[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2006 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
49
Parts 1 to 99
Revised as of October 1, 2006
Transportation
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2006
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 49:
Subtitle A--Office of the Secretary of
Transportation 3
Finding Aids:
Material Approved for Incorporation by Reference........ 785
Table of CFR Titles and Chapters........................ 787
Alphabetical List of Agencies Appearing in the CFR...... 805
List of CFR Sections Affected........................... 815
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 49 CFR 1.1 refers to
title 49, part 1, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
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Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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appearing in the Code of Federal Regulations.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2006.
[[Page ix]]
THIS TITLE
Title 49--Transportation is composed of nine volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, parts
100-185, parts 186-199, parts 200-299, parts 300-399, parts 400-599,
parts 600-999, parts 1000-1199, part 1200 to End. The first volume
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
185) and the third volume (parts 186-199) contain the current
regulations issued under chapter I--Pipeline and Hazardous Materials
Safety Administration (DOT); the fourth volume (parts 200-299) contains
the current regulations issued under chapter II--Federal Railroad
Administration (DOT); the fifth volume (parts 300-399) contains the
current regulations issued under chapter III--Federal Motor Carrier
Safety Administration (DOT); the sixth volume (parts 400-599) contains
the current regulations issued under chapter IV--Coast Guard (DHS),
chapter V--National Highway Traffic Safety Administration (DOT); the
seventh volume (parts 600-999) contains the current regulations issued
under chapter VI--Federal Transit Administration (DOT), chapter VII--
National Railroad Passenger Corporation (AMTRAK), and chapter VIII--
National Transportation Safety Board; the eighth volume (parts 1000-
1199) contains the current regulations issued under chapter X--Surface
Transportation Board and the ninth volume (part 1200 to End) contains
the current regulations issued under chapter X--Surface Transportation
Board, chapter XI--Research and Innovative Technology Administration,
and chapter XII--Transportation Security Administration, Department of
Transportation. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2006.
In the volume containing parts 100-185, see Sec. 172.101 for the
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards
appear in part 571.
Redesignation tables for chapter III--Federal Motor Carrier Safety
Administration, Department of Transportation and chapter XII--
Transportation Security Administration, Department of Transportation
appear in the Finding Aids section of the fifth and ninth volumes.
For this volume, Moja N. Mwaniki and Bonnie Fritts were Chief
Editors. The Code of Federal Regulations publication program is under
the direction of Frances D. McDonald, assisted by Kenneth R. Payne.
[[Page 1]]
TITLE 49--TRANSPORTATION
(This book contains parts 1 to 99)
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Part
SUBTITLE A--Office of the Secretary of Transportation....... 1
[[Page 3]]
Subtitle A--Office of the Secretary of Transportation
--------------------------------------------------------------------
Part Page
1 Organization and delegation of powers and
duties.................................. 5
3 Official seal............................... 49
5 Rulemaking procedures....................... 49
6 Implementation of Equal Access to Justice
Act in agency proceedings............... 53
7 Public availability of information.......... 59
8 Classified information: Classification/
declassification/access................. 73
9 Testimony of employees of the Department and
production of records in legal
proceedings............................. 81
10 Maintenance of and access to records
pertaining to individuals............... 86
11 Protection of human subjects................ 99
15 Protection of sensitive security information 110
17 Intergovernmental review of Department of
Transportation programs and activities.. 117
18 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 120
19 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, and
other non-profit organizations.......... 149
20 New restrictions on lobbying................ 177
21 Nondiscrimination in federally-assisted
programs of the Department of
Transportation--Effectuation of title VI
of the Civil Rights Act of 1964......... 189
23 Participation of disadvantaged business
enterprise in airport concessions....... 200
24 Uniform relocation assistance and real
property acquisition for Federal and
federally-assisted programs............. 220
25 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 267
[[Page 4]]
26 Participation by disadvantaged business
enterprises in Department of
Transportation financial assistance
programs................................ 283
27 Nondiscrimination on the basis of disability
in programs or activities receiving
Federal financial assistance............ 343
28 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Transportation....................... 355
29 Governmentwide debarment and suspension
(nonprocurement)........................ 363
30 Denial of public works contracts to
suppliers of goods and services of
countries that deny procurement market
access to U.S. contractors.............. 385
31 Program fraud civil remedies................ 390
32 Governmentwide requirements for drug-free
workplace (financial assistance)........ 406
37 Transportation services for individuals with
disabilities (ADA)...................... 411
38 Americans With Disabilities Act (ADA)
accessibility specifications for
transportation vehicles................. 589
40 Procedures for transportation workplace drug
testing programs........................ 627
41 Seismic safety.............................. 736
71 Standard time zone boundaries............... 738
79 Medals of honor............................. 744
80 Credit assistance for surface transportation
projects................................ 744
89 Implementation of the Federal Claims
Collection Act.......................... 750
91 International air transportation fair
competitive practices................... 757
92 Recovering debts to the United States by
salary offset........................... 759
93 Aircraft allocation......................... 768
95 Advisory committees......................... 769
98 Enforcement of restrictions on post-
employment activities................... 772
99 Employee responsibilities and conduct....... 774
Appendix to Subtitle A--United States Railway Association--
Employee Responsibilities and Conduct..................... 777
[[Page 5]]
PART 1_ORGANIZATION AND DELEGATION OF POWERS AND DUTIES--Table of Contents
Subpart A_General
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Organization of the Department.
1.4 General responsibilities.
Subpart B_Office of the Secretary
1.21 Purpose.
1.22 Structure.
1.23 Spheres of primary responsibility.
1.24 Authority.
1.25 Relationships.
1.26 Secretarial succession.
Subpart C_Delegations
1.41 Purpose.
1.42 Exercise of authority.
1.43 General limitations and reservations.
1.44 Reservation of authority.
1.45 Delegations to all Administrators.
1.46 Delegations to the Administrator of the Research and Innovative
Technology Administration.
1.47 Delegations to Federal Aviation Administrator.
1.48 Delegations to Federal Highway Administrator.
1.49 Delegations to Federal Railroad Administrator.
1.50 Delegation to National Highway Traffic Safety Administrator.
1.51 Delegations to Federal Transit Administrator.
1.52 Delegations to Saint Lawrence Seaway Development Corporation
Administrator.
1.53 Delegations to the Administrator of the Pipeline and Hazardous
Materials Safety Administration.
1.54 Delegations to all Secretarial Officers.
1.55 Delegations to Deputy Secretary.
1.56 Delegations to the Assistant Secretary for Transportation Policy.
1.56a Delegations to the Assistant Secretary for Aviation and
International Affairs.
1.56b Delegations to the Designated Senior Career Official, Office of
the Assistant Secretary for Aviation and International
Affairs.
1.57 Delegations to General Counsel.
1.57a Delegations to Deputy General Counsel.
1.57b Delegations to the Assistant General Counsel for Environmental,
Civil Rights, and General Law.
1.58 Delegations to Assistant Secretary for Budget and Programs.
1.59 Delegations to Assistant Secretary for Administration.
1.59a Redelegations by the Assistant Secretary for Administration.
1.60 Delegations to the Inspector General.
1.61 Delegations to Assistant Secretary for Governmental Affairs.
1.62 Delegations to the Director of Small and Disadvantaged Business
Utilization.
1.63 Delegations to Assistant to the Secretary and Director of Public
Affairs.
1.64 Delegations to the Director, Transportation Administrative Service
Center.
1.65 Authority to classify information.
1.66 Delegations to Maritime Administrator.
1.67 Delegations to Maritime Subsidy Board.
1.68 Delegations to the Under Secretary of Transportation for Security
for the Transportation Security Administration.
1.69 Delegations to the Director of Intelligence, Security, and
Emergency Response.
1.70 Delegations to the Director of the Departmental Office of Civil
Rights.
1.71 [Reserved]
1.72 Delegations to the Office of the Chief Information Officer.
1.73 Delegation to the Administrator of the Federal Motor Carrier Safety
Administration.
1.74 Delegations to the Under Secretary for Transportation Policy.
Appendix A to Part 1--Delegations and Redelegations by Secretarial
Officers
Authority: 49 U.S.C. 322; 28 U.S.C. 2672; 31 U.S.C. 3711(a)(2);
Public Law 101-552, 104 Stat. 2736; Public Law 106-159, 113 Stat. 1748;
Public Law 107-71, 115 Stat. 597; Public Law 107-295, 116 Stat. 2064;
Public Law 107-295, 116 Stat 2065; Public Law 107-296, 116 Stat. 2135;
41 U.S.C. 414; Public Law 108-426, 118 Stat. 2423; Public Law 109-59,
119 Stat. 1144.
Source: Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, unless otherwise
noted.
Subpart A_General
Sec. 1.1 Purpose.
This part describes the organization of the Department of
Transportation and provides for the performance of duties imposed upon,
and the exercise of powers vested, in the Secretary of Transportation by
law.
Sec. 1.2 Definitions.
As used in this part, Administrator includes:
(a) The Federal Aviation Administrator.
(b) The Federal Highway Administrator.
[[Page 6]]
(c) The Federal Railroad Administrator.
(d) The National Highway Traffic Safety Administrator.
(e) The Federal Transit Administrator.
(f) The Administrator of the St. Lawrence Seaway Development
Corporation.
(g) The Pipeline and Hazardous Materials Safety Administrator.
(h) The Maritime Administrator.
(i) The Research and Innovative Technology Administrator.
(j) The Federal Motor Carrier Safety Administrator.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45
FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt.
1-270, 60 FR 30196, June 8, 1995; 65 FR 221, Jan. 4, 2000; 66 FR 67118,
Dec. 28, 2001; 67 FR 629, Jan. 4, 2002; 68 FR 34549, June 10, 2003; 70
FR 8300, Feb. 18, 2005]
Sec. 1.3 Organization of the Department.
(a) The Secretary of Transportation is the head of the Department.
(b) The Department is comprised of the Office of the Secretary and
the following operating elements, the heads of which report directly to
the Secretary:
(1) The Federal Aviation Administration, headed by the
Administrator.
(2) The Federal Highway Administration, headed by the Administrator.
(3) The Federal Railroad Administration, headed by the
Administrator.
(4) The National Highway Traffic Safety Administration, headed by
the Administrator.
(5) The Federal Transit Administration, headed by the Administrator.
(6) The St. Lawrence Seaway Development Corporation, headed by the
Administrator.
(7) The Pipeline and Hazardous Materials Safety Administration,
headed by the Administrator.
(8) The Maritime Administration, headed by the Administrator and
including within it the Maritime Subsidy Board composed of the Maritime
Administrator, the Deputy Maritime Administrator, and the Chief Counsel
of the Maritime Administration.
(9) The Research and Innovative Technology Administration, headed by
the Administrator.
(10) [Reserved]
(11) The Federal Motor Carrier Safety Administration, headed by the
Administrator.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45
FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt.
1-270, 60 FR 30196, June 8, 1995; 65 FR 221, Jan. 4, 2000; 66 FR 67118,
Dec. 28, 2001; 68 FR 34549, June 10, 2003; 70 FR 8300, Feb. 18, 2005]
Sec. 1.4 General responsibilities.
(a) Office of the Secretary. Provides for:
(1) Leadership in formulating and executing well-balanced national
and international transportation objectives, policies, and programs;
(2) Stimulating and promoting research and development in all modes
and types of transportation, with special emphasis on transportation
safety;
(3) Coordinating the various transportation programs of the Federal
Government;
(4) Encouraging maximum private development of transportation
services;
(5) Responsive, timely, and effective liaison with Congress, and
public and private organizations on transportation matters;
(6) Innovative approaches to urban transportation and environmental
enhancement programs; and
(7) Effective management of the Department as a whole.
(b) The Federal Aviation Administration. Is responsible for:
(1) Promulgating and enforcing regulations on all safety matters
relating to the manufacture, operation, and maintenance of aircraft;
(2) Registering aircraft and recording rights in aircraft;
(3) Developing, modifying, testing, and evaluating systems,
procedures, facilities, and devices needed for the safe and efficient
navigation and traffic control of aircraft;
(4) Locating, constructing or installing, maintaining, and operating
Federal aids to air navigation, wherever necessary;
(5) Developing air traffic regulations, and administering air
traffic control of civil and military air operations within U.S.
airspace;
[[Page 7]]
(6) Providing grants-in-aid for developing public airports;
(7) Promoting and encouraging civil aviation abroad through
technical aviation assistance to other governments; and
(8) Promulgating and enforcing regulations on all safety matters
relating to commercial launch activities.
(c) The Federal Highway Administration. Is responsible for:
(1) Planning, in cooperation with the States, the national highway
system;
(2) Providing for improving, in cooperation with the States, roads
on the Federal-aid primary, secondary, and interstate highway systems
and urban extensions thereof;
(3) Highway beautification and scenic enhancement of the Federal-aid
highway systems;
(4) Surveying and constructing forest highway system roads, defense
highways and access roads, and parkways and roads in national parks and
other federally administered areas;
(5) Developing and administering uniform State standards for highway
safety programs with respect to identification and surveillance of
accident locations; highway design, construction, and maintenance,
including highway related aspects of pedestrian safety; and traffic
control devices.
(d) The Federal Railroad Administration. Is responsible for:
(1) Operating and managing the Alaska Railroad;
(2) Conducting research and development activity in support of
improved rail transportation;
(3) Regulating safety functions pertaining to railroads, express
companies, and water carriers operating in connection with railroads
under a common control, management, or arrangement for continuous
carriage or shipment; and
(4) Investigating and issuing reports concerning collisions,
derailments, and other railroad accidents resulting in serious injury to
persons or to the property of a railroad.
(e) The National Highway Traffic Safety Administration. Is
responsible for:
(1) Promulgating uniform standards for developing State highway
safety programs, except for those standards the development and
administration of which are delegated to the Federal Highway
Administration.
(2) Establishing, prescribing, and enforcing National standards for
improving safety in the operation and performance of motor vehicles and
equipment.
(3) Informing the public of the comparative characteristics and
operational cost of passenger motor vehicles and requiring display of
comparative insurance costs by automobile dealers.
(4) Administering a program of mandatory automotive fuel economy
standards for passenger and non-passenger automobiles for model year
1978 and beyond.
(5) Establishing safeguards for the protection of purchasers with
respect to the sale of motor vehicles having altered or reset odometers
and enforcing the prohibition against tampering with odometers.
(f) The Federal Transit Administration. Is responsible for:
(1) Exercising the authority vested in the Secretary for developing
comprehensive and coordinated public transportation systems that serve
the public.
(2) Administering Federal transportation assistance programs and
functions; and
(3) Assuring appropriate liaison and coordination with other Federal
agencies, state and local governmental authorities, with respect to the
foregoing.
(g) The St. Lawrence Seaway Development Corporation. Is responsible
for the development, operation, and maintenance of that part of the St.
Lawrence Seaway within the territorial limits of the United States.
(h) The Pipeline and Hazardous Materials Safety Administration. Is
responsible for:
(1) Administering a national program of safety in natural gas and
hazardous liquid pipeline transportation including identifying pipeline
safety concerns, developing uniform safety standards, and promulgating
and enforcing safety regulations.
(2) Administering a national program of safety, including security,
in multi-modal hazardous materials transportation including identifying
hazardous materials safety concerns, developing
[[Page 8]]
uniform safety standards, and promulgating and enforcing safety and
security regulations.
(i) The Maritime Administration. Is responsible for:
(1) Fostering the development and maintenance of an American
merchant marine sufficient to meet the needs of the national security
and of the domestic and foreign commerce of the United States;
(2) Awarding and administering construction-differential subsidy
contracts and operating-differential subsidy contracts to aid the
American merchant marine, and trade-in allowances for new ship
construction;
(3) Entering into and administering agreements for capital
contruction funds (excepting fishing vessels) and construction reserve
funds;
(4) Providing insurance on construction loans and ship mortgages or
guarantees on ship financing obtained from private sources for ship
construction and reconstruction (excepting fishing vessels);
(5) Providing assistance to the shipping industry to generate
increased trade and cargo shipments on U.S. flag ships;
(6) Promoting development of ports and intermodal transportation
systems;
(7) Promoting development of the domestic waterborne commerce of the
United States;
(8) Overseeing the administration of cargo preference statutes;
(9) Entering into and administering charters and general agency
agreements for operation of Government-owned merchant ships;
(10) Maintaining custody of, and preserving, ships in the National
Defense Reserve Fleet;
(11) Selling surplus Government-owned ships;
(12) Supervising design and construction of ships for Government
account;
(13) Furnishing war risk insurance on privately owned merchant
ships;
(14) Administering the foreign transfer program regarding ships and
other maritime properties;
(15) Training merchant marine officers;
(16) Conducting research and development to improve and promote the
waterborne commerce of the United States; and
(17) Issuing rules and regulations with respect to the foregoing
functions.
(j) The Maritime Subsidy Board (within the Maritime Administration).
Is responsible for:
(1) Making, amending, and terminating subsidy contracts, which shall
be deemed to include, in the case of construction-differential subsidy:
(i) The contract for the construction, reconstruction, or reconditioning
of a vessel, and (ii) the contract for the sale of the vessel to the
subsidy applicant or the contract to pay a construction-differential
subsidy and the cost of the national defense features, and, in the case
of operating-differential subsidy, the contract with the subsidy
applicant for the payment of the subsidy.
(2) Conducting hearings and making determinations antecedent to
making, amending, and terminating subsidy contracts, under the
provisions of titles V, VI, and VII, and sections 301 (except
investigations, hearings, and determinations, including changes in
determinations, with respect to minimum manning scales, minimum wage
scales, and minimum working conditions), 708, 805(a), and 805(f) of the
Merchant Marine Act, 1936, as amended (the ``Act'').
(3) Approving the sale, assignment, or transfer of any operating
subsidy contract under section 608 of the Act.
(4) Performing so much of the functions with respect to adopting
rules and regulations, subpoenaing witnesses, administering oaths,
taking evidence, and requiring the production of books, papers, and
documents, under sections 204 and 214 of the Act, as they relate to the
functions of the Board.
(5) Performing as much of the functions specified in section 12 of
the Shipping Act, 1916, as amended, as the same relate to the functions
of the Board under paragraphs (k) (1) through (4) of this section.
(k) The Research and Innovative Technology Administration. Is
responsible for:
(1) Coordinating, facilitating, and reviewing the Department's
research and development programs and activities, except as limited by
section 4(b)(1) of the Norman Y. Mineta Research and
[[Page 9]]
Special Programs Improvement Act (Pub. L. 108-426, 118 Stat. 2423
(November 30, 2004)).
(2) After consultation with modal and OST offices, making
recommendations to the Secretary on all modal and OST research budgets.
(3) Serving as the focal point for Departmental research,
development, and technology endeavors, in coordination with the Under
Secretary for Policy.
(4) Planning, developing, initiating and managing programs in
transportation research and development. Programs undertaken by RITA
shall not be duplicative of similar programs undertaken by any modal or
OST office. Maintaining the capability to perform research, development,
and analysis in transportation planning and socio-economic effects,
program management, and provide advice on technology in DOT policy
development. Particular efforts will be made on analyzing transportation
systems problems and developing innovative research products, processes
and applications to solve them, advanced transportation concepts, and
multimodal transportation. RITA will develop and maintain vital
statistics and related transportation information databases.
(5) Providing leadership on technical, navigation, communication,
and systems engineering activities.
(6) Providing a point of contact for the Department with the
academic community to encourage transportation research.
(7) Providing university transportation research grants.
(8) Managing a Transportation Safety Institute which designs and
conducts training programs responsive to the requirements of Government
and industry as expressed by the operating administrations of the
Department.
(9) Carrying out comprehensive transportation statistics research,
analysis, and reporting.
(10) Providing oversight of the activities of the Bureau of
Transportation Statistics.
(11) Providing oversight of the activities of the Volpe National
Transportation Systems Center.
(12) Coordinating intermodal research initiatives and planning
activities.
(13) Serving as a focal point within the Federal government for
coordination of intermodal transportation research and development
policy, in coordination with the Under Secretary for Policy.
(l) The Federal Motor Carrier Safety Administration. Is responsible
for:
(1) Managing program and regulatory activities, including
administering laws and promulgating and enforcing regulations on safety
matters relating to motor carrier safety;
(2) Carrying out motor carrier registration and authority to
regulate household goods transportation;
(3) Developing strategies for improving commercial motor vehicle,
operator, and carrier safety;
(4) Inspecting records and equipment of commercial motor carriers,
and investigating accidents and reporting violations of motor carrier
safety regulations; and
(5) Carrying out research, development, and technology transfer
activities to promote safety of operation and equipment of motor
vehicles for the motor carrier transportation program.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting Sec. 1.4,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
Subpart B_Office of the Secretary
Sec. 1.21 Purpose.
This subpart establishes the basic organizational structure, spheres
of primary responsibility, and lines of authority in the Office of the
Secretary. It also describes the relationships between the Office of the
Secretary and the operating administrations, and provides for succession
to the position of Secretary in case of need.
Sec. 1.22 Structure.
(a) Secretary and Deputy Secretary. The Secretary and Deputy
Secretary are assisted by the following, all of which report directly to
the Secretary: The Under Secretary for Policy; the Executive
Secretariat; the Board of Contract Appeals; the Departmental Office of
Civil Rights; the Office of
[[Page 10]]
Small and Disadvantaged Business Utilization; the Office of
Intelligence, Security, and Emergency Response; the Office of Public
Affairs; and the Office of the Chief Information Officer. The Assistant
Secretaries, the General Counsel, and the Inspector General also report
directly to the Secretary.
(b) Office of the Assistant Secretary for Transportation Policy.
This Office is composed of the Offices of Environment, Energy and
Safety; and Economics.
(c) Office of the Assistant Secretary for Aviation and International
Affairs. This Office is composed of the Offices of Aviation
International Economics; International Transportation and Trade;
International Aviation; and Aviation Analysis.
(d) Office of the General Counsel. This Office is composed of the
Offices of Environmental, Civil Rights, and General Law; International
Law; Litigation; Legislation; Regulation and Enforcement; and Aviation
Enforcement and Proceedings.
(e) Office of the Assistant Secretary for Budget and Programs. This
Office is composed of the Offices of Programs and Evaluation; and
Budget.
(f) Office of the Assistant Secretary for Governmental Affairs. This
office is composed of the Offices of Congressional Affairs and
Intergovernmental Affairs.
(g) Office of the Assistant Secretary for Administration. This
Office is composed of the Offices of Personnel; Management Planning;
Information Resource Management; Administrative Services and Property
Management; Hearings; Acquisition and Grant Management; Security;
Financial Management; and Administrative Systems Development.
(h) Office of the Inspector General. The duties and responsibilities
of the Office of Inspector General are carried out by the Assistant
Inspector General for Auditing; the Assistant Inspector General for
Investigations; the Assistant Inspector General for Policy, Planning,
and Resources; and the Assistant Inspector General for Inspections and
Evaluations.
[Amdt. 1-261, 59 FR 10061, Mar. 3, 1994, as amended by Amdt.1-268, 60 FR
14226, Mar. 16, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995; Amdt. 1-
274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-290, 62 FR 51804, Oct. 3, 1997;
68 FR 34549, June 10, 2003; 70 FR 8300, Feb. 18, 2005]
Sec. 1.23 Spheres of primary responsibility.
(a) Secretary and Deputy Secretary. Overall planning, direction, and
control of departmental affairs including civil rights, contract
appeals, small and disadvantaged business participation in departmental
programs, transportation research and technology, commercial space
transportation, intelligence and security, and public affairs.
(b) The Under Secretary for Policy. Provides leadership in the
development of policy for the Department, supervises the policy
activities of Assistant Secretaries with primary responsibility for
aviation, international, and other transportation policy development and
carries out other powers and duties prescribed by the Secretary. Assists
the Secretary and Deputy Secretary in carrying out a variety of
executive and managerial policies, programs and initiatives. Serves as
the focal point within the Federal Government for coordination of
intermodal transportation policy which brings together departmental
intermodal perspectives, advocates intermodal interests, and provides
secretarial leadership and visibility on issues that involve or affect
more than one operating administration.
