Revision of the Freedom of Information Act Regulations of the National Railroad Passenger Corporation, 9682-9689 [2017-00950]
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9682
Federal Register / Vol. 82, No. 25 / Wednesday, February 8, 2017 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
DEPARTMENT OF DEFENSE
40 CFR Part 1700
[EPA–HQ–OW–2013–0469; FRL–9959–30–
OW]
Uniform National Discharge Standards
for Vessels of the Armed Forces—
Phase II Batch One: Delay of Effective
Date
Environmental Protection
Agency (EPA) and Department of
Defense (DOD).
ACTION: Final rule; delay of effective
date.
AGENCY:
In accordance with the
Presidential directive as expressed in
the memorandum of January 20, 2017,
from the Assistant to the President and
Chief of Staff, entitled ‘‘Regulatory
Freeze Pending Review,’’ this action
temporarily delays until March 21,
2017, the effective date of the rule
entitled Uniform National Discharge
Standards for Vessels of the Armed
Forces—Phase II Batch One, published
in the Federal Register on January 11,
2017.
DATES: This final rule is effective
February 8, 2017. The effective date of
the regulation titled Uniform National
Discharge Standards for Vessels of the
Armed Forces—Phase II Batch One,
published in the Federal Register on
January 11, 2017, at 82 FR 3173, is
delayed from February 10, 2017 to a
new effective date of March 21, 2017.
FOR FURTHER INFORMATION CONTACT:
Katherine B. Weiler, Marine Pollution
Control Branch (4504T), U.S. EPA, 1200
Pennsylvania Avenue NW., Washington,
DC 20460; (202) 566–1280;
weiler.katherine@epa.gov, or Mike
Pletke, Chief of Naval Operations (N45),
2000 Navy Pentagon (Rm. 2D253),
Washington, DC 20350–2000; (703) 695–
5184; mike.pletke@navy.mil.
SUPPLEMENTARY INFORMATION:
Environmental Protection Agency (EPA)
and Department of Defense (DOD) base
this action on the Presidential directive
as expressed in the memorandum of
January 20, 2017, from the Assistant to
the President and Chief of Staff, entitled
‘‘Regulatory Freeze Pending Review.’’
That memorandum directed the heads
of Executive Departments and Agencies
to temporarily postpone for sixty days
from the date of the memorandum the
effective dates of all regulations that had
been published in the Federal Register
but had not yet taken effect. The rule
entitled Uniform National Discharge
jstallworth on DSK7TPTVN1PROD with RULES
SUMMARY:
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Standards for Vessels of the Armed
Forces—Phase II Batch One is subject to
the effective date delay. The new
effective date for the regulation is March
21, 2017.
The EPA’s and DOD’s implementation
of this action without opportunity for
public comment is based on the good
cause exceptions in 5 U.S.C. 553(b)(B)
and 553(d)(3), in that seeking public
comment is impracticable, unnecessary
and contrary to the public interest. The
temporary delay in effective date until
March 21, 2017, is necessary to give the
EPA and DOD officials the opportunity
for further review and consideration of
new regulation, consistent with the
memorandum of the Assistant to the
President and Chief of Staff, dated
January 20, 2017. Given the imminence
of the effective date, seeking prior
public comment on this temporary
delay would have been impractical, as
well as contrary to the public interest in
the orderly promulgation and
implementation of regulations.
By focusing the two agencies’
attention on the substance of the
regulation rather than soliciting
comment on a decision to delay their
effective date until March 21, 2017, the
EPA and DOD can minimize or obviate
the need for further temporary delays
beyond March 21, 2017.
For the foregoing reasons, the good
cause exceptions in 5 U.S.C. 553(b)(B)
and 553(d)(3) also apply to the EPA’s
and DOD’s decisions to make this action
effectively immediately.
If deemed appropriate, the EPA and
DOD may consider delaying the
effective date of this regulation beyond
March 21, 2017. If the EPA and DOD
were to do so, consistent with the
memorandum of the Assistant to the
President and Chief of Staff, the two
agencies would propose any later
effective date for public comment.
Dated: January 27, 2017.
Catherine McCabe,
Acting Administrator.
Dated: January 27, 2017.
Steven R. Iselin,
Acting Assistant Secretary of the Navy
(Energy, Installations, and Environment).
[FR Doc. 2017–02594 Filed 2–7–17; 8:45 am]
BILLING CODE 6560–50–P
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NATIONAL RAILROAD PASSENGER
CORPORATION
49 CFR Part 701
Revision of the Freedom of Information
Act Regulations of the National
Railroad Passenger Corporation
National Railroad Passenger
Corporation.
ACTION: Final rule.
AGENCY:
This final rule sets forth
revisions of the Freedom of Information
Act (FOIA) regulations of the National
Railroad Passenger Corporation
(‘‘Amtrak’’). Amtrak is revising its FOIA
regulations to incorporate the changes
brought about by the FOIA
Improvement Act of 2016 and to update,
clarify, and streamline the language of
its regulations to make the FOIA process
easier for the public to navigate.
DATES: This final rule is effective March
10, 2017.
FOR FURTHER INFORMATION CONTACT:
Sharron H. Hawkins, Lead FOIA
Specialist, 202–906–3741 or
foiarequests@amtrak.com.
SUPPLEMENTARY INFORMATION: Amtrak’s
FOIA regulations were last revised on
February 13, 1998. Since that time, there
have been several major changes to the
FOIA, including the FOIA Improvement
Act of 2016 (Pub. L. 114–185), which
requires all agencies to review and
update their FOIA regulations in
accordance with its provisions. The Act
contains several substantive and
procedural amendments to the FOIA,
which include requirements that
agencies establish a minimum of 90
days for requesters to file an
administrative appeal and that they
provide dispute resolution services at
various times throughout the FOIA
process.
Based on the amendments to the
FOIA, developments in the case law,
and the practical experience of its FOIA
staff, Amtrak issued a proposed rule on
November 23, 2016 to amend its FOIA
regulations. See 81 FR 84531. Amtrak
accepted comments on the proposed
rule through December 23, 2016.
Amtrak received several comments in
response to its proposed rule. Amtrak
has given due consideration to the
comments it has received and has made
a few modifications to its rule. The
majority of these changes was stylistic
and involved clarifying, reorganizing, or
revising provisions. Some of the
substantive changes included: Revision
of section 701.5(c)(2) so that a revised
request will not be treated as a new
request; removal of ‘‘staff’’ in section
701.5 (e); reformulation of section 701.6;
SUMMARY:
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addition of the ‘‘exceptional
circumstances’’ exception to section
701.7(e); and modification of Amtrak’s
definition of ‘‘representative of the news
media’’ in section 701.11(c)(2).
Comments that called for Amtrak to
incorporate standards and clarifications
arising under current case law were
considered but were not ultimately
incorporated because Amtrak already
adheres to developments in case law
without relying on additional regulatory
text. Other comments suggesting minor
changes were not adopted because the
practical experience of Amtrak’s FOIA
staff advised against adoption.
List of Subjects in 49 CFR Part 701
Freedom of Information.
For the reasons stated in the preamble,
Amtrak revises 49 CFR part 701 to read
as follows:
■
Part 701—AMTRAK FREEDOM OF
INFORMATION ACT PROGRAM
Sec.
701.1
701.2
701.3
701.4
701.5
701.6
701.7
701.8
701.9
701.10
701.11
701.12
General provisions.
Definitions.
Policy.
Amtrak public information.
Requirements for making requests.
Release and processing procedures.
Timing of responses to requests.
Responses to requests.
Business information.
Appeals.
Fees.
Other rights and services.
Authority: 5 U.S.C. 552; 49 U.S.C.
24301(e).
§ 701.1
General provisions.
This part contains the rules that the
National Railroad Passenger Corporation
(‘‘Amtrak’’) follows in processing
requests for records under the Freedom
of Information Act (FOIA), Title 5 of the
United States Code, section 552.
Information routinely provided to the
public (i.e., train timetables, press
releases) may be obtained at Amtrak’s
Web site www.amtrak.com without
following Amtrak’s FOIA procedures.
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§ 701.2
Definitions.
Unless the context requires otherwise
in this part, masculine pronouns
include the feminine gender and
‘‘includes’’ means ‘‘includes but is not
limited to.’’
Amtrak or Corporation means the
National Railroad Passenger
Corporation.
Appeal means a request submitted to
the President of Amtrak or designee for
review of an adverse initial
determination.
Business days means working days;
Saturdays, Sundays, and legal public
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holidays are excluded in computing
response time for processing FOIA
requests.
Disclose or disclosure means making
records available for examination or
copying, or furnishing a copy of
nonexempt responsive records.
Electronic data means records and
information (including email) that are
created, stored, and retrievable by
electronic means.
Exempt information means
information that is exempt from
disclosure as permitted by 5 U.S.C. 552.
Final determination means a decision
by the President of Amtrak or designee
concerning a request for review of an
adverse initial determination received
in response to an FOIA request.
FOIA Officer means the Amtrak
official designated to fulfill the
responsibilities of implementing and
administering the Freedom of
Information Act as specifically
designated under this part.
Freedom of Information Act or
‘‘FOIA’’ means the statute as codified in
section 552 of Title 5 of the United
States Code as amended.
Initial determination means a
decision by the Amtrak FOIA Officer in
response to a request for information
under the FOIA.
Pages means paper copies of standard
office size or the cost equivalent in other
media.
President means the President and
Chief Executive Officer (CEO) of the
National Railroad Passenger Corporation
(Amtrak) or designee.
Record means any writing, drawing,
map, recording, tape, film, photograph,
or other documentary material by which
information is preserved in any format,
including electronic format. A record
must exist and be in the possession and
control of Amtrak at the time of the
request to be subject to this part and the
FOIA. The following are not included
within the definition of the word
‘‘record’’:
(1) Library materials compiled for
reference purposes or objects of
substantial intrinsic value.
(2) Routing and transmittal sheets,
notes, and filing notes which do not also
include information, comments, or
statements of substance.
(3) Anything that is not a tangible or
documentary record such as an
individual’s memory or oral
communication.
(4) Objects or articles, whatever their
historical or value as evidence.
Request means any request for records
made pursuant to 5 U.S.C. 552.
Requester or requesting party means
any person who has submitted a request
to Amtrak.
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Responsive records means documents
or electronic records determined to be
within the scope of a FOIA request.
§ 701.3
Policy.
(a) Amtrak will make records of the
Corporation available to the public to
the greatest practicable extent in
keeping with the spirit of the law.
Therefore, records of the Corporation
are available electronically, which can
be accessed at the Amtrak FOIA Web
site https://www.amtrak.com/foia and
www.amtrak.com, as provided in this
part with the exception of those that the
Corporation specifically determines
should not be disclosed either in the
public interest, for the protection of
private rights, or for the efficient
conduct of public or corporate business,
but only to the extent withholding is
permitted by law.
