[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]
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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.
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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 [email protected] 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