Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules 33075

1Notice of Proposed Rulemaking, FCC 96–254

(rel. Jun. 6, 1996); 61 FR 31481, June 20, 1996.

2As a national trade association of independent

pay telephone companies, APCC claims that the

comment process will require coordination with

member companies and allied state associations.

APCC claims that this process cannot be completed

effectively in the time allotted.

3See 47 CFR § 1.46(a).

SUPPLEMENTARY INFORMATION:

Order

Adopted: June 20, 1996; Released: June 20,

1996.

1. On June 14, 1996, the American

Public Communications Council

(‘‘APCC’’) filed a motion asking that we

extend the deadline for filing comments

in the above-captioned proceeding 1

from June 27, 1996, to July 1, 1996, a

period of four days. APCC also requests

a corresponding extension of the due

date for reply comments from July 8,

1996, to July 12, 1996. In support of its

motion, APCC states that virtually every

issue in the proceeding vitally affects its

members and that, as a result, additional

days are required to effectively prepare

comments.2 Also on June 14, 1996,

Southwestern Bell Telephone Company

(‘‘SWBT’’) filed a motion for an

extension of the deadline for reply

comments to July 12, 1996, although it

does not request a change in the

deadline for the initial comment cycle.

SWBT argues that due to the

forthcoming federal holiday, there will

not be a sufficient number of business

days for parties to respond adequately to

the initial comments.

2. It is the policy of the Commission

that extensions of time are not routinely

granted.3 However, in light of the

important issues presented in this

proceeding and the relatively short

period of time accorded to the parties to

comment on those issues, we believe

that the public interest would be served

by granting all parties a brief extension

of the deadlines for the comments and

reply comments. While we take this

action on our motion, we nevertheless

believe that this Order will grant relief

that is substantially similar to that

requested by APCC and SWBT.

3. Accordingly, it is ordered, pursuant

to Sections 4(i), 4(j), and 5(c) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 154(j), and

155(c), and the authority delegated

thereunder pursuant to Sections 0.91

and 0.291 of the Commission’s rules, 47

CFR §§ 0.91 and 0.291, that the deadline

for filing comments in the abovecaptioned proceeding is extended to

July 1, 1996, and the deadline for filing

reply comments is extended to July 15,

1996. Because they concern issues that

are now moot, the motions of APCC and

SWBT for an extension of time are

dismissed.

Federal Communications Commission.

Robert W. Spangler

Deputy Chief (Policy), Enforcement Division,

Common Carrier Bureau.

[FR Doc. 96–16396 Filed 6–25–96; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

[Docket No. OST–96–1430; Notice 96–17]

RIN 2105–AC58

Public Availability of Information

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: Department of Transportation

proposes to revise 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: Comments are due August 26,

1996.

ADDRESSES: Comments should be

addressed to Documentary Services

Division, Attention: Docket Section,

Room PL401, Docket No. OST–96–1430,

Department of Transportation, C–55,

Washington, DC 20590. Any person

wishing acknowledgment that his/her

comments have been received should

include a self-addressed stamped

postcard. Comments received will be

available for public inspection and

copying in the Documentary Services

Division, Room PL401, Department of

Transportation Building, 400 Seventh

Street, SW, Washington, DC, from 10:00

AM to 5:00 PM ET Monday through

Friday except Federal holidays.

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

have reviewed part 7 and are proposing

to revise this section to update and

streamline information on public

availability of information. We propose

to reorganize 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 propose to delete the

Appendices that set forth redundant

information concerning document

inspection facilities. We propose to

replace 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.

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. Moreover, I certify that

this proposal will not have a significant

economic impact on a substantial

number of small entities.

This proposal 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 proposal 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

proposes to revise 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.
33076 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules

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—Procedures 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

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,

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 element of the Department

and includes the Commandant of the

Coast Guard 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 elements:

(1) United States Coast Guard.

(2) Federal Aviation Administration.

(3) Federal Highway Administration.

(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.

(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 section 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

elements and the established places at

which, the officers 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; and

(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
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules 33077

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 element 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 or an operating element, 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.

§ 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):

(a) Docket Units located at 400 7th

Street, S.W., Washington, D.C. 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) Federal Railroad Administration,

Room 8209, Hours 9:30–4:00

(4) National Highway Traffic Safety

Administration, Room 5111, Hours

9:30–4:00.

(5) Federal Transit Administration,

Room 9316A, Hours 8:30–5:00.

(6) Maritime Administration, Room

7210, Hours 8:30–5:00.

(7) Research and Special Programs

Administration, Room 8421, Hours

8:30–5:00.

(b) Federal Aviation Administration,

800 Independence Avenue, S.W.,

Washington, D. C. 20591:

(1) Rules Dockets Room 915–G, Hours

8:30–5:00.

