Updates To Comply With the FOIA Improvement Act of 2016 and Other Technical Amendments, 21136-21140 [2017-08925]
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21136
Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Rules and Regulations
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141 (1981); the Memorandum Opinion and
Order in Docket No. 21136, 90 FCC 2d 895
(1982); the Memorandum Opinion and Order
in Docket 21136, 49 FR 13534, April 5, 1984;
and the Report and Order in Docket No. 12–
106 (Noncommercial Educational Station
Fundraising for Third-Party Non-Profit
Organizations), FCC 17–41, April 20, 2017.
(f) A noncommercial educational
television station may interrupt regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization, provided that all
such fundraising activities conducted
during any given year do not exceed one
percent of the station’s total annual
airtime. A station may use the prior
year’s total airtime for purposes of
determining how many hours constitute
one percent of its total annual airtime.
With respect to stations that multicast
programming on two or more separate
channels, the one-percent annual limit
will apply separately to each individual
programming stream. For purposes of
this paragraph, a non-profit organization
is an entity that qualifies as a non-profit
organization under 26 U.S.C. 501(c)(3).
(1) Audience disclosure. A
noncommercial educational television
station that interrupts regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization must air a disclosure
during such activities clearly stating
that the fundraiser is not for the benefit
of the station itself and identifying the
entity for which it is fundraising. The
station must air the audience disclosure
at the beginning and the end of each
fundraising program and at least once
during each hour in which the program
is on the air.
(2) Reimbursement. A noncommercial
educational television station that
interrupts regular programming to
conduct fundraising activities on behalf
of a third-party non-profit organization
may accept reimbursement of expenses
incurred in conducting third-party
fundraising activities or airing thirdparty fundraising programs.
(3) Exemption. No noncommercial
educational television station that
receives funding from the Corporation
for Public Broadcasting shall have the
authority to interrupt regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization.
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■ 4. Section 73.3527 is amended by
adding paragraph (e)(14) to read as
follows:
§ 73.3527 Local public inspection file of
noncommercial educational stations.
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(e) * * *
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(14) Information on Third-Party
Fundraising. For noncommercial
educational broadcast stations that
interrupt regular programming to
conduct fundraising activities on behalf
of a third-party non-profit organization
pursuant to § 73.503(e) (FM stations) or
§ 73.621(f) (television stations), every
three months, the following information
for each third-party fundraising program
or activity: The date, time, and duration
of the fundraiser; the type of fundraising
activity; the name of the non-profit
organization benefitted by the
fundraiser; a brief description of the
specific cause or project, if any,
supported by the fundraiser; and, to the
extent that the station participated in
tallying or receiving any funds for the
non-profit group, an approximation of
the total funds raised. The information
for each calendar quarter is to be filed
by the tenth day of the succeeding
calendar quarter (e.g., January 10 for the
quarter October–December, April 10 for
the quarter January–March, etc.).
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[FR Doc. 2017–09002 Filed 5–4–17; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 7
RIN 2105–AE62
Updates To Comply With the FOIA
Improvement Act of 2016 and Other
Technical Amendments
Office of the Secretary (OST),
Department of Transportation (DOT).
ACTION: Final rule.
AGENCY:
This final rule updates the
Department of Transportation’s
regulations prescribing procedures for
the public availability of information to
conform these procedures with
amendments to the Freedom of
Information Act enacted by the FOIA
Improvement Act of 2016. This rule also
removes a reference to the Surface
Transportation Board, as it has been
made a separate agency, outside of the
Department, under the Surface
Transportation Board Reauthorization
Act of 2015. Finally, this rule makes a
technical amendment to the
Department’s submitter notice process
to include a reference to the Federal
Motor Carrier Safety Administration’s
updated procedures related to the
submission of confidential business
information.
SUMMARY:
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This final rule is effective June
5, 2017.
FOR FURTHER INFORMATION CONTACT:
Claire McKenna, Senior Attorney, Office
of the General Counsel, U.S. Department
of Transportation, Washington, DC, at
claire.mckenna@dot.gov or (202) 366–
0365.
DATES:
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document may be viewed online
through the Federal eRulemaking portal
at https://www.regulations.gov.
Retrieval help and guidelines are
available on the Web site. It is available
24 hours each day, 365 days a year. An
electronic copy of this document may
also be downloaded from the Office of
the Federal Register home page at:
https://www.ofr.gov and the
Government Printing Office Web page
at: https://www.gpo.gov.
I. Purpose of the Regulatory Action
The United States Department of
Transportation (Department or DOT) is
issuing this final rule to update the
Department’s regulations prescribing
procedures for the public availability of
information to conform these
procedures with recent amendments to
the Freedom of Information Act (FOIA)
enacted in the FOIA Improvement Act
of 2016, Public Law 114–185. This rule
also makes technical amendments to 49
CFR part 7.
The rule revises the definition of
‘‘reading room records’’ in section 7.2 to
remove the discussion of the locations
of reading room records. The location of
reading room records is already
provided in section 7.12(b), therefore,
this is not a substantive change. As
required by the section 2 of the FOIA
Improvement Act of 2016, this rule also
revises the description of ‘‘Frequently
Requested Records’’ in section 7.12(a)(4)
to include records requested three or
more times under FOIA. The FOIA
Improvement Act of 2016 no longer
requires that agencies maintain physical
locations for the reading rooms. The
rule revises the description of reading
room locations in section 7.12(b) to
indicate that DOT may continue to
maintain physical reading rooms
(although not required) and, if it does,
those locations will be listed on the
Department’s FOIA Web site
(www.transportation.gov/foia).
In section 7.23, the rule amends
subparagraph (c)(5) to state that
Exemption 5’s deliberative process
privilege applies only to records created
25 years or more before the date on
which the records are requested, and the
rule adds a new paragraph (d) to
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prohibit DOT from withholding
information under this section unless
DOT reasonably foresees that disclosure
will harm an interest protected by a
FOIA exemption, or the disclosure is
prohibited by law. Both of these changes
are required by the FOIA Improvement
Act of 2016.
