, as

appropriate, will, to the extent

permitted by law, consider carefully a

submitter’s objections and specific

grounds for nondisclosure prior to

determining whether to disclose

business information. Whenever a

decision is made to disclose such

information over the objection of a

submitter, the office responsible for the

decision will forward to the submitter a

written notice that will include:

(1) A statement of the reasons for

which the submitter’s disclosure

objections were not accepted;

(2) A description of the business

information to be disclosed; and

(3) A specific disclosure date. Such

notice of intent to disclose will, to the

extent permitted by law, be forwarded

to the submitter a reasonable number of

days prior to the specified date upon

which disclosure is intended. At the

same time the submitter is notified, the

requester will be notified of the decision

to disclose information.

(c) The notice requirements of this

section will not apply if:

(1) The office responsible for the

decision determines that the

information should not be disclosed;

(2) The information lawfully has been

published or otherwise made available

to the public; or

(3) Disclosure of the information is

required by law (other than 5 U.S.C.

552).

(d) The procedures established in this

section shall not apply in the case of:

(1) Business information submitted to

the National Highway Traffic Safety

Administration and addressed in 49

CFR part 512.

(2) Information contained in a

document to be filed or in oral

testimony that is sought to be withheld

pursuant to Rule 39 of the Rules of

Practice (14 CFR 302.39) in Aviation

Economic Proceedings.

(e) Whenever a requester brings suit

seeking to compel disclosure of

confidential commercial information,

the Office of the Secretary, the Office of

Inspector General, or the responsible

operating administration, whichever the

case may be, will promptly notify the

submitter.

Subpart D—Procedures for Appealing

Decisions Not to Disclose Records

and/or Waive Fees

§ 7.21 General.

(a) Each officer or employee of the

Department who, upon a request by a

member of the public for a record under

this part, makes a determination that the

record is not to be disclosed, either

because it is subject to an exemption or

not in the Department’s custody and

control, will give a written statement of

the reasons for that determination to the

person making the request; and indicate

the names and titles or positions of each

person responsible for the initial

determination not to comply with such

request, and the availability of an appeal

within the Department.

(b) When a request for a waiver of

fees, pursuant to § 7.44, has been denied

in whole or in part, the requester may

appeal the denial.

(c) Any person to whom a record has

not been made available within the time

limits established by § 7.31 and any

person who has been given a

determination pursuant to paragraph (a)

of this section that a record will not be

disclosed may appeal to the head of the

operating administration concerned or,

in the case of the Office of the Secretary,

to the General Counsel of the

Department, and in the case of the

Office of Inspector General, to the

Inspector General, or the designee of

any of them. Any person who has not

received an initial determination on his

or her request within the time limits

established by § 7.31 can seek

immediate judicial review, which may

be sought without the need first to

submit an administrative appeal.

Judicial review may be sought in the

United States District Court for the

judicial district in which the requester

resides or has his or her principal place

of business, the judicial district in

which the records are located, or in the

District of Columbia. A determination

that a record will not be disclosed and/

or that a request for a fee waiver or

reduction will not be granted does not

constitute final agency action for the

purposes of judicial review unless:

(1) It was made by the head of the

operating administration concerned (or

his or her designee), or the General

Counsel or the Inspector General, as the

case may be; or

(2) The applicable time limit has

passed without a determination on the

initial request or the appeal, as the case

may be, having been made.

(d) Each appeal must be made in

writing within thirty days from the date

of receipt of the original denial and

should include all information and

arguments relied upon by the person

making the request. Such letter should

indicate that it is an appeal from a

denial of a request made under the

Freedom of Information Act. The

envelope in which the appeal is sent

should be prominently marked: ‘‘FOIA

Appeal.’’ If these requirements are not

met, the twenty-day limit described in

§ 7.32 will not begin to run until the

appeal has been identified, or would

have been identified with the exercise of

due diligence, by an employee of the

Department as an appeal under the

Freedom of Information Act, and has

been received by the appropriate office.

(e) Whenever the head of the

operating administration concerned, or

the General Counsel or the Inspector

General, as the case may be, determines

it to be necessary, he/she may require

the person making the request to furnish

additional information, or proof of

factual allegations, and may order other

proceedings appropriate in the

circumstances. The decision of the head

of the operating administration

concerned, or the General Counsel or
Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations 19521

the Inspector General, as the case may

be, as to the availability of the record or

the appropriateness of a fee waiver or

reduction constitutes final agency action

for the purpose of judicial review.

