[Federal Register Volume 62, Number 77 (Tuesday, April 22, 1997)]
[Rules and Regulations]
[Pages 19515-19523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9786]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

[Docket No. OST-96-1430]
RIN 2105-AC58


Public Availability of Information

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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

SUMMARY: Department of Transportation revises its regulations 
implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552. This 
revision updates organizational changes since the last revision and 
streamlines the regulations in order to make the regulations more 
useful.

DATES: This rule is effective June 23, 1997.

FOR FURTHER INFORMATION CONTACT: Dorothy A. Chambers, Chief, FOIA 
Division, Office of the General Counsel, C-12, Department of 
Transportation, Washington, DC 20590, telephone (202) 366-4542, FAX 
(202) 366-7152.

SUPPLEMENTARY INFORMATION: The President instituted a Regulatory Review 
initiative for the reinvention of regulations by eliminating duplicate, 
redundant, or unnecessary language and revising regulations to meet the 
needs of users. In response to this initiative, we reviewed Part 7 and 
are revising it to update and streamline information on public 
availability of information. We

[[Page 19516]]

are reorganizing this part by combining in subpart B sections that 
relate to information that is publicly available without a specific 
request. Similarly, we have combined sections in subpart C that address 
information that must be requested under FOIA. We have shortened the 
descriptions of FOIA exemptions and deleted the Appendices that set 
forth redundant information concerning document inspection facilities. 
We are replacing these appendices with provisions in Secs. 7.10 and 
7.15, which set forth necessary information regarding public records 
available at Department Docket locations and FOIA contacts for records 
requested under the FOIA. Public comment was invited (61 FR 33075; June 
26, 1996), but none was received; however, as explained below, based 
upon further review within DOT, some changes were made to the Notice of 
Proposed Rulemaking (NPRM) after publication, and, as so amended, the 
NPRM is being adopted as the Final Rule. This amendment does not 
reflect changes in FOIA wrought by the Electronic FOIA Act of 1996, 
which DOT will address later.

Changes from Proposal

    Many of the changes are minor, being nothing more significant than 
renumberings. Substantive changes are made, however, to clarify the 
division of responsibility for FOIA matters at the Saint Lawrence 
Seaway Development Corporation between its headquarters in Washington, 
DC and its operating office in Massena, NY; and to reflect that the 
Inspector General has the same authority under this part as does any 
Administrator. It also clarifies that the Surface Transportation Board, 
a successor to the Interstate Commerce Commission within DOT, is not 
covered by these FOIA regulations, but, rather, by its own.

Analysis of Regulatory Impacts

    This amendment is not a ``significant regulatory action'' within 
the meaning of Executive Order 12866. It is also not significant within 
the definition in DOT's Regulatory Policies and Procedures, 49 FR 11034 
(1979), in part because it does not involve any change in important 
Departmental policies. Because the economic impact should be minimal, 
further regulatory evaluation is not necessary. Under the Regulatory 
Flexibility Act, the group of persons who will be directly affected by 
this amendment are the public, who will find it easier to obtain 
information from the DOT under FOIA. They qualify as small entities and 
will have burdens lessened by this amendment, as the effect of the 
amendment will be to make our FOIA regulations easier to understand; 
however, it is not likely that any such burden reduction will be large 
nor that it will be convertible into economic equivalents. Hence, I 
certify that this amendment will not have a significant economic impact 
on a substantial number of small entities.
    This amendment does not significantly affect the environment, and 
therefore an environmental impact statement is not required under the 
National Environmental Policy Act of 1969. It has also been reviewed 
under Executive Order 12612, Federalism, and it has been determined 
that it does not have sufficient implications for federalism to warrant 
preparation of a Federalism Assessment.
    Finally, the amendment does not contain any collection of 
information requirements, requiring review under the Paperwork 
Reduction Act, as amended.

List of Subjects in 49 CFR part 7

    Freedom of information.

    In accordance with the above, DOT is revising 49 CFR part 7 to read 
as follows:

PART 7--PUBLIC AVAILABILITY OF INFORMATION

Subpart A--General Provisions

Sec.
7.1  General.
7.2  Definitions.