(c) General Counsel. Legal services as the chief legal officer of
the Department, legal advisor to the Secretary and the Office of the
Secretary; final authority within the Department on questions of law;
professional supervision, including coordination and review, over the
legal work of the legal offices of the Department; drafting of
legislation and review of legal aspects of legislative matters; point of
coordination for the Office of the Secretary and Department Regulations
Council; advice on questions of international law; advice and assistance
with respect
[[Page 11]]
to uniform time matters; ensures uniform departmental implementation of
the Freedom of Information Act (5 U.S.C. 552); responds to requests for
records of the Office of the Secretary including the Office of the
Inspector General, under that statute; review and final action on
applications for reconsideration of initial decisions not to disclose
unclassified records of the Office of the Secretary requested under 5
U.S.C. 552(a)(3); promotion and coordination of efficient use of
Department legal resources; recommendation, in conjunction with the
Assistant Secretary for Administration, of legal career development
programs within the Department.
(d) Assistant Secretary for Transportation Policy. Principal policy
advisor to the Secretary and the Deputy Secretary. Public policy
development, coordination, and evaluation for all aspects of
transportation, with the goal of making the Nation's transportation
resources function as an integrated national system; evaluation of
private transportation sector operating and economic issues; evaluation
of public transportation sector operating and economic issues;
regulatory and legislative initiatives and review; energy,
environmental, disability, and safety policy and program development and
review; and transportation infrastructure assessment and review.
(e) Assistant Secretary for Aviation and International Affairs.
Public policy assessment and review; private sector evaluation;
international transportation and transport-related trade policy and
issues; regulatory and legislative initiatives and review of maritime/
shipbuilding policies and programs; transport-related trade promotion;
coordination of land transport relations with Canada and Mexico;
technical assistance and science and technology cooperation;
international visitors' programs; economic regulation of the airline
industry; and essential air service program.
(f) Assistant Secretary for Budget and Programs. Preparation, review
and presentation of Department budget estimates; liaison with OMB and
Congressional Budget and Appropriations Committees; departmental
financial plans, apportionments, reapportionments, reprogrammings, and
allotments; program and systems evaluation and analysis; program
evaluation criteria; program resource plans; analysis and review of
legislative proposals and one-time reports and studies required by the
Congress; budgetary and selected administrative matters relating to the
Immediate Office of the Secretary.
(g) Assistant Secretary for Governmental Affairs. Coordination of
legislative and non-legislative relationships; congressional affairs;
communications and coordination with Federal, State and local
governments, industry and labor, and with citizens and organizations
representing consumers.
(h) Deputy Assistant Secretary for Tribal Government Affairs. Plan,
coordinate and implement the Department's policies and programs with
respect to Indian tribes and tribal organizations. Coordinate intra-
Departmental tribal transportation programs and activities. Serve as the
Department's primary point of contact in relationships with public and
private organizations and groups related to Indian tribes and tribal
organizations. Participate in any negotiated rulemaking relating to, or
having an impact on, projects, programs, or funding associated with the
tribal transportation program.
(i) Assistant Secretary for Administration. Organization;
delegations of authority; personnel ceiling control; management studies;
personnel management; acquisition and grant management (except for the
responsibility listed for the Office of Small and Disadvantaged Business
Utilization in this section); information resource management; financial
management; development and implementation of a Departmental Accounting
and Financial Information System (DAFIS); property management
information; security; computer support; telecommunications; and
administrative support services for the Office of the Secretary and
certain other components of the Department.
(j) Inspector General. Conduct, supervise, and coordinate audits and
investigations, review existing and proposed legislation and make
recommendations to the Secretary and Congress (Semiannual reports)
concerning their impact on the economy and efficiency of
[[Page 12]]
program administration, or the prevention and detection of fraud and
abuse; recommend policies for and conduct, supervise, or coordinate
other activities of the Department for the purpose of promoting economy
and efficiency in program administration, or preventing and detecting
fraud and abuse.
(k) Executive Secretary. Central facilitative staff for the
Immediate Office of the Secretary and the Secretarial Officers.
(l) Board of Contract Appeals. Conducts trials and issues final
decisions, which are appealable to the United States Court of Appeals
for the Federal Circuit, on appeals from contracting officer decisions
under contracts awarded by the Department and its constituent
administrations in accordance with the Contract Disputes Act of l978, 41
U.S.C. 601 et seq.; sits as the Contract Adjustment Board with plenary
authority to grant extraordinary contractual relief in accordance with
50 U.S.C. 1431-1435 and Executive Order 10789 (3 CFR, 1954-1958 comp.,
p. 426), as amended; hears and decides all contractor and subcontractor
debarment, suspension, or ineligibility cases pursuant to the Federal
Acquisition Regulation, 48 CFR 9.402; judges serve as ``neutrals'' under
the Administrative Dispute Resolution Act, 5 U.S.C. 581 et seq., in
contract-related matters; and performs such other adjudicatory functions
assigned by the Secretary as are consistent with the duties and
responsibilities of the Board as set forth in 41 U.S.C. 601 et seq.
(m) Departmental Office of Civil Rights. The Director of the
Departmental Office of Civil Rights serves as the Department's Equal
Employment Opportunity (EEO) Officer and Title VI Coordinator. The
Director also serves as principal advisor to the Secretary and the
Deputy Secretary on the civil rights and nondiscrimination statutes,
regulations, and executive orders applicable to the Department,
including titles VI and VII of the Civil Rights Act of 1964, as amended,
the Age Discrimination in Employment Act of 1967, as amended, the Age
Discrimination Act of 1975, as amended, section 504 of the
Rehabilitation Act of 1973, as amended, the Americans with Disabilities
Act of 1990, and the Equal Pay Act of 1963. The Office of Civil Rights
also provides policy guidance to the operating administrations and
Secretarial officers on these matters. Also, the Office periodically
reviews and evaluates the civil rights programs of the operating
administrations to ensure that recipients of DOT funds meet applicable
Federal civil rights requirements.
(n) Office of Small and Disadvantaged Business Utilization.
Responsible for the Department's implementation and execution of the
functions and duties under sections 8 and 15 of the Small Business Act,
as amended, (15 U.S.C. 637 and 644), and for other departmental small
and disadvantaged business policy direction.
(o) [Reserved]
(p) Office of Intelligence, Security and Emergency Response.
Responsible for intelligence and security matters within the Department
of Transportation that affect the safety of the traveling public, and
for emergency preparedness and response functions and activities within
the Department and operation of the Department's Crisis Management
Center.
(q) Office of Public Affairs. Focal point for public information and
departmental relations with the news media, the general public, and
selected special publics.
(r) Office of the Chief Information Officer. Serves as principal
advisor to the Secretary on matters involving information resources and
information systems management.
[Amdt. 1-261, 59 FR 10062, Mar. 3, 1994, as amended by Amdt. 265, 60 FR
2891, Jan. 12, 1995; Amdt. 1-274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-
290, 62 FR 51804, Oct. 3, 1997; 68 FR 34549, June 10, 2003; 69 FR 44972,
July 28, 2004; 70 FR 7670, Feb. 15, 2005; 70 FR 8300, Feb. 18, 2005; 71
FR 30830, May 31, 2006]
Sec. 1.24 Authority.
(a) The Deputy Secretary: (1) May exercise the authority of the
Secretary, except where specifically limited by law, order, regulation,
or instructions of the Secretary; and (2) serves as the Chief
Acquisition Officer.
(b) Acting in his or her own name and title, each Assistant
Secretary, the Inspector General, or the General Counsel, within his or
her sphere of responsibility, is authorized to identify and
[[Page 13]]
define the requirements for, and to recommend to the Secretary, new or
revised Departmental policies, plans, and proposals. Each of these
officers is authorized to issue Departmental standards, criteria,
systems and procedures that are consistent with applicable laws,
Executive Orders, Government-wide regulations and policies established
by the Secretary, and to inspect, review, and evaluate Departmental
program performance and effectiveness and advise the Secretary regarding
the adequacy thereof.
(c) Except for nondelegable statutory duties, including those which
devolve as a result of succession to act as Secretary of Transportation,
each Deputy Assistant Secretary, the Deputy Inspector General, and the
Deputy General Counsel is authorized to act for and perform the duties
of his or her principal in the absence or disability of the principal
and as otherwise directed by the principal.
(d) Inspector General. The Inspector General shall report to and be
under the general supervision of the Secretary and Deputy Secretary. In
accordance with the statutory intent of the Inspector General Act to
create an independent and objective unit, the Inspector General is
authorized to make such investigations and reports relating to the
administration of the programs and operations of the Department as are,
in the judgment of the Inspector General, necessary and desirable.
Neither the Secretary nor the Deputy Secretary shall prevent or prohibit
the Inspector General from initiating, carrying out, or completing any
audit or investigation, or from issuing any subpoena during the course
of any audit or investigation.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45
FR 83404, Dec. 18, 1980; 69 FR 60563, Oct. 12, 2004]
Sec. 1.25 Relationships.
(a) Normal staff role. Normally, the functions of the Assistant
Secretaries are staff and advisory in nature. In performing their
functions, the Assistant Secretaries are responsible for continuing
liaison and coordination among themselves and with the operating
administrations to:
(1) Avoid unnecessary duplication of effort by or in conflict with
the performance of similar activities by the operating administrations
and the other Assistant Secretaries pursuant to their Secretarial
delegations of authority; and
(2) Assure that the views of the operating administrations are
considered in developing Departmental policies, plans, and proposals.
The Assistant Secretaries are also available to assist, as appropriate,
the operating administrations in implementing Departmental policy and
programs. As primary staff advisors to the Secretary, the Assistant
Secretaries are concerned with transportation matters of the broadest
scope, including modal, intermodal, and other matters of Secretarial
interest.
(b) Exceptions. There are exceptions to the normal staff role
described in paragraph (a) of this section. In selected instances, the
Secretary has specifically delegated to Assistant Secretaries authority
which they may exercise on the Secretary's behalf. For example, the
Secretary has delegated authority to the Assistant Secretary for
Transportation Policy and the Assistant Secretary for Aviation and
International Affairs, as appropriate, to decide on most requests to
intervene or appear before administrative agencies, subject to the
concurrence of the General Counsel. Also, from time to time, activities
of an operational character may be delegated to an Assistant Secretary
when the nature of the function or its stage of development makes it
untimely to effect assignment to an operating administration.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45
FR 83405, Dec. 18, 1980; Amdt. 1-261, 59 FR 10063, Mar. 3, 1994]
Sec. 1.26 Secretarial succession.
(a) The following officials, in the order indicated, shall act as
Secretary of Transportation, in case of the absence or disability of the
Secretary, until the absence or disability ceases, or, in case of a
vacancy, until a successor is appointed:
(1) Deputy Secretary.
(2) Under Secretary of Transportation for Policy.
(3) General Counsel.
[[Page 14]]
(4) Assistant Secretary for Aviation and International Affairs.
(5) Assistant Secretary for Transportation Policy.
(6) Assistant Secretary for Budget and Programs.
(7) Assistant Secretary for Governmental Affairs.
(8) Assistant Secretary for Administration.
(9) Federal Aviation Administrator.
(10) Federal Aviation Administration Regional Administrator,
Southwest Region.
(11) Federal Aviation Administration Regional Administrator, Great
Lakes Region.
(b) Without regard to the foregoing, a person directed to perform
the duties of the Secretary pursuant to 5 U.S.C. 3347 shall act as
Secretary of Transportation.
[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-184, 48
FR 44079, Sept. 27, 1983; Amdt. 1-261, 59 FR 10063, Mar. 3, 1994; Amdt.
1-291, 62 FR 55357, Oct. 24, 1997; 68 FR 35184, June 12, 2003]
Subpart C_Delegations
Sec. 1.41 Purpose.
(a) Except as provided in paragraph (b) of this section, this
subpart provides for the exercise of the powers and performance of the
duties vested in the Secretary of Transportation by law.
(b) For delegations of authority vested in the Secretary by
Executive Order 11652 originally to classify documents as secret or
confidential, see Sec. 8.11 of this subtitle.
Sec. 1.42 Exercise of authority.
In exercising powers and performing duties delegated by this subpart
or redelegated pursuant thereto, officials of the Department of
Transportation are governed by applicable laws, Executive orders and
regulations and by policies, objectives, plans, standards, procedures,
and limitations as may be issued from time to time by or on behalf of
the Secretary, or, with respect to matters under their jurisdictions, by
or on behalf of the Deputy Secretary, an Assistant Secretary, the
Inspector General, the General Counsel, or an Administrator. This
includes, wherever specified, the requirement for advance notice to,
prior coordination with, or prior approval by an authority other than
that of the official proposing to act.
[Amdt. 1-114, 41 FR 1288, Jan. 7, 1976, as amended by Amdt. 1-157, 45 FR
83405, Dec. 18, 1980]
Sec. 1.43 General limitations and reservations.
(a) All powers and duties that are not delegated by the Secretary in
this subpart, or otherwise vested in officials other than the Secretary,
are reserved to the Secretary. Except as otherwise provided, the
Secretary may exercise powers and duties delegated or assigned to
officials other than the Secretary.
(b) Except as provided in Sec. 1.42 and subject to paragraph (a) of
this section and Sec. 1.44, the Deputy Secretary, the Assistant
Secretaries, the Inspector General, the General Counsel, and the
Administrators exercise the powers and perform the duties delegated to
them under this subpart.
(c) Notwithstanding the provisions of paragraph (a), the delegation
of authority in Sec. 1.56b of this title to the Designated Senior
Career Official in the Office of the Assistant Secretary for Aviation
and International Affairs to make decisions in certain aviation hearing
cases is exclusive, and may not be exercised by any other Departmental
official, including the Secretary. The Secretary reserves (and delegates
to the Assistant Secretary for Aviation and International Affairs) only
the authority to make discretionary review of any such decision and to
approve it or to remand it for reconsideration by the Designated Senior
Career Official, with a full written explanation of the basis for the
remand.
[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-199, 49
FR 50996, Dec. 31, 1984; Amdt. 1-261, 59 FR 10061, 10063, Mar. 3, 1994]
Sec. 1.44 Reservation of authority.
The delegations of authority in Sec. Sec. 1.45 through 1.53 and
Sec. Sec. 1.66 and Sec. 1.67 do not extend to the following actions,
authority for which is reserved to the Secretary or the Secretary's
delegatee within the Office of the Secretary:
[[Page 15]]
(a) General transportation matters. (1) Transportation leadership
authority under section 4(a) of the Department of Transportation Act (49
U.S.C. 1653(a)).
(2) Functions relating to transportation activities, plans, and
programs under section 4(g) of the Department of Transportation Act (49
U.S.C. 1653(g)).
(3) Authority to develop, prepare, coordinate, transmit, and revise
transportation investment standards and criteria under section 7 of the
Department of Transportation Act (49 U.S.C. 1656).
(4) Authority relating to standard time zones and advanced
(daylight) time (15 U.S.C. 260 et seq.).
(5) Authority related to national transportation policy under
section 3 of the Airport and Airway Development Act of 1970 (84 Stat.
219).
(b) Legislation and reports. (1) Submission to the President, the
Director of the Office of Management and Budget, or the Congress of
proposals or recommendations for legislation, Executive orders,
proclamations or reorganization plans or other Presidential action.
(2) Submission to Congress or the President of any report or any
proposed transportation policy or investment standards or criteria,
except with the prior written approval of the Secretary.
(3) Submission of the annual statement on systems of internal
accounting and administrative control under the Federal Managers'
Financial Integrity Act of 1982 (Pub. L. 97-255).
(c) Budget and finance. (1) Approval and submission to the Office of
Management and Budget of original or amended budget estimates or
requests for allocations of personnel ceiling (31 U.S.C. 22-24).
(2) Approval of requests for legislation which, if enacted, would
authorize subsequent appropriations for the Department (31 U.S.C. 581b).
(3) Transfer of the balance of an appropriation from one operating
element to another within the Department (31 U.S.C. 581c).
(4) Submission to the Director of the Office of Management and
Budget of requests for the transfer of the balance or portions of an
appropriation from one element to another within the Department (31
U.S.C. 665).
(d) Interventions and appearances. Except with respect to
proceedings relating to safety fitness of an applicant (49 U.S.C.
1653(e)), the making of decisions on requests to intervene or appear
before courts and administrative agencies to present the views of the
Department.
(e) Personnel. (1) Recommendations to the Civil Service Commission
of the allocation of a position to GS-16, 17, or 18 or an equivalent
level (5 U.S.C. 5108).
(2) Recommendations to the Civil Service Commission of approval of
the qualifications of any candidate for a position at grade GS-16, 17,
or 18 or an equivalent level (5 U.S.C. 3324), or to an executive level
position.
(3) Recommendations to the Civil Service Commission of a Lump-Sum
Incentive Award in Excess of $5,000 (5 U.S.C. 4502).
(4) Approval of the following actions relating to Schedules A, B,
and C and noncareer executive assignment positions or incumbents, except
for actions under Schedules A and B limited to one year or less at grade
GS-9 or lower, or an equivalent level:
(i) Establishment or abolition of positions;
(ii) Hires;
(iii) Promotions other than quality and periodic within-grade
promotions;
(iv) Transfer of personnel to Schedule A, B, or C positions or non-
career executive assignment positions, either permanently or on detail;
and
(v) Transfer of personnel from Schedule A, B, or C or non-career
executive assignment positions to career Civil Service positions.
(5) Approval of employment of experts or consultants.
(6) Authority relating to scientific and professional positions
under section 6(a) (5) of the Department of Transportation Act (49
U.S.C. 1655(a)(5)).
(7) Authority to determine the maximum limit of age for appointment
of air traffic controllers as provided by 5 U.S.C. 3307(b) (86 Stat.
141).
(8) Authority to develop, coordinate, and issue wage schedules under
the Federal Wage system.
[[Page 16]]
(f) Security. (1) Suspension or removal of an employee from a
position in the Department for security reasons under Executive Order
10450 (3 CFR, 1949-53 Comp., p. 936) or the employment in the Department
of a person who was previously separated for security reasons from any
Federal agency.
(2) Authorizing the filling of a critical-sensitive position for a
limited period by a person on whom a preappointment full field
investigation has not been completed (Executive Order 10450).
(3) Requesting Presidential approval of a claim of executive
privilege with respect to information requested by a congressional
committee or Member of Congress.
(4) Making determinations prescribed by sections 4(a)(2)(B),
4(b)(3), 5(b), and 9 of Executive Order 10865 (3 CFR, 1959-63 Comp., p.
398) relating to the adjudication and final denial of access to
classified information to industry personnel.
(5) Making those determinations or delegations prescribed by
sections 2(B) (3), 5(E) (1) and (2) of Executive Order 11652 (37 FR
5209, March 10, 1972) which are reserved to the head of the Department.
(g) Procurement. Exercise of the extraordinary authority for defense
contracts provided for in Public Law 85-804 (50 U.S.C. 1431-1435), and
considerations and decisions on contract appeals and other matters
pursuant to the Department of Transportation Contract Appeals
Regulations (41 CFR part 12-60).
(h) Printing. Requesting approval of the Joint Committee on Printing
for any procurement or other action requiring Committee approval.
(i) Interagency agreements. Execution of any written
interdepartmental or interagency agreement with the head of another
executive department or agency.
(j) Withholding of funds. Withholding or suspension of Federal-Aid
Highway funds on a state-wide basis and the waiver or compromise of such
withholding or suspension, except for the administration of 23 U.S.C.
141 and 154, which are specifically delegated in Sec. 1.48(b) (23) and
(28) and in Sec. 1.50(i) (1) and (2).
(k) Alaska Railroad. Extension or abandonment of railroad service.
(l) National Highway Safety Advisory Committee. Directing the
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
(m) Automatic data processing. Approval authority relating to
automatic data processing equipment and services as delimited by DOT
1370.2A, Procurement of Automatic Data Processing Equipment and
Services, of 7.22.70.
(n) Deepwater ports. The authority to issue, transfer, or amend a
license for the construction and operation of a deepwater port (33
U.S.C. 1503(b)).
(o) Deepwater ports. Repealed.
(p) Review and finality of actions by Maritime Subsidy Board. (1)
Review of any decision, report, and/or order of the Maritime Subsidy
Board, as described in 46 CFR part 202, as amended.
(q) Approval of cash purchases of passenger transportation. The
authority under FPMR G-72, as amended, to authorize and approve cash
purchases for emergency passenger transportation services costing more
than $100.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting Sec. 1.44,
see the List of CFR Sections Affected which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.45 Delegations to all Administrators.
(a) Except as prescribed by the Secretary of Transportation, each
Administrator is authorized to:
(1) Exercise the authority of the Secretary over and with respect to
any personnel within their respective organizations.
(2) Exercise the authority of the Secretary as executive head of a
department, under any statute, Executive order or regulation.
(3) Request the Attorney General to approve the award, compromise,
or settlement of any tort claim for an amount exceeding $100,000
(excluding interest) (28 U.S.C. 2672).
(4) Carry out the functions vested in the Secretary concerning
environmental enhancement by 49 U.S.C. 303.
(5) Carry out the emergency preparedness functions assigned to the
Secretary by Executive Order 12656 and
[[Page 17]]
by the Federal Emergency Management Agency, General Services
Administration (FEMA/GSA) as they pertain to his administration,
including those relating to continuity of operations, emergency resource
management, associated Federal claimant procedures, facilities
protection and warfare effects monitoring and reporting, research,
stockpiling, financial aid, and training.
(6) Enter into inter- and intradepartmental reimbursable agreements
other than with the head of another department or agency (31 U.S.C.
686). This authority may be redelegated only to Office Directors,
Regional Directors, District Commanders or other comparable levels and
Contracting Officers.
(7) Determine the existence and amount of indebtedness and the
method of collecting repayments from employees and members within their
respective administrations and collect repayments accordingly, as
provided by 5 U.S.C. 5514. Redelegation of this authority may be made
only to the principal officials responsible for financial management or
such officials' principal assistants.
(8) Waive claims and make refunds in connection with claims of the
United States for erroneous payment of pay and allowances or of travel,
transportation, and relocation expenses and allowances in amounts
aggregating not more than $1,500 without regard to any repayments, and
deny requests for waiver of such claims regardless of the aggregate
amount of the claim, as provided by 4 CFR parts 91, 92, and 93.
Redelegation of this authority may be made only to the level of Regional
Director or District Commander.
(9) Settle and pay claims by employees for personal property losses
as provided by 31 U.S.C. 3721. This authority may be redelegated only to
Office Directors, Regional Directors, District Commanders, or other
comparable levels and to those individuals that report to the above
officials.
(10) Exercise the authority of the Secretary to resolve informal
allegations of discrimination arising in or relating to their respective
organizations through Equal Employment Opportunity counseling or the
Alternative Dispute Resolution process and to develop and implement
affirmative action and diversity plans within their respective
organizations. With regard to external civil rights programs, each
Administrator exercises authority pursuant to statutes, regulations,
executive orders, or delegations in subpart C of this part to carry out
these programs, under the general policy guidance of the Director of the
Departmental Office of Civil Rights, including conducting compliance
reviews and other activities relating to the enforcement of these
statutes, regulations, and executive orders.
(11) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer.
(12) Authorize and approve official non-foreign travel and
transportation for themselves, their subordinates, and others performing
services for, or in cooperation with, their operating administrations.
Additionally, heads of operating administrations, through a redelegation
from the Deputy Secretary, may authorize and approve routine operational
foreign travel, as defined in DOT 1500.6A, Travel Manual, of 1-2-85.
These authorities may be redelegated in accordance with regulations
issued by the Assistant Secretary for Administration.
(13) Exercise the authority of the Secretary to make certifications,
findings and determinations under the Regulatory Flexibility Act (Pub.
L. 96-354) with regard to any rulemaking document for which issuance
authority is delegated by other sections in this part. This authority
may be redelegated to those officials to whom document issuance
authority has been delegated.
(14) Carry out the functions vested in the Secretary by section 2 of
the Federal Technology Transfer Act of 1986, (Pub. L. No. 99-502; 15
U.S.C. 3710a), which authorizes agencies to permit their laboratories to
enter into cooperative research and development agreements.