Several additions have been made to
section 7.31 in Subpart D, ‘‘Time
Limits,’’ to align with changes required
by the FOIA Improvement Act of 2016,
including requirements that DOT notify
FOIA requesters of the availability of
assistance or dispute resolution services
from DOT’s FOIA Public Liaisons or the
Office of Government Information
Services. This rule also extends the
amount of time requesters have to file
an administrative appeal from 45 days
to 90 days from the date of DOT’s initial
determination. Finally, the rule amends
section 7.34 in subpart D, ‘‘Fees’’, to
prohibit the Department from charging
requesters for the time spent searching
for responsive records if the agency
misses a deadline. The Department may
continue to charge for search time if
there are unusual circumstances and the
Department responds within thirty days
of the date of the request (and has
notified the requester of the unusual
circumstances). The Department may
also continue to charge for search time
if: (1) There are unusual circumstances,
(2) the requester has been so notified, (3)
more than 5000 pages are necessary in
the response, and (4) the agency
communicates or makes at least three
good faith attempts to address the scope
with the requester in an attempt to
narrow the request. If a court determines
that exceptional circumstances exist, the
agency’s failure to comply with time
limits shall be excused for the length of
time provided by court order.
In addition to the changes to the
Department’s regulations required by
the FOIA Improvement Act of 2016, this
final rule makes several other technical
amendments needed as the result of
legislative or regulatory action since the
Department’s last update to its
regulations at 49 CFR part 7, in 2014.
First, the Department is updating any
reference to the Department’s web
address to replace ‘‘dot’’ with
‘‘transportation’’ to reflect a change in
the Department’s web address. Next,
this rule removes the reference to the
Surface Transportation Board in Section
7.2, ‘‘Definitions.’’ The Surface
Transportation Board was previously
part of DOT, but was made a separate,
independent agency, in December 2015,
under the Surface Transportation Board
Reauthorization Act of 2015 (Pub. L.
114–110). Finally, this rule amends
Section 7.29 to include a reference to
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information submitted to the Federal
Motor Carrier Safety Administration
under 49 CFR 389.9. Section 7.29 sets
forth the procedures the Department
follows when it receives a request for
information submitted to the
Department that may contain
confidential business information;
however, these procedures do not apply
when confidential business information
is submitted to the Department through
other regulatory procedures, such as 49
CFR 389.9, that include the opportunity
for the submitter to identify the
information as confidential and the
Department to make a determination
about the confidential nature of the
information.
Final Rule
Under the Administrative Procedure
Act (5 U.S.C. 553(b)), the normal notice
and comment procedure does not apply
if the agency finds that it would be
impracticable, unnecessary, or contrary
to the public interest. This rule amends
49 CFR part 7 to make minor technical
amendments, and revisions directly and
expressly mandated by the FOIA
Improvement Act of 2016. Additional
changes are merely technical
amendments that conform the
Department’s regulations with recent
changes made by regulation or
legislation. These changes to part 7 do
not involve the exercise of agency
discretion. Therefore, the Department
finds that notice and comment for this
rule is unnecessary due to the technical
nature of the revisions and the lack of
agency discretion. 5 U.S.C. 553(b)(3)(B).
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), and DOT
Regulatory Policies and Procedures
The Department has determined this
action is not a significant regulatory
action within the meaning of Executive
Order 12866, and within the meaning of
the Department of Transportation’s
regulatory policies and procedures. The
Department anticipates that the
economic impact of this rulemaking
would be minimal.
Regulatory Flexibility Act
The Department has found under 5
U.S.C. 553(b)(3)(B) that notice and
opportunity for comment are
unnecessary for this rule; therefore, the
provisions of the Regulatory Flexibility
Act (Pub. L. 96–354, 5 U.S.C. 601–612)
do not apply.
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Assistance to Small Entities
Section 213(a) of the Small Business
Regulatory Enforcement Fairness Act of
1996 is applicable to assist small
entities in understanding this final rule
so that they can better evaluate its
effects on themselves and participate in
the rulemaking initiative. If the final
rule would affect your small business,
organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please consult Joe Solomey,
Senior Counsel for Enforcement
Programs, (202) 366–2934.
Unfunded Mandates Reform Act of 1995
This final rule does not impose
unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 109 Stat. 48, March 22,
1995) as it will not result in the
expenditure by State, local, tribal
governments, in the aggregate, or by the
private sector, of $155 million or more
in any one year (2 U.S.C. 1532).
Executive Order 13132 (Federalism
Assessment)
Executive Order 13132 requires
agencies to assure meaningful and
timely input by State and local officials
in the development of regulatory
policies that may have a substantial,
direct effect on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. This action has
been analyzed in accordance with the
principles and criteria contained in
Executive Order 13132 dated August 4,
1999, and the Department determined
this action will not have a substantial
direct effect or sufficient federalism
implications on the States. The
Department also determined this action
will not preempt any State law or
regulation or affect the States’ ability to
discharge traditional State governmental
functions.
Executive Order 12372
(Intergovernmental Review)
The regulations implementing
Executive Order 12372 regarding
intergovernmental consultation on
Federal programs do not apply to this
program.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501, et seq.),
Federal agencies must obtain approval
from the Office of Management and
Budget for each collection of
information they conduct, sponsor, or
require through regulations. The
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Department analyzed this final rule
under the PRA and determined this rule
does not contain collection of
information requirements for the
purposes of the PRA.
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National Environmental Policy Act
Agencies are required to adopt
implementing procedures for NEPA that
establish specific criteria for, and
identification of, three classes of
actions: Those that normally require
preparation of an Environmental Impact
Statement; those that normally require
preparation of an Environmental
Assessment; and those that are
categorically excluded from further
NEPA review (40 CFR 1507.3(b)). The
changes in this rule are part of agency
procedures, and therefore establishing
the changes does not require
preparation of a NEPA analysis or
document. Agency NEPA procedures
are generally procedural guidance to
assist agencies in the fulfillment of
agency responsibilities under NEPA, but
are not the agency’s final determination
of what level of NEPA analysis is
required for a particular proposed
action. The requirements for
establishing agency NEPA procedures
are set forth at 40 CFR 1505.1 and
1507.3.