Subpart B--Information Required to be Made Public by the Department

7.3  Publication in the Federal Register.
7.4  Publication required.
7.5  Availability of opinions, orders, staff manuals, statements of 
policy and interpretations and indices.
7.6  Deletion of identifying detail.
7.7  Access to materials and indices.
7.8  Copies.
7.9  Protection of records.
7.10  Public records available at Department docket locations.
Subpart C--Availability of Reasonably Described Records Under the 
Freedom of Information Act
7.11  Applicability.
7.12  Administration of part.
7.13  Records available.
7.14  Requests for records.
7.15  Contacts for records requested under the FOIA.
7.16  Requests for records of concern to more than one government 
organization.
7.17  Consultation with submitters of commercial and financial 
information.
Subpart D--Procedure for Appealing Decisions Not to Disclose Records 
and/or Waive Fees
7.21  General.

Subpart E--Time Limits

7.31  Initial determinations.
7.32  Final determinations.
7.33  Extension.

Subpart F--Fees

7.41  General.
7.42  Payment of fees.
7.43  Fee schedule.
7.44  Services performed without charge or at a reduced charge.
7.45  Transcripts.
7.46  Alternative sources of information.

    Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 
12600, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Provisions


Sec. 7.1  General

    (a) This part implements 5 U.S.C. 552, and prescribes rules 
governing the availability to the public of records of the Department 
of Transportation. Many documents are made available to the public for 
inspection and copying through the Department Docket locations that are 
listed in subpart B of this part, which contains the regulations of the 
Department of Transportation concerning the availability to the public 
of opinions issued in the adjudication of cases, policy issuances, 
administrative manuals, and other information made available to the 
public.
    (b) Subpart C of this part, describes the records that are not 
required to be disclosed on the Department's own action under this 
part, but that may be available upon request under the Freedom of 
Information Act.
    (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.


Sec. 7.2  Definitions.

    As used in this part--
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
    Administrator means the head of each operating administration of 
the Department and includes the Commandant of the Coast Guard, the 
Inspector General, and the Director of the Bureau of Transportation 
Statistics.
    Department or DOT means the Department of Transportation, including 
the Office of the Secretary of Transportation, the Office of the 
Inspector General, and the following operating administrations:

(This definition specifically excludes the Surface Transportation 
Board, which has its own Freedom of Information Act regulations (49 
CFR part 1001).

    (1) United States Coast Guard,
    (2) Federal Aviation Administration,
    (3) Federal Highway Administration,

[[Page 19517]]

    (4) Federal Railroad Administration,
    (5) National Highway Traffic Safety Administration,
    (6) Federal Transit Administration,
    (7) Saint Lawrence Seaway Development Corporation,
    (8) Maritime Administration,
    (9) Research and Special Programs Administration, and
    (10) Bureau of Transportation Statistics.
    Record includes any writing, drawing, map, recording, tape, film, 
photograph, or other documentary material by which information is 
preserved. The term also includes any such documentary material stored 
by computer.
    Secretary means the Secretary of Transportation or any person to 
whom the Secretary has delegated authority in the matter concerned.

Subpart B--Information Required To Be Made Public by the Department


Sec. 7.3  Publication in the Federal Register.

    This subpart implements 5 U.S.C. 552(a)(1), and prescribes rules 
governing the publication in the Federal Register of the following:
    (a) Descriptions of the organization of the Department, including 
its operating administrations and the established places at which, the 
officer from whom, and the methods by which, the public may secure 
information and make submittals or obtain decisions.
    (b) Statements of the general course and methods by which the 
Department's functions are channeled and determined, including the 
nature and requirements of all formal and informal procedures 
available.
    (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.


Sec. 7.4  Publication required.

    (a) General. The material described in Sec. 7.3 shall be published 
in the Federal Register. For the purposes of this paragraph, material 
that will reasonably be available to the class of persons affected by 
it will be considered to be published in the Federal Register if it has 
been incorporated by reference therein with the approval of the 
Director of the Federal Register.
    (b) Effect of nonpublication. Except to the extent that a person 
has actual and timely notice of the terms thereof, a person may not in 
any manner be required to resort to, or be adversely affected by, any 
procedure or matter required to be published in the Federal Register, 
but not so published.