(15) Compromise, suspend collection action on, or terminate claims
of the United States not exceeding $100,000 (excluding interest) that
are referred to, or arise out of the activities of, his or her Operating
Administration;
[[Page 18]]
(16) Compromise, suspend collection action on, or terminate claims
against the United States not exceeding $100,000 (excluding interest)
that are referred to, or arise out of the activities of, his or her
Operating Administration; provided that when the Administrator believes
that a claim against the United States presents a novel question of law
or of policy, he or she shall obtain the advice of the Assistant
Attorney General in charge of the Civil Division; and provided further
that whenever he or she settles any administrative claim against the
United States for an amount in excess of $50,000, the Administrator
shall prepare a memorandum fully explaining the basis for the action
taken and send a copy of the memorandum to the Director, Federal Torts
Claims Act Staff, Torts Branch of the Civil Division, U.S. Department of
Justice.
(17) Enter into memoranda of understanding with the Occupational
Safety and Health Administration (OSHA) in regard to setting and
enforcing occupational safety or health standards for employees in DOT-
regulated industries. The General Counsel shall concur in each
memorandum of understanding with OSHA prior to its execution by the
Administrator of the operating administration concerned.
(18) Exercise the authority vested in the Secretary by Section 329A
of the Department of Transportation and Related Agencies Appropriations
Act, 1995, Pub. L. No. 103-331, Sec. 329A, 108 Stat. 2471, 2493
(September 30, 1994), to enter into grants, cooperative agreements, and
other transactions with any person, agency, or instrumentality of the
United States, any unit of state or local government, any educational
institution, and any other entity in execution of the Technology
Reinvestment Project authorized under the Defense Conversion,
Reinvestment, and Transition Assistance Act of 1992, Pub. L. No. 102-
484, 106 Stat. 2658 (October 23, 1992), and related legislation.
(19) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b), as implemented by 49 CFR part 15, relating to the
determination that information is Sensitive Security Information within
their respective organizations.
(b) Except as otherwise specifically provided, each official to whom
authority is granted by Sec. 1.45 through 1.53, 1.66, 1.68, and 1.73
may redelegate and authorize successive redelegations of that authority
within the organization under that official's jurisdiction.
(c) Except as provided in Sec. Sec. 1.48 and 1.59 and 49 CFR
25.302, the functions, powers, and duties of the Secretary of
Transportation, with respect to the Uniform Relocation Assistance and
Real Property Acquisition Act of 1970, Public Law 91-646, 84 Stat. 1984,
are delegated to:
(1) The head of each of the following Operating Administrations with
respect to programs administered by their respective organizations:
(i) Federal Aviation Administration;
(ii) Federal Highway Administration;
(iii) Federal Railroad Administration;
(iv) Federal Transit Administration;
(v) National Highway Traffic Safety Administration;
(vi) St. Lawrence Seaway Development Corporation;
(vii) Maritime Administration; and
(viii) Federal Motor Carrier Safety Administration.
(2) [Reserved]
(d) Each office to whom authority is delegated by either Sec.
1.45(c) or Sec. 1.59(p) may redelegate and authorize successive
redelegations of that authority within the organization under the
Administrators' or Assistant Secretary for Administration's
jurisdiction.
(e) Each office to whom authority is delegated by either Sec.
1.45(c) or Sec. 1.59(p) may prescribe additional procedures,
requirements and regulations that are appropriate to the particular
programs administered by the preparing official's organization,
provided:
(1) Any such additional guidance is not inconsistent with the Act,
49 CFR part 25 or subpart C of this manual;
(2) Any such additional guidance is approved prior to issuance by
the Federal government's designated lead agency, the Federal Highway
Administration (see Sec. 1.48(cc)), in coordination with the Assistant
Secretary for Transportation Policy.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting Sec. 1.45,
see the List of CFR
[[Page 19]]
Sections Affected which appears in the Finding Aids section of the
printed volume and on GPO Access.
Sec. 1.46 Delegations to the Administrator of the Research and Innovative
Technology Administration.
The Administrator of the Research and Innovative Technology
Administration is delegated authority for the following:
(a) Coordination of Departmental research and development programs
and activities. (1) Coordinate, facilitate, and review all Departmental
research and development programs and activities, except as limited by
section 4(b)(1) of the Norman Y. Mineta Research and Special Programs
Improvement Act (Pub. L. 108-426, 118 Stat. 2423).
(2) After consultation with modal and OST offices, RITA shall make
recommendations to the Secretary on all modal and OST research budgets.
(b) Science and technology. (1) With respect to scientific and
technological matters, serve as principal advisor to the Secretary and
representative of the Department to the academic community, the private
sector, professional organizations, and other Government agencies.
(2) Serve as principal liaison official for the Department of
Transportation with the Office of Science and Technology Policy in the
Executive Office of the President, the National Science and Technology
Council, and the President's Committee of Advisors on Science and
Technology.
(3) Serve as primary official responsible for coordination and
oversight of the Department's implementation of section 2 of the Federal
Technology Transfer Act of 1986 (15 U.S.C. 3710a), relating to the
transfer of Federal technology to the marketplace; and section 12(d) of
the National Technology Transfer and Advancement Act of 1996 (Pub. L.
104-113), as implemented by OMB Circular A-119: Federal Participation in
the Development and Use of Voluntary Consensus Standards and in
Conformity Assessment Activities.
(4) Serve as Chair and Executive Secretary of the Department of
Transportation's Research, Development and Technology Planning Council.
(5) Serve as Chair and Executive Secretary of the Department of
Transportation Research, Development and Technology Planning Team.
(6) Carry out the functions vested in the Secretary by section 5108
of the Transportation Equity Act for the 21st Century (23 U.S.C. 508),
as extended by the Surface Transportation Extension Act of 2004, Part V,
Public Law 108-310, September 30, 2004, 118 Stat. 1144.
(7) Advocate Department of Transportation policy and program
coordination efforts associated with transportation research.
(8) Represent the Department of Transportation on departmental,
national and international committees and meetings dealing with
transportation R&D.
(9) Manage the strategic planning process for transportation R&D
across the Department of Transportation and, through the National
Science and Technology Council, across the Federal Government.
(10) Conduct transportation system-level assessments and policy
research.
(11) Facilitate the creation of transportation public/private
partnerships.
(12) Foster innovation in the transportation sector.
(13) Disseminate information on departmental, national, and
international transportation R&D activities.
(14) Manage and coordinate a nationwide program of transportation
research, education and technology transfer through grants to university
transportation centers and foster university participation in the
planning, conduct and analysis of transportation research.
(15) Manage department- and government-wide (inter/multimodal)
transportation R&D programs.
(16) Oversee advisory boards that deal with transportation system-
level R&D assessments and issues, such as the National Research Council
Committee on the Federal Transportation R&D Strategic Planning Process.
(c) Advanced vehicle technology. Carry out the functions vested in
the Secretary by section 5111 of the Transportation Equity Act for the
21st Century (49 U.S.C. 5506), as extended by the Surface Transportation
Extension Act of
[[Page 20]]
2004, Part V, Public Law 108-310, September 30, 2004, 118 Stat. 1144,
and section 5513(j) of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users, Title V, Subtitle E,
Public Law 109-59, August 10, 2005, 119 Stat. 1144.
(d) Remote sensing technology. Carry out the functions vested in the
Secretary by section 5113 of the Transportation Equity Act for the 21st
Century (23 U.S.C. 502 Note), as extended by the Surface Transportation
Extension Act of 2004, Part V, Public Law 108-310, September 30, 2004,
118 Stat. 1144, and section 5506 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users, Title V,
Subtitle E, Public Law 109-59, August 10, 2005, 119 Stat. 1144.
(e) University transportation research. Carry out the functions
vested in the Secretary by section 5110 of the Transportation Equity Act
for the 21st Century (49 U.S.C. 5505), as extended by the Surface
Transportation Extension Act of 2004, Part V, Public Law 108-310,
September 30, 2004, 118 Stat. 1144, and sections 5401 and 5402 of the
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users, Title V, Subtitle D, Public Law 109-59, August 10,
2005, 119 Stat. 1144.
(f) Volpe National Transportation Systems Center. Exercise the
authority vested in the Secretary with respect to the activities of the
Volpe National Transportation Systems Center and carry out the functions
vested in the Secretary by 49 U.S.C. 328 with respect to the working
capital fund for financing the activities of the Volpe National
Transportation Systems Center.
(g) Transportation Safety Institute. Exercise authority over the
Transportation Safety Institute.
(h) Transportations Statistics. Exercise the authority and carry out
the functions vested in the Secretary by 49 U.S.C. 112(d)(1)(C) relating
to transportation statistics, analysis, and reporting.
(i) Intermodalism. Carry out the functions vested in the Secretary
by 49 U.S.C. 5503(d) and Section 4149 of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users, Title
IV, Subtitle A and Section 5209, Title V, Subtitle B, Public Law 109-59,
August 10, 2005, 119 Stat. 1144.
(j) Aviation information. (1) Carry out the functions vested in the
Secretary by 49 U.S.C. 329(b)(1) relating to the collection and
dissemination of information on civil aeronautics.
(2) Carry out the functions vested in the Secretary by section
4(a)(7) of the Civil Aeronautics Board Sunset Act of 1984 (October 4,
1984; Pub. L. 98-443) relating to the reporting of the extension of
unsecured credit to political candidates (section 401, Federal Election
Campaign Act of 1971; 2 U.S.C. 451), in conjunction with the General
Counsel and the Assistant Secretary for Aviation and International
Affairs.
(3) Carry out the functions vested in the Secretary by: 49 U.S.C.
40113 (relating to taking such actions and issuing such regulations as
may be necessary to carry out responsibilities under the Act), 49 U.S.C.
41702 (relating to the duty of carriers to provide safe and adequate
service), 49 U.S.C. 41708 and 41709 (relating to the requirement to keep
information and the forms in which it is to be kept), and 49 U.S.C.
41701 (relating to establishing just and reasonable classifications of
carriers and rules to be followed by each) as appropriate to carry out
the responsibilities under this paragraph in conjunction with the
General Counsel and the Assistant Secretary for Aviation and
International Affairs.
(k) Hazardous materials information. In coordination with the Under
Secretary for Transportation Policy, work with the Operating
Administrations to determine data needs, collection strategies, and
analytical techniques appropriate for implementing 49 U.S.C. 5101 et
seq.
(l) Research grants. Carry out the functions vested in the Secretary
by section 5513(c), (d), (g), (h), (i), (l), and (m) (as (m) relates to
(c), (d), (g), (h), (i), (j), and (l)) of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users, Title
V, Subtitle E, Public Law 109-59, August 10, 2005, 119 Stat. 1144.
(m) Biobased transportation research. Carry out the functions vested
in the Secretary by section 5201(m) of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy
[[Page 21]]
for Users, Title V, Subtitle B, Public Law 109-59, August 10, 2005, 119
Stat. 1144.
(n) Transportation research and development strategic planning.
Carry out the function vested in the Secretary by Section 5208 of Public
Law 109-59, 119 Stat. 1144 (Aug. 10, 2005).
[70 FR 8300, Feb. 18, 2005, as amended at 71 FR 30830, May 31, 2006; 71
FR 52753, Sept. 7, 2006]
Sec. 1.47 Delegations to Federal Aviation Administrator.
The Federal Aviation Administrator is delegated authority to:
(a) Carry out the powers and duties transferred to the Secretary of
Transportation by, or subsequently vested in the Secretary by virtue of,
section 6(c)(1) of the Department of Transportation Act (49 U.S.C.
1655(c)(1)), including those pertaining to aviation safety (except those
related to transportation, packaging, marking, or description of
hazardous materials) and vested in the Secretary by section 308(b) of
title 49 U.S.C. and sections 306-309, 312-314, 1101, 1105, and 1111 and
titles VI, VII, IX (excluding section 902(h)), and XII of the Federal
Aviation Act of 1958, as amended.
(b) Carry out title XIII of the Federal Aviation Act of 1958, as
amended (72 Stat. 800; 49 U.S.C. 1531 et seq.), relating to aviation
insurance.
(c) Carry out the functions vested in the Secretary by the Act of
September 7, 1957 (71 Stat. 629; 49 U.S.C. 1324 note), as amended by
section 6(a)(3)(B) of the Department of Transportation Act, relating to
the guarantee of aircraft purchase loans, and those functions which
relate to the issuance of obligations to finance the expenses of such
guarantees.
(d) Administer Executive Orders 11419 and 11322 relating to
prohibited aviation operations and the prohibited carriage of
commodities and products to and from Southern Rhodesia. Carry out the
functions vested in the Secretary by Executive Order 12183.
(e) Provide certain facilities and services to FAA employees and
their dependents at remote locations (49 U.S.C. 1659).
(f) Carry out the functions vested in the Secretary by:
(1) The Airport and Airway Development Act of 1970, as amended (49
U.S.C. 1701 et seq.), except sections 3 and 4 (49 U.S.C. 1702, 1703).
(2) Sections 208 and 209 of the Airport and Airway Revenue Act of
1970, as amended (49 U.S.C. 1742, 1742 note); and
(3) Sections 21, 22, 23(b), 24, and 25 of the Airport and Airway
Development Act Amendments of 1976 (49 U.S.C. 1346(a), 1348 note, 1713
note, 1356a, 1704).
(g) Carry out the functions vested in the Secretary by part B of
title II of the Clean Air Act, as amended (84 Stat. 1703), and by 40 CFR
part 87 as it relates to exemptions from aircraft air pollution
standards.
(h) Carry out the functions of the Secretary under section 208 of
the Appalachian Regional Development Act of 1965 (85 Stat. 168; 40
U.S.C. App. 208).
(i) Carry out the functions vested in the Secretary by section
902(h)(2) of the Federal Aviation Act of 1958, as amended, as it relates
to enforcement of hazardous materials regulations as they apply to the
transportation or shipment of such materials by air.
(j)(1) Except as delegated by Sec. 1.74(a), carry out the functions
vested in the Secretary by 49 U.S.C. 5121(a), (b), (c), and (d), 5122,
5123, and 5124, with particular emphasis on the transportation or
shipment of hazardous materials by air.
(2) Carry out the functions vested in the Secretary by 49 U.S.C.
5114 as it relates to the establishment of procedures for monitoring and
enforcing provisions of regulations with respect to the transportation
of radioactive materials on passenger-carrying aircraft.
(k) [Reserved]
(l) Serve, or designate a representative to serve, as Vice Chairman
and alternate Department of Transportation member of the Interagency
Group on International Aviation (IGIA) pursuant to interagency agreement
of December 9, 1960, and Executive Order 11382, and provide for the
administrative operation of the IGIA Secretariat.
(m) Carry out the functions vested in the Secretary by sections 4(a)
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug.
20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of
the Comprehensive Environmental Response, Compensation,
[[Page 22]]
and Liability Act of 1981, Pub. L. 96-510), insofar as they relate to
aircraft.
(n) Carry out the functions vested in the Secretary by section 3(d)
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it
relates to ships owned or operated by the Federal Aviation
Administration when engaged in noncommercial service.
(o) [Reserved]
(p) Carry out the functions vested in the Secretary by:
(1) Section 553(b) of Public Law 99-83 (99 Stat. 226), which relates
to the authority of Federal Air Marshals to carry firearms and make
arrests, in coordination with the General Counsel; and
(2) The following subsections of section 1115 of the Federal
Aviation Act of 1958, as amended, which relates to the security of
foreign airports: Subsection 1115(a), in coordination with the General
Counsel and the Assistant Secretary for Aviation and International
Affairs; subsection 1115(b), in coordination with the Assistant
Secretary for Aviation and International Affairs; and subsection
1115(e)(2)(A)(ii), in coordination with the General Counsel and the
Assistant Secretary for Aviation and International Affairs.
(q) Carry out all of the functions vested in the Secretary under
section 404(d) of the Federal Aviation Act of 1958 (49 U.S.C. 1374(d)),
as amended by section 328(a) of the Department of Transportation and
Related Agencies Appropriations Act of 1988 (Pub. L. 100-202).
(r) Carry out the functions vested in the Secretary by the Airport
Safety and Capacity Expansion Act of 1990, title IX, subtitle B of the
Omnibus Budget Reconciliation Act of 1990, Public Law 101-508 (except
those functions vested in the Secretary by sections 9113, 9125, 9127 and
9130).
(s) Carry out functions vested in the Secretary by Airport Noise and
Capacity Act of 1990, title IX, subtitle D of the Omnibus Budget
Reconciliation Act of 1990, Public Law 101-508.
(t) Carry out the functions vested in the Secretary by sections 321
and 410 of the Federal Aviation Act, as amended by the Aviation Security
Improvement Act of 1990, Public Law 101-604, November 16, 1990.
(u) Carry out the functions assigned to the Secretary by Executive
Order 12465 (February 24, 1984) (3 CFR, 1984 Comp., p. 163) relating to
commercial expendable launch vehicle activities.
(v) Carry out the functions vested in the Secretary by 49 U.S.C.
Subtitle IX.
(w) Carry out the functions vested in the Secretary by the National
Aeronautics and Space Administration Authorization Act, Fiscal Year 1993
(Pub. L. 102-588, 106 Stat 5119, November 4, 1992).
(Secs. 3(e), 6(c), and 9(e), Department of Transportation Act (49 U.S.C.
1652(e), 1655(c), and 1657(e)); 49 U.S.C. 322; 49 CFR 1.57(l))
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting Sec. 1.47,
see the List of CFR Sections Affected which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.48 Delegations to Federal Highway Administrator.
(a) Unless otherwise provided, the Federal Highway Administrator may
further delegate authority provided under this section.
(b) The Federal Highway Administrator is delegated authority to
administer the following provisions of title 23, Highways, U.S.C.:
(1) Chapter 1, Federal-Aid Highways, except for sections 142 (as it
relates to matters within the primary responsibility of the Federal
Transit Administrator), 153, 154, 158, 159, 161, and 164.
(2) Chapter 2, Other Highways.
(3) Chapter 3, General Provisions, except for section 322.
(4) Section 409 of chapter 4, Highway Safety.
(5) Chapter 5, Research, Technology, and Education, except for
sections 508 and 509.
(6) Chapter 6, Infrastructure Finance.
(c) The Federal Highway Administrator is delegated authority to
administer the following laws relating generally to highways:
(1) Section 502(c) of the General Bridge Act of 1946, as amended (60
Stat. 847, 33 U.S.C. 525(c)).
(2) Reorganization Plan No. 7 of 1949 (63 Stat. 1070).
(3) The Federal-Aid Highway Act of 1954, as amended (Pub. L. 83-350,
68 Stat. 70).
[[Page 23]]
(4) The Federal-Aid Highway Act of 1956, as amended (Pub. L. 84-627,
70 Stat. 374).
(5) The Highway Revenue Act of 1956, as amended (Pub. L. 84-627, 70
Stat. 374, 387, 23 U.S.C.A. 120 note).
(6) The Alaska Omnibus Act, as amended (Pub. L. 86-70, 73 Stat. 141,
48 U.S.C.A. 21 note.).
(7) The Act of September 26, 1961, as amended (Pub. L. 87-307, 75
Stat. 670).
(8) The Act of April 27, 1962 (Pub. L. 87-441, 76 Stat. 59).
(9) The Federal-Aid Highway Act of 1962, as amended (Pub. L. 87-866,
76 Stat. 1145).
(10) The Joint Resolution of August 28, 1965, as amended (Pub. L.
89-139, 79 Stat. 578, 23 U.S.C.A. 101 et seq., notes).
(11) The Highway Beautification Act of 1965, as amended (Pub. L. 89-
285, 79 Stat. 1028, 23 U.S.C.A. 131 et seq., notes).
(12) The Federal-Aid Highway Act of 1966, as amended (Pub. L. 889-
574, 80 Stat. 766).
(13) The Federal-Aid Highway Act of 1968, as amended (Pub. L. 90-
495, 82 Stat. 815).
(14) The Federal-Aid Highway Act of 1970, as amended (except section
118) (Pub. L. 91-605, 84 Stat. 1713).
(15) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147,
149, 154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-
Aid Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub.
L. 93-643, 88 Stat. 2281).
(16) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1)
and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of 1976
(Pub. L. 94-280, 90 Stat. 425).
(17) Sections 105, 107(c) through (e), 123(a) and (b), 124(c),
126(d) through (g), 138(c), 140, 142 through 145, 147 through 154, 167,
and 171, title IV, as amended (as it relates to matters within the
primary responsibility of the Federal Highway Administrator), and
sections 502-504 of title V of the Surface Transportation Assistance Act
of 1978 (Pub. L. 95-599, 92 Stat. 2689).
(18) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327, 96 Stat.
1611), except section 6 as it relates to matters within the primary
responsibility of the Federal Transit Administrator.
(19) The Surface Transportation Assistance Act of 1982, as amended,
(Pub. L. 97-424, 96 Stat. 2097) except,
(i) Sections 165 and 531 as they relate to matters within the
primary responsibility of the Federal Transit Administrator;
(ii) Sections 105(f), 413; 414(b) (2); 421, 426, and title III; and
(iii) Section 414(b)(1), unless with the concurrence of the National
Highway Traffic Safety Administrator.
(20) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b),
114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137,
139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151
through 157, 164, and 208 of the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).
(21) Sections 1002(c) and (e), 1003(c), 1004, 1006(h), 1009(c),
1012(b) and (d) through (f), 1013(c), 1014(c), 1015, 1016(g), 1017(c),
1021(c) and (d), 1022(c), 1023(f) through (g), 1029(c), (f), and (g),
1032(d) and (e), 1038 through 1042, 1044, 1045, 1046(d), 1047, 1049,
1050, 1051, 1054, 1057 through 1063, 1065, 1067, 1069, 1072, 1073, 1074,
1076, 1077, 1086, 1088 through 1092, 1097, 1099 through 1108, 6012, and
6014 through 6016 of the Intermodal Surface Transportation Efficiency
Act of 1991 (Pub. L. 102-240, 105 Stat. 1914).
(22) Sections 201 through 205, 327 through 336, 339, 340, 349, 352,
353, and 408 of the National Highway System Designation Act of 1995
(Pub. L. 104-59, 109 Stat. 568).
(23) Sections 1101(a), 1102, 1103(m) and (n), 1106(a) and (d),
1107(c), 1108(f) and (g), 1110(d)(2) and (e), 1112(c) and (e), 1117(a),
(b), and (d), 1118, 1119, 1202(b) and (e), 1204(i), 1207(c), 1210,
1211(i) and (l), 1212 (b), (e) through (j), (l), (m), (o), and (q)
through (t), 1213(c), and (f) through (j), 1214, 1215, 1216, 1217, 1220,
1223, 1224, 1225, 1307(d) through (f), 1308, 1309, 1311, 1402, 1511,
5001, 5112, 5116 through 5118, and 5203 through 5212 of the
Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112
Stat. 107).
(24) Sections 1102, 1105(f), 1109(f), 1111(b)(4), 1112, 1115(c),
1116(a) and (b), 1117, 1119(n), 1120(c), 1201, 1301, 1302, 1303, 1304,
1305, 1306, 1308, 1310, 1401(e), 1402, 1403, 1404, 1405, 1408, 1409(a)
and (b), 1410, 1411, 1502, 1603, 1604, 1801 (d),
[[Page 24]]
1803, 1804, 1805, 1807, 1808(g) through (k), 1907, 1908, 1910, 1911,
1914, 1916, 1917, 1918, 1919, 1923, 1924, 1925, 1927, 1928, 1934, 1935,
1936, 1937, 1939, 1940, 1941, 1943, 1944, 1945, 1948, 1949, 1950, 1952,
1957, 1958, 1959, 1961, 1962, 1964, 2003(e), 4112, 4141, 4404 (as it
relates to matters within the primary responsibility of the Federal
Highway Administrator), 5101(b), 5202(b)(3)(B), (c), and (d), 5203(e)
and (f), 5204(g) and (i), 5304, 5305, 5306, 5307, 5308, 5309 (except
(c)(4)), 5501, 5502, 5504, 5507, 5508, 5511, 5512, 5513(b), (f), (k),
and (m) (as (m) relates to (b), (f), and (k)), 5514, 6001(b), 6002(b),
6009(b) and (c) (as they relate to matters within the primary
responsibility of the Federal Highway Administrator), 6010 (as it
relates to matters within the primary responsibility of the Federal
Highway Administrator), 6017, 6018, 10210, and 10212 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users (Pub. L. 109-59, 119 Stat. 1144).
(d) The Federal Highway Administrator is delegated authority to:
(1) Carry out the functions vested in the Secretary of
Transportation by section 601 of the Pipeline Safety Act of 1992 (Pub.