(f) The decision of the head of the

operating administration concerned, or

the General Counsel or the Inspector

General, as the case may be, not to

disclose a record under this part or not

to grant a request for a fee waiver or

reduction is considered to be a denial by

the Secretary for the purpose of 5 U.S.C.

552(a)(4)(B).

(g) Any final determination by the

head of an operating administration, or

his or her delegate, not to disclose a

record under this part, or not to grant a

request for a fee waiver or reduction, is

subject to concurrence by the General

Counsel or his/her designee.

(h) Upon a determination that an

appeal will be denied, the requester will

be informed in writing of the reasons for

the denial of the request and the names

and titles or positions of each person

responsible for the determination, and

that judicial review of the determination

is available in the United States District

Court for the judicial district in which

the requester resides or has his or her

principal place of business, the judicial

district in which the requested records

are located, or the District of Columbia.

Subpart E—Time Limits

§ 7.31 Initial determinations.

An initial determination whether to

release a record requested pursuant to

subpart C of this part will be made

within ten Federal working days after

the request is received by the

appropriate office in accordance with

§ 7.14, except that this time limit may be

extended by up to ten Federal working

days in accordance with § 7.33. The

person making the request will be

notified immediately of such

determination. If the determination is to

grant this request, the desired record

will be made available as promptly as

possible. If the determination is to deny

the request, the person making the

request will be notified in writing, at the

same time he or she is notified of such

determination, of the reason for the

determination, the right of such person

to appeal the determination, and the

name and title of each person

responsible for the initial determination

to deny the request.

§ 7.32 Final determinations.

A determination with respect to any

appeal made pursuant to § 7.21 will be

made within twenty Federal working

days after receipt of such appeal except

that this time limit may be extended by

up to ten Federal working days in

accordance with § 7.33. The person

making the request will be notified

immediately of such determination

pursuant to § 7.21.

§ 7.33 Extension.

In unusual circumstances as specified

in this section, the time limits

prescribed in § 7.31 and § 7.32 may be

extended by written notice to the person

making the request setting forth the

reasons for such extension and the date

on which a determination is expected to

be dispatched. Such notice may not

specify a date that would result in a

cumulative extension of more than ten

Federal working days. As used in this

paragraph, ‘‘unusual circumstances’’

means, but only to the extent reasonably

necessary to the proper processing of

the particular request:

(a) The need to search for and collect

the requested records from field

facilities or other establishments that are

separate from the office processing the

request.

(b) The need to search for, collect, and

appropriately examine a voluminous

amount of separate and distinct records

that are demanded in a single request.

(c) The need for consultation, which

will be conducted with all practicable

speed, with any other agency of DOT

element having a substantial interest in

the determination of the request or

among two or more components of the

agency having substantial subject-matter

interest therein.

Subpart F—Fees

§ 7.41 General.

(a) This subpart prescribes fees for

services performed for the public under

subparts B and C of this part by the

Department.

(b) All terms defined by the Freedom

of Information Act apply to this subpart,

and the term ‘‘hourly rate’’ means the

actual hourly base pay for a civilian

employee or, for members of the Coast

Guard, the equivalent hourly pay rate

computed using a 40-hour week and the

member’s normal basic pay and

allowances.

(c) This subpart applies to all

employees of the Department, including

those of non-appropriated fund

activities of the Coast Guard and the

Maritime Administration.

(d) This subpart does not apply to any

special study, special statistical

compilation, table, or other record

requested under 49 U.S.C. 329(c). The

fee for the performance of such a service

is the actual cost of the work involved

in compiling the record. All such fees

received by the Department in payment

of the cost of such work are deposited

in a separate account administered

under the direction of the Secretary, and

may be used for the ordinary expenses

incidental to providing the information.

(e) This subpart does not apply to

requests from record subjects for records

about themselves in Departmental

systems of records. Fees for such

requests are to be determined in

accordance with the Privacy Act of

1974, as implemented by Department of

Transportation regulations (49 CFR part

10).

§ 7.42 Payment of fees.

(a) The fees prescribed in this subpart

may be paid by check, draft, or money

order, payable to the Treasury of the

United States; except that, in the case of

the Saint Lawrence Seaway

Development Corporation, all fees

resulting from a request to that

operating administration shall be made

payable to the Saint Lawrence Seaway

Development Corporation.