Sec. 7.5  Availability of opinions, orders, staff manuals, statements 
of policy, and interpretations and indices.

    (a) This section implements 5 U.S.C. 552(a)(2). It prescribes the 
rules governing the availability for public inspection and copying of 
the following:
    (1) Any final opinion (including a concurring or dissenting 
opinion) or order made in the adjudication of a case.
    (2) Any policy or interpretation that has been adopted under the 
authority of the Department, including any policy or interpretation 
concerning a particular factual situation, if that policy or 
interpretation can reasonably be expected to have precedential value in 
any case involving a member of the public in a similar situation.
    (3) Any administrative staff manual or instruction to staff that 
affects any member of the public, including the prescribing of any 
standard, procedure, or policy that, when implemented, requires or 
limits any action of any member of the public or prescribes the manner 
of performance of any activity by any member of the public. However, 
this does not include staff manuals or instructions to staff concerning 
internal operating rules, practices, guidelines, and procedures for 
Departmental inspectors, investigators, law enforcement officers, 
examiners, auditors, and negotiators and other information developed 
predominantly for internal use, the release of which could 
significantly risk circumvention of agency regulations or statutes.
    (b) Any material listed in paragraph (a) of this section that is 
not made available for public inspection and copying, or that is not 
indexed as required by Sec. 7.7, may not be cited, relied on, or used 
as precedent by the Department to affect any member of the public 
adversely unless the person to whose detriment it is relied on, used, 
or cited has had actual timely notice of the material.
    (c) This section does not apply to material that is published in 
the Federal Register or covered by subpart C of this part.


Sec. 7.6  Deletion of identifying detail.

    Whenever it is determined to be necessary to prevent a clearly 
unwarranted invasion of personal privacy, identifying details will be 
deleted from any record covered by this subpart that is published or 
made available for inspection. A full explanation of the justification 
for the deletion will accompany the record published or made available 
for inspection.


Sec. 7.7  Access to materials and indices.

    (a) Except as provided in paragraph (b) of this section, material 
listed in Sec. 7.5 will be made available for inspection and copying to 
any member of the public at document inspection facilities of the 
Department. It has been determined that it is unnecessary and 
impracticable to publish the index of materials in the Federal 
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 Sec. 7.5 that is published and offered 
for sale will be indexed, but is not required to be kept available for 
public inspection. Whenever practicable, however, it will be made 
available for public inspection at any document inspection facility 
maintained by the Office of the Secretary, Office of Inspector General, 
or an operating administrator, as appropriate.


Sec. 7.8  Copies.

    Copies of any material covered by this subpart that is not 
published and offered for sale may be ordered, upon payment of the 
appropriate fee, from the Docket Offices listed in Sec. 7.10. Copies 
will be certified upon request and payment of the fee prescribed in 
Sec. 7.43(f).


Sec. 7.9  Protection of records.

    (a) Records made available for inspection and copying may not be 
removed, altered, destroyed, or mutilated.
    (b) 18 U.S.C. 641 provides, in pertinent part, for criminal 
penalties for embezzlement or theft of government records.
    (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.


Sec. 7.10  Public records available at Department docket locations.

    Publicly available records are located in DOT Docket Units as 
follows (all times are eastern time zone, and are Monday-Friday except 
Federal holidays):

[[Page 19518]]

    (a) Docket Units located at 400 7th Street, SW., Washington, DC 
20590 include:
    (1) Office of the Secretary and former Civil Aeronautics Board 
material, Plaza 401, Hours 10:00-5:00.
    (2) Federal Highway Administration, Room 4232, Hours 8:30-5:00.
    (3) National Highway Traffic Safety Administration, Room 5111, 
Hours 9:30-4:00.
    (4) Federal Transit Administration, Room 9400, Hours 8:30-5:00.
    (5) Maritime Administration, Room 7210, Hours 8:30-5:00.
    (6) Research and Special Programs Administration, Room 8421, Hours 
8:30-5:00.
    (b) Federal Aviation Administration, 800 Independence Avenue, SW., 
Washington, DC 20591:
    (1) Rules Docket Room 915-G, Hours 8:30-5:00, and (2) Enforcement 
Dockets, Room 924-C, Hours 8:30-5:00.
    (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


Sec. 7.11  Applicability.