This action was also analyzed under
the Clean Air Act, as amended (CAA),
section 176(c) (42 U.S.C. 7401 et seq.),
and implementing regulations
promulgated by the Environmental
Protection Agency. Approval of this
action is exempt from the CAA’s general
conformity requirement because it does
not affect direct or indirect emissions of
criteria pollutants.
Executive Order 12898 (Environmental
Justice)
Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, and DOT
Order 5610.2(a), 91 FR 27534 (May 10,
2012) (available online at
www.fhwa.dot.gov/environment/
environmental_justice/ej_at_dot/order_
56102a/index.cfm), require the
Department to achieve environmental
justice (EJ) as part of its mission by
identifying and addressing, as
appropriate, disproportionately high
and adverse human health or
environmental effects, including
interrelated social and economic effects,
of its programs, policies, and activities
on minority populations and lowincome populations in the United
States. The DOT Order requires the
Department to address compliance with
the Executive Order and the DOT Order
in all rulemaking activities. In addition,
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the Department has issued additional
documents relating to administration of
the Executive Order and the DOT Order.
At the time the Department applies
the NEPA implementing procedures in
23 CFR part 771, the Department would
have an independent obligation to
conduct an evaluation of the proposed
action under the applicable EJ orders
and guidance to determine whether the
proposed action has the potential for EJ
effects. The Department has evaluated
the environmental justice effects of this
rule in accordance with the E.O. and has
determined that no environmental
justice issue is associated with this rule,
nor is there any collective
environmental impact that would result
from its promulgation.
Executive Order 12630 (Taking of
Private Property)
The Department has analyzed this
final rule under Executive Order 12630,
Governmental Actions and Interference
with Constitutionally Protected Property
Rights, and found this final rule will not
affect a taking of private property or
otherwise have taking implications
under Executive Order 12630.
Privacy
The E-Government Act of 2002,
Public Law 107–347, sec. 208, 116 Stat.
2899, 2921 (Dec. 17, 2002), requires
Federal agencies to conduct a privacy
impact assessment for new or
substantially changed technology that
collects, maintains, or disseminates
information in an identifiable form. No
new or substantially changed
technology would collect, maintain, or
disseminate information as a result of
this rule.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
Executive Order 13045 (Protection of
Children)
The Department analyzed this rule
under Executive Order 13045,
Protection of Children from
Environmental Health Risks and Safety
Risks, which requires agencies issuing
‘‘economically significant’’ rules, if the
regulation also concerns an
environmental health or safety risk that
an agency has reason to believe may
disproportionately affect children, to
include an evaluation of the regulation’s
environmental health and safety effects
on children. It was determined this final
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rule is not economically significant,
thus no analysis of the impacts on
children is required. There is also no
anticipation that this action could
present an environmental or safety risk
that could disproportionately affect
children.
Executive Order 13175 (Tribal
Consultation)
The Department has analyzed this
action under Executive Order 13175,
dated November 6, 2000, and
determined the action will not have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibility between the
Federal Government and Indian tribes.
National Technology Transfer and
Advancement Act (Technical
Standards)
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through OMB, with
an explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards (e.g.,
specifications of materials, performance,
design, or operation; test methods;
sampling procedures; and related
management systems practices) are
standards that are developed or adopted
by voluntary consensus standards
bodies. This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Executive Order 13211 (Energy Effects)
The Department has analyzed this
action under Executive Order 13211,
Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. The Department
determined this rule is not a significant
energy action under that order because
it is not a significant regulatory action
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. Therefore, a Statement of Energy
Effects is not required.
Regulation Identification Number
A regulation identification number
(RIN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations. The Regulatory
Information Service Center publishes
the Unified Agenda in April and
October of each year. The RIN number
contained in the heading of this
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document can be used to cross-reference
this action with the Unified Agenda.
List of Subjects in 49 CFR Part 7
Freedom of information, Reporting
and recordkeeping requirements.
In consideration of the foregoing, the
DOT amends 49 CFR part 7 as follows:
PART 7—PUBLIC AVAILABILITY OF
INFORMATION
1. The authority citation for part 7
continues to read as follows:
Authority: 5 U.S.C. 552; 31 U.S.C. 9701;
49 U.S.C. 322; E.O. 12600; E.O. 13392
2. Amend § 7.2 by revising the
definitions of ‘‘Department or DOT’’ and
‘‘Reading room records’’ to read as
follows:
■
Definitions.
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Department or DOT means the
Department of Transportation, including
the Office of the Secretary, the Office of
Inspector General, and all DOT
Operating Administrations, any of
which may be referred to as a DOT
component.
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Reading room records are those
records required to be made available to
the public without a specific request
under 5 U.S.C. 552(a)(2), as described in
§ 7.12.
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■ 3. Amend § 7.12 by revising
paragraphs (a)(4) and (b) to read as
follows:
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§ 7.12 What records are available in
reading rooms, and how are they
accessed?
(a) * * *
(4) Copies of all records, regardless of
form or format, that have been released
to any person under subpart C of this
part and that:
(i) Because of the nature of their
subject matter, DOT determines have
become or are likely to become the
subject of subsequent requests for
substantially the same records; or
(ii) Have been requested three or more
times.
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(b) Reading room locations. DOT
makes its reading room records and
indices (in the form of lists or links)
available at https://
www.transportation.gov/foia. To the
extent that DOT continues to make
reading rooms available at a physical
location, those locations are listed on
the DOT FOIA Web site at https://
www.transportation.gov/foia.
■ 4. Amend § 7.23 as follows:
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§ 7.23 What limitations apply to
disclosure?
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§ 7.2
a. Revise paragraph (c)(5);
b. Redesignate paragraph (d) as (e);
■ c. Add new paragraph (d); and
■ d. Add paragraph (f).