(b) Charges may be assessed by the

Department for time spent searching for

requested records even if the search fails

to locate records or the records located

are determined to be exempt from

disclosure. In addition, if records are

requested for commercial use, the

Department may assess a fee for time

spent reviewing any responsive records

located to determine whether they are

exempt from disclosure.

(c) When it is estimated that the

search charges, review charges,

duplication fees or any combination of

fees that could be charged to the

requester will likely exceed $25, the

requester will be notified of the

estimated amount of the fees, unless the

requester has indicated in advance his

or her willingness to pay fees as high as

those anticipated. The notice will also

inform the requester how to consult

with the appropriate Departmental

officials with the object of reformulating

the request to meet his or her needs at

a lower cost.

(d) Payment of fees may be required

by the Department prior to actual

duplication or delivery of any releasable

records to a requester. However,

advance payment of fees, i.e., payment

before work is commenced or continued

on a request, may not be required

unless:

(1) Allowable charges that a requester

may be required to pay are likely to

exceed $250; or

(2) The requester has failed to pay

within 30 days of the billing date fees

charged for a previous request to any

part of the Department.

(e) When paragraph (d)(1) of this

section applies, the requester will be
19522 Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations

notified of the likely cost and, where he/

she has a history of prompt payment of

FOIA fees, requested to furnish

satisfactory assurance of full payment of

FOIA fees, Where the requestor does not

have any history of payment, he or she

may be required to make advance

payment of any amount up to the full

estimated charges.

(f) When paragraph (d)(2) of this

section applies, the requester will be

required to demonstrate that the fee has,

in fact, been paid or to pay the full

amount owed, including any applicable

interest, late handling charges, and

penalty charges as discussed in

paragraphs (g) and (h) of this section.

The requester will also be required to

make an advance payment of the full

amount of the estimated fee before

processing of a new request or

continuation of a pending request is

begun.

(g) The Department will assess

interest on an unpaid bill starting on the

31st day following the day on which the

notice of the amount due is first mailed

to the requester. Interest will accrue

from the date of the notice of amount

due and will be at the rate prescribed in

31 U.S.C. 3717. Receipt by the

Department of a payment for the full

amount of the fees owed within 30

calendar days after the date of the initial

billing will stay the accrual of interest,

even if the payment has not been

processed.

(h) If payment of fees charged is not

received within 30 calendar days after

the date the initial notice of the amount

due is first mailed to the requester, an

administrative charge will be assessed

by the Department to cover the cost of

processing and handling the delinquent

claim. In addition, a penalty charge will

be applied with respect to any principal

amount of a debt that is more than 90

days past due. Where appropriate, other

steps permitted by Federal debt

collection statutes, including disclosure

to consumer reporting agencies and use

of collection agencies, will be used by

the Department to encourage payment of

amounts overdue.

(i) In any instance where the

Department reasonably believes that a

requester or a group of requesters acting

in concert is attempting to break down

a single FOIA request into a series of

requests for the sole purpose of evading

the payment of otherwise applicable

fees, the Department will aggregate the

requests and determine the applicable

fees on the basis of the aggregation.

(j) Notwithstanding any other

provision of this subpart, when the total

amount of fees that could be charged for

a particular request (or aggregation of

requests) under subpart C of this part,

after taking into account all services that

must be provided free of, or at a reduced

charge, is less than $10.00 the

Department will not make any charge

for fees.

§ 7.43 Fee schedule.

(a) The standard fee for a manual

search to locate a record requested

under subpart C of this part, including

making it available for inspection, will

be determined by multiplying each

searcher’s hourly rate plus 16 percent by

the time spent conducting the search.

(b) the standard fee for a computer

search for a record requested under

subpart C of this part is the actural cost.

This includes the cost of operating the

central processing unit for the time

directly attributable to searching for

records responsive to a FOIA request

and the operator/programmer salary

(hourly plus 16 percent) costs

apportionable to the search.

(c) The standard fee for review of

records requested under subpart C of

this part is the reviewer’s hourly rate

plus 16 percent multiplied by the time

he or she spent determining whether the

requested records are exempt from

mandatory disclosure.

(d) The standard fee for duplication of

a record requested under subpart C of

this part is determined as follows:

(1) Per copy of each page (not larger

than 81⁄2 × 14 inches) reproduced by

photocopy or similar methods (includes

costs of personnel and equipment)—

$0.10.