    (a) This subpart implements 5 U.S.C. 552(a)(3), and prescribes the 
regulations governing public inspection and copying of reasonably 
described records under the Freedom of Information Act.
    (b) This subpart does not apply to:
    (1) Records published in the Federal Register, opinions in the 
adjudication of cases, statements of policy and interpretations, and 
administrative staff manuals that have been published or made available 
under subpart B of this part.
    (2) Records or information compiled for law enforcement purposes 
and covered by the disclosure exemption described in Sec. 7.13(c)(7) 
if--
    (i) The investigation or proceeding involves a possible violation 
of criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (3) Informant records maintained by a criminal law enforcement 
component of the Department under an informant's name or personal 
identifier, if requested by a third party according to the informant's 
name or personal identifier, unless the informant's status as an 
informant has been officially confirmed.


Sec. 7.12  Administration of part.

    Authority to administer this part and to issue determinations with 
respect to initial requests is delegated as follows:
    (a) To the General Counsel for the records of the Office of the 
Secretary other than the Office of Inspector General.
    (b) To the Inspector General for records of the Office of Inspector 
General.
    (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.


Sec. 7.13  Records available.

    (a) Policy. It is the policy of the Department of Transportation to 
make the records of the Department available to the public to the 
greatest extent possible, in keeping with the spirit of the Freedom of 
Information Act. This includes providing reasonably segregable 
information from documents that contain information that may be 
withheld.
    (b) Statutory disclosure requirement. The Act requires that the 
Department, on a request from a member of the public submitted in 
accordance with the procedures in this subpart, make requested records 
available for inspection and copying.
    (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

[[Page 19519]]

the use of an agency responsible for the regulation or supervision of 
financial institutions.
    (9) Geological and geophysical information and data, including 
maps, concerning wells.


Sec. 7.14  Requests for records.

    (a) Each person desiring access to, or a copy of, a record covered 
by this subpart shall comply with the following provisions:
    (1) A written request must be made for the record.
    (2) Such request should indicate that it is being made under the 
Freedom of Information Act.
    (3) The envelope in which the request is sent should be prominently 
marked: ``FOIA.''
    (4) The request should be addressed to the appropriate office as 
set forth in Sec. 7.15.
    (b) If the requirement of paragraph (a) of this section are not 
met, treatment of the request will be at the discretion of the agency. 
The ten-day limit for responding to requests, described in Sec. 7.31, 
will not start to run until the request has been identified, or would 
have been identified with the exercise of due diligence, by an employee 
of the Department as a request pursuant to the Freedom of Information 
Act and has been received by the office to which it should have been 
originally sent.
    (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 Sec. 7.44(f) are met.
    (d) Creation of records. A request may seek only records that are 
in existence at the time the request is received. A request may not 
seek records that come into existence after the date on which it is 
received and may not require that new records be created in response to 
the request by, for example, combining or compiling selected items from 
manual files, preparing a new computer program, or calculating 
proportions, percentages, frequency distributions, trends, or 
comparisons. In those instances where the Department determines that 
creating a new record will be less burdensome than disclosing large 
volumes of unassembled material, the Department may, in its discretion, 
agree to the creation of a new record as an alternative to disclosing 
existing records.
    (e) Each record made available under this subpart will be made 
available for inspection and copying during regular business hours at 
the place where it is located, or photocopying may be arranged with the 
copied materials being mailed to the requester upon payment of the 
appropriate fee. Original records ordinarily will be copied except in 
this instances where, in the Department's judgment, copying would 
endanger the quality of the original or raise the reasonable 
possibility of irreparable harm to the record. In these instances, 
copying of the original would not be in the public interest. In any 
event, original records will not be released from Department custody.
    (f) If a requested record is known not to exist in the files of the 
agency, or to have been destroyed or otherwise disposed of, the 
requester will be so notified.
    (g) Fees will be determined in accordance with subpart F of this 
part.
    (h) Notwithstanding paragraphs (a) through (g) of this section, 
informational material, such as news releases, pamphlets, and other 
materials of that nature that are ordinarily made available to the 
public as a part of any information program of the Government will be 
available upon oral or written request. A fee will be not be charged 
for individual copies of that material so long as the material is in 
supply. In addition the Department will continue to respond, without 
charge, to routine oral or written inquiries that do not involve the 
furnishing of records.