(b) A record of the Corporation, or
parts thereof, may be withheld from
disclosure if the Corporation reasonably
foresees that disclosure would harm an
interest protected by a FOIA exemption
or when disclosure is prohibited by law.
Disclosure to a properly constituted
advisory committee, to Congress, or to
Federal agencies does not waive the
exemption.
(c) In the event full disclosure of a
requested record is not possible, any
reasonably segregable portion of the
record will be made available to the
requesting person after deletion of the
exempt portions. The entire record may
be withheld if a determination is made
that nonexempt material is so
inextricably intertwined that disclosure
would leave only essentially
meaningless words or phrases, or when
it can be reasonably assumed that a
skillful and knowledgeable person
could reconstruct the deleted
information.
(d) The procedures in this part apply
only to records in existence at the time
of a request. The Corporation has no
obligation to create a record solely for
the purpose of making it available under
the FOIA or to provide a record that will
be created in the future.
(e) Each officer and employee of the
Corporation dealing with FOIA requests
is directed to cooperate in making
records available for disclosure under
the Act in a prompt manner consistent
with this part.
(f) The FOIA time limits will not
begin to run until a request has been
identified as being made under the Act
and deemed received by the FOIA
Office.
(g) Generally, when a member of the
public complies with the procedures
established in this part for obtaining
records under the FOIA, the request
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shall receive prompt attention, and a
response shall be made within twenty
business days.
§ 701.4
Amtrak public information.
(a) Amtrak FOIA Web site. Amtrak
will make available electronically
records created by the Corporation that
are required under the FOIA to be made
available for public inspection which
can be accessed at the Amtrak FOIA
Web site https://www.amtrak.com/foia
and www.amtrak.com.
(b) Frequently requested information.
The FOIA requires that copies of
records, regardless of form or format,
that have been released pursuant to a
FOIA request under 5 U.S.C. 552(a)(3)
be made publicly available in an
electronic format if because of the
nature of their subject matter they have
become or are likely to become the
subject of subsequent requests for
substantially the same records or they
have been requested three or more
times.
(1) Amtrak shall decide on a case-bycase basis whether records fall into the
first category of ‘‘frequently requested
FOIA records’’ based on the following
factors:
(i) Previous experience with similar
records;
(ii) The nature and type of
information contained in the records;
(iii) The identity and number of
requesters and whether there is
widespread media or commercial
interest in the records.
(c) Guide for making requests. A guide
on how to use the FOIA for requesting
records from Amtrak shall be made
available to the public upon request.
Amtrak’s major information systems
will be described in the guide.
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§ 701.5
Requirements for making requests.
(a) General requirements. (1) A FOIA
request can be made by ‘‘any person’’ as
defined in 5 U.S.C. 551(2), which
encompasses individuals (including
foreign citizens; partnerships;
corporations; associations; and local,
state, tribal, and foreign governments).
A FOIA request may not be made by a
Federal agency.
(2) A request must be in writing,
indicate that it is being made under the
FOIA, and provide an adequate
description of the records sought. The
request should also include applicable
information regarding fees as specified
in paragraphs (d) and (e) of this section.
(b) How to submit a request. (1) The
request letter and envelope should be
marked prominently that it is a Freedom
of Information Act or ‘‘FOIA’’ request to
ensure that it is properly routed.
(2) The request must be addressed to
the Freedom of Information Office;
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National Railroad Passenger
Corporation; 60 Massachusetts Avenue
NE., Washington, DC 20002. Requests
will also be accepted by facsimile at
(202) 906–2004 or via email at
foiarequests@amtrak.com. Amtrak
cannot assure that a timely or
satisfactory response under this part
will be given to written requests
addressed to Amtrak offices, officers, or
employees other than the FOIA Office.
Amtrak employees receiving a
communication in the nature of a FOIA
request shall forward it to the FOIA
Office expeditiously. Amtrak shall
advise the requesting party of the date
that an improperly addressed request is
received by the FOIA Office.
(c) Content of the request—(1)
Description of records. Identification of
records sought under the FOIA is the
responsibility of the requester. The
records sought should be described in
sufficient detail so that Amtrak
personnel can locate them with a
reasonable amount of effort. When
possible, the request should include
specific information such as dates, title
or name, author, recipient, subject
matter of the record, file designation or
number, or other pertinent details for
each record or category of records
sought. Requesters may contact
Amtrak’s FOIA Public Liaison to discuss
the records they seek and to receive
assistance in describing the records.
(2) Reformulation of a request.
Amtrak is not obligated to act on a
request until the requester provides
sufficient information to locate the
record. Amtrak may offer assistance in
identifying records and reformulating a
request where: The description is
considered insufficient, the production
of voluminous records is required, or a
considerable number of work hours
would be required that would interfere
with the business of the Corporation.
The FOIA Office shall notify the
requester within ten business days of
the type of information that will
facilitate the search. The requesting
party shall be given an opportunity to
supply additional information and may
submit a revised request. Requesters
may contact Amtrak’s FOIA Public
Liaison to receive assistance in
reformulating or modifying their
request.
(d) Payment of fees. The submission
of a FOIA request constitutes an
agreement to pay applicable fees
accessed up to $25.00 unless the
requesting party specifies a willingness
to pay a greater or lesser amount or
seeks a fee waiver or reduction in fees.
(1) Fees in excess of $25.00. When
Amtrak determines or estimates that
applicable fees are likely to exceed
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$25.00, the requesting party shall be
notified of estimated or actual fees,
unless a commitment has been made in
advance to pay all fees. If only a portion
of the fee can be estimated readily,
Amtrak shall advise the requester that
the estimated fee may be a portion of the
total fee.
(i) In order to protect requesters from
large and/or unexpected fees, Amtrak
will request a specific commitment
when it estimates or determines that
fees will exceed $100.00.
(ii) A request shall not be considered
received and further processing shall
not be carried out until the requesting
party agrees to pay the anticipated total
fee. Any such agreement must be
memorialized in writing. A notice under
this paragraph will offer the requesting
party an opportunity to discuss the
matter in order to reformulate the
request to meet the requester’s needs at
a lower cost.
(iii) Amtrak will hold in abeyance for
a reasonable amount of time requests
requiring agreement to pay fees and will
thereafter deem the request closed. This
action will not prevent the requesting
party from refiling the FOIA request
with a fee commitment at a subsequent
date.
(2) Fees in excess of $250. When
Amtrak estimates or determines that
allowable charges are likely to exceed
$250, an advance deposit of the entire
fee may be required before continuing to
process the request.
(e) Information regarding fee category.
In order to determine the appropriate
fee category, a request should indicate
whether the information sought is
intended for commercial use or whether
the requesting party is a member of an
educational or noncommercial scientific
institution or a representative of the
news media.
(f) Records concerning other
individuals. If the request is for records
concerning another individual, either of
the following may be required in order
to process the request:
(1) A notarized written authorization
signed by that individual permitting
disclosure of those records to the
requesting party, together with a copy of
a photo ID of that individual; or
(2) Proof that the individual is
deceased (i.e., a copy of a death
certificate or an obituary). A form of
identification from the requesting party
may also be required. Such records are
also subject to any applicable FOIA
exemptions.
§ 701.6 Release and processing
procedures.
(a) General provisions. In determining
records that are responsive to a request,
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Amtrak will ordinarily include only
records that exist and are in the
possession and control of the
Corporation as of the date that the
search is begun. If any other date is
used, the requesting party will be
informed of that date.
(b) Authority to grant or deny
requests. Amtrak’s FOIA Officer is
authorized to grant or deny any request
for records.
(c) Notice of referral. If Amtrak refers
all or any part of the responsibility for
responding to a request to another
organization, the requesting party will
be notified. A referral shall not be
considered a denial of access within the
meaning of this part. All consultations
and referrals of requests will be handled
according to the date that the FOIA
request was initially received.
(d) Creating a record. There is no
obligation on the part of Amtrak to
create a record to satisfy a FOIA request.
Amtrak may create a new record in its
sole discretion, however, when doing so
would result in a more useful response
to the requesting party or would be less
burdensome to Amtrak than providing
existing records. The cost of creating
such a record may not be charged to the
requester unless the fee for creating the
record is equal to or less than the fee
that would be charged for providing the
existing record.
(e) Incomplete records. If the records
requested are not complete at the time
of a request, Amtrak may, at its
discretion, inform the requester that
complete nonexempt records will be
provided when available without having
to submit an additional request.
(f) Electronic records. Amtrak is not
obligated to process a request for
electronic records where creation of a
record, programming, or a particular
format would result in a significant
expenditure of resources or interfere
with the corporation’s operations.
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§ 701.7
Timing of responses to requests.
(a) General. (1) The time limits
prescribed in the FOIA will begin only
after the requirements for submitting a
request as established in § 701.5 have
been met, and the request is deemed
received by the FOIA Office.
(2) A request for records shall be
considered to have been received on the
later of the following dates:
(i) The requester has agreed in writing
to pay applicable fees in accordance
with § 701.5(d); or
(ii) The fees have been waived in
accordance with § 701.11(k); or
(iii) Payment in advance has been
received from the requester when
required in accordance with § 701.11(i).
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(3) The time for responding to
requests set forth in paragraph (b) of this
section may be delayed if:
(i) The request does not sufficiently
identify the fee category applicable to
the request;
(ii) The request does not state a
willingness to pay all fees;
(iii) A request seeking a fee waiver
does not address the criteria for fee
waivers set forth in § 701.11(k);
(iv) A fee waiver request is denied,
and the request does not include an
alternative statement indicating that the
requesting party is willing to pay all
fees.
(b) Initial determination. Whenever
possible, an initial determination to
release or deny a record shall be made
within twenty business days after
receipt of the request. In ‘‘unusual
circumstances’’ as described in
paragraph (d) of this section, the time
for an initial determination may be
extended for ten business days.
(c) Multitrack processing. (1) Amtrak
may use two or more processing tracks
by distinguishing between simple,
complex, and expedited requests based
on the amount of work and/or time
needed to process a request or the
number of pages involved.
(2) In general, when requests are
received, Amtrak’s FOIA Office will
review and categorize them for tracking
purposes. Requests within each track
will be processed according to date of
receipt.
(3) The FOIA Office may contact a
requester when a request does not
appear to qualify for fast track
processing to provide an opportunity to
limit the scope of the request and
qualify for a faster track. Such
notification shall be at the discretion of
the FOIA Office and will depend largely
on whether it is believed that a
narrowing of the request could place the
request on a faster track.