L. 102-508, 106 Stat. 3289) relating to construction of the Page Avenue
Extension Project in Missouri.
(2) Carry out the functions of the Secretary under the Appalachian
Regional Development Act of 1965 (Pub. L. 89-4, 79 Stat. 5, 40 U.S.C.
Subtitle IV) except section 208.
(3) Carry out the Act of September 21, 1966, Public Law 89-599,
relating to certain approvals concerned with a compact between the
States of Missouri and Kansas.
(4) Carry out the law relating to the Chamizal border highway (Pub.
L. 89-795, 80 Stat. 1477).
(5) Carry out the Highway Safety Act of 1966, as amended (Pub. L.
89-564, 80 Stat. 731) and chapter 4 of title 23 U.S.C. as amended by
section 207 of the Surface Transportation Assistance Act of 1978 for
highway safety programs, research and development relating to highway
design, construction and maintenance, traffic control devices,
identification and surveillance of accident locations, and highway-
related aspects of pedestrian and bicycle safety.
(6) Exercise the authority vested in the Secretary by 49 U.S.C.
20134(a) with respect to the laws administered by the Federal Highway
Administrator pertaining to highway safety and highway construction.
(7) Carry out the functions vested in the Secretary by section 5 (as
it relates to bridges, other than railroad bridges, not over navigable
waters), and section 8(a) (as it relates to all bridges other than
railroad bridges) of the International Bridge Act of 1972 (Pub. L. 92-
434, 86 Stat. 731).
(8) Exercise the authority vested in the Secretary by sections 101,
118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974
(Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).
(9) Carry out the functions vested in the Secretary by section 118
of the National Visitor Center Facilities Act of 1968 (Pub. L. 90-264,
82 Stat. 43), as added by the Union Station Redevelopment Act of 1981
(Pub. L. 97-125; 95 Stat. 1672), with respect to the completion of the
parking facility and associated ramps at Union Station in Washington, DC
(40 U.S.C. 818).
(10) Carry out the functions vested in the Secretary by Public Law
98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds
for construction of the Interstate Highway System in Fiscal Year 1985,
apportioning certain funds for Interstate substitute highway projects,
and increasing amounts available for emergency highway relief.
(11) Prescribe regulations, as necessary, at parts 24 and 25 of this
title, to implement Public Law 91-646, 84 Stat. 1894, and any amendments
thereto, as appropriate, in coordination with the Assistant Secretary
for Transportation Policy, and carry out all other functions vested in
the Secretary by the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, Public Law 91-646, 84 Stat. 1894, and
any amendments thereto.
(12) Carry out the functions vested in the Secretary of
Transportation by section 114 of Part C of the Paperwork Reduction
Reauthorization Act of 1986 (contained in the Act Making Continuing
Appropriations for Fiscal Year 1987 and for Other Purposes, Public Law
99-591, 100 Stat. 3341, 2241-349), relating to construction of
Interstate Highway H-3 in Hawaii.
[[Page 25]]
(13) Carry out all of the functions vested in the Secretary under
section 324 of the Fiscal Year 1986 Department of Transportation
Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the
reservation of authority under Sec. 1.44(j) of this part.
(14) Carry out the functions vested in the Secretary of
Transportation by section 505 of the Railroad Revitalization and
Regulatory Reform Act of 1976, as amended, (Pub. L. 94-210, 90 Stat. 31)
relating to the Alameda Corridor Project in consultation with the
Federal Railroad Administrator.
(15) Carry out the function of acting as the lead DOT agency in
matters relating to the National Environmental Policy Act pertinent to
the authority vested in the Secretary to establish, operate, and manage
the Nationwide Differential Global Positioning System (NDGPS) by section
346 of the Department of Transportation and Related Agencies
Appropriations Act, 1998 (Pub. L. 105-66, 111 Stat. 1425).
(16) Exercise the responsibilities of the Secretary under 49 U.S.C.
303 as it relates to matters within the primary responsibility of the
Federal Highway Administrator.
(17) Exercise the responsibilities of the Secretary under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
other Federal laws related to programs, projects, and activities
administered by the Federal Highway Administration.
(18) Exercise the responsibilities of the Secretary under section
176(c) of the Clean Air Act (42 U.S.C. 7506(c)), as amended by section
6011 of the Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144), as it relates
to matters within the primary responsibility of the Federal Highway
Administrator.
(19) Exercise the responsibilities of the Secretary under 49 U.S.C.
309.
[71 FR 30830, May 31, 2006]
Sec. 1.49 Delegations to Federal Railroad Administrator.
The Federal Railroad Administrator is delegated authority to:
(a) Investigate and report on safety compliance records of
applicants seeking railroad operating authority from the Interstate
Commerce Commission, and to intervene and present evidence concerning
applicants' fitness in Commission proceedings under 49 U.S.C. 1653(e),
relating to railroads.
(b) Carry out the Act of September 30, 1965, as amended (79 Stat.
893, 49 U.S.C. 1631 et seq.), relating generally to high speed ground
transportation, except issuance of reports required by section 13(c) (49
U.S.C. 1643(c)).
(c) Carry out the following laws relating generally to safety
appliances and equipment on railroad engines and cars, and protection of
employees and travelers:
(1) The Act of March 2, 1893, as amended (27 Stat. 531, 45 U.S.C. 1
et seq.);
(2) The Act of March 2, 1903, as amended (32 Stat. 943, 45 U.S.C. 8
et seq.);
(3) The Act of April 14, 1910, as amended (36 Stat. 298, 45 U.S.C.
11 et seq.);
(4) The Act of May 30, 1908, as amended (35 Stat. 476, 45 U.S.C. 17
et seq.);
(5) The Act of February 17, 1911, as amended (36 Stat. 913, 45
U.S.C. 22 et seq.);
(6) The Act of March 4, 1915, as amended (38 Stat. 1192, 45 U.S.C.
30);
(7) Reorganization Plan No. 3 of 1965 (79 Stat. 1320, 45 U.S.C. 22
note);
(8) Joint Resolution of June 30, 1906, as amended (34 Stat. 838, 45
U.S.C. 35);
(9) The Act of May 27, 1908, as amended (35 Stat. 325, 45 U.S.C. 36
et seq.);
(10) The Act of March 4, 1909, as amended (35 Stat. 965, 45 U.S.C.
37); and
(11) The Act of May 6, 1910, as amended (36 Stat. 350, 45 U.S.C. 38
et seq.).
(d) Carry out the Act of March 4, 1907, as amended (34 Stat. 1415,
45 U.S.C. 61 et seq.), relating generally to hours of service of
railroad employees.
(e) Carry out the functions vested in the Secretary by section 5 of
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to
railroad bridges not over navigable waterways.
(f) Carry out section 25 of the Interstate Commerce Act, as amended
(49 U.S.C. 26), relating generally to railroad safety appliances,
methods, and systems.
(g) Exercise the administrative powers under the Interstate Commerce
Act
[[Page 26]]
with respect to powers and duties pertaining to railroad safety
transferred to the Secretary (49 U.S.C. 1655(f)).
(h) Operate and administer the Alaska Railroad under the Act of
March 12, 1914, as amended (38 Stat. 305), and Executive Order 11107 (28
FR 4225 (1963)).
(i) Make individual and general changes in freight rates and
passenger fares for the Alaska Railroad, without power to redelegate
authority for general changes in freight rates and passenger fares.
(j) Promote and undertake research and development relating to rail
matters generally (49 U.S.C. 1653(a), 1657(e)(1), 1657(n)(1), and
1657(q)(1)).
(k) Carry out the functions vested in the Secretary by subtitle B of
the National Visitor Center Facilities Act of 1968, as added by the
Union Station Redevelopment Act of 1981 (Pub. L. 97-125; 95 Stat. 1667)
except section 114(e) and such parts of section 118 as provided for the
completion of the parking facility and associated ramps at Union Station
in Washington, DC.
(l) Exercise the authority vested in the Secretary by the Emergency
Rail Services Act of 1970 (Pub. L. 91-663) except the authority to make
findings required by section 3(a) of that Act and the authority to sign
guarantees of certificates issued by trustees.
(m) Carry out the functions vested in the Secretary by the Federal
Railroad Safety Act of 1970 (title II of Pub. L. 91-458); 84 Stat. 971,
45 U.S.C. 421 et. seq.), except section 204(b) (84 Stat. 972, 45 U.S.C.
433(b)) with respect to highway, traffic, and motor vehicle safety and
highway construction.
(n) Carry out the functions vested in the Secretary by the Emergency
Rail Facilities Restoration Act of 1972 (Pub. L. 92-591).
(o) Carry out the functions vested in the Secretary by subsection
(b) (except as it relates to conducting consultations with the
Administrator of the Environmental Protection Agency) and (c) of section
17 of the Noise Control Act of 1972 (Pub. L. 92-574).
(p) Carry out the functions vested in the Secretary by sections
201(i)(3); 202(b)(7); 203, except authority to issue subpoenas; 210;
212; 213; 215; 402; 403; and 601 of the Regional Rail Reorganization Act
of 1973 (Pub. L. 93-236) as amended by the Rail Transportation
Improvement Act (Pub. L. 94-555).
(q) Carry out the functions vested in the Secretary by subsections 4
(h) and (i) of the Department of Transportation Act, as amended (49
U.S.C. 1653(h), (i)).
(r) [Reserved]
(s) Except as delegated by Sec. 1.74(a), carry out the functions
vested in the Secretary by 49 U.S.C. 5121(a), (b), (c) and (d), 5122,
5123, and 5124, with particular emphasis on the transportation or
shipment of hazardous materials by railroad.
(t) Carry out the functions vested in the Secretary by sections
204(c); except authority to issue subpoenas; 402; 403; 502; 503; 504;
505; 506, except (c); 507; 508; 511; 512; 513; 515; 517; 606; 610; 703;
704, except (c)(1); and 705; 707; 901; 905, as applicable, of the
Railroad Revitalization and Regulatory Reform Act of 1976, as amended,
section 5 of the Department of Transportation Act (49 U.S.C. 1654),
except authority to issue subpoenas.
(u) Carry out functions vested in the Secretary by sections 17(a)
and (b) (as they relate to consultations with the Administrator of the
Environmental Protection Agency) of the Noise Control Act of 1972 (Pub.
L. 92-574, 49 U.S.C. 1431).
(v) Carry out the functions vested in the Secretary by the Rock
Island Railroad Transition and Employee Assistance Act (title I of Pub.
L. 96-254) and by section 18 of the Milwaukee Railroad Restructuring Act
(49 U.S.C. 916).
(w) Carry out the functions vested in the Secretary by section 305
of the Regional Rail Reorganization Act of 1973, as amended (45 U.S.C.
745).
(x) Carry out the functions vested in the Secretary by sections 4(a)
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug.
20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1981, Pub. L. 96-510), insofar as they relate to rolling stock.
(y) Carry out the functions vested in the Secretary by the Northeast
Rail Service Act of 1981 (Pub. L. 97-35).
(z) Carry out the functions vested in the Secretary by section 3 of
the
[[Page 27]]
Bridge Act of 1906, as amended (33 U.S.C. 493), relating to disputes
over the terms and compensation for use of railroad bridges built under
the Act.
(aa) Carry out the functions vested in the Secretary by titles II
through VII of the Rail Safety and Service Improvement Act of 1982 (Pub.
L. 97-468), which relates to rail safety, rail finances, and the
transfer of The Alaska Railroad to the State of Alaska.
(bb) Carry out the functions vested in the Secretary by section 4031
of the Budget Reconciliation Act of 1986 (Pub. L. 99-509), which relates
to the abolition of the United States Railway Association, and the
execution of the functions and duties of the Association transferred to
the Secretary, effective April 1, 1987.
(cc) Carry out the functions vested in the Secretary by section 18
(g) and (h) of the Rail Safety Improvement Act of 1988 (Pub. L. 100-
342).
(dd) Carry out the function vested in the Secretary by section 1163
of the Bankruptcy Code (11 U.S.C. 1163), which relates to the nomination
of trustee for rail carriers in reorganization, with the concurrence of
the Office of the General Counsel.
(ee) Carry out the functions vested in the Secretary by section 5701
of title 49 of the United States Code, with respect to transportation by
railroad.
(ff) Exercise the authority vested in the Secretary by the Crime
Control Act of 1990 (Pub. L. 101-647) as it relates to a railroad police
officer's authority to enforce the laws of any jurisdiction in which the
police officer's rail carrier employer owns property.
(gg) Carry out the functions vested in the Secretary by sections 16
and 21 of the Hazardous Materials Transportation Uniform Safety Act of
1990 (Pub. L. 101-615; 104 Stat. 3244 (49 App. U.S.C. 1813 note and 1817
note)).
(hh) Exercise the authority vested in the Secretary by Section 601
(d) and (e) of the National and Community Service Act of 1990 (45 U.S.C.
546 note) as it relates to the discharge of human waste from railroad
passenger cars.
(ii) Carry out the functions and exercise the authority delegated to
the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1991
Comp.; 56 FR 54757), with respect to rail transportation, relating to
the approval of means to ensure the availability of private personnel
and equipment to remove, to the maximum extent practicable, a worst case
discharge, the review and approval of response plans, and the
authorization of railroads, subject to the Federal Water Pollution
Control Act (33 U.S.C. 1321), to operate without approved response
plans, except as delegated in Sec. 1.46(m).
(jj) Exercise the authority vested in the Secretary by the Swift
Rail Development Act of 1994, being Title I--High-Speed Rail of Public
Law 103-440 (108 Stat. 4615), as it relates to the provision of
financial assistance for high-speed rail corridor planning and
technology improvements, the promulgation of necessary safety
regulations, and the redemption of outstanding obligations and
liabilities with respect to the Columbus and Greenville Railway under
Sections 505 and 511 of the Railroad Revitalization and Regulatory
Reform Act of 1976 (45 U.S.C. 825 and 831, respectively).
(kk) Carry out the functions and exercise the authority vested in
the Secretary by 23 U.S.C. 322, titled the Magnetic Levitation
Transportation Technology Deployment Program.
(ll) Carry out the function of determining the Federal requirements
for the Nationwide Differential Global Positioning System (NDGPS) as a
necessary part of the Secretary's authority to establish, operate, and
manage the NDGPS granted by Section 346 of Public Law 105-66, titled the
Department of Transportation and Related Agencies Appropriations Act,
1998.
(mm) Carry out the functions and exercise the authority vested in
the Secretary by sections 1307, 1946, 9004, 9006, and 9007 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users (Pub. L. No. 109-59, 119 Stat. 1144) as they relate to deployment
of magnetic levitation transportation projects, the Gateway Rural
Improvement Pilot Program, a study of the impact of public safety of
train travel in communities without grade separation, capital grants to
the Alaska Railroad, and a study of rail transportation and regulation.
[[Page 28]]
(nn) Carry out the functions and exercise the authority vested in
the Secretary by section 20154 of title 49, United States Code relating
to capital grants for rail line relocation projects.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting Sec. 1.49,
see the List of CFR Sections Affected which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.50 Delegation to the National Highway Traffic Safety Administrator.
The National Highway Traffic Safety Administrator is delegated
authority to:
(a) Carry out the National Traffic and Motor Vehicle Safety Act of
1966, as amended (15 U.S.C. 1381 et seq.).
(b) Carry out the Highway Safety Act of 1966, as amended (23 U.S.C.
401 et seq.), except for highway safety programs, research and
development relating to highway design, construction and maintenance,
traffic control devices, identification and surveillance of accident
locations, and highway-related aspects of pedestrian and bicycle safety.
(c) Exercise the authority vested in the Secretary by section 210(2)
of the Clean Air Act, as amended (42 U.S.C. 7544(2)).
(d) Exercise the authority vested in the Secretary by section 204(b)
of the Federal Railroad Safety Act of 1970 (45 U.S.C. 433(b)) with
respect to laws administered by the National Highway Traffic Safety
Administrator pertaining to highway, traffic and motor vehicle safety.
(e) Carry out the Act of July 14, 1960, as amended (23 U.S.C. 313
note) and the National Driver Register Act of 1982 (23 U.S.C. 401 note).
(f) Carry out the functions vested in the Secretary by the Motor
Vehicle Information and Cost Savings Act of 1972, as amended (15 U.S.C.
1901 et seq.), except section 512.
(g) Administer the following sections of title 23, United States
Code, with the concurrence of the Federal Highway Administrator:
(1) 141, as it relates to certification of the enforcement of speed
limits;
(2) 154 (a), (b), (d), (e), (f), (g) and (h); and
(3) 158.
(h) Carry out the consultation functions vested in the Secretary by
Executive Order 11912, as amended.
(i) Carry out section 209 of the Surface Transportation Assistance
Act of 1978, as amended (23 U.S.C. 401 note) and section 165 of the
Surface Transportation Assistance Act of 1982, as amended (23 U.S.C. 101
note), with respect to matters within the primary responsibility of the
National Highway Traffic Safety Administrator.
(j) Administer section 414(b)(1) of the Surface Transportation
Assistance Act of 1982, as amended (49 U.S.C. 2314) with the concurrence
of the Federal Highway Administrator, and section 414(b)(2).
(k) Carry out section 2(c) of the Truth in Mileage Act of 1986 (15
U.S.C. 1988 note).
(l) Carry out section 204(b) of the Surface Transportation and
Uniform Relocation Assistance Act of 1987, Public Law 100-17 (101 Stat.
132) with the coordination of the Federal Highway Administrator.
(m) Carry out the functions vested in the Secretary by section 15(f)
of the Sanitary Food Transportation Act of 1990 (Pub. L. 101-500; 104
Stat. 1213).
(n) Carry out, in coordination with the Federal Motor Carrier Safety
Administrator, the authority vested in the Secretary by subchapter III
of chapter 311 and section 31502 of title 49, U.S.C., to promulgate
safety standards for commercial motor vehicles and equipment subsequent
to initial manufacture when the standards are based upon and similar to
a Federal Motor Vehicle Safety Standard promulgated, either
simultaneously or previously, under chapter 301 of title 49, U.S.C.
(o) Carry out the functions and exercise the authority vested in the
Secretary under 23 U.S.C. 406 (e)(3), as added by section 2005(a) of
SAFETEA-LU, Public Law 109-59, to engage in activities with States and
State legislators to consider proposals related to safety belt use laws.
The National Highway Traffic Safety Administrator may further delegate
this authority, including to other modal Administrators within the
Department of Transportation.
[[Page 29]]
(p) Carry out the functions and exercise the authority vested in the
Secretary under the ``Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' or ``SAFETEA-LU'' (Pub.
L. 109-59; August 10, 2005), as it relates to:
(1) Section 1906, the grant program to prohibit racial profiling;
(2) Section 2001(d), transfers;
(3) Section 2003(c), on-scene motor vehicle collision causation;
(4) Section 2003(d), research on distracted, inattentive, and
fatigued drivers;
(5) Section 2003(f), refusal of intoxication testing;
(6) Section 2003(g), impaired motorcycle driving;
(7) Section 2003(h), reducing impaired driving recidivism;
(8) Section 2009(f), annual evaluation, in regard to high visibility
enforcement program;
(9) Section 2010, motorcyclist safety;
(10) Section 2011, child safety and child booster seat incentive
grants;
(11) Section 2012, safety data;
(12) Section 2013, drug-impaired driving enforcement;
(13) Section 2014, first responder vehicle safety program;
(14) Section 2015, driver performance study;
(15) Section 2016, rural state emergency medical services
optimization pilot program;
(16) Section 2017, older driver safety; law enforcement training;
(17) Section 5513(e), automobile accident injury research;
(18) Section 5513(m) as it relates to section 513(e);
(19) Section 10202, emergency medical services;
(20) Section 10302, side-impact crash protection rulemaking;
(21) Section 10303, tire research;
(22) Section 10305(b), publication of nontraffic incident data
collection;
(23) Section 10306, study of safety belt use technologies;
(24) Section 10307(b), regulations, in regard to safety labeling
requirements;
(25) Section 10308, power window switches; and
(26) Section 10309(a), testing, in regard to 15-passenger van
safety.
[Amdt. 1-226, 53 FR 23122, June 20, 1988, as amended by Amdt. 1-239, 56
FR 6810, Feb. 20, 1991; 65 FR 41015, July 3, 2000; 71 FR 11541, Mar. 8,
2006; 71 FR 30832, May 31, 2006]
Sec. 1.51 Delegations to Federal Transit Administrator.
The Federal Transit Administrator is delegated authority to exercise
the functions vested in the Secretary by:
(a) The Urban Mass Transportation Act of 1964, as amended (78 Stat.
302, 49 U.S.C. 1601 et seq.).
(b) Section 1 of Reorganization Plan No. 2 of 1968 (5 U.S.C. app.
1).
(c) Section 10 of the Urban Mass Transportation Assistance Act of
1970, Public Law 91-453, 84 Stat. 962, 968).
(d) Sections 3 and 9 through 15 of the National Capital
Transportation Assistance Act of 1969, as amended (D.C. Code, Sec. 1-
2441 et seq).
(e) The following sections of title 23, United States Code:
(1) 103 as it involves the withdrawal of Interstate routes and the
substitution of non-highway public mass transit projects authorized by
subsection (e)(4);
(2) 101(a) as it involves approval of boundaries of urban and
urbanized areas, 104(f)(4), 105(d), 106(b) as it involves the Federal-
aid urban system, and 134; and
(3) 101 (b), (c), (d), and (e); 105 (a) and (g); 106 (a), (c) and
(d); 108; 109 (a), (g), and (h); 110; 112; 113; 114; 116 (a) and (c);
117; 121; 122; 124; 128; 140(a); 142; and 145 as they involve mass
transportation projects authorized by sections 103(e)(4), 142(a)(2), or
142(c).
(f) Title II of the National Mass Transportation Assistance Act of
1974 (Pub. L. 93-503, November 26, 1974), except sections 204 and 205.
(g) Title 49 United States Code, chapter 53 as amended by the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005).
(h) 49 U.S.C. 303 as it involves public (mass) transportation
projects.
(i) Sections 3040, 3041, 3044, 3045, 3046, 3048, 3049, and 3050 of
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for
[[Page 30]]
Users (Pub. L. 109-59, 119 Stat.1144); sections 6009 (b) and (c) and
6010 of the Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users as they relate to public (mass) transit
projects; and the following provisions as amended by SAFETEA-LU and as
related to public (mass) transportation projects:
(1) 23 U.S.C. 139, 326, and 502(h); and
(2) 42 U.S.C. 7506(c).
[Amdt. 1-157, 45 FR 83408, Dec. 18, 1980, as amended by Amdt. 1-168, 47
FR 16632, Apr. 19, 1982; Amdt. 1-180, 48 FR 15476, Apr. 11, 1983; Amdt.
1-187, 48 FR 52678, Nov. 21, 1983; Amdt. 1-191, 49 FR 6908, Feb. 24,
1984; Amdt. 1-203, 50 FR 30275, July 25, 1985; 68 FR 34550, June 10,
2003; 71 FR 30832, May 31, 2006]
Sec. 1.52 Delegations to Saint Lawrence Seaway Development Corporation
Administrator.
The Administrator of the Saint Lawrence Seaway Development
Corporation is delegated authority to:
(a) Carry out the functions vested in the Secretary by sections 4,
5, 6, 7, 8, 12 and 13 of section 2 of the Port and Tanker Safety Act of
1978 (92 Stat. 1471) as they relate to the operation of the St. Lawrence
Seaway.
(b) Carry out the functions vested in the Secretary by section 5 of
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to
the St. Lawrence River.
(c) Carry out the functions vested in the Secretary by section 3(d)
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it
relates to ships owned or operated by the Corporation when engaged in
noncommercial service.
(d)-(e) [Reserved]
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by 45 FR 48630,
July 21, 1980; Amdt. 1-167, 47 FR 11677, Mar. 18, 1982; 60 FR 38971,
July 31, 1995; Amdt. 1-272, 60 FR 63450, Dec. 11, 1995; Amdt. 1-292, 63
FR 10782, Mar. 5, 1998]
Sec. 1.53 Delegations to the Administrator of the Pipeline and Hazardous
Materials Safety Administration.