The revision and additions read as
follows:
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(c) * * *
(5) Inter-agency or intra-agency
memorandums or letters that would not
be available by law to a party other than
an agency in litigation with the agency,
provided that the deliberative process
privilege shall not apply to records
created 25 years or more before the date
on which the records were requested;
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(d) Application of exemptions. DOT
shall withhold information pursuant to
a statutory exemption only if:
(1) DOT reasonably foresees that
disclosure would harm an interest
protected by an exemption under
paragraph (c) of this section; or
(2) Disclosure is prohibited by law or
otherwise exempted from disclosure
under paragraph (c)(3) of this section.
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(f) Non-confidentiality of requests.
DOT releases the names of FOIA
requesters and descriptions of the
records they have sought, as shown on
DOT FOIA logs, except to the extent that
an exemption authorizes or requires
withholding of the log information.
■ 5. Amend § 7.27 to revise paragraphs
(a) introductory text and (c) to read as
follows:
§ 7.27 What are the designated DOT FOIA
Requester Service Centers?
(a) A request for a record under this
subpart may be submitted via paper,
facsimile, or electronic mail to the FOIA
Requester Service Center designated for
the DOT component where the records
are located, at the electronic mail
addresses or facsimile numbers
identified at https://
www.transportation.gov/foia or the
mailing addresses indicated below
(unless a more up-to-date mailing
address has been designated at https://
www.transportation.gov/foia):
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(c) Requests for records under this
part, and FOIA inquiries generally, may
be made by accessing the DOT Home
Page on the Internet (https://
www.transportation.gov) and clicking
on the Freedom of Information Act link
(https://www.transportation.gov/foia).
■ 6. Add paragraph (d)(3) to § 7.29 to
read as follows:
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§ 7.29 When and how does DOT consult
with submitters of commercial information?
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(d) * * *
(3) Information submitted to the
Federal Motor Carrier Safety
Administration and addressed in 49
CFR 389.9.
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■ 7. Revise paragraph § 7.31(a)(3) to
read as follows:
§ 7.31 What time limits apply to DOT with
respect to initial determinations?
(a) * * *
(3) DOT notifies the requester of
DOT’s initial determination. If DOT
decides to grant the request in full or in
part, DOT makes the record (or the
granted part) available as promptly as
possible and provides the requester with
written notification of DOT’s
determination, the reasons for the
determination, and the right of the
requester to seek assistance from the
FOIA Public Liaison. If DOT denies the
request in full or in part, because the
record (or the denied part) is subject to
an exemption, is not within DOT’s
custody and control, or was not located
following a reasonable search, DOT
notifies the requester of the denial in
writing and includes in the notice the
reason for the determination, the right of
the requester to appeal the
determination, the name and title of
each individual responsible for the
initial determination to deny the
request, and the requester’s right to seek
dispute resolution services from the
FOIA Public Liaison or the Office of
Government Information Services. The
denial letter includes an estimate of the
volume of records or information
withheld, in number of pages or other
reasonable form of estimation. This
estimate does not need to be provided
if the volume is otherwise indicated
through deletions on records disclosed
in part, or if providing an estimate
would harm an interest protected by an
applicable exemption. DOT marks or
annotates records disclosed in part to
show both the amount and location of
the information deleted whenever
practicable (see § 7.23(d)).
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■ 8. Amend § 7.32 by revising
paragraphs (a), (b), and (c) and (d)(1) to
read as follows:
§ 7.32 What time limits apply to a
requester when appealing DOT’s initial or
final determination?
(a) Denial of records request. When
the responsible DOT official determines
that a record request will be denied, in
whole or in part, because the record is
subject to an exemption, is not in DOT’s
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custody and control, or was not located
following a reasonable search, DOT
provides the requester with the written
statement described in § 7.31(a)(3).
(b) Denial of fee waiver. When the
responsible DOT official denies, in
whole or in part, a request for a waiver
of fees made pursuant to § 7.24(b) or
§ 7.43(c), DOT provides the requester
with written notification of that
determination, the reasons for the
determination, the right of the requester
to appeal the determination within
DOT, and the requester’s right to seek
assistance in resolution of disputes from
the FOIA Public Liaison or Office of
Government Information Services.
(c) Denial of expedited processing.
When the responsible DOT official
denies a request for expedited
processing made pursuant to § 7.31(c),
DOT provides the requester with written
notice of that determination, the reasons
for the determination, the right to
appeal the determination within DOT,
and the requester’s right to seek dispute
resolution services from the FOIA
Public Liaison or Office of Government
Information Services.
(d) * * *
(1) Each appeal must be made in
writing to the appropriate DOT appeal
official and postmarked or, in the case
of electronic or facsimile transmissions
transmitted, within ninety calendar
days from the date the initial
determination is signed and should
include the DOT file or reference
number assigned to the request and all
information and arguments relied upon
by the person making the request. The
contact information for all DOT
component appeal officials is identified
in the DOT FOIA Reference Guide
available at https://
www.transportation.gov/foia. The
envelope in which a mailed appeal is
sent or the subject line of an appeal sent
electronically or by facsimile should be
prominently marked: ‘‘FOIA Appeal.’’
The twenty Federal working day limit
described in § 7.33(a) will not begin to
run until the appeal has been received
by the appropriate office and identified
as an appeal under FOIA, or would have
been so identified with the exercise of
due diligence, by a DOT employee.
*
*
*
*
*
■ 9. Amend § 7.34 by revising paragraph
(b) to read as follows:
§ 7.34 When and how are time limits
applicable to DOT extended?
*
*
*
*
*
(b) When the extension is for more
than ten Federal working days, the
written notice provides the requester
with an opportunity to either modify the
request (e.g., by narrowing the record
VerDate Sep<11>2014
14:00 May 04, 2017
Jkt 241001
types or date ranges) so that it may be
processed within the extended time
limit, or arrange an alternative time
period with the DOT component for
processing the request (e.g., by
prioritizing portions of the request). The
written notice also will notify the
requester of the right to seek dispute
resolution services from the Office of
Government Information Services.