Sec. 7.15   Contacts for records requested under the FOIA.

    Each person desiring a record under this subpart should submit a 
request in writing to the Departmental administration where the records 
are located:
    (a) FOIA Offices at 400 7th Street, SW., Washington, DC 20590:
    (1) Office of the Secretary of Transportation, Room 5432.
    (2) Federal Highway Administration, Room 4428.
    (3) Federal Railroad Administration, Room 8201.
    (4) National Highway Traffic Safety Administration, Room 5219.
    (5) Federal Transit Administration, Room 9400.
    (6) Maritime Administration, Room 7221.
    (7) Research and Special Programs Administration, Room 8419.
    (8) Bureau of Transportation Statistics, Room 2104.
    (9) Office of Inspector General, Room 9210.
    (b) Federal Aviation Administration, 800 Independence Avenue, SW., 
Room 906A, Washington, DC 20591.
    (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.


Sec. 7.16   Requests for records of concern to more than one government 
organization.

    (a) If the release of a record covered by this subpart would be of 
concern to both this Department and another Federal agency, the 
determination as to release will be made only after consultation with 
the other interested agency.

[[Page 19520]]

    (b) If the release of the record covered by this subpart would be 
of concern to both this Department and a State or local government, a 
territory or possession of the United States, or a foreign government, 
the determination as to release will be made by the Department only 
after consultation with the other interested State or local government 
or foreign government.
    (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.


Sec. 7.17   Consultation with submitters of commercial and financial 
information.

    (a) If a request is received for information that has been 
designated by the submitter as confidential commercial information, or 
which the Department has some other reason to believe may contain trade 
secrets or other commercial or financial information of the type 
described in Sec. 7.13(c)(4), the submitter of such information will, 
except as is provided in paragraphs (c) and (d) of this section, be 
notified expeditiously and asked to submit any written objections to 
release. At the same time, the requester will be notified that notice 
and an opportunity to comment are being provided to the submitter. the 
submitter will, to the extent permitted by law, be afforded a 
reasonable period of time within which to provide a detailed statement 
of any such objections. The submitter's statement shall specify all 
grounds for withholding any of the information. The burden shall be on 
the submitter to identify all information for which exempt treatment is 
sought and to persuade the agency that the information should not be 
disclosed.
    (b) The Office of the Secretary, the Office of Inspector General, 
or the responsible operating administration, as appropriate, will, to 
the extent permitted by law, consider carefully a submitter's 
objections and specific grounds for nondisclosure prior to determining 
whether to disclose business information. Whenever a decision is made 
to disclose such information over the objection of a submitter, the 
office responsible for the decision will forward to the submitter a 
written notice that will include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not accepted;
    (2) A description of the business information to be disclosed; and
    (3) A specific disclosure date. Such notice of intent to disclose 
will, to the extent permitted by law, be forwarded to the submitter a 
reasonable number of days prior to the specified date upon which 
disclosure is intended. At the same time the submitter is notified, the 
requester will be notified of the decision to disclose information.
    (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


Sec. 7.21  General.