The Administrator of the Pipeline and Hazardous Materials Safety
Administration is delegated authority for the following:
(a) Pipelines. (1) Exercise the authority and carry out the
functions vested in the Secretary by the Federal pipeline safety laws
(49 U.S.C. 60101 et seq.).
(2) Exercise the authority and carry out the functions vested in the
Secretary under section 28 of the Mineral Leasing Act, as amended (30
U.S.C. 185).
(3) Exercise the authority and carry out the functions vested in the
Secretary under section 21 of the Deepwater Port Act of 1974, as amended
(33 U.S.C. 1520) relating to the establishment, enforcement and review
of regulations concerning the safe construction, operation or
maintenance of pipelines on Federal lands and the Outer Continental
Shelf.
(4) Exercise the authority and carry out the functions vested in the
Secretary under section 5 of the International Bridge Act of 1972 (33
U.S.C. 535) as it relates to pipelines not over navigable waterways.
(5) Exercise the authority and carry out the functions vested in the
Secretary under the Outer Continental Shelf Lands Act, as amended (43
U.S.C. 1331 et seq.) with respect to the establishment, enforcement and
review of regulations concerning pipeline safety.
(6) Exercise the authority and carry out the functions delegated to
the Secretary under sections 4(a) and 5(c) of Executive Order 12316 (46
FR 42237, Aug. 20, 1981) (delegating sections 107(c)(1)(c) and 108(b),
respectively, of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1981, as amended (42 U.S.C. 9601 et seq.)) as they
relate to pipelines.
(7) Exercise the authority and carry out the functions vested in the
Secretary by section 7005 of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (recodified at 49 U.S.C. 60301 by Pub. L.
103-272) as they relate to pipeline safety user fees.
(8) Exercise the authority and carry out the functions vested in the
Secretary by 49 U.S.C. 6101 et seq. as they relate to pipeline damage
prevention One Call programs.
(9) Exercise the authority and carry out the functions vested in the
Secretary by the Pipeline Safety Improvement Act of 2002 (Pub. L. 107-
355, 116 Stat. 2985).
(b) Hazardous materials. Except as delegated by Sec. 1.74(a):
[[Page 31]]
(1) Carry out the functions vested in the Secretary by 49 U.S.C.
5121(a), (b), (c), (d) and (e), 5122, 5123, and 5124, with particular
emphasis on the shipment of hazardous materials and the manufacture,
fabrication, marking, maintenance, reconditioning, repair or test of
multi-modal containers that are represented, marked, certified, or sold
for use in the transportation of hazardous materials; and
(2) Carry out the functions vested in the Secretary by all other
provisions of the Federal hazardous material transportation law (49
U.S.C. 5101 et seq.) except as delegated by Sec. Sec. 1.47(j)(2) and
1.73(d)(2) of this chapter and by paragraph 2(99) of Department of
Homeland Security Delegation No. 0170.
(c) Carry out the functions vested in the Secretary by section 4(e)
of the International Safe Container Act (46 U.S.C. 1503(e)).
(d) Exercise the authority and carry out the functions delegated to
the Secretary in the following sections of Executive Order 12777 (56 FR
54757, Oct. 22, 1991):
(1) Section 2(b)(2) relating to the establishment of procedures,
methods, equipment and other requirements to prevent discharges from,
and to contain oil and hazardous substances in, pipelines, motor
carriers, and railroads; and
(2) Section 2(d)(2) relating to the issuance of regulations
requiring the owners or operators of pipelines, motor carriers, and
railroads, subject to the Federal Water Pollution Control Act (33 U.S.C.
1321 et seq.), to prepare and submit response plans. For pipelines
subject to the Federal Water Pollution Control Act, this authority
includes the approval of means to ensure the availability of private
personnel and equipment to remove, to the maximum extent practicable, a
worst case discharge, the review and approval of response plans, and the
authorization of pipelines to operate without approved response plans.
[70 FR 8301, Feb. 18, 2005, as amended at 71 FR 30833, May 31, 2006; 71
FR 52753, Sept. 7, 2006]
Sec. 1.54 Delegations to all Secretarial Officers.
(a) This section sets forth general delegations to the Deputy
Secretary, the Deputy Under Secretary, the General Counsel, the
Inspector General and the Assistant Secretaries.
(b) Each officer named in paragraph (a) of this section is delegated
authority to:
(1) Redelegate and authorize successive redelegations of authority
granted by the Secretary within their respective organizations, except
as limited by law or specific administrative reservation, including
authority to publish those redelegations in appendix A of this part.
(2) Authorize and approve official travel (except foreign travel)
and transportation for themselves, their subordinates, and others
performing services for, or in cooperation with, the Office of the
Secretary. This authority may be redelegated in accordance with
regulations issued by the Assistant Secretary for Administration.
(3) Communicate directly with chairmen of Field Coordination Groups
provided such communications are largely informational in character and
do not conflict with program responsibilities of the operating
administrations.
(4) Establish ad hoc committees for specific tasks within their
assigned staff area.
(5) Establish, modify, extend, or terminate standing committees
within their specific areas of responsibility when directed or
authorized to do so by the Secretary.
(6) Designate members of interagency committees when such committees
are specifically concerned with responsibilities of direct interest to
their office.
(7) Exercise the following authorities with respect to executive
level positions (GS-16, 17, or 18 or equivalent) within their respective
areas of responsibility:
(i) Determine how executive level positions will be filled; i.e., by
reassignment, promotion, appointment.
(ii) Establish selection criteria to be used in identifying eligible
candidates.
(iii) Confer with the Administrators on selection criteria and
candidates for an executive level position that is a
[[Page 32]]
counterpart of an activity or position in the Office of the Secretary.
(iv) Recommend final selection for executive level positions,
subject to review by the Executive Committee of the Departmental
Executive Personnel Board and approval by the Secretary and the Civil
Service Commission.
(v) Serve as ad hoc member of the Departmental Executive Personnel
Board at the call of the Chairman and serve on the Board's Executive
Committee whenever matters involving their respective offices or a
functional counterpart thereof in an operating administration are
presented to the Executive Committee for its consideration.
(8) Enter into inter- and intra-departmental reimbursable agreements
other than with the head of another department or agency (31 U.S.C.
686). This authority may be redelegated only to office directors or
other comparable levels and to contracting officers.
(9) Administer and perform the functions described in their
respective functional statements.
(10) Exercise the authority of the Secretary to make certifications,
findings and determinations under the Regulatory Flexibility Act (Pub.
L. 96-354) with regard to any rulemaking document for which issuance
authority is delegated by other sections in this part. This authority
may be redelegated to those officials to whom document issuance
authority has been delegated.
(11) Exercise the authority of the Secretary to resolve informal
allegations of discrimination arising in or relating to their respective
organizations through Equal Employment Opportunity counseling or the
Alternative Dispute Resolution process and to develop and implement
affirmative action and diversity plans within their respective
organizations.
(49 U.S.C. 1657(e)(1))
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-114, 41
FR 1288, Jan. 7, 1976; Amdt. 1-157, 45 FR 83408, Dec. 18, 1980; Amdt. 1-
159, 46 FR 22593, Apr. 20, 1981; Amdt. 265, 60 FR 2891, Jan. 12, 1995]
Sec. 1.55 Delegations to Deputy Secretary.
The Deputy Secretary may exercise the authority of the Secretary
except where specifically limited by law, order, regulations, or
instructions of the Secretary. In addition, the Deputy Secretary is
delegated authority to:
(a) Exercise executive control over the Departmental Planning-
Programming-Budgeting System.
(b) Serve as Chairman of the Departmental Executive Personnel Board
and its Executive Committee.
(c) Originate direct correspondence to chairmen of Field
Coordination Groups on overall Departmental matters.
(d) Approve the establishment, modification, extension, or
termination of:
(1) Department-wide (intra-department) committees affecting more
than one program.
(2) OST-sponsored interagency committees.
(3) All advisory committees (including industry advisory committees)
except those sponsored by field activities of the operating
administrations.
(e) Approve the designation of:
(1) Departmental representatives and the chairman for interagency
committees sponsored by the Office of the Secretary.
(2) Departmental representatives on all advisory committees except
those sponsored by a field component of one of the operating
administrations or the Materials Transportation Bureau.
(3) Departmental members for international committees.
(f) Authorize and approve official travel and transportation for
self, subordinates, and others performing services for or in cooperation
with the Office of the Secretary; and authorize and approve official
foreign travel of all Departmental personnel and others performing
travel for the Department.
(g) Serve as the representative of the Secretary on the board of
directors of the National Railroad Passenger Corporation and carry out
the functions vested in the Secretary as a member of the board by
section 303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).
(h) Serve as the representative of the Secretary as incorporator,
member of the acting board of directors, member of the board of
directors, and member of the executive committee of the board of
directors, of the United States
[[Page 33]]
Railway Association and when so serving carry out the functions vested
in the Secretary in each capacity by title II of the Regional Rail
Reorganization Act of 1973 (Pub. L. 93-236), as amended.
(i) Serve as the representative of the Secretary as incorporator,
member of the interim board of directors established by section 301(c)
of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-236), and
member of the board of directors, of the Consolidated Rail Corporation
and when so serving carry out the functions vested in the Secretary in
each capacity by title III of the Regional Rail Reorganization Act of
1973 (Pub. L. 93-236).
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-114, 41
FR 1288, Jan. 7, 1976; Amdt. 1-116, 41 FR 20680, May 20, 1976; Amdt. 1-
126, 41 FR 56327, Dec. 28, 1976; Amdt. 1-157, 45 FR 83408, Dec. 18,
1980; Amdt. 1-165, 46 FR 55266, Nov. 9, 1981]
Sec. 1.56 Delegations to the Assistant Secretary for Transportation Policy.
The Assistant Secretary for Transportation Policy is delegated
authority to:
(a) Establish policy and maintain oversight of implementation of the
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-
4347) within the Department of Transportation.
(b) Oversee the implementation of section 4(f) of the Department of
Transportation Act of 1969 (49 U.S.C. 303).
(c) Represent the Secretary of Transportation on various interagency
boards, committees, and commissions to include the Architectural and
Transportation Barriers Compliance Board and the Advisory Council on
Historic Preservation.
(d) Except with respect to proceedings under section 4(e) of the
Department of Transportation Act (49 U.S.C. 307) relating to safety
fitness of an applicant, decide on requests to intervene or appear
before administrative agencies to present the views of the Department
subject to concurrence by the General Counsel.
(e) Carry out the functions vested in the Secretary by section 656
of the Department of Energy Organization Act (42 U.S.C. 7266) which
pertains to planning and implementing energy conservation matters with
the Department of Energy. Serves as the Department's principal
conservation officer.
[Amdt. 1-261, 59 FR 10063, Mar. 3, 1994]
Sec. 1.56a Delegations to the Assistant Secretary for Aviation and
International Affairs.
The Assistant Secretary for Aviation and International Affairs is
delegated authority to:
(a) Represent the Secretary of Transportation on various interagency
boards, committees, and commissions to include the Trade Policy Review
Group and the Trade Policy Staff Committee.
(b) Except with respect to proceedings under section 4(e) of the
Department of Transportation Act (49 U.S.C. 307) relating to safety
fitness of an applicant, decide on requests to intervene or appear
before administrative agencies to present the views of the Department
subject to concurrence by the General Counsel.
(c) Carry out the functions of the Secretary pertaining to aircraft
with respect to Transportation Orders T-1 and T-2 (44 CFR chapter IV)
under the Act of September 8, 1950, as amended (50 U.S.C. app. 2061 et
seq.) and Executive Order No. 10480 (3 CFR, 1949-1953 comp., p. 962), as
amended.
(d) Serve as Department of Transportation member of the Interagency
Group on International Aviation, and pursuant to Executive Order No.
11382 (3 CFR, 1966-1970 comp., p. 691), as amended, serve as Chair of
the Group.
(e) Serve as second alternate representing the Secretary of
Transportation to the Trade Policy Committee as mandated by
Reorganization Plan No. 3 of 1979 (5 U.S.C. app. at 1381 (1988)) and
Executive Order No. 12188 (3 CFR, 1980 comp., p. 131), as amended.
(f)(1) As supplemented by 14 CFR part 385, as limited by paragraph
(f)(2) of this section, and except as provided in Sec. Sec. 1.53(g),
1.57(a), and 1.57(s) of this title, carry out the functions transferred
to the Department from the Civil Aeronautics Board under the following
statutes:
(i) 49 U.S.C. app. 1551(b); and
[[Page 34]]
(ii) Section 4(a)(1) through (4), (6), and (8) through (10) of the
Civil Aeronautics Board Sunset Act of 1984 (49 U.S.C. app. 1553(a)(1)
through (4), (6), and (8) through (10)).
(2) Insofar as the delegation in this paragraph (f) authorizes
review of decisions of the Designated Senior Career Official in the
Office of the Assistant Secretary for Aviation and International Affairs
under Sec. 1.56b of this title, the authority is limited to approving
any such decision or remanding it for reconsideration by the Designated
Senior Career Official, with a full written explanation of the basis for
the remand.
(g) Carry out the functions vested in the Secretary by the following
subsections of section 1115 of the Federal Aviation Act of 1958, as
amended, which relates to the security of foreign airports:
(1) Subsection 1115(e)(1), in coordination with the General Counsel,
and the Federal Aviation Administrator; and
(2) Subsection 1115(e)(3), in coordination with the General Counsel,
the Federal Aviation Administrator, the Assistant Secretary for
Governmental Affairs, and the Assistant Secretary for Administration.
(h) Carry out the following statutory provisions relating to
consumer protection:
(1) Section 4(a)(5) of the Civil Aeronautics Board Sunset Act of
1984 (49 U.S.C. app. 1553(a)(5)) relating to enforcement of the Consumer
Credit Protection Act;
(2) Sections 101(3) (relating to relieving certain carriers from
provisions of the Federal Aviation Act), 204 (relating to taking such
actions and issuing such regulations as may be necessary to carry out
responsibilities under the Act), 404 (relating to enforcing the duty of
carriers to provide safe and adequate service), 407(a) (relating to
requiring the production of information), 407(e) (relating to entering
carrier property, and inspecting records), 411 (relating to determining
whether any carrier or ticket agent is engaged in unfair or deceptive
practices or unfair methods of competition), and 416 (relating to
establishing just and reasonable classifications of carriers and rules
to be followed by each) of the Federal Aviation Act of 1958, as amended,
(49 U.S.C. 1301(3), 1324, 1374, 1377 (a) and (e), 1381, and 1386) as
appropriate to the consumer protection functions in this paragraph.
(i) Carry out the functions of the Secretary pertaining to a
determination of whether a fee imposed upon one or more air carriers by
the owner or operator of an airport is reasonable under section 113 of
the Federal Aviation Administration Authorization Act of 1994 (August
23, 1994; Pub. L. 103-305; 108 Stat. 1577-1579).
(j) Carry out section 101(a)(2) of the Air Transportation Safety and
System Stabilization Act (Public Law 107-42, 115 Stat. 230), as
delegated to the Secretary of Transportation by the President pursuant
to a Presidential Memorandum dated September 25, 2001.
[Amdt. 1-261, 59 FR 10063, Mar. 3, 1994, as amended by Amdt. 1-266, 60
FR 11046, Mar. 1, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995; 66 FR
55599, Nov. 2, 2001]
Sec. 1.56b Delegations to the Designated Senior Career Official, Office
of the Assistant Secretary for Aviation and International Affairs.
The Designated Senior Career Official in the Office of the Assistant
Secretary for Aviation and International Affairs is delegated exclusive
authority to make decisions in all hearing cases to select a carrier for
limited-designation international route authority, and in any other case
that the Secretary designates, under the authority transferred to the
Department from the Civil Aeronautics Board described in Sec. Sec.
1.56a(f) and 1.57(s) of this title; this includes the authority to
adopt, reject or modify recommended decisions of administrative law
judges.
[Amdt. 1-261, 59 FR 10064, Mar. 3, 1994, as amended by Amdt. 1-269, 60
FR 15877, Mar. 28, 1995]
Sec. 1.57 Delegations to General Counsel.
The General Counsel is delegated authority to:
(a) Conduct all rule-making proceedings, except the issuance of
final rules, under specific laws relating generally to standard time
zones and daylight saving (advanced standard) time.
(b) Determine the practicability of applying the standard time of
any
[[Page 35]]
standard time zone to the movements of any common carrier engaged in
interstate or foreign commerce and issue operating exceptions in any
case in which the General Counsel determines that it is impractical to
apply the standard time.
(c) Provide and coordinate the Department's counseling service to
employees on questions of conflict of interest and other matters of
legal import covered by Departmental regulations on employee
responsibility and conduct. Assure that counseling and interpretations
on these matters are available to designated Deputy Counselors of the
Department. Serve as the Department's designee to the Civil Service
Commission on these matters.
(d) Serve as the alternate representative of the Secretary on the
Board of Directors of the National Railroad Passenger Corporation when
so designated by the Secretary or Deputy Secretary and carry out the
functions vested in the Secretary as a member of the board by section
303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).
(e) Grant permission, under specific circumstances, to deviate from
a policy or procedure prescribed by part 9 of the regulations of the
Office of the Secretary (part 9 of this subtitle) with respect to
testimony of OST employees as witnesses in legal proceedings, the
serving of legal process and pleadings in legal proceedings involving
the Secretary or his Office, and the production of records of that
Office pursuant to subpoena.
(f) Prepare proposed Executive orders and proclamations (including
transmittal documents), effect appropriate Departmental coordination,
and determine whether the transmittal to the Office of Management and
Budget should be submitted over the Secretary's signature or the General
Counsel's.
(g) Emboss and affix the official Departmental seal to appropriate
documents and other materials, for all purposes for which authentication
by seal is required.
(h) Except with respect to proceedings under section 4(e) of the
Department of Transportation Act (80 Stat. 934) relating to safety
fitness of an applicant, decide on requests to intervene or appear
before courts or agencies to present the views of the Department,
subject to the concurrence of other interested staff elements in the
Office of the Secretary.
(i) Exercise the authority delegated to the Department by the
Assistant Attorney General, Land and Natural Resources Division, in his
order of October 2, 1970, to approve the sufficiency of the title to
land being acquired by purchase or condemnation by the United States for
the use of the Department. Redelegation and successive redelegations of
this authority may only be made to attorneys within the Department.
(j) Issue regulations making editorial changes or corrections in the
Regulations of the Office of the Secretary.
(k) Review and take final action on applications for reconsideration
of initial decisions not to disclose unclassified records of the Office
of the Secretary requested under 5 U.S.C. 552(a)(3).
(l) Consider, ascertain, adjust, determine, compromise, and settle
for an amount not exceeding $25,000, any tort claim arising from the
activities of any employee of the Office of the Secretary. Request the
approval of the Attorney General for any such award, compromise, or
settlement in excess of $25,000 (28 U.S.C. 2672).
(m) Conduct coordination with foreign governments under section 118
of the Deep Seabed Hard Mineral Resources Act (June 21, 1980).
(n) Grant or deny petitions for extension of time to file a document
under part 202 of title 46.
(o) Deny petitions for rulemaking or petitions for exemptions in
accordance with Sec. 5.13(c) of this title, and notify petitioners of
denials in accordance with Sec. 5.13(d) of this title.
(p) Exercise the review authority delegated to the Secretary by the
President in Executive Order 12597 of May 13, 1987.
(q) Assist and protect consumers in their dealings with the air
transportation industry and assist state and local organizations in
handling airline consumer complaints. Carry out 49 U.S.C. 40113 and
41771 as appropriate to those functions.
(r)-(s) [Reserved]
[[Page 36]]
(t) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b), as implemented by 49 CFR part 15, relating to the
determination that information is Sensitive Security Information.
(10 U.S.C. 1552; 49 U.S.C. 1655(b); 49 U.S.C. 322; 49 CFR 1.57(l))
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting Sec. 1.57,
see the List of CFR Sections Affected which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.57a Delegations to Deputy General Counsel.
The Deputy General Counsel is delegated authority to:
(a) Appear on behalf of the Department on the record in hearing
cases, and to initiate and carry out enforcement actions on behalf of
the Department, under the authority transferred to the Department from
the Civil Aeronautics Board as described in Sec. Sec. 1.56a(f) and
1.57(s). This includes the authority to compromise penalties under 49
U.S.C. 46301; to issue appropriate orders, including cease and desist
orders, under 49 U.S.C. 46101; and to require the production of
information, enter carrier property and inspect records and inquire into
the management of the business of a carrier under 49 U.S.C. 41711, as
appropriate to the enforcement responsibilities. In carrying out these
functions, the Deputy General Counsel is not subject to the supervision
of the General Counsel.
(b) Initiate and carry out enforcement actions relating to:
(1) Foreign airport security on behalf of the Department under 49
U.S.C. 44907; and
(2) The Consumer Credit Protection Act under section 4(a)(5) of the
Civil Aeronautics Board Sunset Act of 1984 (October 4, 1984; Pub. L. 98-
443). In carrying out these functions, the Deputy General Counsel is not
subject to the supervision of the General Counsel.
[Amdt. 1-269, 60 FR 15877, Mar. 28, 1995]
Sec. 1.57b Delegations to the Assistant General Counsel for Environmental,
Civil Rights, and General Law.
Administer 5 U.S.C. 552 and 49 CFR part 7 in connection with the
records of the Office of the Secretary (including the Office of the
Inspector General) and issue procedures to ensure uniform Departmental
implementation of statutes and regulations regarding public access to
records.
[Amdt. 1-228, 54 FR 10010, Mar. 9, 1989, as amended by Amdt. 1-261, 59
FR 10064, Mar. 3, 1994]
Sec. 1.58 Delegations to Assistant Secretary for Budget and Programs.
The Assistant Secretary for Budget and Programs is delegated
authority to:
(a) Exercise day-to-day operating management responsibility over the
Office of Programs and Evaluation and the Office of Budget.
(b) Direct and manage the Departmental planning, evaluation, and
budget activities.
(c) Request apportionment or reapportionment of funds by the Office
of Management and Budget, provided that no request for apportionment or
reapportionment which anticipates the need for a supplemental
appropriation shall be submitted to the Office of Management and Budget
without appropriate certification by the Secretary.
(d) Issue allotments or allocations of funds to components of the
Department.
(e) Authorize and approve official travel and transportation for
staff members of the Immediate Office of the Secretary including
authority to sign and approve related travel orders and travel vouchers,
but not including requests for overseas travel.
(f) Issue monetary authorizations for use of reception and
representation funds.
(g) Act for the Secretary and Deputy Secretary with respect to
certain budgetary and administrative matters relating to the Immediate
Office of the Secretary.
(h) Provide Congressional Notification for Energy Savings
Performance Contracts (ESPCs) with cancellation ceilings in excess of
$750,000, pursuant to the National Energy Conservation Policy Act, as
amended, 42 U.S.C. 8287 et seq.
(i) In accordance with the Federal Civil Penalties Inflation
Adjustment
[[Page 37]]
Act of 1990 (Pub. L. 101-410, 104 Stat. 890), as amended by the Debt
Collection Improvement Act of 1996 (Pub. L. 104-134, 110 Stat. 1321),
review, on an annual basis, each of the Department's civil penalty
provisions, determine whether adjustment is required, calculate the
necessary adjustment, and coordinate with the relevant Operating
Administration to ensure that the requisite regulation making the
adjustment is issued.
[Amdt. 1-130, 42 FR 58754, Nov. 11, 1977. Redesignated by Amdt. 1-157,
45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-293, 63 FR 33589, June
19, 1998; 68 FR 12834, Mar. 18, 2003]
Sec. 1.59 Delegations to the Assistant Secretary for Administration.
The Assistant Secretary for Administration is delegated authority
for the following:
(a) Acquisition. (1) Exercise procurement authority with respect to
requirements of the Office of the Secretary.
(2) Make the required determinations with respect to mistakes in
bids relative to sales of personal property conducted by the Office of
the Secretary without power of redelegation.
(3) Carry out the functions vested in the Secretary by sections 3
and 4(b) (as appropriate) of Executive Order 11912.
(4) Carry out the functions delegated to the Secretary from time to
time by the Administrator of General Services to lease real property for
Department use.
(5) Carry out the duties and responsibilities of agency head for
departmental procurement within the meaning of the Federal Acquisition
Regulation. This authority as agency head for departmental procurement
excludes duties, responsibilities, and powers expressly reserved for the
Secretary of Transportation.