(d) Unusual circumstances. (1) The
requesting party shall be notified in
writing if the time limits for processing
a request cannot be met because of
unusual circumstances, and it will be
necessary to extend the time limits for
processing the request. The notification
shall set forth the unusual
circumstances for such extension and
shall include the date by which the
request can be expected to be
completed. Where the extension is for
more than ten business days, the
requesting party will be afforded an
opportunity to either modify the request
so that it may be processed within the
time limits or to arrange an alternative
time period for processing the initial
request or modified request. In such a
case, the requesting party has the right
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to seek assistance from Amtrak’s FOIA
Public Liaison and to seek dispute
resolution services from the Office of
Government Information Services
(OGIS).
(2) If Amtrak believes that multiple
requests submitted by a requester or by
a group of requesters acting in concert
constitute a single request that would
otherwise involve unusual
circumstances and the requests involve
clearly related matters, the requests may
be aggregated. Multiple requests
concerning unrelated matters may not
be aggregated.
(3) Unusual circumstances that may
justify delay include:
(i) The need to search for and collect
the requested records from other
facilities that are separate from Amtrak’s
headquarters offices.
(ii) The need to search for, collect,
and examine a voluminous amount of
separate and distinct records sought in
a single request.
(iii) The need for consultation, which
shall be conducted with all practicable
speed, with agencies having a
substantial interest in the determination
of the request, or among two or more
Amtrak components having a
substantial subject-matter interest in the
request.
(e) Exceptional circumstances. If a
court has determined that exceptional
circumstances exist, as defined by the
FOIA, a failure to comply with the time
limits shall be excused for the length of
time provided by the court order.
(f) Expedited processing. (1) Requests
and appeals may be taken out of order
and given expedited treatment
whenever it is determined that they
involve a compelling need, which
means:
(i) Circumstances in which the lack of
expedited treatment could reasonably be
expected to pose an imminent threat to
the life or physical safety of an
individual; and
(ii) An urgency to inform the public
about an actual or alleged Amtrak
activity, if made by a person primarily
engaged in disseminating information.
(2) A request for expedited processing
may be made at the time of the initial
request for records or at a later date.
(3) A requester seeking expedited
processing must submit a statement,
certified to be true and correct to the
best of that person’s knowledge and
belief, explaining in detail the basis for
requesting expedited processing. This
statement must accompany the request
in order to be considered and responded
to within the ten calendar days required
for decisions on expedited access.
(4) A requester who is not a full-time
member of the news media must
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establish that he is a person whose main
professional activity or occupation is
information dissemination, though it
need not be his sole occupation. A
requester must establish a particular
urgency to inform the public about the
Amtrak activity involved in the request.
(5) Within ten business days of receipt
of a request for expedited processing,
Amtrak shall determine whether to
grant such a request and notify the
requester of the decision. If a request for
expedited treatment is granted, the
request shall be given priority and shall
be processed as soon as practicable.
(6) Amtrak shall provide prompt
consideration of appeals of decisions
denying expedited processing.
jstallworth on DSK7TPTVN1PROD with RULES
§ 701.8
§ 701.9
Responses to requests.
(a) Granting of requests. When an
initial determination is made to grant a
request in whole or in part, the
requesting party shall be notified in
writing and advised of any fees charged
under § 701.11(e). The records shall be
disclosed to the requesting party
promptly upon payment of applicable
fees. The requesting party has the right
to seek assistance from Amtrak’s FOIA
Public Liaison.
(b) Adverse determination of
requests—(1) Types of denials. The
requesting party shall be notified in
writing of a determination to deny a
request in any respect. Adverse
determinations or denials of records
consist of:
(i) A determination to withhold any
requested record in whole or in part;
(ii) A determination that a requested
record does not exist or cannot be
located;
(iii) A denial of a request for
expedited treatment; and
(iv) A determination on any disputed
fee matter including a denial of a
request for a fee waiver.
(2) Deletions. Records disclosed in
part shall be marked clearly to show
both the amount of the information
deleted and the exemption under which
the deletion was made unless doing so
would harm an interest protected by an
applicable exemption. If technically
feasible, the amount of the information
deleted and the exemption under which
the deletion is made shall be indicated
at the place in the record where such
deletion is made.
(3) Content of denial letter. The denial
letter shall be signed by the FOIA
Officer or designee and shall include:
(i) A brief statement of the reason(s)
for the adverse determination including
any FOIA exemptions applied in
denying the request;
(ii) An estimate of the volume of
information withheld (number of pages
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or some other reasonable form of
estimation). An estimate does not need
to be provided if the volume is
indicated through deletions on records
disclosed in part, or if providing an
estimate would harm an interest
protected by an applicable exemption;
(iii) A statement that an appeal may
be filed under § 701.10 and a
description of the requirements of that
section and of the right of the requesting
party to seek dispute resolution services
from either Amtrak’s FOIA Public
Liaison or the Office of Government
Information Services (OGIS); and
(iv) The name and title or position of
the person responsible for the denial.
Business information.
(a) General. Business information
held by Amtrak will be disclosed under
the FOIA only under this section.
(b) Definitions. For purposes of this
section, the following definitions apply:
(1) Business information means
commercial or financial information
held by Amtrak that may be protected
from disclosure under Exemption 4 of
the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or
entity including partnerships;
corporations; associations; and local,
state, tribal, and foreign governments.
(c) Designation of business
information. A submitter of business
information will use good faith efforts to
designate, by appropriate markings,
either at the time of submission or at a
reasonable time thereafter, any portions
of its submission that it considers to be
protected from disclosure under
Exemption 4. These designations will
expire ten years after the date of the
submission unless the submitter
requests and provides justification for a
longer designation period.
(d) Notice to submitters. Amtrak shall
provide a submitter with prompt written
notice of an FOIA request or an appeal
that seeks its business information when
required under paragraph (e) of this
section, except as provided in paragraph
(h) of this section, in order to give the
submitter an opportunity to object to
disclosure of any specified portion of
the information under paragraph (f). The
notice shall either describe the business
information requested or include copies
of the requested records or portions of
records containing the information.
(e) When notice is required. Notice
shall be given to a submitter when:
(1) The information has been
designated in good faith by the
submitter as information considered
protected from disclosure under
Exemption 4; or
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(2) Amtrak has reason to believe that
the information may be protected from
disclosure under Exemption 4.
(f) Opportunity to object to disclosure.
Amtrak will allow a submitter a
reasonable amount of time, as
determined by Amtrak in its sole
discretion, to respond to the notice
described in paragraph (d) of this
section.
(1) A detailed written statement must
be submitted to Amtrak if the submitter
has any objection to disclosure. The
statement must specify all grounds for
withholding any specified portion of the
information sought under the FOIA. In
the case of Exemption 4, it must show
why the information is a trade secret or
commercial or financial information
that is privileged or confidential.
(2) Unless otherwise specified, in the
event that a submitter fails to respond
within the time specified in the notice,
the submitter may, in Amtrak’s
discretion, be considered to have no
objection to disclosure of the
information sought under the FOIA.
(3) Information provided by a
submitter in response to the notice may
be subject to disclosure under the FOIA.
(g) Notice of intent to disclose.
Amtrak shall consider a submitter’s
objections and specific grounds for
disclosure in making a determination
whether to disclose the information. In
any instance, when a decision is made
to disclose information over the
objection of a submitter, Amtrak shall
give the submitter written notice which
shall include:
(1) A statement of the reason(s) why
each of the submitter’s objections to
disclosure was not sustained;
(2) A description of the information to
be disclosed; and
(3) A specified disclosure date, which
shall be a reasonable time subsequent to
the notice as determined by Amtrak in
its sole discretion.
(h) Exceptions to notice requirements.
The notice requirements of this section
shall not apply if:
(1) Amtrak determines that the
information should not be disclosed;
(2) The information has been
published or has been officially made
available to the public;
(3) Disclosure of the information is
required by law (other than the FOIA);
(4) The designation made by the
submitter under paragraph (c) of this
section appears obviously frivolous. In
such a case, Amtrak shall, prior to a
specified disclosure date, give the
submitter written notice of the final
decision to disclose the information; or
(5) The information requested is not
designated by the submitter as exempt
from disclosure in accordance with this
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part, unless Amtrak has substantial
reason to believe that disclosure of the
information would result in competitive
harm.
(i) Notice of a FOIA lawsuit.
Whenever a FOIA requester files a
lawsuit seeking to compel disclosure of
business information, Amtrak shall
promptly notify the submitter.
(j) Notice to requesters. (1) When
Amtrak provides a submitter with notice
and an opportunity to object to
disclosure under paragraph (f) of this
section, the FOIA Office shall also
notify the requester(s).
(2) When Amtrak notifies a submitter
of its intent to disclose requested
information under paragraph (g) of this
section, Amtrak shall also notify the
requester(s).
(3) When a submitter files a lawsuit
seeking to prevent the disclosure of
business information, Amtrak shall
notify the requester(s).
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§ 701.10
Appeals.
(a) Appeals of adverse
determinations. (1) The requesting party
may appeal:
(i) A decision to withhold any
requested record in whole or in part;
(ii) A determination that a requested
record does not exist or cannot be
located;
(iii) A denial of a request for
expedited treatment; or
(iv) Any disputed fee matter or the
denial of a request for a fee waiver.
(2) The appeal must be addressed to
the President and Chief Executive
Officer, in care of the Chief Legal Officer
and General Counsel; National Railroad
Passenger Corporation; 60
Massachusetts Avenue NE.,
Washington, DC 20002.
(3) The appeal must be in writing and
specify the relevant facts and the basis
for the appeal. The appeal letter and
envelope should be marked prominently
that it is a Freedom of Information Act
or ‘‘FOIA’’ appeal to ensure that it is
properly routed.
(4) The appeal must be received by
the President’s Office within ninety
days of the date of denial.
(5) An appeal will not be acted upon
if the request becomes a matter of FOIA
litigation.
(b) Responses to appeals. The
decision on any appeal shall be made in
writing.
(1) A decision upholding an adverse
determination in whole or in part shall
contain a statement of the reason(s) for
such action, including any FOIA
exemption(s) applied. The requesting
party shall also be advised of the
provision for judicial review of the
decision contained in 5 U.S.C.
552(a)(4)(B).
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(2) Engaging in dispute resolution
services provided by OGIS. Mediation is
a voluntary process. If Amtrak agrees to
participate in the mediation services
provided by OGIS, it will actively
engage as a partner to the process in an
attempt to resolve the dispute.
(3) If the adverse determination is
reversed or modified on appeal in whole
or in part, the requesting party shall be
notified, and the request shall be
reprocessed in accordance with the
decision.
(c) When appeal is required. The
requesting party generally must timely
appeal any adverse determination prior
to seeking judicial review.
§ 701.11
Fees.
(a) General. Amtrak shall charge for
processing requests under the FOIA in
accordance with this section. A fee of
$38 per hour shall be charged for search
and review. For information concerning
other processing fees, refer to paragraph
(e) of this section. Amtrak shall collect
all applicable fees before releasing
copies of requested records to the
requesting party. Payment of fees shall
be made by check or money order
payable to the National Railroad
Passenger Corporation.