    (a) Each officer or employee of the Department who, upon a request 
by a member of the public for a record under this part, makes a 
determination that the record is not to be disclosed, either because it 
is subject to an exemption or not in the Department's custody and 
control, will give a written statement of the reasons for that 
determination to the person making the request; and indicate the names 
and titles or positions of each person responsible for the initial 
determination not to comply with such request, and the availability of 
an appeal within the Department.
    (b) When a request for a waiver of fees, pursuant to Sec. 7.44, has 
been denied in whole or in part, the requester may appeal the denial.
    (c) Any person to whom a record has not been made available within 
the time limits established by Sec. 7.31 and any person who has been 
given a determination pursuant to paragraph (a) of this section that a 
record will not be disclosed may appeal to the head of the operating 
administration concerned or, in the case of the Office of the 
Secretary, to the General Counsel of the Department, and in the case of 
the Office of Inspector General, to the Inspector General, or the 
designee of any of them. Any person who has not received an initial 
determination on his or her request within the time limits established 
by Sec. 7.31 can seek immediate judicial review, which may be sought 
without the need first to submit an administrative appeal. Judicial 
review may be sought in the United States District Court for the 
judicial district in which the requester resides or has his or her 
principal place of business, the judicial district in which the records 
are located, or in the District of Columbia. A determination that a 
record will not be disclosed and/or that a request for a fee waiver or 
reduction will not be granted does not constitute final agency action 
for the purposes of judicial review unless:
    (1) It was made by the head of the operating administration 
concerned (or his or her designee), or the General Counsel or the 
Inspector General, as the case may be; or
    (2) The applicable time limit has passed without a determination on 
the initial request or the appeal, as the case may be, having been 
made.
    (d) Each appeal must be made in writing within thirty days from the 
date of receipt of the original denial and should include all 
information and arguments relied upon by the person making the request. 
Such letter should indicate that it is an appeal from a denial of a 
request made under the Freedom of Information Act. The envelope in 
which the appeal is sent should be prominently marked: ``FOIA Appeal.'' 
If these requirements are not met, the twenty-day limit described in 
Sec. 7.32 will not begin to run until the appeal has been identified, 
or would have been identified with the exercise of due diligence, by an 
employee of the Department as an appeal under the Freedom of 
Information Act, and has been received by the appropriate office.
    (e) Whenever the head of the operating administration concerned, or 
the General Counsel or the Inspector General, as the case may be, 
determines it to be necessary, he/she may require the person making the 
request to furnish additional information, or proof of factual 
allegations, and may order other proceedings appropriate in the 
circumstances. The decision of the head of the operating administration 
concerned, or the General Counsel or

[[Page 19521]]

the Inspector General, as the case may be, as to the availability of 
the record or the appropriateness of a fee waiver or reduction 
constitutes final agency action for the purpose of judicial review.
    (f) The decision of the head of the operating administration 
concerned, or the General Counsel or the Inspector General, as the case 
may be, not to disclose a record under this part or not to grant a 
request for a fee waiver or reduction is considered to be a denial by 
the Secretary for the purpose of 5 U.S.C. 552(a)(4)(B).
    (g) Any final determination by the head of an operating 
administration, or his or her delegate, not to disclose a record under 
this part, or not to grant a request for a fee waiver or reduction, is 
subject to concurrence by the General Counsel or his/her designee.
    (h) Upon a determination that an appeal will be denied, the 
requester will be informed in writing of the reasons for the denial of 
the request and the names and titles or positions of each person 
responsible for the determination, and that judicial review of the 
determination is available in the United States District Court for the 
judicial district in which the requester resides or has his or her 
principal place of business, the judicial district in which the 
requested records are located, or the District of Columbia.

Subpart E--Time Limits


Sec. 7.31  Initial determinations.

    An initial determination whether to release a record requested 
pursuant to subpart C of this part will be made within ten Federal 
working days after the request is received by the appropriate office in 
accordance with Sec. 7.14, except that this time limit may be extended 
by up to ten Federal working days in accordance with Sec. 7.33. The 
person making the request will be notified immediately of such 
determination. If the determination is to grant this request, the 
desired record will be made available as promptly as possible. If the 
determination is to deny the request, the person making the request 
will be notified in writing, at the same time he or she is notified of 
such determination, of the reason for the determination, the right of 
such person to appeal the determination, and the name and title of each 
person responsible for the initial determination to deny the request.


Sec. 7.32  Final determinations.

    A determination with respect to any appeal made pursuant to 
Sec. 7.21 will be made within twenty Federal working days after receipt 
of such appeal except that this time limit may be extended by up to ten 
Federal working days in accordance with Sec. 7.33. The person making 
the request will be notified immediately of such determination pursuant 
to Sec. 7.21.


Sec. 7.33  Extension.

    In unusual circumstances as specified in this section, the time 
limits prescribed in Sec. 7.31 and Sec. 7.32 may be extended by written 
notice to the person making the request setting forth the reasons for 
such extension and the date on which a determination is expected to be 
dispatched. Such notice may not specify a date that would result in a 
cumulative extension of more than ten Federal working days. As used in 
this paragraph, ``unusual circumstances'' means, but only to the extent 
reasonably necessary to the proper processing of the particular 
request:
    (a) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request.
    (b) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are demanded in 
a single request.
    (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


Sec. 7.41  General.