(6) Serve as Deputy Chief Acquisition Officer.
(b) Personnel. (1) Conduct a personnel management program for the
Office of the Secretary with authority to take, direct others to take,
recommend or approve any personnel action with respect to such
authority.
(2) Serve as Vice Chairman of the Departmental Executive Resources
Board and its Executive Resources Review Committee.
(3) Exercise emergency authority to hire without the prior approval
of the Deputy Secretary normally required by Departmental procedures
implementing general employment limitations when in the judgment of the
Assistant Secretary immediate action is necessary to effect the hire and
avoid the loss of a well-qualified job applicant, and for similar
reasons.
(4) Review proposals of the Office of the Secretary for each new
appointment or transfer to:
(i) Verify the essentiality of the position, and
(ii) [Reserved]
(5) Approve employment of experts and consultants in accordance with
5 U.S.C. 3109.
(6) Serve as Vice Chairman of the Departmental Executive Personnel
Board and its Executive Committee.
(7) Issue final interpretations for the Department and its
administrations on matters arising under section 7117 of title VII of
the Civil Service Reform Act of 1978.
(8) Develop, coordinate, and issue wage schedules for Department
employees under the Federal Wage System, except as delegated to the
Commandant of the Coast Guard at Sec. 1.46.
(c) Finance. (1) Administer the financial and fiscal affairs of the
Office of the Secretary (other than those for which the Assistant
Secretary for Budget and Programs is responsible), in accordance with 31
U.S.C. 3512.
(2) Designate to the Treasury Department certifying officers and
designated agents for the Office of the Secretary and imprest fund
cashiers for the Departmental headquarters. (Redelegation to the
Director of Financial Management is contained in subpart C, Sec.
1.59a.)
(3) In accordance with 31 U.S.C. 3527, grant or recommend relief
from accountability for losses or deficiencies of disbursing officers,
cashiers, or other accountable officers as follows:
(i) Grant relief for losses or deficiencies of less than $500 for
which charges or exceptions have not been raised by the General
Accounting Office.
[[Page 38]]
(ii) Recommend relief by the Comptroller General for all other
losses or deficiencies.
(4) Settle and pay claims by employees of the Office of the
Secretary, except at the Transportation System Center, for personal
property losses, as provided by 31 U.S.C. 241(b).
(5) Waive claims and make refunds in connection with claims of the
United States for erroneous payment of pay and allowances or of travel,
transportation, and relocation expenses and allowances to an employee of
the Office of the Secretary in amounts aggregating not more than $1,500
without regard to any repayments, and deny requests for waiver of such
claims regardless of the aggregate amount of the claim, as provided by 4
CFR parts 91, 92, and 93. This authority may be redelgated only to the
Director of Financial Management.
(6) Compromise, suspend collection action on, or terminate claims of
the United States not exceeding $100,000 (excluding interest) which are
referred to, or arise out of the activities of, the Office of the
Secretary.
(7) Determine the existence and amount of indebtedness and the
method of collecting repayments from employees of the Office of the
Secretary and collect repayments accordingly, as provided by 5 U.S.C.
5514. This authority may be redelegated only to the Director of
Financial Management.
(8) Develop, coordinate, and issue wage schedules for Department
employees under the Federal Wage System.
(9) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer. (Redelegation to the Director of Financial
Management is contained in subpart C, Sec. 1.59a.)
(10) Approve cash purchases of emergency passenger transportation
services costing over $100 under FPMR G-72, as amended.
(11) Perform accounting and related functions in support of the
essential air service program.
(12) Carry out the functions and obligations assigned to the
Secretary with respect to the Prompt Payment Act, Public Law 97-177.
(13) Carry out the functions and duties assigned to the Secretary
with respect to the Debt Collection Act of 1982, Public Law 97-365.
(d) Special funds. Except as otherwise delegated, establish or
operate, or both, such special funds as may be required by statute or by
administrative determination. This excludes the Working Capital Fund (49
U.S.C. 327).
(e) Security. (1) Represent the Secretary on the National
Communications Security Committee and Interdepartmental Committee on
Internal Security.
(2) Issue identification media ``by direction of the Secretary''.
(3) Classify information in the interests of national defense.
(4) Take certain classified actions on behalf of the Department in
connection with counter-audio programs.
(5) Authorize exceptions to investigative standards for National
Defense Executive Reservists.
(6) Determine when emergencies, other than attack on the United
States, justify activation of Personnel Security Regulations issued by
the Secretary.
(7) Approve exceptions to the Personnel Security regulations issued
by the Secretary.
(8) Request the Office of Personnel Management to modify
investigative requirements in other areas.
(9) Ensure Department-wide compliance with Executive Orders 10450,
12829, 12958, 12968, and related regulations and issuances.
(f) Printing. (1) Request approval of the Joint Committee on
Printing, Congress of the United States, for any procurement or other
action requiring Committee approval.
(2) Certify the necessity for Departmental periodicals and request
approval of the Director of the Office of Management and Budget (OMB
Circular No. A-3 Revised as of Sept. 8, 1960).
(g) Document authentication. Emboss and affix the official
Departmental seal to appropriate documents and other materials, for all
purposes for which authentication by seal is required.
[[Page 39]]
(h) Foreign travel. Review written requests for modification to the
Department's foreign travel plan approved by the Office of Management
and Budget.
(i) Gifts and bequests. Carry out the functions vested in the
Secretary by section 9(m) of the Department of Transportation Act (Pub.
L. 89-670).
(j) Building management. Carry out the functions vested in the
Secretary by sections 1(b) and 4(b) (as appropriate) of Executive Order
11912.
(k) Privacy. Issue notices of Department of Transportation systems
of records as required by the Privacy Act of 1974 (5 U.S.C. 552a(e)(4),
(11)).
(l) Hearings. Provide logistical and administrative support to the
Department's Office of Hearings.
(m) Paperwork reduction. Carry out the functions and
responsibilities assigned to the Secretary with respect to the Paperwork
Reduction Act of 1980, Public Law 96-511.
(n) Federal real property management. Carry out the functions
assigned to the Secretary with respect to Executive Order 12512 of April
28, 1985.
(o) The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, Public Law 91-646, 84 Stat. 1894. Except as
provided in Sec. Sec. 1.45, 1.48 and 49 CFR 25.302, the functions,
powers, and duties of the Secretary of Transportation, with respect to
the Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970, are delegated to the Assistant Secretary for Administration
with respect to programs administered by the Office of the Secretary.
This authority is subject to the requirements listed in Sec. 1.45 that
govern all Operating Administrations' authority with respect to the
Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970.
(p) Regulations. Issue Department of Transportation procurement
regulations, subject to the following limitation:
(1) Coordination. The views of the General Counsel, the interested
administrations and other offices will be solicited in the development
of the procurement regulations. In commenting upon proposed provisions
for the procurement regulations, the administrations will indicate the
nature and purpose of any additional implementing or supplementing
policy guidances which they propose to issue at the administration
level.
(2) [Reserved]
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting Sec. 1.59,
see the List of CFR Sections Affected which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.59a Redelegations by the Assistant Secretary for Administration.
(a) The Assistant Secretary for Administration has re-delegated to
the Director, Office of the Senior Procurement Executive the authority
to:
(1) carry out the duties and responsibilities of agency head for
departmental procurement within the meaning of the Federal Acquisition
Regulation except for those duties expressly reserved for the Secretary
of Transportation.
(2) carry out the functions of the Chief Acquisition Officer except
for those functions specifically reserved for the Deputy Secretary.
(3) procure and authorize payment for property and services for the
Office of the Secretary, with power to re-delegate and authorize
successive re-delegations.
(b) The Assistant Secretary for Administration has redelegated to
the Director of Personnel authority to:
(1) Conduct a personnel management program for the Office of the
Secretary with authority to take, direct others to take, recommend or
approve any personnel action with respect to such authority.
(2) Develop, coordinate, and issue wage schedules for Department
employees under the Federal Wage System, except as delegated to the
Commandant of the Coast Guard at Sec. 1.46 of this part.
(c) The Assistant Secretary for Administration has redelegated to
the Director of Financial Management authority to:
(1) Designate to the Treasury Department certifying officers and
designated agents for the Office of the Secretary and imprest fund
cashiers for the Departmental Headquarters.
[[Page 40]]
(2) Certify to the validity of obligations as required by 31 U.S.C.
200 and to the adequacy of bond coverage for the designations under
section 160(c)(2).
(3) Sign reports on Budget Execution as required by OMB Circular A-
34 (Revised).
(4) Review and approve for payment any voucher for $25 or less the
authority for payment of which is questioned by a certifying or
disbursing officer.
(5) Process essential air service payments.
(6) Approve claims of OST employees allowable under 31 U.S.C. 3721
for amounts of $500 or less.
[Amdt. 1-209, 51 FR 29233, Aug. 15, 1986, as amended by Amdt. 1-232, 54
FR 46616, Nov. 6, 1989; 69 FR 60563, Oct. 12, 2004]
Sec. 1.60 Delegations to the Inspector General.
The Inspector General is delegated, and has agreed to carry out, the
following:
(a) Aviation economics. The conduct of audits under 49 U.S.C. 1389;
and 49 U.S.C. 1377(e).
(b) [Reserved]
[Amdt. 1-199, 49 FR 50997, Dec. 31, 1984, as amended at 69 FR 60563,
Oct. 12, 2004]
Sec. 1.61 Delegations to Assistant Secretary for Governmental Affairs.
The Assistant Secretary for Governmental Affairs is delegated
authority to:
(a) Establish procedures for responding to Congressional
correspondence.
(b) Serve as the Department's point of contact in relationships with
public and private organizations and groups devoted to consumer and
community services or affairs.
(c) Serve as coordinator for intra-Departmental consumer affairs
programs.
[Amdt. 1-157, 45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-199, 49
FR 50997, Dec. 31, 1984; Amdt. 1-205, 50 FR 52468, Dec. 24, 1985; Amdt.
1-269, 60 FR 15877, Mar. 28, 1995]
Sec. 1.62 Delegations to the Director of Small and Disadvantaged Business
Utilization.
The Director of Small and Disadvantaged Business Utilization is
delegated authority to:
(a) Exercise Departmental responsibility for the implementation and
execution of functions and duties under sections 8 and 15 of the Small
Business Investment Act, as amended (15 U.S.C. 637 and 644).
(b) Carry out the functions vested in the Secretary by section 906
of the Railroad Revitalization and Regulatory Reform Act of 1976 (Pub.
L. 94-210), as amended.
[Amdt. 1-157, 45 FR 83409, Dec. 18, 1980]
Sec. 1.63 Delegations to Assistant to the Secretary and Director of Public
Affairs.
The Assistant to the Secretary and Director of Public Affairs is
delegated authority to:
(a) [Reserved]
(b) Monitor the overall public information program and review and
approve Departmental informational materials having policy-making
ramifications before they are printed and disseminated.
(c) Carry out the functions vested in the Secretary by section 4(b)
(as appropriate) of Executive Order 11912.
(d) Carry out the functions to promote carpooling and vanpooling
which were vested in the Federal Energy Administration by section
381(b)(1)(B) of the Energy Policy and Conservation Act and transferred
to the Department of Transportation by section 310 of the Department of
Energy Organization Act of 1977.
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-118, 41
FR 35849, Aug. 25, 1976; Amdt. 1-157, 45 FR 83409, Dec. 18, 1980; Amdt.
1-184, 48 FR 44079, Sept. 27, 1983; Amdt. 1-228, 54 FR 10010, Mar. 9,
1989; Amdt. 1-261, 59 FR 10064, Mar. 3, 1994]
Sec. 1.64 Delegations to the Director, Transportation Administrative
Service Center.
The Director, Transportation Administrative Service Center (TASC),
is delegated authority to operate the Working Capital Fund (49 U.S.C.
327).
[Amdt. 1-285, 62 FR 16499, Apr. 7, 1997]
Sec. 1.65 Authority to classify information.
(a) E.O. 12356 confers upon the Secretary of Transportation
authority to originally classify information as Secret and Confidential
with further authorization to delegate this authority.
[[Page 41]]
(No official of the Department of Transportation has authority to
originally classify information as Top Secret.)
(b) The following delegations of this authority, which may not be
redelegated, are hereby made:
(1) Office of the Secretary (OST). Chief, Security Staff.
(2) Federal Aviation Administration (FAA). The Administrator;
Director of Civil Aviation Security.
(3) Maritime Administration (MARAD). The Administrator; Associate
Administrator for Policy and Administration (Confidential only);
Director, Office of International Activities (Confidential only); Chief,
Division of National Security Plans (Confidential only).
(c) Authority to originally classify information as Secret or
Confidential is delegated to the following officials to become effective
automatically upon declaration of civil readiness level Initial Alert or
the comparable military readiness level. If invoked, this authority is
automatically terminated when both civil and military levels return to
the level of Communications Watch or comparable readiness state.
(1) OST. Deputy Secretary; Assistant Secretary for Transportation
Policy; Assistant Secretary for Aviation and International Affairs;
Assistant Secretary for Administration.
(2) FAA. Deputy Administrator; Directors, FAA Regions and Centers.
(3) MARAD. Deputy Administrator; Region Directors; Heads of ALFA,
BRAVO, and CHARLIE Emergency Teams when activated.
(d) Although the delegations of authority are expressed above in
terms of positions, the authority is personal and is vested only in the
individual occupying the position. The authority may not be exercised
``by direction of'' a designated official. The formal appointment or
assignment of an individual to one of the identified positions, a
designation in writing of an individual to act in the absence of one of
these officials, or the exercise by an individual of the powers of one
of these officials by operation of law, however, conveys the authority
to originally classify information.
(e) Previous delegations of authority to Department of
Transportation officials to originally classify information as Secret
and Confidential are hereby rescinded.
[Amdt. 1-195, 49 FR 26594, June 28, 1984, as amended by Amdt. 1-261, 59
FR 10061, 10064, Mar. 3, 1994; 68 FR 34550, June 10, 2003]
Sec. 1.66 Delegations to Maritime Administrator.
With the exception of those authorities delegated to the Maritime
Subsidy Board in Sec. 1.67 of this title, the Maritime Administrator is
delegated authority to:
(a) Carry out sections 9, 12, 14a, 21a, 37, 38, 40, 41, and 42 of
the Shipping Act, 1916, as amended (46 App. U.S.C. 801 et seq.);
(b) Carry out the Merchant Marine Act, 1920, as amended (46 App.
U.S.C. 861 et seq.), including the Ship Mortgage Act, 1920, as amended
(46 App. U.S.C. 921 et seq.);
(c) Carry out the Merchant Marine Act, 1928, as amended (46 App.
U.S.C. 891 et seq.);
(d) Carry out section 7 of the Intercoastal Shipping Act, 1933, as
amended (46 App. U.S.C. 843 et seq.);
(e) Carry out the Merchant Marine Act, 1936, as amended (46 App.
U.S.C. 1101 et seq.); except the authority delegated to the
Administrator of the National Oceanic and Atmospheric Administration
relating to the establishment of capital construction fund agreements
under section 607 thereof and the granting of financing guarantees under
title XI thereof, with respect to vessels in the fishing trade or
industry;
(f) Carry out the Merchant Ship Sales Act of 1946, as amended (50
U.S.C. App. 1735 et seq.);
(g) Carry out the Suits in Admiralty Act (1920), as amended (46 App.
U.S.C. 741 et seq.);
(h) Carry out the Civilian Nautical School Act, 1940 (46 App. U.S.C.
1331 et seq.);
(i) Carry out the Act of June 2, 1951 (46 App. U.S.C. 1241a)
regarding the ``Vessel Operations Revolving Fund'';
(j) Carry out the Act of August 9, 1954 (50 U.S.C. 196 et seq.)
commonly called the Emergency Foreign Vessels Acquisition Act;
[[Page 42]]
(k) Carry out the Merchant Marine Decorations and Medals Act of 1988
(46 App. U.S.C. 2001 et seq.);
(l) Carry out the Maritime Academy Act of 1958, as amended (46 App.
U.S.C. 1381 et seq.);
(m) Carry out the Act of May 16, 1972, as amended (86 Stat. 140)
authorizing sale or purchase of certain passenger vessels;
(n) Carry out the Act of August 22, 1972 (86 Stat. 618) authorizing
sale of Liberty ships for use as artificial reefs;
(o) Carry out section 717 of the Act of October 26, 1972 (86 Stat.
1184) commonly known as the Department of Defense Appropriations Act,
1973, and similar subsequent enactments, with respect to transferring or
otherwise making available vessels under the jurisdiction of the
Maritime Administration to another Federal agency or, similarly,
accepting vessels from another Federal agency;
(p) Carry out the provisions of sections 10 through 13 of Public Law
103-451, the National Maritime Heritage Act of 1994, 108 Stat. 4769,
4778-4782;
(q) Exercise the authority vested in the Administrator of General
Services by the Act of June 1, 1948, Public Law 80-566, 62 Stat. 281, 40
U.S.C. 318-318c and the Federal Property and Administrative Services Act
of 1949, as amended, 63 Stat. 377, and delegated to the Secretary of
Transportation by the Administrator of General Services on March 23,
2000, relating to the enforcement of laws for the protection of property
and persons at the United States Merchant Marine Academy, located in
Kings Point, New York. This may be accomplished through appointment of
uniformed personnel as special police, establishment of rules and
regulations governing conduct on the affected property, and execution of
agreements with other Federal, State, or local authorities.
(r) Carry out the responsibilities of the National Shipping
Authority (initially established by the Secretary of Commerce effective
March 13, 1951) in the capacity of Director, National Shipping
Authority;
(s) Carry out the Maritime Education and Training Act of 1980 (46
App. U.S.C. 1295), as amended;
(t) Carry out all other activities previously vested in the
Secretary of Commerce and transferred pursuant to Public Law 97-31;
(u) Carry out the functions vested in the Secretary by section 3(d)
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it
relates to ships owned or operated by the Maritime Administration when
engaged in noncommercial service;
(v) Carry out the responsibilities and exercise the authorities of
the Secretary of Transportation under the Maritime Security Act of 1996,
Public Law 104-239;
(w) Carry out the provisions of subtitle B of Public Law 101-624;
(x) Carry out the responsibilities and exercise the authorities of
the Secretary of Transportation under sections 1008, 1009, and 1013 of
Public Law 104-324;
(y) Carry out the functions vested in the Secretary by the Oil
Pollution Act of 1990 (August 18, 1990; Pub. L. 101-380; 104 Stat. 484)
in sections 4115(f) relating to vessel financing and 4117 relating to a
feasibility study of an oil pollution prevention program. (See 49 CFR
1.46 and 1.53).
(z) Carry out the functions vested in the Secretary by Section 2927,
Title XXIX of the National Defense Authorization Act of 1994 (Public Law
103-160; November 30, 1993) relating to authority to convey surplus real
property to public entities for use in the development or operation of
port facilities.
(aa) Carry out the following powers and duties vested in the
Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-
1524):
(1) The authority to issue, transfer, amend, or reinstate a license
for the construction and operation of a deepwater port (33 U.S.C.
1503(b)).
(2) The authority to process applications for the issuance,
transfer, amendment, or reinstatement of a license for the construction
and operation of a deepwater port (33 U.S.C. 1503(b)), as amended, in
coordination with the Commandant of the Coast Guard.
(3) Approval of fees charged by adjacent coastal States for use of a
deepwater port and directly related land-based facilities (33 U.S.C.
1504(h)(2)).
[[Page 43]]
(4) In collaboration with the Assistant Secretary for Aviation and
International Affairs and the Assistant Secretary for Transportation
Policy, consultation with the Secretary of State relating to
international actions and cooperation in the economic, trade and general
transportation policy aspects of the ownership and operation of
deepwater ports (33 U.S.C. 1510).
(5) Submission of notice of the commencement of a civil suit (33
U.S.C. 1515(b)(2)).
(6) Intervention in any civil action to which the Secretary is not a
party (33 U.S.C. 15150).
(7) Authority to request the Attorney General to seek the suspension
or termination of a deepwater port license and to initiate a proceeding
before the Surface Transportation Board (33 U.S.C. 1507, 1511(a)).
(bb) Carry out the functions and exercise the authorities vested in
the Secretary by sections 202(b), 203(b), 203(g), and 213(g) of division
c, title II, Public Law 105-277, which relate to ownership and control
requirements for vessel fishery endorsements for vessels measuring 100
feet and greater.
(cc) Exercise the authority vested in the Secretary of
Transportation by section 408(a) of Public Law 105-383 approved November
13, 1998, (112 Stat. 3411 and 3430), 46 U.S.C. 2302(e), relating to the
enforcement of the prohibition of shipment of Government-impelled
cargoes on vessels if (1) the vessel has been detained and determined to
be substandard by the Secretary of Transportation for violation of an
international safety convention to which the United States is a party;
or (2) the operator of the vessel has on more than one occasion had a
violation of an international safety convention to which the United
States is a party. The term ``Government-impelled cargo'' means cargo
for which a Federal agency contracts directly for shipping by water or
for which (or the freight of which) a Federal agency provides financing,
including financing by grant, loan, or loan guarantee, resulting in
shipment of the cargo by water.
(dd) Carry out the functions and exercise the authority vested in
the Secretary by section 109 of the Maritime Transportation Security Act
of 2002, Public Law 107-295, 116 Stat. 2064, provide training for
maritime security professionals. This authority may be redelegated.
(ee) Carry out the functions and exercise the authorities vested in
the Secretary by section 3517 of Title XXXV of Public Law 108-136 which
relates to the Maintenance and Repair Reimbursement Pilot Program.
(ff) Carry out the functions and exercise the authorities vested in
the Secretary by Subtitle V of title 46 United States Code, which
establishes the Maritime Security Fleet.
(gg) Carry out the functions and exercise the authorities vested in
the Secretary by Subtitle D of Title XXXV of Public Law 108-136, which
relates to the National Defense Tank Vessel Construction Assistance
Program.
[Amdt. 1-164, 46 FR 47459, Sept. 28, 1981]
Editorial Note: For Federal Register citations affecting Sec. 1.66,
see the List of CFR Sections Affected which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.67 Delegations to Maritime Subsidy Board.
(a) The Maritime Subsidy Board is delegated authority to:
(1) Carry out all functions previously vested in the Secretary of
Commerce pursuant to section 105(1) (except the last proviso thereto and
readjustments in determinations of operating cost differentials not
requiring a hearing and contractual changes reducing or realigning
service requirements not involving additional subsidy or requiring a
section 605(c) hearing under the Act (46 App. U.S.C. 1175(c)), section
105(2), and, insofar as applicable to these functions, section 105(3) of
Reorganization Plan No. 21 of 1950, and section 202(b)(1) of
Reorganization Plan No. 7 of 1961, except investigations, hearings and
determinations, including changes in determinations, with respect to
minimum manning scales, minimum wage scales, and minimum working
conditions referred to in section 301(a) of the Merchant Marine Act,
1936, as amended (46 App. U.S.C. 1101 et seq.).
(2) Carry out all functions previously vested in the Secretary of
Commerce pursuant to section 103(e) of Reorganization Plan No. 7 of 1961
and section
[[Page 44]]
202(b)(2) (except requiring the filing of reports, accounts, records,
rates, charges, and memoranda under section 21 of the Shipping Act,
1916, as amended, and making reports and recommendations to Congress)
and section 202(b)(3) of Reorganization Plan No. 7 of 1961, insofar as
said functions relate to the functions described in paragraph (a)(1) of
this section.
(3) Execute and sign, by and through any member of the Board or the
Secretary or an Assistant Secretary of the Board, contracts and other
documents authorized or approved by the Board pursuant to paragraphs
(a)(1) and (a)(2) of this section. The execution of such contracts or
documents may be attested, under the seal of the Department of
Transportation, by the Secretary or an Assistant Secretary of the
Maritime Subsidy Board.
(b) The Maritime Subsidy Board may exercise other authorities of the
Secretary of Transportation as applicable to performing the functions
assigned to the Board in this part.