(b) Definitions. For purposes of this
section:
(1) Direct costs means those expenses
actually incurred in searching for and
reproducing (and, in the case of
commercial use requests, reviewing)
records to respond to a FOIA request.
Direct costs include such costs as the
salary of the employee performing the
work (the basic rate of pay for the
employee plus applicable benefits and
the cost of operating reproduction
equipment). Direct costs do not include
overhead expenses such as the costs of
space and heating or lighting of the
facility.
(2) Reproduction means the making of
a copy of a record or the information
contained in it in order to respond to a
FOIA request. Copies can take the form
of paper, microform, audiovisual
materials, or electronic records (i.e.,
magnetic tape or disk) among others.
Amtrak shall honor a requester’s
specified preference for the form or
format of disclosure if the record is
readily reproducible with reasonable
effort in the requested form or format by
the office responding to the request.
(3) Review means the process of
examining a record located in response
to a request to determine whether one
or more of the statutory exemptions of
the FOIA apply. Processing any record
for disclosure includes doing all that is
necessary to redact the record and
prepare it for release. Review time
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includes time spent considering formal
objection to disclosure by a commercial
submitter under § 701.9 but does not
include time spent resolving general
legal or policy issues regarding the
application of exemptions. Review costs
are recoverable even if a record
ultimately is not disclosed.
(4) Search means the process of
looking for and retrieving records or
information responsive to a request. It
includes page-by-page or line-by-line
identification of information within
records and also includes reasonable
efforts to locate and retrieve information
from records maintained in electronic
form or format.
(c) Fee categories. There are four
categories of FOIA requesters for fee
purposes: ‘‘commercial use requesters,’’
‘‘representatives of the news media,’’
‘‘educational and non-commercial
scientific institution requesters,’’ and
‘‘all other requesters.’’ The categories
are defined in the following paragraphs
(c)(1) through (5), and applicable fees,
which are the same for two of the
categories, will be assessed as specified
in paragraph (d) of this section.
(1) Commercial requesters. The term
‘‘commercial use’’ request refers to a
request from or on behalf of a person
who seeks information for a use or
purpose that furthers his commercial,
trade, or profit interests, including
furthering those interests through
litigation. Amtrak shall determine,
whenever reasonably possible, the use
to which a requester will put the records
sought by the request. When it appears
that the requesting party will put the
records to a commercial use, either
because of the nature of the request
itself or because Amtrak has reasonable
cause to doubt the stated intended use,
Amtrak shall provide the requesting
party with an opportunity to submit
further clarification. Where a requester
does not explain the use or where
explanation is insufficient, Amtrak may
draw reasonable inferences from the
requester’s identity and charge
accordingly.
(2) Representative of the news media
or news media requester refers to any
person or entity that gathers information
of potential interest to a segment of the
public, uses its editorial skills to turn
the raw materials into a distinct work,
and distributes that work to an
audience. In this paragraph, the term
‘news’ means information that is about
current events or that would be of
current interest to the public. Examples
of news-media entities are television or
radio stations broadcasting to the public
at large and publishers of periodicals
(but only if such entities qualify as
disseminators of ‘news’) who make their
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products available for purchase by or
subscription by or free distribution to
the general public. These examples are
not all-inclusive. Moreover, as methods
of news delivery evolve (for example,
the adoption of the electronic
dissemination of newspapers through
telecommunications services), such
alternative media shall be considered to
be news-media entities. A freelance
journalist shall be regarded as working
for a news-media entity if the journalist
can demonstrate a solid basis for
expecting publication through that
entity, whether or not the journalist is
actually employed by the entity. A
publication contract would present a
solid basis for such an expectation, but
Amtrak may also consider the past
publication record of the requester in
making such a determination.
(3) Educational institution refers to a
preschool, a public or private
elementary or secondary school, an
institution of undergraduate higher
education, an institution of graduate
higher education, an institution of
professional education, or an institution
of vocational education that operates a
program of scholarly research. To be in
this category, a requester must show
that the request is authorized by and is
made under the auspices of a qualifying
institution and that the records are not
sought for commercial use but to further
scholarly research.
(4) Noncommercial scientific
institution refers to an institution that is
not operated on a ‘‘commercial’’ basis,
as that term is defined in paragraph
(c)(1) of this section, and that is
operated solely for the purpose of
conducting scientific research, the
results of which are not intended to
promote any particular product or
industry. To be in this category, the
requesting party must show that the
request is authorized by and is made
under the auspices of a qualifying
institution and that the records are not
sought for commercial use but to further
scientific research.
(5) Other requesters refers to
requesters who do not come under the
purview of paragraphs (c)(1) through (4)
of this section.
(d) Assessing fees. In responding to
FOIA requests, Amtrak shall charge the
following fees unless a waiver or a
reduction in fees has been granted
under paragraph (k) of this section:
(1) ‘‘Commercial use’’ requesters: The
full allowable direct costs for search,
review, and duplication of records.
(2) ‘‘Representatives of the news
media’’ and ‘‘educational and noncommercial scientific institution’’
requesters: Duplication charges only,
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excluding charges for the first 100
pages.
(3) ‘‘All other’’ requesters: The direct
costs of search and duplication of
records. The first 100 pages of
duplication and the first two hours of
search time shall be provided without
charge.
(e) Schedule of fees—(1) Manual
searches. Personnel search time
includes time expended in either
manual searches for paper records,
searches using indices, review of
computer search results for relevant
records, and personal computer system
searches.
(2) Computer searches. The direct
costs of conducting a computer search
will be charged. These direct costs will
include the cost of operating a central
processing unit for that portion of the
operating time that is directly
attributable to searching for responsive
records as well as the costs of operator/
programmer salary apportionable to the
search.
(3) Duplication fees. Duplication fees
will be charged all requesters subject to
limitations specified in paragraph (d) of
this section. Amtrak shall charge 25
cents per page for a paper photocopy of
a record. For copies produced by
computer (such as tapes or printouts),
Amtrak will charge the direct costs,
including the operator time in
producing the copy. For other forms of
duplication, Amtrak will charge the
direct costs of that duplication.
(4) Review fees. Review fees will be
assessed for commercial use requests.
Such fees will be assessed for review
conducted in making an initial
determination, or upon appeal, when
review is conducted to determine
whether an exemption not previously
considered is applicable.
(5) Charges for other services. The
actual cost or amount shall be charged
for all other types of output, production,
and duplication (e.g., photographs,
maps, or printed materials).
Determinations of actual cost shall
include the commercial cost of the
media, the personnel time expended in
making the item available for release,
and an allocated cost for the equipment
used in producing the item. The
requesting party will be charged actual
production costs when a commercial
service is required. Items published and
available through Amtrak will be made
available at the publication price.
(6) Charges for special services. Apart
from the other provisions of this section,
when Amtrak chooses as a matter of
discretion to provide a special service
such as sending records by other than
ordinary mail, the direct costs of
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providing such services shall be
charged.
(f) Commitment to pay fees. When
Amtrak determines or estimates that
applicable fees will likely exceed
$25.00, the requesting party will be
notified of the actual or estimated
amount unless a written statement has
been received indicating a willingness
to pay all fees. To protect requesters
from large and/or unexpected fees,
Amtrak will request a specific
commitment when it is estimated or
determined that fees will exceed
$100.00. See § 701.5(d) for additional
information.
(g) Restrictions in accessing fees—(1)
General. Fees for search and review will
not be charged for a quarter-hour period
unless more than half of that period is
required.
(2) Minimum fee. No fees will be
charged if the cost of collecting the fee
is equal to or greater than the fee itself.
That cost includes the costs to Amtrak
for billing, receiving, recording, and
processing the fee for deposit, which
has been deemed to be $10.00.
(3) Computer searches. With the
exception of requesters seeking
documents for commercial use, Amtrak
shall not charge fees for a computer
search until the cost of search equals the
equivalent dollar amount of two hours
of the salary of the operator performing
the search.
(4) Unusual circumstances. If Amtrak
has determined that unusual
circumstances (as defined in the FOIA)
apply and Amtrak has provided timely
written notice to the requester in
accordance with 5 U.S.C. 552(a)(6)(B),
Amtrak may assess search or
duplication fees, as applicable, for an
additional 10 days. If Amtrak fails to
comply with the extended time limit, no
search fees (or, in the case of requesters
described in paragraph (d)(2) of this
section, no duplication fees) may be
charged unless more than 5,000 pages
are necessary to respond to the request,
timely written notice has been sent out,
and Amtrak has discussed with the
requesting party via written mail, email,
or telephone (or made not less than
three good-faith attempts to do so) how
the requesting party could effectively
limit the scope of the request.
(h) Nonproductive searches. Amtrak
may charge for time spent for search and
review even if responsive records are
not located or if the records located are
determined to be entirely exempt from
disclosure.
(i) Advance payments. (1) When
Amtrak estimates or determines that
charges are likely to exceed $250, an
advance payment of the entire fee may
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be required before continuing to process
the request.
(2) Where a requester has previously
failed to pay a properly charged FOIA
fee within thirty (30) days of the date of
billing, Amtrak may require the full
amount due plus applicable interest and
an advance payment of the full amount
of anticipated fees before beginning to
process a new request or continuing to
process a pending request. The time
limits of the FOIA will begin only after
Amtrak has received such payment.
(3) Amtrak will hold in abeyance for
thirty days requests where deposits are
due.
(4) Monies owed for work already
completed (i.e., before copies are sent to
a requester) shall not be considered an
advance payment.
(5) Amtrak shall not deem a request
as being received in cases in which an
advance deposit or payment is due, and
further work will not be done until the
required payment is received.
(j) Charging interest. Amtrak may
charge interest on any unpaid bill for
processing charges starting on the 31st
day following the date of billing the
requester. Interest charges will be
assessed at the rate that Amtrak pays for
short-term borrowing.
(k) Waiver or reduction of fees—(1)
Automatic waiver of fees. When the
costs for a FOIA request total $10.00 or
less, fees shall be waived automatically
for all requesters regardless of category.
(2) Other fee waivers. Decisions to
waive or reduce fees that exceed the
automatic waiver threshold shall be
made on a case-by-case basis. Records
responsive to a request will be furnished
without charge or at below the
established charge where Amtrak
determines, based on all available
information, that disclosure of the
requested information is in the public
interest because:
(i) It is likely to contribute
significantly to public understanding of
the operations or activities of Amtrak,
and
(ii) It is not primarily in the
commercial interest of the requesting
party.