*
*
*
*
*
■ 10. Amend § 7.43 by revising
paragraph (f) to read as follows:
§ 7.43 When are fees waived or reduced
for records requested under subpart C of
this part?
*
*
*
*
*
(f) Except as provided in paragraphs
(f)(1) through (3) of this section, DOT
does not assess search fees otherwise
chargeable under § 7.42(h) and (j) or
duplication fees otherwise chargeable
under § 7.42(i) when DOT fails to
comply with the time limits under
§ 7.31 or § 7.33.
(1) If DOT has determined that
unusual circumstances apply (as
defined in § 7.34(a)), 5,000 pages or less
are necessary to respond to the request,
and DOT has provided a timely written
notice to the requester in accordance
with § 7.34(a), a failure to comply with
the time limits under § 7.31 or § 7.33 is
excused for an additional 10 days. If
DOT does not comply with the extended
time limit, DOT does not assess search
fees otherwise chargeable under
§ 7.42(h) and (j) or duplication fees
otherwise chargeable under § 7.24(i);
(2) If DOT has determined that
unusual circumstances apply (as
defined under § 7.34(a)) and more than
5,000 pages are necessary to respond to
the request, DOT may charge search fees
under § 7.42(h) and (j) or duplication
fees under § 7.42(j) if DOT has provided
timely written notice to the requester in
accordance with § 7.34(a) and (b), and
DOT has discussed with the requester
via written mail, electronic mail, or
telephone (or made not less than three
good faith attempts to do so) how the
requester could effectively limit the
scope of the request.
(3) If a court determines that
exceptional circumstances exist (as that
term is defined in 5 U.S.C. 552(a)(6)(C)),
failure to comply with time limits under
§ 7.31 or § 7.33 shall be excused for the
length of time provided by the court
order.
Issued on: April 25, 2017.
Judith S. Kaleta,
Deputy General Counsel.
[FR Doc. 2017–08925 Filed 5–4–17; 8:45 am]
BILLING CODE 4910–9X–P
PO 00000
Frm 00034
Fmt 4700
Sfmt 4700
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 140818679–5356–02]
RIN 0648–XF369
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Fishery of the Gulf of Mexico; 2017
Recreational Fishing Seasons for Red
Snapper in the Gulf of Mexico
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closures.
AGENCY:
NMFS announces the 2017
recreational fishing seasons for the
private angling and Federal charter
vessel/headboat (for-hire) components
for red snapper in the exclusive
economic zone (EEZ) of the Gulf of
Mexico (Gulf) through this temporary
rule. The Federal recreational season for
red snapper in the Gulf EEZ begins at
12:01 a.m., local time, on June 1, 2017.
For recreational harvest by the private
angling component, the season closes at
12:01 a.m., local time, on June 4, 2017.
For recreational harvest by the Federal
for-hire component, the season closes at
12:01 a.m., local time, on July 20, 2017.
These closures are necessary to prevent
the private angling and Federal for-hire
components from exceeding their
respective quotas (annual catch limits
(ACLs)) for the 2017 fishing year and to
prevent overfishing of the Gulf red
snapper resource.
DATES: The closure is effective at 12:01
a.m., local time, June 4, 2017, until
12:01 a.m., local time, January 1, 2018,
for the private angling component. The
closure is effective at 12:01 a.m., local
time, July 20, 2017, until 12:01 a.m.,
local time, January 1, 2018, for the
Federal for-hire component. The 2018
Federal recreational fishing seasons for
the respective components will begin on
June 1, 2018.
FOR FURTHER INFORMATION CONTACT:
Kelli O’Donnell, NMFS Southeast
Regional Office, telephone: 727–824–
5305, email: kelli.odonnell@noaa.gov.
SUPPLEMENTARY INFORMATION: The Gulf
reef fish fishery, which includes red
snapper, is managed under the Fishery
Management Plan for the Reef Fish
Resources of the Gulf of Mexico (FMP).
The FMP was prepared by the Gulf of
Mexico Fishery Management Council
and is implemented by NMFS under the
authority of the Magnuson-Stevens
SUMMARY:
E:\FR\FM\05MYR1.SGM
05MYR1
Agencies
[Federal Register Volume 82, Number 86 (Friday, May 5, 2017)]
[Rules and Regulations]
[Pages 21136-21140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08925]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 7
RIN 2105-AE62
Updates To Comply With the FOIA Improvement Act of 2016 and Other
Technical Amendments
AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule updates the Department of Transportation's
regulations prescribing procedures for the public availability of
information to conform these procedures with amendments to the Freedom
of Information Act enacted by the FOIA Improvement Act of 2016. This
rule also removes a reference to the Surface Transportation Board, as
it has been made a separate agency, outside of the Department, under
the Surface Transportation Board Reauthorization Act of 2015. Finally,
this rule makes a technical amendment to the Department's submitter
notice process to include a reference to the Federal Motor Carrier
Safety Administration's updated procedures related to the submission of
confidential business information.
DATES: This final rule is effective June 5, 2017.
FOR FURTHER INFORMATION CONTACT: Claire McKenna, Senior Attorney,
Office of the General Counsel, U.S. Department of Transportation,
Washington, DC, at claire.mckenna@dot.gov or (202) 366-0365.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document may be viewed online through the Federal eRulemaking
portal at https://www.regulations.gov. Retrieval help and guidelines
are available on the Web site. It is available 24 hours each day, 365
days a year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register home page at: https://www.ofr.gov and the Government Printing Office Web page at: https://www.gpo.gov.
I. Purpose of the Regulatory Action
The United States Department of Transportation (Department or DOT)
is issuing this final rule to update the Department's regulations
prescribing procedures for the public availability of information to
conform these procedures with recent amendments to the Freedom of
Information Act (FOIA) enacted in the FOIA Improvement Act of 2016,
Public Law 114-185. This rule also makes technical amendments to 49 CFR
part 7.