(c) The Board is composed of the Maritime Administrator, the Deputy
Maritime Administrator, and the Chief Counsel of the Administration, and
during a vacancy in any one of those offices, the person acting in such
capacity shall be a member of the Board, unless the Secretary of
Transportation designates another person. In case there still is a
vacancy in the Board or in the absence or disability of one of its
members, the Secretary of the Maritime Administration and Maritime
Subsidy Board, or any other persons designated by the Secretary of
Transportation, shall act as a member or members of the Board. Each
member of the Board, while serving in that capacity, shall act pursuant
to direct authority from the Secretary of Transportation and exercise
judgment independent of authority otherwise delegated to the Maritime
Administrator. The Maritime Administrator or the Acting Maritime
Administrator serves as Chairperson of the Board. The concurring votes
of two members shall be sufficient for the disposition of any matter
which may come before the Board.
(d) The Chairperson of the Maritime Subsidy Board may make use of
officers and employees of the Maritime Administration to perform
activities for the Board. Employees of the Maritime Administration may
be designated as the Secretary or Assistant Secretaries of the Board.
[Amdt. 1-164, 46 FR 47460, Sept. 28, 1981, as amended by Amdt. 1-211, 51
FR 29471, Aug. 18, 1986; Amdt. 1-247, 56 FR 59893, Nov. 26, 1991]
Sec. 1.68 Delegations to the Under Secretary of Transportation for
Security for the Transportation Security Administration.
(a) Carry out the functions vested in the Secretary by 49 U.S.C.
5103a relating to security risk determinations for the issuance of
licenses to operate motor vehicles transporting hazardous materials in
commerce.
(b) [Reserved]
[68 FR 10989, Mar. 7, 2003]
Sec. 1.69 Delegations to the Director of Intelligence, Security, and
Emergency Response.
The Director of Intelligence, Security, and Emergency Response is
delegated authority for the following:
(a) Intelligence and Security. Carry out the functions assigned to
the Secretary by the Aviation Security Improvement Act of 1990, section
101 (Pub. L. 101-508; November 16, 1990) relating to intelligence and
security matters in all modes of transportation.
(b) Emergency preparedness and response. Carry out the functions
related to emergency preparedness vested in the Secretary by 49 U.S.C.
101 and 301 or delegated to the Secretary by or through the Defense
Production Act of 1950, 50 U.S.C. App. 2061 et seq.; Executive Order
10480, as amended; Executive Order 12148; Executive Order 12656;
Executive Order 12742; Executive Order 12919, as amended; Reorganization
Plan No. 3 or 1978; and such other statutes, executive orders, and other
directives as may pertain to emergency preparedness.
[70 FR 7670, Feb. 15, 2005]
Sec. 1.70 Delegations to the Director of the Departmental Office of Civil
Rights.
The Director of the Departmental Office of Civil Rights is delegated
authority to conduct all stages of the formal
[[Page 45]]
internal discrimination complaint process (including the acceptance or
rejection of complaints); to provide policy guidance to the operating
administrations and Secretarial officers concerning the implementation
and enforcement of all civil rights laws, regulations and executive
orders for which the Department is responsible; to otherwise perform
activities to ensure compliance with external civil rights programs; and
to review and evaluate the operating administrations' enforcement of
these authorities.
These authorities include:
(a) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
2000e et seq.
(b) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C.
2000d et seq.
(c) Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 794 and 794a.
(d) Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 791.
(e) Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. 621 et seq.
(f) Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101.
(g) Americans with Disabilities Act of 1990, Pub. L. No. 101-336,
104 Stat. 327 (1990) (codified at 42 U.S.C. 12101-121213).
(h) Equal Pay Act of 1963 (enacted as section 6(d) of the Fair Labor
Standards Act of 1938, 29 U.S.C. 206(d)).
(i) Alcohol, Drug Abuse, and Mental Health Administration
Reorganization Act, 42 U.S.C. 290dd(b).
(j) 29 CFR Parts 1600 through 1691 (Equal Employment Opportunity
Commission Regulations).
(k) Title VIII of the Civil Rights Act of 1968, as amended, 42
U.S.C. 3601 et seq. (fair housing provisions).
(l) The Federal Property and Administrative Services Act of 1949, 40
U.S.C. 476.
(m) Title IX of the Education Amendments Act of 1972, 20 U.S.C.
1681.
(n) Executive Order No. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations. (In coordination with the Assistant Secretary for
Transportation Policy.)
(o) 49 U.S.C. 47113, 47107, and 47123 (formerly sections 505(f),
511(a)(17), and 520 of the Airport and Airway Improvement Act of 1982,
as amended).
(p) 49 U.S.C. 41705 (formerly the Air Carrier Access Act of 1986, as
amended).
(q) The Federal-Aid Highway Act, as amended, 23 U.S.C. 140 and 324.
(r) 49 U.S.C. 306.
(s) 49 U.S.C. 5310, 5332 (formerly sections 16 and 19 of the Federal
Transit Act, as amended).
(t) The Intermodal Surface Transportation Efficiency Act of 1991,
Pub. L. 102-240, 105 Stat. 1919, section 1003.
(u) The Highway Safety Act of 1966, as amended, 23 U.S.C.
402(b)(1)(D).
[Amdt. 265, 60 FR 2891, Jan. 12, 1995, as amended at 68 FR 34550, June
10, 2003]
Sec. 1.71 [Reserved]
Sec. 1.72 Delegations to the Office of the Chief Information Officer.
(a) Carry out all functions and responsibilities assigned to the
Secretary with respect to the Paperwork Reduction Act of 1995 (44 U.S.C.
3506);
(b) Carry out all functions and responsibilities assigned to the
Secretary with respect to the Clinger-Cohen Act of 1996 (40 U.S.C. 1422
to 1424, 1427);
(c) Carry out all functions and responsibilities assigned to the
Secretary with respect to the Computer Security Act of 1987 (40 U.S.C.
759, 759 notes);
(d) Approve waivers to Federal Information Processing Standards
(FIPS) under Section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441); and
(e) Carry out all the functions and responsibilities assigned to the
Secretary with respect to Executive Order 13011, Federal Information
Technology, Section 2, paragraphs (a), (b), (d), (e), and (f).
[Amdt. 1-290, 62 FR 51804, Oct. 3, 1997]
Sec. 1.73 Delegation to the Administrator of the Federal Motor Carrier
Safety Administration.
The Administrator of the Federal Motor Carrier Safety Admnistration
is delegated authority to:
(a) Carry out the functions and exercise the authority vested in the
Secretary by 49 U.S.C., Subtitle IV, part B:
(1) Chapter 131, relating to general provisions on transportation
policy;
(2) Chapter 133, relating to administrative provisions;
[[Page 46]]
(3) Chapter 135, relating to jurisdiction;
(4) Chapter 137, sections 13702(a), 13702(c)(1), 13702(c)(2),
13702(c)(3), 13704, 13707, and 13708, relating to rates, routes, and
services;
(5) Chapter 139, relating to registration and financial
responsibility requirements;
(6) Chapter 141, subchapter I and sections 14121 and 14122 of
subchapter II, relating to operations of motor carriers;
(7) Chapter 145, sections 14501, 14502, 14504, and 14504a relating
to Federal-State relations, and section 14506 relating to identification
of vehicles;
(8) Chapter 147, sections 14701 through 14708, 14710, and 14711,
relating to enforcement remedies, investigations and motor carrier
liability; and
(9) Chapter 149, sections 14901 through 14912 and 14915 relating to
civil and criminal penalties for violations of 49 U.S.C. subtitle IV,
part B.
(b) Carry out the functions and exercise the authority vested in the
Secretary by sections 104, 403(a), and 408 of the ICC Termination Act of
1995, Public Law 104-88, 109 Stat. 803, relating to miscellaneous motor
carrier provisions, railroad-highway grade crossing regulation and
fatigue-related issues pertaining to commercial motor vehicle safety.
(c) Carry out the functions vested in the Secretary by 42 U.S.C.
4917 relating to procedures for the inspection, surveillance and
measurement of commercial motor vehicles for compliance with interstate
motor carrier noise emission standards and related enforcement
activities including the promulgation of necessary regulations.
(d)(1) Except as delegated by Sec. 1.74(a), carry out the functions
vested in the Secretary by 49 U.S.C. 5121(a), (b), (c), and (d), 5122,
5123, and 5124, with particular emphasis on the transportation or
shipment of hazardous materials by highway.
(2) Carry out the functions vested in the Secretary by 49 U.S.C.
5112 relating to highway routing of hazardous materials; 49 U.S.C. 5109
relating to motor carrier safety permits, except subsection (f); 49
U.S.C. 5113 relating to unsatisfactory safety ratings of motor carriers;
49 U.S.C. 5125(a) and (c)-(f), relating to preemption determinations or
waivers of preemption of hazardous materials highway routing
requirements; 49 U.S.C. 5105(e) relating to inspections of motor
vehicles carrying hazardous material; and 49 U.S.C. 5119 relating to
uniform forms and procedures.
(e) Carry out the functions vested in the Secretary by:
(1) 49 U.S.C. chapter 313 relating to commercial motor vehicle
operators, including the requirement of section 31305(a)(5)(C) that
States issue a hazardous materials endorsement to a commercial driver's
license only after being informed pursuant to 49 U.S.C. 5103a that the
applicant does not pose a security risk warranting denial of the
license; and
(2) Section 4123(c), (d) and (e) of Public Law 109-59, 119 Stat.
1735 (Aug. 10, 2005) relating to grants, funding, and contract authority
and availability, respectively, for commercial driver's license
information system modernization.
(f) Carry out the functions vested in the Secretary by 49 U.S.C.
13906, 31138 and 31139 relating to financial responsibility requirements
for motor carriers, brokers, and freight forwarders.
(g) Carry out the functions vested in the Secretary by subchapters
I, III, and IV of chapter 311, title 49, U.S.C., relating to commercial
motor vehicle programs, safety regulation, and international activities,
except that the authority to promulgate safety standards for commercial
motor vehicles and equipment subsequent to initial manufacture is
limited to standards that are not based upon and similar to a Federal
Motor Vehicle Safety Standard promulgated under chapter 301 of title 49,
U.S.C.
(h) Carry out the functions vested in the Secretary by 49 U.S.C.
5701 relating to food transportation inspections of commercial motor
vehicles; and 5113 and 31144 relating to safety fitness of owners and
operators.
(i) Carry out the functions vested in the Secretary by 49 U.S.C.
5118 relating to the use of inspectors to promote safety in the highway
transportation of radioactive material; and 49 U.S.C. 31142(f) relating
to application of State
[[Page 47]]
regulations to government-leased vehicles and operators.
(j) Carry out the functions and exercise the authority delegated to
the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1992
Comp., p. 351), with respect to highway transportation, relating to the
approval of means to ensure the availability of private personnel and
equipment to remove, to the maximum extent practicable, a worst case
discharge, the review and approval of response plans, and the
authorization of motor carriers, subject to the Federal Water Pollution
Control Act (33 U.S.C. 1321), to operate without approved response
plans, except as delegated in 49 CFR 1.46(m).
(k) Carry out 49 U.S.C. 31503 as it relates to investigation of the
need for regulation of qualifications and maximum hours of service of
employees of motor carriers and motor private carriers.
(l) Carry out 49 U.S.C. 31502 relating generally to qualifications
and maximum hours of service of employees and safety of operation and
equipment of motor carriers, motor private carriers and motor carriers
of migrant workers, except that the authority to promulgate safety
standards for commercial motor vehicles and equipment subsequent to
initial manufacture is limited to standards that are not based upon and
similar to a Federal Motor Vehicle Safety Standard promulgated under
chapter 301 of title 49, U.S.C.
(m) Carry out 49 U.S.C. 503 and 31504 relating generally to service
of process, designation of agents to receive service of process, and
identification of interstate motor vehicles so far as they pertain to
motor private carriers of property and motor carriers of migrant workers
(except motor contract carriers).
(n) Carry out 49 U.S.C. 502, 504, 506, and 523 to the extent they
relate to motor carriers, motor carriers of migrant workers, and motor
private carriers; 49 U.S.C. 507 to the extent it relates to motor
carriers, motor carries of migrant workers, motor private carriers, or
freight forwarders; and 49 U.S.C. 505, 508, and 521(b)(1), (2), (3),
(4), (5), and (7).
(o) Carry out the functions and exercise the authority vested in the
Secretary by 23 U.S.C. 502(a)(1)(A).
(p) Carry out the functions vested in the Secretary by 49 U.S.C.
14123, relating to the collection and dissemination of information on
motor carriers.
(q) Carry out the functions vested in the Secretary by the following
sections of Public Law 109-59, 119 Stat. 1144 (Aug. 10, 2005):
(1) Section 4105(b)(1) relating to the study concerning predatory
tow truck operations;
(2) Section 4126 relating to the commercial vehicle information
systems and networks program;
(3) Section 4128 relating to grants under the safety data
improvement program;
(4) Section 4129 relating to the operation of commercial motor
vehicles by individuals who use insulin to treat diabetes mellitus;
(5) Section 4130 relating to the operators of vehicles transporting
agricultural commodities and farm supplies;
(6) Section 4131 relating to the maximum hours of service for
operators of ground water well drilling rigs;
(7) Section 4132 relating to hours of service for operators of
utility service vehicles;
(8) Section 4133 relating to hours of service rules for operators
providing transportation to movie production sites;
(9) Section 4134 relating to the grant program for persons to train
operators of commercial motor vehicles;
(10) Section 4135 relating to the task force concerning commercial
driver's license program;
(11) Section 4139(a)(1) relating to the training of and outreach to
State personnel; section (b)(1) relating to a review of Canadian and
Mexican compliance with Federal motor vehicles safety standards; and the
first sentence of section (b)(2) relating to the report concerning the
findings and conclusions of the review required by section (b)(1);
(12) Section 4146 relating to an hours-of-service exception during
harvest periods;
(13) Section 4147 relating to emergency conditions requiring
immediate response;
[[Page 48]]
(14) Section 4213 relating to the establishment of a working group
for the development of practices and procedures to enhance Federal-State
relations;
(15) Section 4214 relating to consumer complaint information;
(16) Section 5503 relating to the motor carrier efficiency study;
and
(17) Section 5513(a), under the condition of section (m), relating
to the research grant for a thermal imaging inspection system
demonstration project.
[64 FR 56270, Oct. 19, 1999, as amended at 64 FR 58357, Oct. 29, 1999;
65 FR 221, Jan. 4, 2000; 65 FR 41015, July 3, 2000; 65 FR 49765, Aug.
15, 2000; 67 FR 11582, Mar. 15, 2002; 68 FR 10989, Mar. 7, 2003; 69 FR
51010, Aug. 17, 2004; 71 FR 30833, May 31, 2006; 71 FR 52753, Sept. 7,
2006]
Sec. 1.74 Delegations to the Under Secretary for Transportation Policy.
The Under Secretary for Transportation Policy is delegated authority
to:
(a) Lead the development of transportation policy and serve as the
principal adviser to the Secretary on all transportation policy matters.
(b) Carry out the functions and exercise the authority vested in the
Secretary by section 11143 of Public Law 109-59, Stat. 1144, titled
``Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users'' to manage the day-to-day activities associated with
implementation of section 11143 regarding tax-exempt financing of
highway projects and rail-truck facilities. The Under Secretary of
Transportation for Policy may further delegate this authority.
[71 FR 30833, May 31, 2006, as amended at 71 FR 52754, Sept. 7, 2006]
Appendix A to Part 1--Delegations and Redelegations by Secretarial
Officers
1. Director of Budget. The Assistant Secretary for Budget and
Programs has redelegated to the Director of Budget authority to:
(a) Request apportionment and reapportionment of funds by the Office
of Management and Budget, provided that no request for apportionment or
reapportionment which anticipates the need for a supplemental
appropriation shall be submitted to the Office of Management and Budget
without appropriate certification by the Secretary.
(b) Issue allotments or allocations of funds to components of the
Department.
2. Chief Counsels. The General Counsel has delegated to the Chief
Counsels the authority delegated to the General Counsel by Amendment 1-
41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17653,
November 17, 1970, as follows:
Section 855 of the Revised Statutes, as amended by Public Law 91-
393, 84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to
delegate to other departments and agencies his authority to give written
approval of the sufficiency to the title to land being acquired by the
United States. The Attorney General has delegated to the Assistant
Attorney General in charge of the Land and Natural Resources Division
the authority to make delegations under that law to other Federal
departments and agencies (35 FR 16084; 28 CFR 0.66). The Assistant
Attorney General, Land and Natural Resources Division, has further
delegated certain responsibilities in connection with the approval of
the sufficiency of the title to land to the Department of Transportation
as follows:
delegation to the department of transportation for the approval of the
title to lands being acquired for federal public purposes
Pursuant to the provision of Public Law 91-393, approved September
1, 1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting
under the provisions of Order No. 440-70 of the Attorney General, dated
October 2, 1970, the responsibility for the approval of the sufficiency
of the title to land for the purpose for which the property is being
acquired by purchase or condemnation by the United States for the use of
your Department is, subject to the general supervision of the Attorney
General and to the following conditions, hereby delegated to your
Department.
This delegation of authority is further subject to:
1. Compliance with the regulations issued by the Assistant Attorney
General on October 2, 1970, a copy of which is enclosed.
2. This delegation is limited to:
(a) The acquisition of land for which the title evidence, prepared
in compliance with these regulations, consists of a certificate of
title, title insurance policy, or an owner's duplicate Torrens
certificate of title.
(b) The acquisition of lands valued at $100,000 or less, for which
the title evidence consists of abstracts of title or other types of
title evidence prepared in compliance with said regulations.
As stated in the above-mentioned Act, any Federal department or
agency which has been delegated the responsibility to approve land
titles under the Act may request the Attorney General to render his
opinion as to the validity of the title to any real property or interest
therein, or may request the advice or assistance of the Attorney General
in
[[Page 49]]
connection with determinations as to the sufficiency of titles.
The Chief Counsels of the Federal Aviation Administration, Federal
Highway Administration, Federal Railroad Administration, National
Highway Traffic Safety Administration, Federal Transit Administration,
the St. Lawrence Seaway Development Corporation, Maritime
Administration, and Research and Special Programs Administration are
hereby authorized to approve the sufficiency of the title to land being
acquired by purchase of condemnation by the United States for the use of
their respective organizations. This delegation is subject to the
limitations imposed by the Assistant Attorney General, Land and Natural
Resources Division, in his delegation to the Department of
Transportation. Redelegation of this authority may only be made by the
Chief Counsels to attorneys within their respective organizations.
If his organization does not have an attorney experienced and
capable in the examination of title evidence, a Chief Counsel may, with
the concurrence of the General Counsel, request the Attorney General to
(1) furnish an opinion as to the validity of a title to real property or
interest therein, or (2) provide advice or assistance in connection with
determining the sufficiency of the title.
(49 CFR 1.45(a) and 1.53(a); 49 U.S.C. 322)
[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]
Editorial Note: For Federal Register citations affecting appendix A
to part 1, see the List of CFR Sections Affected which appears in the
Finding Aids section of the printed volume and on GPO Access.
PART 3_OFFICIAL SEAL--Table of Contents
Authority: 49 U.S.C. 102(e).
Source: Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, unless otherwise
noted.
Sec. 3.1 Description.
The official seal of the Department of Transportation is described
as follows: A white abstract triskelion figure signifying motion appears
within a circular blue field. The figure is symmetrical. The three
branches of the figure curve outward in a counter-clockwise direction,
each tapering almost to a point at the edge of the field. Surrounding
the blue circle is a circular ring of letters. The upper half of the
ring shows the words ``Department of Transportation''. The lower half of
the ring shows the words ``United States of America''. The letters may
be shown in either black or medium gray. The official seal of the
Department is modified when embossed. It appears below in black and
white.
[GRAPHIC] [TIFF OMITTED] TC02FE91.096
PART 5_RULEMAKING PROCEDURES--Table of Contents
Subpart A_General
Sec.
5.1 Applicability.
5.3 Initiation of rulemaking.
5.5 Participation by interested persons.
5.7 Regulatory docket.
Subpart B_Petitions for Rulemaking or Exemptions
5.11 Filing of petitions.
5.13 Processing of petitions.
Subpart C_Procedures
5.21 General.
5.23 Contents of notices.
5.25 Petitions for extension of time to comment.
5.27 Consideration of comments received.
5.29 Additional rulemaking proceedings.
5.31 Hearings.
5.33 Adoption of final rules.
5.35 Procedures for direct final rulemaking.
Appendix A to Part 5
Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657).
Source: 32 FR 10363, July 14, 1967, unless otherwise noted.
[[Page 50]]
Subpart A_General
Sec. 5.1 Applicability.
(a) This part prescribes general rulemaking procedures that apply to
the issuance, amendment, and repeal of rules of the Office of the
Secretary of Transportation. It does not apply to rules issued by the
Federal Aviation Administration, Federal Highway Administration, Federal
Railroad Administration, Federal Transit Administration, Maritime
Administration, National Highway Traffic Safety Administration, Research
and Special Programs Administration, St. Lawrence Seaway Development
Corporation, or Federal Motor Carrier Safety Administration.
(b) For the purposes of this part, Secretary means the Secretary of
Transportation or the Under Secretary of Transportation, or any of the
following to whom the Secretary has delegated authority to conduct
rulemaking proceedings:
(1) Any Assistant Secretary.
(2) The General Counsel.
Any of these officers may redelegate that authority to the head of any
office who reports to him.
(c) Records relating to rulemaking proceedings are available for
inspection as provided in part 7 of this subtitle.
[32 FR 10363, July 14, 1967, as amended by Amdt. 5-2, 35 FR 5331, Mar.
31, 1970; Amdt. 5-3, 36 FR 430, Jan. 13, 1971; 69 FR 4457, Jan. 30,
2004]
Sec. 5.3 Initiation of rulemaking.
The Secretary initiates rulemaking on his own motion. However, in
doing so, he may, in his discretion, consider the recommendations of
other agencies of the United States and of other interested persons.
Sec. 5.5 Participation by interested persons.
Any person may participate in rulemaking proceedings by submitting
written information or views. The Secretary may also allow any person to
participate in additional rulemaking proceedings, such as informal
appearances or hearings, held with respect to any rule.
Sec. 5.7 Regulatory docket.
(a) Records of the Office of the Secretary of Transportation
concerning rulemaking actions, including notices of proposed rule
making, comments received in response to those notices, petitions for
rulemaking or exemption, petitions for rehearing or reconsideration,
grants and denials of exemptions, denials of petitions for rule making,
and final rules are maintained in current docket form in the Office of
the General Counsel.
(b) Any person may examine any docketed material at that office and
may obtain a copy of any docketed material upon payment of the
prescribed fee.
Subpart B_Petitions for Rulemaking or Exemptions
Sec. 5.11 Filing of petitions.
(a) Any person may petition the Secretary to issue, amend, or repeal
a rule, or for a permanent or temporary exemption from any rule.
(b) Each petition filed under this section must:
(1) Be submitted in duplicate to the Docket Clerk, Office of the
General Counsel, Department of Transportation, Washington, DC 20590;
(2) Set forth the text or substance of the rule or amendment
proposed, or of the rule from which the exemption is sought, or specify
the rule that the petitioner seeks to have repealed, as the case may be;
(3) Explain the interest of the petitioner in the action requested
including, in the case of a petition for an exemption, the nature and
extent of the relief sought and a description of the persons to be
covered by the exemption;
(4) Contain any information and arguments available to the
petitioner to support the action sought; and
(5) In the case of a petition for exemption, unless good cause is
shown in that petition, be submitted at least 60 days before the
proposed effective date of the exemption.
Sec. 5.13 Processing of petitions.
(a) General. Each petition received under Sec. 5.11 of this part is
referred to
[[Page 51]]
the head of the office responsible for the subject matter of that
petition. No public hearing, argument, or other proceeding is held
directly on a petition before its disposition under this section.
(b) Grants. If the Secretary determines that the petition contains
adequate justification, he initiates rulemaking action under subpart C
of this part or grants the exemption, as the case may be.
(c) Denials. If the Secretary determines that the petition does not
justify initiating rule-making action or granting the exemption, he
denies the petition.
(d) Notification. Whenever the Secretary determines that a petition
should be granted or denied, the office concerned and the Office of the
General Counsel prepare a notice of that grant or denial for issuance to
the petitioner, and the Secretary issues it to the petitioner.
Subpart C_Procedures
Sec. 5.21 General.