    (a) This subpart prescribes fees for services performed for the 
public under subparts B and C of this part by the Department.
    (b) All terms defined by the Freedom of Information Act apply to 
this subpart, and the term ``hourly rate'' means the actual hourly base 
pay for a civilian employee or, for members of the Coast Guard, the 
equivalent hourly pay rate computed using a 40-hour week and the 
member's normal basic pay and allowances.
    (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).


Sec. 7.42  Payment of fees.

    (a) The fees prescribed in this subpart may be paid by check, 
draft, or money order, payable to the Treasury of the United States; 
except that, in the case of the Saint Lawrence Seaway Development 
Corporation, all fees resulting from a request to that operating 
administration shall be made payable to the Saint Lawrence Seaway 
Development Corporation.
    (b) Charges may be assessed by the Department for time spent 
searching for requested records even if the search fails to locate 
records or the records located are determined to be exempt from 
disclosure. In addition, if records are requested for commercial use, 
the Department may assess a fee for time spent reviewing any responsive 
records located to determine whether they are exempt from disclosure.
    (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

[[Page 19522]]

notified of the likely cost and, where he/she has a history of prompt 
payment of FOIA fees, requested to furnish satisfactory assurance of 
full payment of FOIA fees, Where the requestor does not have any 
history of payment, he or she may be required to make advance payment 
of any amount up to the full estimated charges.
     (f) When paragraph (d)(2) of this section applies, the requester 
will be required to demonstrate that the fee has, in fact, been paid or 
to pay the full amount owed, including any applicable interest, late 
handling charges, and penalty charges as discussed in paragraphs (g) 
and (h) of this section. The requester will also be required to make an 
advance payment of the full amount of the estimated fee before 
processing of a new request or continuation of a pending request is 
begun.
    (g) The Department will assess interest on an unpaid bill starting 
on the 31st day following the day on which the notice of the amount due 
is first mailed to the requester. Interest will accrue from the date of 
the notice of amount due and will be at the rate prescribed in 31 
U.S.C. 3717. Receipt by the Department of a payment for the full amount 
of the fees owed within 30 calendar days after the date of the initial 
billing will stay the accrual of interest, even if the payment has not 
been processed.
    (h) If payment of fees charged is not received within 30 calendar 
days after the date the initial notice of the amount due is first 
mailed to the requester, an administrative charge will be assessed by 
the Department to cover the cost of processing and handling the 
delinquent claim. In addition, a penalty charge will be applied with 
respect to any principal amount of a debt that is more than 90 days 
past due. Where appropriate, other steps permitted by Federal debt 
collection statutes, including disclosure to consumer reporting 
agencies and use of collection agencies, will be used by the Department 
to encourage payment of amounts overdue.
    (i) In any instance where the Department reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
break down a single FOIA request into a series of requests for the sole 
purpose of evading the payment of otherwise applicable fees, the 
Department will aggregate the requests and determine the applicable 
fees on the basis of the aggregation.
    (j) Notwithstanding any other provision of this subpart, when the 
total amount of fees that could be charged for a particular request (or 
aggregation of requests) under subpart C of this part, after taking 
into account all services that must be provided free of, or at a 
reduced charge, is less than $10.00 the Department will not make any 
charge for fees.


Sec. 7.43   Fee schedule.

    (a) The standard fee for a manual search to locate a record 
requested under subpart C of this part, including making it available 
for inspection, will be determined by multiplying each searcher's 
hourly rate plus 16 percent by the time spent conducting the search.
    (b) the standard fee for a computer search for a record requested 
under subpart C of this part is the actural cost. This includes the 
cost of operating the central processing unit for the time directly 
attributable to searching for records responsive to a FOIA request and 
the operator/programmer salary (hourly plus 16 percent) costs 
apportionable to the search.
    (c) 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 8\1/2\  x  14 inches) 
reproduced by photocopy or similar methods (includes costs of personnel 
and equipment)--$0.10.
    (2) Per copy prepared by computer such as tapes or printout--actual 
costs, including operator time.
    (3) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (e) Depending upon the category of requester, and the use for which 
the records are requested, in some cases the fees computed in 
accordance with the standard fee schedule in paragraphs (a) through (d) 
of this section will either be reduced or not charged, as prescribed by 
other provisions of this subpart.
    (f) The following special services not required by the FOIA may be 
made available upon request, at the stated fees: Certified copies of 
documents, with Department of Transportation or operating 
administration seal (where authorized)-$4.00; or true copy, without 
seal-$2.00.