The rule revises the definition of ``reading room records'' in
section 7.2 to remove the discussion of the locations of reading room
records. The location of reading room records is already provided in
section 7.12(b), therefore, this is not a substantive change. As
required by the section 2 of the FOIA Improvement Act of 2016, this
rule also revises the description of ``Frequently Requested Records''
in section 7.12(a)(4) to include records requested three or more times
under FOIA. The FOIA Improvement Act of 2016 no longer requires that
agencies maintain physical locations for the reading rooms. The rule
revises the description of reading room locations in section 7.12(b) to
indicate that DOT may continue to maintain physical reading rooms
(although not required) and, if it does, those locations will be listed
on the Department's FOIA Web site (www.transportation.gov/foia).
In section 7.23, the rule amends subparagraph (c)(5) to state that
Exemption 5's deliberative process privilege applies only to records
created 25 years or more before the date on which the records are
requested, and the rule adds a new paragraph (d) to
[[Page 21137]]
prohibit DOT from withholding information under this section unless DOT
reasonably foresees that disclosure will harm an interest protected by
a FOIA exemption, or the disclosure is prohibited by law. Both of these
changes are required by the FOIA Improvement Act of 2016.
Several additions have been made to section 7.31 in Subpart D,
``Time Limits,'' to align with changes required by the FOIA Improvement
Act of 2016, including requirements that DOT notify FOIA requesters of
the availability of assistance or dispute resolution services from
DOT's FOIA Public Liaisons or the Office of Government Information
Services. This rule also extends the amount of time requesters have to
file an administrative appeal from 45 days to 90 days from the date of
DOT's initial determination. Finally, the rule amends section 7.34 in
subpart D, ``Fees'', to prohibit the Department from charging
requesters for the time spent searching for responsive records if the
agency misses a deadline. The Department may continue to charge for
search time if there are unusual circumstances and the Department
responds within thirty days of the date of the request (and has
notified the requester of the unusual circumstances). The Department
may also continue to charge for search time if: (1) There are unusual
circumstances, (2) the requester has been so notified, (3) more than
5000 pages are necessary in the response, and (4) the agency
communicates or makes at least three good faith attempts to address the
scope with the requester in an attempt to narrow the request. If a
court determines that exceptional circumstances exist, the agency's
failure to comply with time limits shall be excused for the length of
time provided by court order.
In addition to the changes to the Department's regulations required
by the FOIA Improvement Act of 2016, this final rule makes several
other technical amendments needed as the result of legislative or
regulatory action since the Department's last update to its regulations
at 49 CFR part 7, in 2014. First, the Department is updating any
reference to the Department's web address to replace ``dot'' with
``transportation'' to reflect a change in the Department's web address.
Next, this rule removes the reference to the Surface Transportation
Board in Section 7.2, ``Definitions.'' The Surface Transportation Board
was previously part of DOT, but was made a separate, independent
agency, in December 2015, under the Surface Transportation Board
Reauthorization Act of 2015 (Pub. L. 114-110). Finally, this rule
amends Section 7.29 to include a reference to information submitted to
the Federal Motor Carrier Safety Administration under 49 CFR 389.9.
Section 7.29 sets forth the procedures the Department follows when it
receives a request for information submitted to the Department that may
contain confidential business information; however, these procedures do
not apply when confidential business information is submitted to the
Department through other regulatory procedures, such as 49 CFR 389.9,
that include the opportunity for the submitter to identify the
information as confidential and the Department to make a determination
about the confidential nature of the information.
Final Rule
Under the Administrative Procedure Act (5 U.S.C. 553(b)), the
normal notice and comment procedure does not apply if the agency finds
that it would be impracticable, unnecessary, or contrary to the public
interest. This rule amends 49 CFR part 7 to make minor technical
amendments, and revisions directly and expressly mandated by the FOIA
Improvement Act of 2016. Additional changes are merely technical
amendments that conform the Department's regulations with recent
changes made by regulation or legislation. These changes to part 7 do
not involve the exercise of agency discretion. Therefore, the
Department finds that notice and comment for this rule is unnecessary
due to the technical nature of the revisions and the lack of agency
discretion. 5 U.S.C. 553(b)(3)(B).
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
The Department has determined this action is not a significant
regulatory action within the meaning of Executive Order 12866, and
within the meaning of the Department of Transportation's regulatory
policies and procedures. The Department anticipates that the economic
impact of this rulemaking would be minimal.
Regulatory Flexibility Act
The Department has found under 5 U.S.C. 553(b)(3)(B) that notice
and opportunity for comment are unnecessary for this rule; therefore,
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5
U.S.C. 601-612) do not apply.
Assistance to Small Entities
Section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 is applicable to assist small entities in
understanding this final rule so that they can better evaluate its
effects on themselves and participate in the rulemaking initiative. If
the final rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult Joe Solomey,
Senior Counsel for Enforcement Programs, (202) 366-2934.
Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48,
March 22, 1995) as it will not result in the expenditure by State,
local, tribal governments, in the aggregate, or by the private sector,
of $155 million or more in any one year (2 U.S.C. 1532).
Executive Order 13132 (Federalism Assessment)
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132 dated August 4, 1999, and the Department determined this
action will not have a substantial direct effect or sufficient
federalism implications on the States. The Department also determined
this action will not preempt any State law or regulation or affect the
States' ability to discharge traditional State governmental functions.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs do not apply to this
program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The
[[Page 21138]]
Department analyzed this final rule under the PRA and determined this
rule does not contain collection of information requirements for the
purposes of the PRA.
National Environmental Policy Act
Agencies are required to adopt implementing procedures for NEPA
that establish specific criteria for, and identification of, three
classes of actions: Those that normally require preparation of an
Environmental Impact Statement; those that normally require preparation
of an Environmental Assessment; and those that are categorically
excluded from further NEPA review (40 CFR 1507.3(b)). The changes in
this rule are part of agency procedures, and therefore establishing the
changes does not require preparation of a NEPA analysis or document.
Agency NEPA procedures are generally procedural guidance to assist
agencies in the fulfillment of agency responsibilities under NEPA, but
are not the agency's final determination of what level of NEPA analysis
is required for a particular proposed action. The requirements for
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and
1507.3.