(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,

S.W., Washington, D. C. 20593–0001.

(d) Operating elements 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.

(e) Additional information on the

location and hours of operations for

Department Docket Offices can be

obtained through the Office of the

Secretary Docket Unit, mentioned

above, 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 the Inspector

General.

(b) to the Inspector General for

records of the Office of the Inspector

General.

(c) to the Administrator of each

operating element, who may redelegate

to officers of that element the authority

to administer this part in connection

with defined groups of records.

However, each Administrator may

redelegate 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

element.

§ 7.13 Records Available.

(a) Policy. It is the policy of the

Department of Transportation to make
33078 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules

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 statutory disclosure

requirement are matters that are:

(1)(i) Specifically authorized under

criteria established by Executive Order

to be kept 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 information 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 or 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,

(vi) Could reasonably be expected to

disclose the identity 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

the use of an agency responsible for the

regulation or supervision of financial

institutions; or

(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 requirements 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 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.

(iii) Requesters are advised that the

time for responding to requests set forth

in subpart E may be delayed—

(A) If a requester has not sufficiently

identified the fee category applicable to

the request,

(B) If a requester has not stated a

willingness to pay fees as high as

anticipated by the Department, or

(C) 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 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
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules 33079

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 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 element

where the records are located:

(a) FOIA Offices at 400 7th Street,

S.W., Washington, D.C. 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) St. Lawrence Seaway Development

Corporation, Room 5424

(9) Bureau of Transportation

Statistics, Room 2104

(10) Office of the Inspector General,

Room 9210

(b) Federal Aviation Administration,

800 Independence Avenue, S.W., Room

906A, Washington, D. C. 20591.

(c) United States Coast Guard, 2100

2nd Street, S.W., Room 6418,

Washington, D. C. 20593–0001.

(d) Operating elements 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 above.

(e) 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.

(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 or the

responsible operating element, 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 or the

responsible operating element,

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
33080 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules

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 element 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. 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 element 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 element 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 element concerned, or

the General Counsel or 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 element concerned, or the

General Counsel or 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 element 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 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 Determination.

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

subparagraph, ‘‘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;

or

(c) The need for consultation, which

will be conducted with all practicable

speed, with any other agency or 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
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules 33081

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 element 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

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 below. 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, 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 actual 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

above standard fee schedule 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 element seal (where

authorized)—$4.00; or true copy,

without seal—$2.00
33082 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Proposed Rules

§ 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 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 to 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;

(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.

§ 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 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 a 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 May 31,

1996.

Federico Pe ̃na,

Secretary of Transportation.

[FR Doc. 96–16248 Filed 6–25–96; 8:45 am]

BILLING CODE 4910–62–P

DEPARTMENT OF THE INTERIOR

50 CFR Part 17

Endangered and Threatened Wildlife

and Plants; Notice of Public Hearing

and Reopening of Comment Period on

Proposed Threatened and Endangered

Status for Five Plants and a Lizard

From Monterey County, California

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed Rule; notice of public

hearing and reopening of comment

period.

SUMMARY: The Fish and Wildlife Service

(Service), pursuant to the Endangered

Species Act of 1973, as amended (Act),

provides notice of a public hearing on

the proposed endangered status for

coastal dunes milkvetch (Astragalus

tener var. titi), Yadon’s piperia (Piperia

yadonii), Hickman’s potentilla

(Potentilla hickmanii), Monterey clover

(Trifolium trichocalyx) and the black

legless lizard (Anniella pulchra nigra);

and threatened status for Gowen cypress

(Cupressus goveniana ssp. goveniana).

In addition, the Service has reopened

the comment period. All parties are

invited to submit comments on this

proposal.

DATES: The public hearing will be held

from 6 p.m. to 8 p.m. on Wednesday,

July 17, 1996, in Monterey, California.

The public comment period now closes

August 30, 1996. Any comments

received by the closing date will be

considered in the final decision on this

proposal.

ADDRESSES: The public hearing will be

held at the Hyatt Regency Hotel, One

Golf Course Road, Monterey, California.

Written comments and materials

concerning this proposal may be

submitted at the hearing or sent directly

to the Field Supervisor, Ventura Field

Office, 2493 Portola Road, Suite B,

Ventura, California 93003. Comments

and materials will be available for

public inspection, by appointment,

during normal business hours at the

above address.

FOR FURTHER INFORMATION CONTACT:

Connie Rutherford (see ADDRESSES

section) or at 805/644–1766.

SUPPLEMENTARY INFORMATION:

Background

Most of the habitat for the plants and

lizard is found in coastal habitats in

northern Monterey County. Coastal

dunes milk-vetch and Monterey clover

are restricted to private lands on the

Monterey Peninsula. Hickman’s

potentilla is restricted to two

populations: one on the Monterey