(3) To determine whether the fee
waiver requirement in paragraph
(k)(2)(i) of this section is met, Amtrak
will consider the following factors:
(i) The subject of the request—
whether the subject of the requested
records concerns the operations or
activities of Amtrak. The subject of the
requested records must concern
identifiable operations or activities of
Amtrak with a connection that is direct
and clear, not remote or attenuated.
(ii) The informative value of the
information to be disclosed—whether
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the disclosure is likely to contribute to
an understanding of Amtrak operations
or activities. The disclosable portions of
the requested records must be
meaningfully informative about
Amtrak’s operations or activities in
order to be found to be likely to
contribute to an increased public
understanding of those operations or
activities. The disclosure of information
that already is in the public domain, in
either a duplicative or a substantially
identical form, would not be as likely to
contribute to such understanding where
nothing new would be added to the
public’s understanding.
(iii) The contribution to an
understanding of the subject by the
public likely to result from disclosure—
whether disclosure of the requested
information will contribute to public
understanding. The disclosure must
contribute to the understanding of a
reasonably broad audience of persons
interested in the subject as opposed to
the individual understanding of the
requester. A requester’s ability and
expertise in the subject area as well as
the requester’s intention to effectively
convey information to the public shall
be considered. It shall be presumed that
a representative of the news media will
satisfy this consideration.
(iv) The significance of the
contribution to public understanding—
whether the disclosure is likely to
contribute significantly to public
understanding of Amtrak operations or
activities. The public’s understanding of
the subject in question, as compared to
the level of public understanding
existing prior to the disclosure, must be
enhanced by the disclosure to a
significant extent.
(4) To determine whether the fee
waiver requirement in paragraph
(k)(2)(ii) of this section is met, Amtrak
will consider the following factors:
(i) The existence and magnitude of a
commercial interest—whether the
requesting party has a commercial
interest that would be furthered by the
requested disclosure. Amtrak shall
consider any commercial interest of the
requesting party (with reference to the
definition of ‘‘commercial use’’ in
paragraph (c)(1) of this section) or any
person on whose behalf the requesting
party may be acting that would be
furthered by the requested disclosure.
Requesters shall be given an
opportunity to provide explanatory
information regarding this
consideration.
(ii) The primary interest in
disclosure—whether the magnitude of
the identified commercial interest of the
requester is sufficiently large in
comparison with the public interest in
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9689
disclosure, that disclosure is ‘‘primarily
in the commercial interest of the
requester.’’ A fee waiver or reduction is
justified where the public interest
standard is satisfied and public interest
is greater in magnitude than any
identified commercial interest in
disclosure.
(5) Requests for a fee waiver will be
considered on a case-by-case basis,
based upon the merits of the
information provided. Where it is
difficult to determine whether the
request is commercial in nature, Amtrak
may draw inference from the requester’s
identity and the circumstances of the
request.
(6) Requests for a waiver or reduction
of fees must address the factors listed in
paragraphs (k)(3) and (4) of this section.
In all cases, the burden shall be on the
requesting party to present evidence of
information in support of a request for
a waiver of fees.
(l) Aggregating requests. A requester
may not file multiple requests at the
same time in order to avoid payment of
fees. Where Amtrak reasonably believes
that a requester or a group of requesters
acting in concert is attempting to divide
a request into a series of requests for the
purpose of avoiding fees, Amtrak may
aggregate those requests and charge
accordingly. Amtrak may presume that
multiple requests of this type made
within a thirty-day period have been
made in order to avoid fees. Where
requests are separated by a longer
period, Amtrak may aggregate them only
when there exists a reasonable basis for
determining that aggregation is
warranted in view of all the
circumstances involved. Multiple
requests involving unrelated matters
may not be aggregated.
§ 701.12
Other rights and services.
Nothing in this part shall be
construed as entitling any person, as of
right, to any service or the disclosure of
any record to which such person is not
entitled under the FOIA.
Dated: January 11, 2017.
Eleanor D. Acheson,
Executive Vice President, Chief Legal Officer,
General Counsel & Corporate Secretary.
[FR Doc. 2017–00950 Filed 2–7–17; 8:45 am]
BILLING CODE 7531–01–P
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Agencies
- NATIONAL RAILROAD PASSENGER CORPORATION
[Federal Register Volume 82, Number 25 (Wednesday, February 8, 2017)]
[Rules and Regulations]
[Pages 9682-9689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00950]
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NATIONAL RAILROAD PASSENGER CORPORATION
49 CFR Part 701
Revision of the Freedom of Information Act Regulations of the
National Railroad Passenger Corporation
AGENCY: National Railroad Passenger Corporation.
ACTION: Final rule.
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SUMMARY: This final rule sets forth revisions of the Freedom of
Information Act (FOIA) regulations of the National Railroad Passenger
Corporation (``Amtrak''). Amtrak is revising its FOIA regulations to
incorporate the changes brought about by the FOIA Improvement Act of
2016 and to update, clarify, and streamline the language of its
regulations to make the FOIA process easier for the public to navigate.
DATES: This final rule is effective March 10, 2017.
FOR FURTHER INFORMATION CONTACT: Sharron H. Hawkins, Lead FOIA
Specialist, 202-906-3741 or foiarequests@amtrak.com.
SUPPLEMENTARY INFORMATION: Amtrak's FOIA regulations were last revised
on February 13, 1998. Since that time, there have been several major
changes to the FOIA, including the FOIA Improvement Act of 2016 (Pub.
L. 114-185), which requires all agencies to review and update their
FOIA regulations in accordance with its provisions. The Act contains
several substantive and procedural amendments to the FOIA, which
include requirements that agencies establish a minimum of 90 days for
requesters to file an administrative appeal and that they provide
dispute resolution services at various times throughout the FOIA
process.
Based on the amendments to the FOIA, developments in the case law,
and the practical experience of its FOIA staff, Amtrak issued a
proposed rule on November 23, 2016 to amend its FOIA regulations. See
81 FR 84531. Amtrak accepted comments on the proposed rule through
December 23, 2016. Amtrak received several comments in response to its
proposed rule. Amtrak has given due consideration to the comments it
has received and has made a few modifications to its rule. The majority
of these changes was stylistic and involved clarifying, reorganizing,
or revising provisions. Some of the substantive changes included:
Revision of section 701.5(c)(2) so that a revised request will not be
treated as a new request; removal of ``staff'' in section 701.5 (e);
reformulation of section 701.6;
[[Page 9683]]
addition of the ``exceptional circumstances'' exception to section
701.7(e); and modification of Amtrak's definition of ``representative
of the news media'' in section 701.11(c)(2). Comments that called for
Amtrak to incorporate standards and clarifications arising under
current case law were considered but were not ultimately incorporated
because Amtrak already adheres to developments in case law without
relying on additional regulatory text. Other comments suggesting minor
changes were not adopted because the practical experience of Amtrak's
FOIA staff advised against adoption.
List of Subjects in 49 CFR Part 701
Freedom of Information.
0
For the reasons stated in the preamble, Amtrak revises 49 CFR part 701
to read as follows:
Part 701--AMTRAK FREEDOM OF INFORMATION ACT PROGRAM
Sec.
701.1 General provisions.
701.2 Definitions.
701.3 Policy.
701.4 Amtrak public information.
701.5 Requirements for making requests.
701.6 Release and processing procedures.
701.7 Timing of responses to requests.
701.8 Responses to requests.
701.9 Business information.
701.10 Appeals.
701.11 Fees.
701.12 Other rights and services.
Authority: 5 U.S.C. 552; 49 U.S.C. 24301(e).
Sec. 701.1 General provisions.
This part contains the rules that the National Railroad Passenger
Corporation (``Amtrak'') follows in processing requests for records
under the Freedom of Information Act (FOIA), Title 5 of the United
States Code, section 552. Information routinely provided to the public
(i.e., train timetables, press releases) may be obtained at Amtrak's
Web site www.amtrak.com without following Amtrak's FOIA procedures.
Sec. 701.2 Definitions.
Unless the context requires otherwise in this part, masculine
pronouns include the feminine gender and ``includes'' means ``includes
but is not limited to.''
Amtrak or Corporation means the National Railroad Passenger
Corporation.
Appeal means a request submitted to the President of Amtrak or
designee for review of an adverse initial determination.
Business days means working days; Saturdays, Sundays, and legal
public holidays are excluded in computing response time for processing
FOIA requests.
Disclose or disclosure means making records available for
examination or copying, or furnishing a copy of nonexempt responsive
records.
Electronic data means records and information (including email)
that are created, stored, and retrievable by electronic means.
Exempt information means information that is exempt from disclosure
as permitted by 5 U.S.C. 552.
Final determination means a decision by the President of Amtrak or
designee concerning a request for review of an adverse initial
determination received in response to an FOIA request.
FOIA Officer means the Amtrak official designated to fulfill the
responsibilities of implementing and administering the Freedom of
Information Act as specifically designated under this part.
Freedom of Information Act or ``FOIA'' means the statute as
codified in section 552 of Title 5 of the United States Code as
amended.
Initial determination means a decision by the Amtrak FOIA Officer
in response to a request for information under the FOIA.
Pages means paper copies of standard office size or the cost
equivalent in other media.
President means the President and Chief Executive Officer (CEO) of
the National Railroad Passenger Corporation (Amtrak) or designee.
Record means any writing, drawing, map, recording, tape, film,
photograph, or other documentary material by which information is
preserved in any format, including electronic format. A record must
exist and be in the possession and control of Amtrak at the time of the
request to be subject to this part and the FOIA. The following are not
included within the definition of the word ``record'':
(1) Library materials compiled for reference purposes or objects of
substantial intrinsic value.
(2) Routing and transmittal sheets, notes, and filing notes which
do not also include information, comments, or statements of substance.
(3) Anything that is not a tangible or documentary record such as
an individual's memory or oral communication.
(4) Objects or articles, whatever their historical or value as
evidence.
Request means any request for records made pursuant to 5 U.S.C.
552.
Requester or requesting party means any person who has submitted a
request to Amtrak.
Responsive records means documents or electronic records determined
to be within the scope of a FOIA request.
Sec. 701.3 Policy.
(a) Amtrak will make records of the Corporation available to the
public to the greatest practicable extent in keeping with the spirit of
the law. Therefore, records of the Corporation are available
electronically, which can be accessed at the Amtrak FOIA Web site
https://www.amtrak.com/foia and www.amtrak.com, as provided in this part
with the exception of those that the Corporation specifically
determines should not be disclosed either in the public interest, for
the protection of private rights, or for the efficient conduct of
public or corporate business, but only to the extent withholding is
permitted by law.
(b) A record of the Corporation, or parts thereof, may be withheld
from disclosure if the Corporation reasonably foresees that disclosure
would harm an interest protected by a FOIA exemption or when disclosure
is prohibited by law. Disclosure to a properly constituted advisory
committee, to Congress, or to Federal agencies does not waive the
exemption.