This action was also analyzed under the Clean Air Act, as amended
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement because it does not affect direct or indirect emissions of
criteria pollutants.
Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at
www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require the Department to achieve
environmental justice (EJ) as part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects, including interrelated social and
economic effects, of its programs, policies, and activities on minority
populations and low-income populations in the United States. The DOT
Order requires the Department to address compliance with the Executive
Order and the DOT Order in all rulemaking activities. In addition, the
Department has issued additional documents relating to administration
of the Executive Order and the DOT Order.
At the time the Department applies the NEPA implementing procedures
in 23 CFR part 771, the Department would have an independent obligation
to conduct an evaluation of the proposed action under the applicable EJ
orders and guidance to determine whether the proposed action has the
potential for EJ effects. The Department has evaluated the
environmental justice effects of this rule in accordance with the E.O.
and has determined that no environmental justice issue is associated
with this rule, nor is there any collective environmental impact that
would result from its promulgation.
Executive Order 12630 (Taking of Private Property)
The Department has analyzed this final rule under Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights, and found this final rule will not affect a
taking of private property or otherwise have taking implications under
Executive Order 12630.
Privacy
The E-Government Act of 2002, Public Law 107-347, sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a privacy impact assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information as a result of this rule.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
The Department analyzed this rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks, which requires agencies issuing ``economically significant''
rules, if the regulation also concerns an environmental health or
safety risk that an agency has reason to believe may disproportionately
affect children, to include an evaluation of the regulation's
environmental health and safety effects on children. It was determined
this final rule is not economically significant, thus no analysis of
the impacts on children is required. There is also no anticipation that
this action could present an environmental or safety risk that could
disproportionately affect children.
Executive Order 13175 (Tribal Consultation)
The Department has analyzed this action under Executive Order
13175, dated November 6, 2000, and determined the action will not have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibility between the Federal
Government and Indian tribes.
National Technology Transfer and Advancement Act (Technical Standards)
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. This rule does not use
technical standards. Therefore, we did not consider the use of
voluntary consensus standards.
Executive Order 13211 (Energy Effects)
The Department has analyzed this action under Executive Order
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use. The Department determined this rule is
not a significant energy action under that order because it is not a
significant regulatory action under Executive Order 12866 and is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects is not required.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN number contained in the
heading of this
[[Page 21139]]
document can be used to cross-reference this action with the Unified
Agenda.
List of Subjects in 49 CFR Part 7
Freedom of information, Reporting and recordkeeping requirements.
In consideration of the foregoing, the DOT amends 49 CFR part 7 as
follows:
PART 7--PUBLIC AVAILABILITY OF INFORMATION
0
1. The authority citation for part 7 continues to read as follows:
Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O.
12600; E.O. 13392
0
2. Amend Sec. 7.2 by revising the definitions of ``Department or DOT''
and ``Reading room records'' to read as follows:
Sec. 7.2 Definitions.
* * * * *
Department or DOT means the Department of Transportation, including
the Office of the Secretary, the Office of Inspector General, and all
DOT Operating Administrations, any of which may be referred to as a DOT
component.
* * * * *
Reading room records are those records required to be made
available to the public without a specific request under 5 U.S.C.
552(a)(2), as described in Sec. 7.12.
* * * * *
0
3. Amend Sec. 7.12 by revising paragraphs (a)(4) and (b) to read as
follows:
Sec. 7.12 What records are available in reading rooms, and how are
they accessed?
(a) * * *
(4) Copies of all records, regardless of form or format, that have
been released to any person under subpart C of this part and that:
(i) Because of the nature of their subject matter, DOT determines
have become or are likely to become the subject of subsequent requests
for substantially the same records; or
(ii) Have been requested three or more times.
* * * * *
(b) Reading room locations. DOT makes its reading room records and
indices (in the form of lists or links) available at https://www.transportation.gov/foia. To the extent that DOT continues to make
reading rooms available at a physical location, those locations are
listed on the DOT FOIA Web site at https://www.transportation.gov/foia.
0
4. Amend Sec. 7.23 as follows:
0
a. Revise paragraph (c)(5);
0
b. Redesignate paragraph (d) as (e);
0
c. Add new paragraph (d); and
0
d. Add paragraph (f).
The revision and additions read as follows:
Sec. 7.23 What limitations apply to disclosure?
* * * * *
(c) * * *
(5) Inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation
with the agency, provided that the deliberative process privilege shall
not apply to records created 25 years or more before the date on which
the records were requested;
* * * * *
(d) Application of exemptions. DOT shall withhold information
pursuant to a statutory exemption only if:
(1) DOT reasonably foresees that disclosure would harm an interest
protected by an exemption under paragraph (c) of this section; or
(2) Disclosure is prohibited by law or otherwise exempted from
disclosure under paragraph (c)(3) of this section.
* * * * *
(f) Non-confidentiality of requests. DOT releases the names of FOIA
requesters and descriptions of the records they have sought, as shown
on DOT FOIA logs, except to the extent that an exemption authorizes or
requires withholding of the log information.
0
5. Amend Sec. 7.27 to revise paragraphs (a) introductory text and (c)
to read as follows:
Sec. 7.27 What are the designated DOT FOIA Requester Service
Centers?
(a) A request for a record under this subpart may be submitted via
paper, facsimile, or electronic mail to the FOIA Requester Service
Center designated for the DOT component where the records are located,
at the electronic mail addresses or facsimile numbers identified at
https://www.transportation.gov/foia or the mailing addresses indicated
below (unless a more up-to-date mailing address has been designated at
https://www.transportation.gov/foia):
* * * * *
(c) Requests for records under this part, and FOIA inquiries
generally, may be made by accessing the DOT Home Page on the Internet
(https://www.transportation.gov) and clicking on the Freedom of
Information Act link (https://www.transportation.gov/foia).
0
6. Add paragraph (d)(3) to Sec. 7.29 to read as follows:
Sec. 7.29 When and how does DOT consult with submitters of
commercial information?
* * * * *
(d) * * *
(3) Information submitted to the Federal Motor Carrier Safety
Administration and addressed in 49 CFR 389.9.