Sec. 7.44  Services performed without charge or at a reduced charge.

    (a) A fee is not to be charged to any requester making a request 
under subpart C of this part for the first two hours of search time 
unless the records are requested for commercial use. For purposes of 
this subpart, when a computer search is required, two hours of search 
time will be considered spent when the hourly costs of operating the 
central processing unit used to perform the search added to the 
computer operator's salary cost (hourly rate plus 16 percent) equals 
two hours of the computer operator's salary costs (hourly rate plus 16 
percent).
    (b) A fee is not to be charged for any time spent searching for a 
record requested under subpart C if the records are not for commercial 
use and the requester is a representative of the news media, an 
educational institution whose purpose is scholarly research, or a non-
commercial scientific institution whose purpose is scientific research.
    (c) A fee is not be charged for duplication of the first 100 pages 
(standard paper, not larger than 8.5  x  14 inches) of records provided 
to any requester in response to a request under subpart C unless the 
records are requested for commercial use.
    (d) A fee is not to be charged to any requester under subpart C to 
determine whether a record is exempt from mandatory disclosure unless 
the record is requested for commercial use. A review charge may not be 
charged except with respect to an initial review to determine the 
applicability of a particular exemption to a particular record or 
portion of a record. A review charge may not be assessed for review at 
the administrative appeal level. When records or portions of records 
withheld in full under an exemption that is subsequently determined not 
to apply are reviewed again to determine the applicability of other 
exemptions not previously considered, this is considered an initial 
review for purposes of assessing a review charge.
    (e) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
disclosure of the information is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requester.
    (f) Factors to be considered by officials of the Department 
authorized to determine whether a waiver or reduction of fees will be 
granted include:
    (1) Whether the subject matter of the requested records concerns 
the operations or activities of the Federal government;
    (2) Whether the disclosure is likely to contribute to an 
understanding of Federal government operations or activities;

[[Page 19523]]

    (3) Whether disclosure of the requested information will contribute 
to the understanding of the public at large, as opposed to the 
individual understanding of the requester or a narrow segment of 
interested persons;
    (4) Whether the contribution to public understanding of Federal 
government operations or activities will be significant;
    (5) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and
    (6) Whether the magnitude of any identified commercial interest to 
the requester is sufficiently large in comparison with the public 
interest in disclosure that disclosure is primarily in the commercial 
interest of the requester.
    (g) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
the request concerns records related to the death of an immediate 
family member who was, at the time of death, an employee of the 
Department or a member of the Coast Guard.
    (h) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
the request is by the victim of a crime who seeks the record of the 
trial or court-martial at which the requestor testified.


Sec. 7.45  Transcripts.

    Transcripts of hearings or oral arguments are available for 
inspection. Where transcripts are prepared by a nongovernmental 
contractor, and the contract permits the Department to handle the 
reproduction of further copies, Sec. 7.43 applies. Where the contract 
permits the Department to handle the reproduction of further copies, 
Sec. 7.43 applies. Where the contract for transcription services 
reserves the sales privilege to the reporting service, any duplicate 
copies must be purchased directly from the reporting service.


Sec. 7.46  Alternative sources of information.

    In the interest of making documents of general interest publicly 
available at as low as cost as possible, alternative sources shall be 
arranged whenever possible. In appropriate instances, material that is 
published and offered for sale may be obtained from the Superintendent 
of Documents, U.S. Government Printing Office, Washington, DC 20402; 
U.S. Department of Commerce's National Technical Information Service 
(NTIS), Springfield, Virginia 22151; or National Audio-Visual Center, 
National Archives and Records Administration, Capital Heights, MD 
20743-3701.

    Issued in Washington, DC, on March 24, 1997.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 97-9786 Filed 4-21-97; 8:45 am]
BILLING CODE 4910-62-M