(c) In the event full disclosure of a requested record is not
possible, any reasonably segregable portion of the record will be made
available to the requesting person after deletion of the exempt
portions. The entire record may be withheld if a determination is made
that nonexempt material is so inextricably intertwined that disclosure
would leave only essentially meaningless words or phrases, or when it
can be reasonably assumed that a skillful and knowledgeable person
could reconstruct the deleted information.
(d) The procedures in this part apply only to records in existence
at the time of a request. The Corporation has no obligation to create a
record solely for the purpose of making it available under the FOIA or
to provide a record that will be created in the future.
(e) Each officer and employee of the Corporation dealing with FOIA
requests is directed to cooperate in making records available for
disclosure under the Act in a prompt manner consistent with this part.
(f) The FOIA time limits will not begin to run until a request has
been identified as being made under the Act and deemed received by the
FOIA Office.
(g) Generally, when a member of the public complies with the
procedures established in this part for obtaining records under the
FOIA, the request
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shall receive prompt attention, and a response shall be made within
twenty business days.
Sec. 701.4 Amtrak public information.
(a) Amtrak FOIA Web site. Amtrak will make available electronically
records created by the Corporation that are required under the FOIA to
be made available for public inspection which can be accessed at the
Amtrak FOIA Web site https://www.amtrak.com/foia and www.amtrak.com.
(b) Frequently requested information. The FOIA requires that copies
of records, regardless of form or format, that have been released
pursuant to a FOIA request under 5 U.S.C. 552(a)(3) be made publicly
available in an electronic format if because of the nature of their
subject matter they have become or are likely to become the subject of
subsequent requests for substantially the same records or they have
been requested three or more times.
(1) Amtrak shall decide on a case-by-case basis whether records
fall into the first category of ``frequently requested FOIA records''
based on the following factors:
(i) Previous experience with similar records;
(ii) The nature and type of information contained in the records;
(iii) The identity and number of requesters and whether there is
widespread media or commercial interest in the records.
(c) Guide for making requests. A guide on how to use the FOIA for
requesting records from Amtrak shall be made available to the public
upon request. Amtrak's major information systems will be described in
the guide.
Sec. 701.5 Requirements for making requests.
(a) General requirements. (1) A FOIA request can be made by ``any
person'' as defined in 5 U.S.C. 551(2), which encompasses individuals
(including foreign citizens; partnerships; corporations; associations;
and local, state, tribal, and foreign governments). A FOIA request may
not be made by a Federal agency.
(2) A request must be in writing, indicate that it is being made
under the FOIA, and provide an adequate description of the records
sought. The request should also include applicable information
regarding fees as specified in paragraphs (d) and (e) of this section.
(b) How to submit a request. (1) The request letter and envelope
should be marked prominently that it is a Freedom of Information Act or
``FOIA'' request to ensure that it is properly routed.
(2) The request must be addressed to the Freedom of Information
Office; National Railroad Passenger Corporation; 60 Massachusetts
Avenue NE., Washington, DC 20002. Requests will also be accepted by
facsimile at (202) 906-2004 or via email at foiarequests@amtrak.com.
Amtrak cannot assure that a timely or satisfactory response under this
part will be given to written requests addressed to Amtrak offices,
officers, or employees other than the FOIA Office. Amtrak employees
receiving a communication in the nature of a FOIA request shall forward
it to the FOIA Office expeditiously. Amtrak shall advise the requesting
party of the date that an improperly addressed request is received by
the FOIA Office.
(c) Content of the request--(1) Description of records.
Identification of records sought under the FOIA is the responsibility
of the requester. The records sought should be described in sufficient
detail so that Amtrak personnel can locate them with a reasonable
amount of effort. When possible, the request should include specific
information such as dates, title or name, author, recipient, subject
matter of the record, file designation or number, or other pertinent
details for each record or category of records sought. Requesters may
contact Amtrak's FOIA Public Liaison to discuss the records they seek
and to receive assistance in describing the records.
(2) Reformulation of a request. Amtrak is not obligated to act on a
request until the requester provides sufficient information to locate
the record. Amtrak may offer assistance in identifying records and
reformulating a request where: The description is considered
insufficient, the production of voluminous records is required, or a
considerable number of work hours would be required that would
interfere with the business of the Corporation. The FOIA Office shall
notify the requester within ten business days of the type of
information that will facilitate the search. The requesting party shall
be given an opportunity to supply additional information and may submit
a revised request. Requesters may contact Amtrak's FOIA Public Liaison
to receive assistance in reformulating or modifying their request.
(d) Payment of fees. The submission of a FOIA request constitutes
an agreement to pay applicable fees accessed up to $25.00 unless the
requesting party specifies a willingness to pay a greater or lesser
amount or seeks a fee waiver or reduction in fees.
(1) Fees in excess of $25.00. When Amtrak determines or estimates
that applicable fees are likely to exceed $25.00, the requesting party
shall be notified of estimated or actual fees, unless a commitment has
been made in advance to pay all fees. If only a portion of the fee can
be estimated readily, Amtrak shall advise the requester that the
estimated fee may be a portion of the total fee.
(i) In order to protect requesters from large and/or unexpected
fees, Amtrak will request a specific commitment when it estimates or
determines that fees will exceed $100.00.
(ii) A request shall not be considered received and further
processing shall not be carried out until the requesting party agrees
to pay the anticipated total fee. Any such agreement must be
memorialized in writing. A notice under this paragraph will offer the
requesting party an opportunity to discuss the matter in order to
reformulate the request to meet the requester's needs at a lower cost.
(iii) Amtrak will hold in abeyance for a reasonable amount of time
requests requiring agreement to pay fees and will thereafter deem the
request closed. This action will not prevent the requesting party from
refiling the FOIA request with a fee commitment at a subsequent date.
(2) Fees in excess of $250. When Amtrak estimates or determines
that allowable charges are likely to exceed $250, an advance deposit of
the entire fee may be required before continuing to process the
request.
(e) Information regarding fee category. In order to determine the
appropriate fee category, a request should indicate whether the
information sought is intended for commercial use or whether the
requesting party is a member of an educational or noncommercial
scientific institution or a representative of the news media.
(f) Records concerning other individuals. If the request is for
records concerning another individual, either of the following may be
required in order to process the request:
(1) A notarized written authorization signed by that individual
permitting disclosure of those records to the requesting party,
together with a copy of a photo ID of that individual; or
(2) Proof that the individual is deceased (i.e., a copy of a death
certificate or an obituary). A form of identification from the
requesting party may also be required. Such records are also subject to
any applicable FOIA exemptions.
Sec. 701.6 Release and processing procedures.
(a) General provisions. In determining records that are responsive
to a request,
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Amtrak will ordinarily include only records that exist and are in the
possession and control of the Corporation as of the date that the
search is begun. If any other date is used, the requesting party will
be informed of that date.
(b) Authority to grant or deny requests. Amtrak's FOIA Officer is
authorized to grant or deny any request for records.
(c) Notice of referral. If Amtrak refers all or any part of the
responsibility for responding to a request to another organization, the
requesting party will be notified. A referral shall not be considered a
denial of access within the meaning of this part. All consultations and
referrals of requests will be handled according to the date that the
FOIA request was initially received.
(d) Creating a record. There is no obligation on the part of Amtrak
to create a record to satisfy a FOIA request. Amtrak may create a new
record in its sole discretion, however, when doing so would result in a
more useful response to the requesting party or would be less
burdensome to Amtrak than providing existing records. The cost of
creating such a record may not be charged to the requester unless the
fee for creating the record is equal to or less than the fee that would
be charged for providing the existing record.
(e) Incomplete records. If the records requested are not complete
at the time of a request, Amtrak may, at its discretion, inform the
requester that complete nonexempt records will be provided when
available without having to submit an additional request.
(f) Electronic records. Amtrak is not obligated to process a
request for electronic records where creation of a record, programming,
or a particular format would result in a significant expenditure of
resources or interfere with the corporation's operations.
Sec. 701.7 Timing of responses to requests.
(a) General. (1) The time limits prescribed in the FOIA will begin
only after the requirements for submitting a request as established in
Sec. 701.5 have been met, and the request is deemed received by the
FOIA Office.
(2) A request for records shall be considered to have been received
on the later of the following dates:
(i) The requester has agreed in writing to pay applicable fees in
accordance with Sec. 701.5(d); or
(ii) The fees have been waived in accordance with Sec. 701.11(k);
or
(iii) Payment in advance has been received from the requester when
required in accordance with Sec. 701.11(i).
(3) The time for responding to requests set forth in paragraph (b)
of this section may be delayed if:
(i) The request does not sufficiently identify the fee category
applicable to the request;
(ii) The request does not state a willingness to pay all fees;
(iii) A request seeking a fee waiver does not address the criteria
for fee waivers set forth in Sec. 701.11(k);
(iv) A fee waiver request is denied, and the request does not
include an alternative statement indicating that the requesting party
is willing to pay all fees.
(b) Initial determination. Whenever possible, an initial
determination to release or deny a record shall be made within twenty
business days after receipt of the request. In ``unusual
circumstances'' as described in paragraph (d) of this section, the time
for an initial determination may be extended for ten business days.
(c) Multitrack processing. (1) Amtrak may use two or more
processing tracks by distinguishing between simple, complex, and
expedited requests based on the amount of work and/or time needed to
process a request or the number of pages involved.
(2) In general, when requests are received, Amtrak's FOIA Office
will review and categorize them for tracking purposes. Requests within
each track will be processed according to date of receipt.
(3) The FOIA Office may contact a requester when a request does not
appear to qualify for fast track processing to provide an opportunity
to limit the scope of the request and qualify for a faster track. Such
notification shall be at the discretion of the FOIA Office and will
depend largely on whether it is believed that a narrowing of the
request could place the request on a faster track.
(d) Unusual circumstances. (1) The requesting party shall be
notified in writing if the time limits for processing a request cannot
be met because of unusual circumstances, and it will be necessary to
extend the time limits for processing the request. The notification
shall set forth the unusual circumstances for such extension and shall
include the date by which the request can be expected to be completed.
Where the extension is for more than ten business days, the requesting
party will be afforded an opportunity to either modify the request so
that it may be processed within the time limits or to arrange an
alternative time period for processing the initial request or modified
request. In such a case, the requesting party has the right to seek
assistance from Amtrak's FOIA Public Liaison and to seek dispute
resolution services from the Office of Government Information Services
(OGIS).
(2) If Amtrak believes that multiple requests submitted by a
requester or by a group of requesters acting in concert constitute a
single request that would otherwise involve unusual circumstances and
the requests involve clearly related matters, the requests may be
aggregated. Multiple requests concerning unrelated matters may not be
aggregated.
(3) Unusual circumstances that may justify delay include:
(i) The need to search for and collect the requested records from
other facilities that are separate from Amtrak's headquarters offices.