* * * * *
0
7. Revise paragraph Sec. 7.31(a)(3) to read as follows:
Sec. 7.31 What time limits apply to DOT with respect to initial
determinations?
(a) * * *
(3) DOT notifies the requester of DOT's initial determination. If
DOT decides to grant the request in full or in part, DOT makes the
record (or the granted part) available as promptly as possible and
provides the requester with written notification of DOT's
determination, the reasons for the determination, and the right of the
requester to seek assistance from the FOIA Public Liaison. If DOT
denies the request in full or in part, because the record (or the
denied part) is subject to an exemption, is not within DOT's custody
and control, or was not located following a reasonable search, DOT
notifies the requester of the denial in writing and includes in the
notice the reason for the determination, the right of the requester to
appeal the determination, the name and title of each individual
responsible for the initial determination to deny the request, and the
requester's right to seek dispute resolution services from the FOIA
Public Liaison or the Office of Government Information Services. The
denial letter includes an estimate of the volume of records or
information withheld, in number of pages or other reasonable form of
estimation. This estimate does not need to be provided if the volume is
otherwise indicated through deletions on records disclosed in part, or
if providing an estimate would harm an interest protected by an
applicable exemption. DOT marks or annotates records disclosed in part
to show both the amount and location of the information deleted
whenever practicable (see Sec. 7.23(d)).
* * * * *
0
8. Amend Sec. 7.32 by revising paragraphs (a), (b), and (c) and (d)(1)
to read as follows:
Sec. 7.32 What time limits apply to a requester when appealing DOT's
initial or final determination?
(a) Denial of records request. When the responsible DOT official
determines that a record request will be denied, in whole or in part,
because the record is subject to an exemption, is not in DOT's
[[Page 21140]]
custody and control, or was not located following a reasonable search,
DOT provides the requester with the written statement described in
Sec. 7.31(a)(3).
(b) Denial of fee waiver. When the responsible DOT official denies,
in whole or in part, a request for a waiver of fees made pursuant to
Sec. 7.24(b) or Sec. 7.43(c), DOT provides the requester with written
notification of that determination, the reasons for the determination,
the right of the requester to appeal the determination within DOT, and
the requester's right to seek assistance in resolution of disputes from
the FOIA Public Liaison or Office of Government Information Services.
(c) Denial of expedited processing. When the responsible DOT
official denies a request for expedited processing made pursuant to
Sec. 7.31(c), DOT provides the requester with written notice of that
determination, the reasons for the determination, the right to appeal
the determination within DOT, and the requester's right to seek dispute
resolution services from the FOIA Public Liaison or Office of
Government Information Services.
(d) * * *
(1) Each appeal must be made in writing to the appropriate DOT
appeal official and postmarked or, in the case of electronic or
facsimile transmissions transmitted, within ninety calendar days from
the date the initial determination is signed and should include the DOT
file or reference number assigned to the request and all information
and arguments relied upon by the person making the request. The contact
information for all DOT component appeal officials is identified in the
DOT FOIA Reference Guide available at https://www.transportation.gov/foia. The envelope in which a mailed appeal is sent or the subject line
of an appeal sent electronically or by facsimile should be prominently
marked: ``FOIA Appeal.'' The twenty Federal working day limit described
in Sec. 7.33(a) will not begin to run until the appeal has been
received by the appropriate office and identified as an appeal under
FOIA, or would have been so identified with the exercise of due
diligence, by a DOT employee.
* * * * *
0
9. Amend Sec. 7.34 by revising paragraph (b) to read as follows:
Sec. 7.34 When and how are time limits applicable to DOT extended?
* * * * *
(b) When the extension is for more than ten Federal working days,
the written notice provides the requester with an opportunity to either
modify the request (e.g., by narrowing the record types or date ranges)
so that it may be processed within the extended time limit, or arrange
an alternative time period with the DOT component for processing the
request (e.g., by prioritizing portions of the request). The written
notice also will notify the requester of the right to seek dispute
resolution services from the Office of Government Information Services.
* * * * *
0
10. Amend Sec. 7.43 by revising paragraph (f) to read as follows:
Sec. 7.43 When are fees waived or reduced for records requested
under subpart C of this part?
* * * * *
(f) Except as provided in paragraphs (f)(1) through (3) of this
section, DOT does not assess search fees otherwise chargeable under
Sec. 7.42(h) and (j) or duplication fees otherwise chargeable under
Sec. 7.42(i) when DOT fails to comply with the time limits under Sec.
7.31 or Sec. 7.33.
(1) If DOT has determined that unusual circumstances apply (as
defined in Sec. 7.34(a)), 5,000 pages or less are necessary to respond
to the request, and DOT has provided a timely written notice to the
requester in accordance with Sec. 7.34(a), a failure to comply with
the time limits under Sec. 7.31 or Sec. 7.33 is excused for an
additional 10 days. If DOT does not comply with the extended time
limit, DOT does not assess search fees otherwise chargeable under Sec.
7.42(h) and (j) or duplication fees otherwise chargeable under Sec.
7.24(i);
(2) If DOT has determined that unusual circumstances apply (as
defined under Sec. 7.34(a)) and more than 5,000 pages are necessary to
respond to the request, DOT may charge search fees under Sec. 7.42(h)
and (j) or duplication fees under Sec. 7.42(j) if DOT has provided
timely written notice to the requester in accordance with Sec. 7.34(a)
and (b), and DOT has discussed with the requester via written mail,
electronic mail, or telephone (or made not less than three good faith
attempts to do so) how the requester could effectively limit the scope
of the request.
(3) If a court determines that exceptional circumstances exist (as
that term is defined in 5 U.S.C. 552(a)(6)(C)), failure to comply with
time limits under Sec. 7.31 or Sec. 7.33 shall be excused for the
length of time provided by the court order.
Issued on: April 25, 2017.
Judith S. Kaleta,
Deputy General Counsel.
[FR Doc. 2017-08925 Filed 5-4-17; 8:45 am]
BILLING CODE 4910-9X-P