(2) Per copy prepared by computer

such as tapes or printout—actual costs,

including operator time.

(3) Per copy prepared by any other

method of duplication—actual direct

cost of production.

(e) Depending upon the category of

requester, and the use for which the

records are requested, in some cases the

fees computed in accordance with the

standard fee schedule in paragraphs (a)

through (d) of this section will either be

reduced or not charged, as prescribed by

other provisions of this subpart.

(f) The following special services not

required by the FOIA may be made

available upon request, at the stated

fees: Certified copies of documents,

with Department of Transportation or

operating administration seal (where

authorized)–$4.00; or true copy, without

seal–$2.00.

§ 7.44 Services performed without charge

or at a reduced charge.

(a) A fee is not to be charged to any

requester making a request under

subpart C of this part for the first two

hours of search time unless the records

are requested for commercial use. For

purposes of this subpart, when a

computer search is required, two hours

of search time will be considered spent

when the hourly costs of operating the

central processing unit used to perform

the search added to the computer

operator’s salary cost (hourly rate plus

16 percent) equals two hours of the

computer operator’s salary costs (hourly

rate plus 16 percent).

(b) A fee is not to be charged for any

time spent searching for a record

requested under subpart C if the records

are not for commercial use and the

requester is a representative of the news

media, an educational institution whose

purpose is scholarly research, or a noncommercial scientific institution whose

purpose is scientific research.

(c) A fee is not be charged for

duplication of the first 100 pages

(standard paper, not larger than 8.5 × 14

inches) of records provided to any

requester in response to a request under

subpart C unless the records are

requested for commercial use.

(d) A fee is not to be charged to any

requester under subpart C to determine

whether a record is exempt from

mandatory disclosure unless the record

is requested for commercial use. A

review charge may not be charged

except with respect to an initial review

to determine the applicability of a

particular exemption to a particular

record or portion of a record. A review

charge may not be assessed for review

at the administrative appeal level. When

records or portions of records withheld

in full under an exemption that is

subsequently determined not to apply

are reviewed again to determine the

applicability of other exemptions not

previously considered, this is

considered an initial review for

purposes of assessing a review charge.

(e) Documents will be furnished

without charge or at a reduced charge if

the official having initial denial

authority determines that disclosure of

the information is in the public interest

because it is likely to contribute

significantly to public understanding of

the operations or activities of the

government and is not primarily in the

commercial interest of the requester.

(f) Factors to be considered by

officials of the Department authorized to

determine whether a waiver or

reduction of fees will be granted

include:

(1) Whether the subject matter of the

requested records concerns the

operations or activities of the Federal

government;

(2) Whether the disclosure is likely to

contribute to an understanding of

Federal government operations or

activities;
Federal Register / Vol. 62, No. 77 / Tuesday, April 22, 1997 / Rules and Regulations 19523

(3) Whether disclosure of the

requested information will contribute to

the understanding of the public at large,

as opposed to the individual

understanding of the requester or a

narrow segment of interested persons;

(4) Whether the contribution to public

understanding of Federal government

operations or activities will be

significant;

(5) Whether the requester has a

commercial interest that would be

furthered by the requested disclosure;

and

(6) Whether the magnitude of any

identified commercial interest to the

requester is sufficiently large in

comparison with the public interest in

disclosure that disclosure is primarily in

the commercial interest of the requester.

(g) Documents will be furnished

without charge or at a reduced charge if

the official having initial denial

authority determines that the request

concerns records related to the death of

an immediate family member who was,

at the time of death, an employee of the

Department or a member of the Coast

Guard.

(h) Documents will be furnished

without charge or at a reduced charge if

the official having initial denial

authority determines that the request is

by the victim of a crime who seeks the

record of the trial or court-martial at

which the requestor testified.

§ 7.45 Transcripts.

Transcripts of hearings or oral

arguments are available for inspection.

Where transcripts are prepared by a

nongovernmental contractor, and the

contract permits the Department to

handle the reproduction of further

copies, § 7.43 applies. Where the

contract permits the Department to

handle the reproduction of further

copies, § 7.43 applies. Where the

contract for transcription services

reserves the sales privilege to the

reporting service, any duplicate copies

must be purchased directly from the

reporting service.

§ 7.46 Alternative sources of information.

In the interest of making documents

of general interest publicly available at

as low as cost as possible, alternative

sources shall be arranged whenever

possible. In appropriate instances,

material that is published and offered

for sale may be obtained from the

Superintendent of Documents, U.S.