(ii) The need to search for, collect, and examine a voluminous
amount of separate and distinct records sought in a single request.
(iii) The need for consultation, which shall be conducted with all
practicable speed, with agencies having a substantial interest in the
determination of the request, or among two or more Amtrak components
having a substantial subject-matter interest in the request.
(e) Exceptional circumstances. If a court has determined that
exceptional circumstances exist, as defined by the FOIA, a failure to
comply with the time limits shall be excused for the length of time
provided by the court order.
(f) Expedited processing. (1) Requests and appeals may be taken out
of order and given expedited treatment whenever it is determined that
they involve a compelling need, which means:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; and
(ii) An urgency to inform the public about an actual or alleged
Amtrak activity, if made by a person primarily engaged in disseminating
information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at a later date.
(3) A requester seeking expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. This statement must accompany the
request in order to be considered and responded to within the ten
calendar days required for decisions on expedited access.
(4) A requester who is not a full-time member of the news media
must
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establish that he is a person whose main professional activity or
occupation is information dissemination, though it need not be his sole
occupation. A requester must establish a particular urgency to inform
the public about the Amtrak activity involved in the request.
(5) Within ten business days of receipt of a request for expedited
processing, Amtrak shall determine whether to grant such a request and
notify the requester of the decision. If a request for expedited
treatment is granted, the request shall be given priority and shall be
processed as soon as practicable.
(6) Amtrak shall provide prompt consideration of appeals of
decisions denying expedited processing.
Sec. 701.8 Responses to requests.
(a) Granting of requests. When an initial determination is made to
grant a request in whole or in part, the requesting party shall be
notified in writing and advised of any fees charged under Sec.
701.11(e). The records shall be disclosed to the requesting party
promptly upon payment of applicable fees. The requesting party has the
right to seek assistance from Amtrak's FOIA Public Liaison.
(b) Adverse determination of requests--(1) Types of denials. The
requesting party shall be notified in writing of a determination to
deny a request in any respect. Adverse determinations or denials of
records consist of:
(i) A determination to withhold any requested record in whole or in
part;
(ii) A determination that a requested record does not exist or
cannot be located;
(iii) A denial of a request for expedited treatment; and
(iv) A determination on any disputed fee matter including a denial
of a request for a fee waiver.
(2) Deletions. Records disclosed in part shall be marked clearly to
show both the amount of the information deleted and the exemption under
which the deletion was made unless doing so would harm an interest
protected by an applicable exemption. If technically feasible, the
amount of the information deleted and the exemption under which the
deletion is made shall be indicated at the place in the record where
such deletion is made.
(3) Content of denial letter. The denial letter shall be signed by
the FOIA Officer or designee and shall include:
(i) A brief statement of the reason(s) for the adverse
determination including any FOIA exemptions applied in denying the
request;
(ii) An estimate of the volume of information withheld (number of
pages or some other reasonable form of estimation). An estimate does
not need to be provided if the volume is indicated through deletions on
records disclosed in part, or if providing an estimate would harm an
interest protected by an applicable exemption;
(iii) A statement that an appeal may be filed under Sec. 701.10
and a description of the requirements of that section and of the right
of the requesting party to seek dispute resolution services from either
Amtrak's FOIA Public Liaison or the Office of Government Information
Services (OGIS); and
(iv) The name and title or position of the person responsible for
the denial.
Sec. 701.9 Business information.
(a) General. Business information held by Amtrak will be disclosed
under the FOIA only under this section.
(b) Definitions. For purposes of this section, the following
definitions apply:
(1) Business information means commercial or financial information
held by Amtrak that may be protected from disclosure under Exemption 4
of the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity including partnerships;
corporations; associations; and local, state, tribal, and foreign
governments.
(c) Designation of business information. A submitter of business
information will use good faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4. These designations will
expire ten years after the date of the submission unless the submitter
requests and provides justification for a longer designation period.
(d) Notice to submitters. Amtrak shall provide a submitter with
prompt written notice of an FOIA request or an appeal that seeks its
business information when required under paragraph (e) of this section,
except as provided in paragraph (h) of this section, in order to give
the submitter an opportunity to object to disclosure of any specified
portion of the information under paragraph (f). The notice shall either
describe the business information requested or include copies of the
requested records or portions of records containing the information.
(e) When notice is required. Notice shall be given to a submitter
when:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(2) Amtrak has reason to believe that the information may be
protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. Amtrak will allow a
submitter a reasonable amount of time, as determined by Amtrak in its
sole discretion, to respond to the notice described in paragraph (d) of
this section.
(1) A detailed written statement must be submitted to Amtrak if the
submitter has any objection to disclosure. The statement must specify
all grounds for withholding any specified portion of the information
sought under the FOIA. In the case of Exemption 4, it must show why the
information is a trade secret or commercial or financial information
that is privileged or confidential.
(2) Unless otherwise specified, in the event that a submitter fails
to respond within the time specified in the notice, the submitter may,
in Amtrak's discretion, be considered to have no objection to
disclosure of the information sought under the FOIA.
(3) Information provided by a submitter in response to the notice
may be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. Amtrak shall consider a
submitter's objections and specific grounds for disclosure in making a
determination whether to disclose the information. In any instance,
when a decision is made to disclose information over the objection of a
submitter, Amtrak shall give the submitter written notice which shall
include:
(1) A statement of the reason(s) why each of the submitter's
objections to disclosure was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice as determined by Amtrak in its sole
discretion.
(h) Exceptions to notice requirements. The notice requirements of
this section shall not apply if:
(1) Amtrak determines that the information should not be disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is required by law (other than
the FOIA);
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous. In such a case, Amtrak shall,
prior to a specified disclosure date, give the submitter written notice
of the final decision to disclose the information; or
(5) The information requested is not designated by the submitter as
exempt from disclosure in accordance with this
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part, unless Amtrak has substantial reason to believe that disclosure
of the information would result in competitive harm.
(i) Notice of a FOIA lawsuit. Whenever a FOIA requester files a
lawsuit seeking to compel disclosure of business information, Amtrak
shall promptly notify the submitter.
(j) Notice to requesters. (1) When Amtrak provides a submitter with
notice and an opportunity to object to disclosure under paragraph (f)
of this section, the FOIA Office shall also notify the requester(s).
(2) When Amtrak notifies a submitter of its intent to disclose
requested information under paragraph (g) of this section, Amtrak shall
also notify the requester(s).
(3) When a submitter files a lawsuit seeking to prevent the
disclosure of business information, Amtrak shall notify the
requester(s).
Sec. 701.10 Appeals.
(a) Appeals of adverse determinations. (1) The requesting party may
appeal:
(i) A decision to withhold any requested record in whole or in
part;
(ii) A determination that a requested record does not exist or
cannot be located;
(iii) A denial of a request for expedited treatment; or
(iv) Any disputed fee matter or the denial of a request for a fee
waiver.
(2) The appeal must be addressed to the President and Chief
Executive Officer, in care of the Chief Legal Officer and General
Counsel; National Railroad Passenger Corporation; 60 Massachusetts
Avenue NE., Washington, DC 20002.
(3) The appeal must be in writing and specify the relevant facts
and the basis for the appeal. The appeal letter and envelope should be
marked prominently that it is a Freedom of Information Act or ``FOIA''
appeal to ensure that it is properly routed.
(4) The appeal must be received by the President's Office within
ninety days of the date of denial.
(5) An appeal will not be acted upon if the request becomes a
matter of FOIA litigation.
(b) Responses to appeals. The decision on any appeal shall be made
in writing.
(1) A decision upholding an adverse determination in whole or in
part shall contain a statement of the reason(s) for such action,
including any FOIA exemption(s) applied. The requesting party shall
also be advised of the provision for judicial review of the decision
contained in 5 U.S.C. 552(a)(4)(B).
(2) Engaging in dispute resolution services provided by OGIS.
Mediation is a voluntary process. If Amtrak agrees to participate in
the mediation services provided by OGIS, it will actively engage as a
partner to the process in an attempt to resolve the dispute.
(3) If the adverse determination is reversed or modified on appeal
in whole or in part, the requesting party shall be notified, and the
request shall be reprocessed in accordance with the decision.
(c) When appeal is required. The requesting party generally must
timely appeal any adverse determination prior to seeking judicial
review.
Sec. 701.11 Fees.
(a) General. Amtrak shall charge for processing requests under the
FOIA in accordance with this section. A fee of $38 per hour shall be
charged for search and review. For information concerning other
processing fees, refer to paragraph (e) of this section. Amtrak shall
collect all applicable fees before releasing copies of requested
records to the requesting party. Payment of fees shall be made by check
or money order payable to the National Railroad Passenger Corporation.
(b) Definitions. For purposes of this section:
(1) Direct costs means those expenses actually incurred in
searching for and reproducing (and, in the case of commercial use
requests, reviewing) records to respond to a FOIA request. Direct costs
include such costs as the salary of the employee performing the work
(the basic rate of pay for the employee plus applicable benefits and
the cost of operating reproduction equipment). Direct costs do not
include overhead expenses such as the costs of space and heating or
lighting of the facility.
(2) Reproduction means the making of a copy of a record or the
information contained in it in order to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (i.e., magnetic tape or disk) among others. Amtrak
shall honor a requester's specified preference for the form or format
of disclosure if the record is readily reproducible with reasonable
effort in the requested form or format by the office responding to the
request.
(3) Review means the process of examining a record located in
response to a request to determine whether one or more of the statutory
exemptions of the FOIA apply. Processing any record for disclosure
includes doing all that is necessary to redact the record and prepare
it for release. Review time includes time spent considering formal
objection to disclosure by a commercial submitter under Sec. 701.9 but
does not include time spent resolving general legal or policy issues
regarding the application of exemptions. Review costs are recoverable
even if a record ultimately is not disclosed.
(4) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format.
(c) Fee categories. There are four categories of FOIA requesters
for fee purposes: ``commercial use requesters,'' ``representatives of
the news media,'' ``educational and non-commercial scientific
institution requesters,'' and ``all other requesters.'' The categories
are defined in the following paragraphs (c)(1) through (5), and
applicable fees, which are the same for two of the categories, will be
assessed as specified in paragraph (d) of this section.
(1) Commercial requesters. The term ``commercial use'' request
refers to a request from or on behalf of a person who seeks information
for a use or purpose that furthers his commercial, trade, or profit
interests, including furthering those interests through litigation.
Amtrak shall determine, whenever reasonably possible, the use to which
a requester will put the records sought by the request. When it appears
that the requesting party will put the records to a commercial use,
either because of the nature of the request itself or because Amtrak
has reasonable cause to doubt the stated intended use, Amtrak shall
provide the requesting party with an opportunity to submit further
clarification. Where a requester does not explain the use or where
explanation is insufficient, Amtrak may draw reasonable inferences from
the requester's identity and charge accordingly.
(2) Representative of the news media or news media requester refers
to any person or entity that gathers information of potential interest
to a segment of the public, uses its editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience. In this paragraph, the term `news' means information that is
about current events or that would be of current interest to the
public. Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators of
`news') who make their
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products available for purchase by or subscription by or free
distribution to the general public. These examples are not all-
inclusive. Moreover, as methods of news delivery evolve (for example,
the adoption of the electronic dissemination of newspapers through
telecommunications services), such alternative media shall be
considered to be news-media entities. A freelance journalist shall be
regarded as working for a news-media entity if the journalist can
demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation, but Amtrak may also consider the past publication record
of the requester in making such a determination.
(3) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of undergraduate
higher education, an institution of graduate higher education, an
institution of professional education, or an institution of vocational
education that operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for commercial use but to further scholarly
research.
(4) Noncommercial scientific institution refers to an institution
that is not operated on a ``commercial'' basis, as that term is defined
in paragraph (c)(1) of this section, and that is operated solely for
the purpose of conducting scientific research, the results of which are
not intended to promote any particular product or industry. To be in
this category, the requesting party must show that the request is
authorized by and is made under the auspices of a qualifying
institution and that the records are not sought for commercial use but
to further scientific research.
(5) Other requesters refers to requesters who do not come under the
purview of paragraphs (c)(1) through (4) of this section.
(d) Assessing fees. In responding to FOIA requests, Amtrak shall
charge the following fees unless a waiver or a reduction in fees has
been granted under paragraph (k) of this section:
(1) ``Commercial use'' requesters: The full allowable direct costs
for search, review, and duplication of records.
(2) ``Representatives of the news media'' and ``educational and
non-commercial scientific institution'' requesters: Duplication charges
only, excluding charges for the first 100 pages.
(3) ``All other'' requesters: The direct costs of search and
duplication of records. The first 100 pages of duplication and the
first two hours of search time shall be provided without charge.
(e) Schedule of fees--(1) Manual searches. Personnel search time
includes time expended in either manual searches for paper records,
searches using indices, review of computer search results for relevant
records, and personal computer system searches.
(2) Computer searches. The direct costs of conducting a computer
search will be charged. These direct costs will include the cost of
operating a central processing unit for that portion of the operating
time that is directly attributable to searching for responsive records
as well as the costs of operator/programmer salary apportionable to the
search.
(3) Duplication fees. Duplication fees will be charged all
requesters subject to limitations specified in paragraph (d) of this
section. Amtrak shall charge 25 cents per page for a paper photocopy of
a record. For copies produced by computer (such as tapes or printouts),
Amtrak will charge the direct costs, including the operator time in
producing the copy. For other forms of duplication, Amtrak will charge
the direct costs of that duplication.
(4) Review fees. Review fees will be assessed for commercial use
requests. Such fees will be assessed for review conducted in making an
initial determination, or upon appeal, when review is conducted to
determine whether an exemption not previously considered is applicable.
(5) Charges for other services. The actual cost or amount shall be
charged for all other types of output, production, and duplication
(e.g., photographs, maps, or printed materials). Determinations of
actual cost shall include the commercial cost of the media, the
personnel time expended in making the item available for release, and
an allocated cost for the equipment used in producing the item. The
requesting party will be charged actual production costs when a
commercial service is required. Items published and available through
Amtrak will be made available at the publication price.
(6) Charges for special services. Apart from the other provisions
of this section, when Amtrak chooses as a matter of discretion to
provide a special service such as sending records by other than
ordinary mail, the direct costs of providing such services shall be
charged.
(f) Commitment to pay fees. When Amtrak determines or estimates
that applicable fees will likely exceed $25.00, the requesting party
will be notified of the actual or estimated amount unless a written
statement has been received indicating a willingness to pay all fees.
To protect requesters from large and/or unexpected fees, Amtrak will
request a specific commitment when it is estimated or determined that
fees will exceed $100.00. See Sec. 701.5(d) for additional
information.
(g) Restrictions in accessing fees--(1) General. Fees for search
and review will not be charged for a quarter-hour period unless more
than half of that period is required.
(2) Minimum fee. No fees will be charged if the cost of collecting
the fee is equal to or greater than the fee itself. That cost includes
the costs to Amtrak for billing, receiving, recording, and processing
the fee for deposit, which has been deemed to be $10.00.
(3) Computer searches. With the exception of requesters seeking
documents for commercial use, Amtrak shall not charge fees for a
computer search until the cost of search equals the equivalent dollar
amount of two hours of the salary of the operator performing the
search.
(4) Unusual circumstances. If Amtrak has determined that unusual
circumstances (as defined in the FOIA) apply and Amtrak has provided
timely written notice to the requester in accordance with 5 U.S.C.
552(a)(6)(B), Amtrak may assess search or duplication fees, as
applicable, for an additional 10 days. If Amtrak fails to comply with
the extended time limit, no search fees (or, in the case of requesters
described in paragraph (d)(2) of this section, no duplication fees) may
be charged unless more than 5,000 pages are necessary to respond to the
request, timely written notice has been sent out, and Amtrak has
discussed with the requesting party via written mail, email, or
telephone (or made not less than three good-faith attempts to do so)
how the requesting party could effectively limit the scope of the
request.
(h) Nonproductive searches. Amtrak may charge for time spent for
search and review even if responsive records are not located or if the
records located are determined to be entirely exempt from disclosure.
(i) Advance payments. (1) When Amtrak estimates or determines that
charges are likely to exceed $250, an advance payment of the entire fee
may
[[Page 9689]]
be required before continuing to process the request.
(2) Where a requester has previously failed to pay a properly
charged FOIA fee within thirty (30) days of the date of billing, Amtrak
may require the full amount due plus applicable interest and an advance
payment of the full amount of anticipated fees before beginning to
process a new request or continuing to process a pending request. The
time limits of the FOIA will begin only after Amtrak has received such
payment.
(3) Amtrak will hold in abeyance for thirty days requests where
deposits are due.
(4) Monies owed for work already completed (i.e., before copies are
sent to a requester) shall not be considered an advance payment.
(5) Amtrak shall not deem a request as being received in cases in
which an advance deposit or payment is due, and further work will not
be done until the required payment is received.
(j) Charging interest. Amtrak may charge interest on any unpaid
bill for processing charges starting on the 31st day following the date
of billing the requester. Interest charges will be assessed at the rate
that Amtrak pays for short-term borrowing.
(k) Waiver or reduction of fees--(1) Automatic waiver of fees. When
the costs for a FOIA request total $10.00 or less, fees shall be waived
automatically for all requesters regardless of category.
(2) Other fee waivers. Decisions to waive or reduce fees that
exceed the automatic waiver threshold shall be made on a case-by-case
basis. Records responsive to a request will be furnished without charge
or at below the established charge where Amtrak determines, based on
all available information, that disclosure of the requested information
is in the public interest because:
(i) It is likely to contribute significantly to public
understanding of the operations or activities of Amtrak, and
(ii) It is not primarily in the commercial interest of the
requesting party.
(3) To determine whether the fee waiver requirement in paragraph
(k)(2)(i) of this section is met, Amtrak will consider the following
factors:
(i) The subject of the request--whether the subject of the
requested records concerns the operations or activities of Amtrak. The
subject of the requested records must concern identifiable operations
or activities of Amtrak with a connection that is direct and clear, not
remote or attenuated.
(ii) The informative value of the information to be disclosed--
whether the disclosure is likely to contribute to an understanding of
Amtrak operations or activities. The disclosable portions of the
requested records must be meaningfully informative about Amtrak's
operations or activities in order to be found to be likely to
contribute to an increased public understanding of those operations or
activities. The disclosure of information that already is in the public
domain, in either a duplicative or a substantially identical form,
would not be as likely to contribute to such understanding where
nothing new would be added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure--whether disclosure of the
requested information will contribute to public understanding. The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject as opposed to the
individual understanding of the requester. A requester's ability and
expertise in the subject area as well as the requester's intention to
effectively convey information to the public shall be considered. It
shall be presumed that a representative of the news media will satisfy
this consideration.
(iv) The significance of the contribution to public understanding--
whether the disclosure is likely to contribute significantly to public
understanding of Amtrak operations or activities. The public's
understanding of the subject in question, as compared to the level of
public understanding existing prior to the disclosure, must be enhanced
by the disclosure to a significant extent.
(4) To determine whether the fee waiver requirement in paragraph
(k)(2)(ii) of this section is met, Amtrak will consider the following
factors:
(i) The existence and magnitude of a commercial interest--whether
the requesting party has a commercial interest that would be furthered
by the requested disclosure. Amtrak shall consider any commercial
interest of the requesting party (with reference to the definition of
``commercial use'' in paragraph (c)(1) of this section) or any person
on whose behalf the requesting party may be acting that would be
furthered by the requested disclosure. Requesters shall be given an
opportunity to provide explanatory information regarding this
consideration.
(ii) The primary interest in disclosure--whether the magnitude of
the identified commercial interest of the requester is sufficiently
large in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the
requester.'' A fee waiver or reduction is justified where the public
interest standard is satisfied and public interest is greater in
magnitude than any identified commercial interest in disclosure.
(5) Requests for a fee waiver will be considered on a case-by-case
basis, based upon the merits of the information provided. Where it is
difficult to determine whether the request is commercial in nature,
Amtrak may draw inference from the requester's identity and the
circumstances of the request.
(6) Requests for a waiver or reduction of fees must address the
factors listed in paragraphs (k)(3) and (4) of this section. In all
cases, the burden shall be on the requesting party to present evidence
of information in support of a request for a waiver of fees.
(l) Aggregating requests. A requester may not file multiple
requests at the same time in order to avoid payment of fees. Where
Amtrak reasonably believes that a requester or a group of requesters
acting in concert is attempting to divide a request into a series of
requests for the purpose of avoiding fees, Amtrak may aggregate those
requests and charge accordingly. Amtrak may presume that multiple
requests of this type made within a thirty-day period have been made in
order to avoid fees. Where requests are separated by a longer period,
Amtrak may aggregate them only when there exists a reasonable basis for
determining that aggregation is warranted in view of all the
circumstances involved. Multiple requests involving unrelated matters
may not be aggregated.
Sec. 701.12 Other rights and services.
Nothing in this part shall be construed as entitling any person, as
of right, to any service or the disclosure of any record to which such
person is not entitled under the FOIA.
Dated: January 11, 2017.
Eleanor D. Acheson,
Executive Vice President, Chief Legal Officer, General Counsel &
Corporate Secretary.
[FR Doc. 2017-00950 Filed 2-7-17; 8:45 am]
BILLING CODE 7531-01-P