Government Printing Office,

Washington, DC 20402; U.S. Department

of Commerce’s National Technical

Information Service (NTIS), Springfield,

Virginia 22151; or National AudioVisual Center, National Archives and

Records Administration, Capital

Heights, MD 20743–3701.

Issued in Washington, DC, on March 24,

1997.

Rodney E. Slater,

Secretary of Transportation.

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

BILLING CODE 4910–62–M

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

49 CFR Part 571

[Docket No. 95–88, Notice 3]

RIN 2127–AG02

Amendment of Standard No. 121,

Brake Hoses by Revision of the Whip

Resistance Test Conditions

AGENCY: National Highway Traffic

Safety Administration (NHTSA),

Department of Transportation (DOT).

ACTION: Denial of petition for

reconsideration.

SUMMARY: This document announces the

denial of a petition for reconsideration

of the agency’s decision to amend the

whip test requirements of Standard 106,

Brake Hoses to allow the use of a

supplemental support for testing certain

brake hose assemblies. The petition is

denied on the basis that the petitioner

provided no new information on which

to justify amending the standard.

FOR FURTHER INFORMATION CONTACT: The

following persons at the National

Highway Traffic Safety Administration,

400 Seventh Street, S.W., Washington,

D.C. 20590:

For non-legal issues: Sam Daniel,

Vehicle Dynamics Division, Office of

Crash Avoidance Standards, (202–

366–4921)

For legal issues: Mr. Marvin L. Shaw,

NCC–20, Rulemaking Division, Office

of Chief Counsel, (202–366–2992).

SUPPLEMENTARY INFORMATION:

Request for Interpretation

On December 8, 1994, Earl’s

Performance Products (Earl’s) asked the

agency to issue an interpretation of the

whip resistance requirements in

Standard No. 106. Specifically, that

company asked that an alternative whip

resistance test apparatus be allowed for

testing its hydraulic brake hose

assemblies. Earl’s has manufactured

armored brake hose assemblies for use

in off-road, high performance race cars

since the 1960s. That company sought

permission to use the alternative fixture

because it wished to begin selling its

armored brake hose for use on

conventional motor vehicles. It claimed

that its product is of very high quality

and easily meets all of the requirements

in Standard No. 106, except for the

whip resistance test. Earl’s brake hose is

armored with braided stainless steel

while most current brake hoses are

made from rubber tubing alone.

Earl’s armored brake hose is installed

on a vehicle differently than a

conventional brake hose. Earl’s hose

passes through and is held in place by

a supplemental support (consisting of a

ball bearing with a hole in it and the ball

bearing housing) which cannot be

removed from the hose. The support

slides into and is held in place by a

bracket which is attached to the vehicle

frame or some other solid vehicle

structure. The alternative test apparatus

proposed by Earl’s simulates the

attachment of the supplemental support

bracket to a vehicle.

Earl’s recognized that if the

supplemental support is not properly

attached or mounted to the vehicle, it’s

hoses could fail the whip resistance test

due to cyclic stress at the interface

between the hose and the swaged collar

at the fixed end of the hose assembly.

Earl’s indicated, however, this was not

a problem when the hose is protected by

the supplemental support. Earl’s further

indicated that it had successfully tested

hose assemblies from 9 inches to 24

inches long, using its alternative

mounting technique.

On April 24, 1995, NHTSA responded

to Earl’s request for an interpretation,

concluding that the rule as then written

did not permit the use of a

supplemental support to mount a brake

hose when conducting the whip test.

NHTSA stated that section 6.3 could not

be interpreted to permit mounting the

brake hose at the ‘‘whip dampener.’’

S6.3.1 Apparatus specifies a test

apparatus that mounts the brake hose at

‘‘capped end fittings’’ on one end and

‘‘open end fittings’’ on the other, and

specifies no mounting points in

between. Thus, a test apparatus that

mounts the brake hose at a ‘‘whip

dampener,’’ which is not an end fitting,

would not meet Standard No. 106.

The agency then stated that it would

initiate rulemaking to further consider

whether to amend the whip resistance

test to permit the use of a supplemental

support.

Agency Rulemaking Amending Whip

Resistance Test

On November 16, 1995, NHTSA

issued a notice of proposed rulemaking

(NPRM) in which it proposed amending

the whip resistance test of Standard No.