(a) Unless the Secretary finds, for good cause, that notice is
impractical, unnecessary, or contrary to the public interest, a notice
of proposed rule making is issued and interested persons are invited to
participate in the rulemaking proceedings with respect to each
substantive rule.
(b) Unless the Secretary determines that notice and public
rulemaking proceedings are necessary or desirable, interpretive rules,
general statements of policy, and rules relating to organization,
procedure, or practice are prescribed as final without notice or other
public rulemaking proceedings.
(c) In his discretion, the Secretary may invite interested persons
to participate in the rulemaking proceedings described in Sec. 5.29 of
this subpart.
(d) For rules for which the Secretary determines that notice is
unnecessary because no adverse public comment is anticipated, the direct
final rulemaking procedure described in Sec. 5.35 of this subpart may
be followed.
[32 FR 10363, July 14, 1967, as amended at 69 FR 4458, Jan. 30, 2004]
Sec. 5.23 Contents of notices.
(a) Each notice of proposed rulemaking is published in the Federal
Register, unless all persons subject to it are named and are personally
served with a copy of it.
(b) Each notice, whether published in the Federal Register or
personally served, includes:
(1) A statement of the time, place, and nature of the proposed rule-
making proceeding;
(2) A reference to the authority under which it is issued;
(3) A description of the subjects or issues involved or the
substance or terms of the proposed rule;
(4) A statement of the time within which written comments must be
submitted and the required number of copies; and
(5) A statement of how and to what extent interested persons may
participate in the proceeding.
Sec. 5.25 Petitions for extension of time to comment.
(a) Any person may petition the Secretary for an extension of time
to submit comments in response to a notice of proposed rulemaking. The
petition must be submitted in duplicate not later than 3 days before
expiration of the time stated in the notice. The filing of the petition
does not automatically extend the time for petitioner's comments.
(b) The Secretary grants the petition only if the petitioner shows a
substantive interest in the proposed rule and good cause for the
extension, and if the extension is in the public interest. If an
extension is granted, it is granted as to all persons and is published
in the Federal Register.
Sec. 5.27 Consideration of comments received.
All timely comments are considered before final action is taken on a
rule-making proposal. Late filed comments may be considered so far as
possible without incurring additional expense or delay.
Sec. 5.29 Additional rulemaking proceedings.
The Secretary may initiate any further rulemaking proceedings that
he
[[Page 52]]
finds necessary or desirable. For example, he may invite interested
persons to present oral arguments, participate in conferences, appear at
informal hearings, or participate in any other proceeding.
Sec. 5.31 Hearings.
(a) Sections 556 and 557 of title 5, United States Code, do not
apply to hearings held under this part. As a fact-finding proceeding,
each hearing is nonadversary and there are no formal pleadings or
adverse parties. Any rule issued in a case in which a hearing is held is
not necessarily based exclusively on the record of the hearing.
(b) The Secretary designates a representative to conduct any hearing
held under this part. The General Counsel designates a member of his
staff to serve as legal officer at the hearing.
Sec. 5.33 Adoption of final rules.
Final rules are prepared by representatives of the office concerned
and the Office of the General Counsel. The rule is then submitted to the
Secretary for his consideration. If the Secretary adopts the rule, it is
published in the Federal Register, unless all persons subject to it are
named and are personally served with a copy of it.
Sec. 5.35 Procedures for direct final rulemaking.
(a) Rules that the Secretary judges to be noncontroversial and
unlikely to result in adverse public comment may be published as direct
final rules. These include noncontroversial rules that:
(1) Affect internal procedures of the Office of the Secretary, such
as filing requirements and rules governing inspection and copying of
documents,
(2) Are nonsubstantive clarifications or corrections to existing
rules,
(3) Update existing forms,
(4) Make minor changes in the substantive rules regarding statistics
and reporting requirements,
(5) Make changes to the rules implementing the Privacy Act, and
(6) Adopt technical standards set by outside organizations.
(b) The Federal Register document will state that any adverse
comment or notice of intent to submit adverse comment must be received
in writing by the Office of the Secretary within the specified time
after the date of publication and that, if no written adverse comment or
written notice of intent to submit adverse comment is received, the rule
will become effective a specified number of days after the date of
publication.
(c) If no written adverse comment or written notice of intent to
submit adverse comment is received by the Office of the Secretary within
the specified time of publication in the Federal Register, the Office of
the Secretary will publish a notice in the Federal Register indicating
that no adverse comment was received and confirming that the rule will
become effective on the date that was indicated in the direct final
rule.
(d) If the Office of the Secretary receives any written adverse
comment or written notice of intent to submit adverse comment within the
specified time of publication in the Federal Register, a notice
withdrawing the direct final rule will be published in the final rule
section of the Federal Register and, if the Office of the Secretary
decides a rulemaking is warranted, a notice of proposed rulemaking will
be published in the proposed rule section of the Federal Register.
(e) An ``adverse'' comment for the purpose of this subpart means any
comment that the Office of the Secretary determines is critical of the
rule, suggests that the rule should not be adopted, or suggests a change
that should be made in the rule. A comment suggesting that the policy or
requirements of the rule should or should not also be extended to other
Departmental programs outside the scope of the rule is not adverse.
[69 FR 4458, Jan. 30, 2004]
Appendix A to Part 5
Pursuant to Sec. 5.1(b), the following officials of the Office of
the Secretary of Transportation are authorized to conduct rulemaking
proceedings under this part, as specified in this appendix:
(1) The General Counsel is authorized to conduct all rule-making
proceedings, except the issuance of final rules, under the Act of March
19, 1918, ch. 24, as amended (15 U.S.C. 261-264); the Uniform Time Act
of 1966 (80 Stat. 107, 15 U.S.C. 260-267); and section
[[Page 53]]
6(e)(5) of the Department of Transportation Act (80 Stat. 939, 49 U.S.C.
1655 (e)(5)).
(2) The General Counsel is authorized to determine the
practicability of applying the standard time of any standard time zone
to the movements of any common carrier engaged in interstate or foreign
commerce, and, under section 2 of the Act of March 19, 1918, ch. 24, as
amended (15 U.S.C. 262), to issue operating exceptions in any case in
which he determines that it is impractical to apply the standard time.
[Amdt. 5-1, 32 FR 11473, Aug. 9, 1967]
PART 6_IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY
PROCEEDINGS--Table of Contents
Subpart A_General Provisions
Sec.
6.1 Purpose of these rules.
6.3 Applicability.
6.5 Proceedings covered.
6.7 Eligibility of applications.
6.9 Standards for awards.
6.11 Allowable fees and expenses.
6.13 Delegations of authority.
Subpart B_Information Required from Applicants
6.17 Contents of application.
6.19 Net worth exhibit.
6.21 Documentation of fees and expenses.
Subpart C_Procedures for Considering Applications
6.23 Filing and service of documents.
6.25 Answer to application.
6.27 Comments by other parties.
6.29 Settlement.
6.31 Further proceedings.
6.33 Decision.
6.35 Agency review.
6.37 Judicial review.
6.39 Payment of award.
Authority: 5 U.S.C. 504; 28 U.S.C. 2412.
Source: 48 FR 1070, Jan. 10, 1983, unless otherwise noted.
Subpart A_General Provisions
Sec. 6.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in
this part), provides for the award of attorney fees and other expenses
to eligible individuals and entities who are parties to certain
administrative proceedings (called ``adversary adjudications'') before
government agencies, such as the Department of Transportation or any of
its operating administrations. The rules in this part describe the
parties eligible for awards and the proceedings that are covered. They
also explain how to apply for awards, and the procedures and standards
that this agency will use to make them. The use of the term
``Department'', in this rule, will be understood to mean the Department
of Transportation or any of its operating administrations, unless
otherwise specified. The term ``agency counsel'' will be understood to
mean counsel for the Department of Transportation or any of its
operating administrations.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]
Sec. 6.3 Applicability.
Section 6.9(a) applies to any adversary adjudication pending before
the Department on or after October 1, 1981. In addition, applicants for
awards must also meet the standards of Sec. 6.9(b) for any adversary
adjudication commenced on or after March 29, 1996.
[62 FR 19233, Apr. 21, 1997]
Sec. 6.5 Proceedings covered.
(a) The Act applies to adversary adjudications conducted by the
Department of Transportation. These are adjudications under 5 U.S.C. 554
in which the position of the Department is represented by an attorney or
other representative who enters an appearance and participates in the
proceeding. Coverage of the Act begins at designation of a proceeding or
issuance of a charge sheet. Any proceeding in which the Department may
prescribe or establish a lawful present or future rate is not covered by
the Act. Proceedings to grant or renew licenses are also excluded, but
proceedings to modify, suspend, or revoke licenses are covered if they
are otherwise ``adversary adjudications.'' For the Department of
Transportation, the types of proceedings covered include, but may not be
limited to: Coast Guard suspension or revocation of licenses,
certificates or documents under 46 U.S.C. 7701 et seq.; Coast Guard
class II civil penalty proceedings under the Clean Water Act, 33 U.S.C.
1321(b)(6)(B)(ii); Coast Guard
[[Page 54]]
class II penalty proceedings under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9609(b); suspension
and revocation of Certificates of Registry proceedings for Great Lakes
Pilots pursuant to 46 CFR Part 401; National Highway Traffic Safety
Administration (NHTSA) automotive fuel economy enforcement under 49
U.S.C. Chapter 329 (49 CFR Part 511); Federal Highway Administration
(FHWA) enforcement of motor carrier safety regulations under 49 U.S.C.
521 and 5123 (49 CFR 386); the Department's aviation economic
enforcement proceedings conducted by its Office of Aviation Enforcement
and Proceedings pursuant to 49 U.S.C. Subtitle VII, 14 CFR Chapter II.
Also covered are any appeal of a decision made pursuant to section 6 of
the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board
of contract appeals as provided in section 8 of that Act (41 U.S.C.
607), any hearing conducted under Chapter 38 of title 31, and the
Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq.
(b) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]
Sec. 6.7 Eligibility of applications.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to an adversary
adjudication for which it seeks an award. The term ``party'' is defined
in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all
conditions of eligibility set out in this subpart and in paragraph (b)
of this section.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees.
(3) A charitable or other tax-exempt organization as described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with a net worth of not
more than $5 million and not more than 500 employees.
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $7 million and
not more than 500 employees.
(6) For the purposes of Sec. 6.9(b), eligible applicants include
small entities as defined in 5 U.S.C. 601.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was designated.
(d) An applicant who owns an unincorporated business will be
considered an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(e) The number of employees of an applicant includes all persons who
regularly perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the administrative law judge determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
administrative law judge may determine that financial relationships of
the applicant other than those described in this paragraph constitute
[[Page 55]]
special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(h) An applicant who appears pro se in a proceeding is ineligible
for award of attorney fees. However, eligibility for other expenses is
not affected by pro se representation.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
Sec. 6.9 Standards for awards.
(a) An eligible applicant may receive an award for fees and expenses
incurred by that party in connection with a decision in favor of the
applicant in a proceeding covered by this Part, unless the position of
the Department over which the applicant has prevailed was substantially
justified or special circumstances make the award sought unjust. The
burden of proof that an award should not be made to an eligible
applicant is on the Department where it has initiated the proceeding. No
presumption arises that the Department's position was not substantially
justified simply because the Department did not prevail. Whether or not
the position of the Department was substantially justified shall be
determined on the basis of the administrative record, as a whole, in the
adversary adjudication for which fees and other expenses are sought. The
``position of the Department'' means, in addition to the position taken
by the agency in the adversary adjudication, the action or failure to
act by the Department upon which the adversary adjudication may be
based.
(b) In the context of a Departmental proceeding to enforce a party's
compliance with a statutory or regulatory requirement, if the demand by
the Department is substantially in excess of the amount awarded to the
government pursuant to the decision of the adjudicative officer and is
unreasonable when compared with such decision, under the facts and
circumstances of the case, the adjudicative officer shall award to an
eligible applicant party the fees and expenses related to defending
against the excessive demand, unless the applicant party has committed a
willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Fees and expenses awarded under this
paragraph shall be paid only as a consequence of appropriations provided
in advance. As used in this section, ``demand'' means the express demand
of the Department which led to the adversary adjudication, but does not
include a recitation by the Department of the maximum statutory penalty
(i) In the administrative complaint, or
(ii) Elsewhere when accompanied by an express demand for a lesser
amount.
(c) The decision of the Department on the application for fees and
other expenses shall be the final administrative decision under this
section.
(d) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding.
[62 FR 19234, Apr. 21, 1997]
Sec. 6.11 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents or expert
witnesses.
(b) No award for the fee of an attorney or agent under these rules
may exceed $125.00 per hour. This amount shall include all other
expenses incurred by the attorney or agent in connection with the case.
No award to compensate an expert witness may exceed the highest market
rate at which the Department pays expert witnesses, or $24.09 per hour,
whichever is less.
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the administrative law judge shall
consider the following:
(1) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
[[Page 56]]
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(e) Fees may be awarded only for work performed after designation of
a proceeding.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
Sec. 6.13 Delegations of authority.
The Secretary of Transportation delegates to the head of each
operating administration of this Department the authority to take final
action, other than rulemaking, on matters pertaining to the Act in
actions that require section 554 proceedings. The head of each operating
administration may redelegate this authority.
Subpart B_Information Required from Applicants
Sec. 6.17 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of an agency or agencies in the proceeding that
the applicant alleges was not substantially justified. Unless the
applicant is an individual, the application shall also state that it did
not have more than 500 employees at the time the proceeding was
initiated, giving the number of employees of the applicant and
describing briefly the type and purpose of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $1 million (if an individual) or
$5 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes this agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer or attorney of the applicant. It shall also contain
or be accompanied by a written verification under oath or under penalty
of perjury that the information provided in the application is true and
correct.
(f) If the applicant is a partnership, corporation, association, or
organization, or a sole owner of an unincorporated business, the
application shall state that it did not have more than 500 employees at
the time the proceeding was initiated, giving the number of its
employees and describing briefly the type and purpose of its
organization or business.
Sec. 6.19 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in this part) when the proceeding was designated. If any
individual, corporation, or other entity directly or indirectly controls
or owns a majority of the voting shares or other interest of the
applicant, or if the applicant directly or indirectly owns or controls a
majority of the voting shares or other interest of any corporation or
other entity, the exhibit must include a showing of the net
[[Page 57]]
worth of all such affiliates or of the applicant including the
affiliates. The exhibit may be in any form convenient to the applicant
that provides full disclosure of the applicant's and its affiliates'
assets and liabilities and is sufficient to determine whether the
applicant qualifies under the standards in this subpart. The
administrative law judge may require an applicant to file additional
information to determine its eligibility for an award.
(b) The net worth exhibit shall describe any transfers of assets
from, or obligations incurred by, the applicant or any affiliate,
occurring in the one-year period prior to the date on which the
proceeding was initiated, that reduced the net worth of the applicant
and its affiliates below the applicable net worth ceiling. If there were
no such transactions, the applicant shall so state.
(c) The net worth exhibit shall be included in the public record of
the proceeding.
Sec. 6.21 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of
the fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought.
(b) The documentation shall include an affidavit from any attorney,
agent, or expert witness representing or appearing in behalf of the
party, stating the actual time expended and the rate at which fees and
other expenses were computed and describing the specific services
performed.
(1) The affidavit shall state the services performed. In order to
establish the hourly rate, the affidavit shall state the hourly rate
which is billed and paid by the majority of clients during the relevant
time periods.
(2) If no hourly rate is paid by the majority of clients because,
for instance, the attorney or agent represents most clients on a
contingency basis, the attorney or agent shall provide information about
two attorneys or agents with similar experience, who perform similar
work, stating their hourly rate.
(c) The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of the
amounts paid and payable by the applicant or by any other person or
entity for the services provided.
(d) The administrative law judge may require the applicant to
provide vouchers, receipts, or other substantiation for any expenses
claimed.
(e) The administrative law judge may, within his or her discretion,
make a determination as to whether a study, conducted by the applicant,
was necessary to the preparation of the applicant's case.
Subpart C_Procedures for Considering Applications
Sec. 6.23 Filing and service of documents.
Any application for an award or other pleading or document related
to an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding.
Sec. 6.25 Answer to application.
(a) Within 30 calendar days after service of an application, the
agency counsel may file an answer to the application. Unless the agency
counsel requests an extension of time for filing or files a statement of
intent to negotiate under paragraph (b) of this section, failure to file
an answer within the 30-day period may be treated as a consent to the
award request.
(b) If agency counsel and applicant believe that they can reach a
settlement concerning the award, the agency counsel may file a statement
of intent to negotiate. The filing of such a statement shall extend the
time for filing an answer an additional 30 days.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of the
Department's position. If the answer is based on any alleged facts not
already in the record of the
[[Page 58]]
proceeding, the Department shall include with the answer either
supporting affidavits or a request for further proceedings under Sec.
6.3.
[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]
Sec. 6.27 Comments by other parties.
Any party to a proceeding, other than the applicant and the
Department may file comments on an application within 30 days after it
is served or on an answer within 15 days after it is served. A
commenting party may not participate further in proceedings on the
application.
Sec. 6.29 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded, in accordance with the
agency's standard settlement procedure. If a prevailing party and the
agency counsel agree on a proposed settlement of an award before an
application has been filed the application shall be filed with the
proposed settlement.
Sec. 6.31 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the applicant
or agency counsel, or on his or her own initiative, the administrative
law judge may order further proceedings, such as an informal conference,
oral argument, additional written submissions or an evidentiary hearing.
Such further proceedings shall be held only when necessary for full and
fair resolution of the issues arising from the application, and shall be
conducted as promptly as possible.
(b) A request that the administrative law judge order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
Sec. 6.33 Decision.
The administrative law judge shall issue an initial decision on the
application as soon as possible after completion of proceedings on the
application. The decision shall also include, if at issue, findings on
whether the Department's position was substantially justified, whether
the applicant unduly protracted the proceedings, or whether special
circumstances make an award unjust. If the applicant has sought an award
against more than one agency, the decision shall allocate responsibility
for payment or any award made among the agencies, and shall explain the
reasons for the allocation made.
Sec. 6.35 Agency review.
Where Department review of the underlying decision is permitted,
either the applicant or agency counsel, may seek review of the initial
decision on the fee application, or the Department may decide to review
the decision on its own initiative. If neither the applicant nor the
agency counsel seeks review within 30 days after the decision is issued,
it shall become final.
Sec. 6.37 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
Sec. 6.39 Payment of award.
An applicant seeking payment of an award from the Department of
Transportation or any of its operating administrations under this part
shall submit a copy of the Department of Transportation's or any of its
operating administration's final decisions granting the award,
accompanied by a statement that the applicant will not seek review of
the decision in the United States courts. The copy of the decision and
the statement should be submitted to the head of the affected operating
administration or the Secretary of Transportation, where the Department
of Transportation, Office of the Secretary, has initiated the
proceedings.
[[Page 59]]
PART 7_PUBLIC AVAILABILITY OF INFORMATION--Table of Contents
Subpart A_General Provisions
Sec.
7.1 General.
7.2 Definitions.
Subpart B_Information Required To Be Made Public by DOT
7.3 Publication in the Federal Register.
7.4 Publication required.
7.5 Availability of opinions, orders, staff manuals, statements of
policy, and interpretations and indices.
7.6 Deletion of identifying detail.
7.7 Access to materials and indices.
7.8 Copies.
7.9 Protection of records.
7.10 Public records.
Subpart C_Availability of Reasonably Described Records Under the Freedom
of Information Act
7.11 Applicability.
7.12 Administration of subpart.
7.13 Records available.
7.14 Requests for records.
7.15 Contacts for records requested under the FOIA.
7.16 Requests for records of concern to more than one government
organization.
7.17 Consultation with submitters of commercial and financial
information.
Subpart D_Procedures for Appealing Decisions Not To Disclose Records
and/or Waive Fees
7.21 General.
Subpart E_Time Limits
7.31 Initial determinations.
7.32 Final determinations.
7.33 Extension.
Subpart F_Fees
7.41 General.
7.42 Payment of fees.
7.43 Fee schedule.
7.44 Services performed without charge or at a reduced charge.
7.45 Transcripts.
7.46 Alternative sources of information.
Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600,
3 CFR, 1987 Comp., p. 235.
Source: Amdt. 1, 63 FR 38331, July 16, 1998, unless otherwise noted.
Subpart A_General Provisions
Sec. 7.1 General.
(a) This part implements 5 U.S.C. 552, and prescribes rules
governing the availability to the public of DOT records. Many documents
are made available to the public for inspection and copying through
DOT's Primary Electronic Access Facility and public record unit
locations that are discussed in subpart B of this part, which contains
the DOT regulations concerning the availability to the public of
opinions issued in the adjudication of cases, policy issuances,
administrative manuals, and other information made available to the
public, without need for a specific request.
(b) Subpart C of this part describes the records that are not
required to be disclosed on DOT's own action under this part, but that
may be available upon request under FOIA.
(c) Indices are maintained to reflect all records subject to subpart
B of this part, and are available for public inspection and copying as
provided in subpart B.
Sec. 7.2 Definitions.
Unless the context requires otherwise, the following definitions
apply in this part:
Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as
amended.
Administrator means the head of each component of DOT and includes
the Under Secretary for Security, the Commandant of the Coast Guard, the
Inspector General, and the Director of the Bureau of Transportation
Statistics.
Concurrence means that the approval of the person being consulted is
required in order for the subject action to be taken.
Consultation means that the approval of the person being consulted
is not required in order for the subject action to be taken.
Department means the Department of Transportation, including the
Office of the Secretary, the Office of Inspector General, and the
following DOT components, all of which may be referred to as DOT
components. Means of contacting each of these DOT components
[[Page 60]]
appear in Sec. 7.15. This definition specifically excludes the Surface
Transportation Board, which has its own FOIA regulations (49 CFR Part
1001):
(1) United States Coast Guard,
(2) Federal Aviation Administration,
(3) Federal Highway Administration,
(4) Federal Railroad Administration,
(5) National Highway Traffic Safety Administration,
(6) Federal Transit Administration,
(7) Saint Lawrence Seaway Development Corporation,
(8) Maritime Administration,
(9) Research and Special Programs Administration, and
(10) Bureau of Transportation Statistics.
(11) Transportation Security Administration.
Primary Electronic Access Facility means the electronic docket
facility in the DOT Headquarters Building, 400 7th Street, S.W.,
Washington, D.C. 20590.
Reading room records are those records required to be made available
to the public under 5 U.S.C. 552(a)(2) as described in Sec. 7.5 of
Subpart B of this part. These records are made available through DOT's
Primary Electronic Access Facility. Other records may also be made
available at DOT's discretion at DOT inspection facilities, including
DOT's Primary Electronic Access Facility.
Record includes any writing, drawing, map, recording, tape, film,
photograph, or other documentary material by which information is
preserved. The term also includes any such documentary material stored
by computer.
Responsible DOT official means the head of the DOT component
concerned, or the General Counsel or the Inspector General, as the case
may be, or the designee of any of them, authorized to take an action
under this part.
Secretary means the Secretary of Transportation or any person to
whom the Secretary has delegated authority in the matter concerned.
[Amdt. 1, 63 FR 38331, July 16, 1998, as amended at 67 FR 54746, Aug.
26, 2002]
Subpart B_Information Required To Be Made Public by DOT
Sec. 7.3 Publication in the Federal Register.
This section implements 5 U.S.C. 552(a)(1), and prescribes rules
governing publication in the Federal Register of the following:
(a) Descriptions of DOT's organization, including its DOT components
and the established places at which, the officers from whom, and the
methods by which, the public may secure information and make submittals
or obtain decisions;
(b) Statements of the general course and methods by which DOT's
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized
by law and statements of general policy or interpretations of general
applicability formulated and adopted by DOT; and
(e) Each amendment, revision, or repeal of any material listed in
paragraphs (a) through (d) of this section.
Sec. 7.4 Publication required.
(a) General. The material described in Sec. 7.3 will be published
in the Federal Register. For the purposes of this paragraph, material
that will reasonably be available to the class of persons affected by it
will be considered to be published in the Federal Register if it has
been incorporated by reference with the approval of the Director of the
Federal Register.
(b) Effect of nonpublication. Except to the extent that he/she has
actual and timely notice of the terms thereof, a person may not in any
manner be required to resort to, or be adversely affected by, any
procedure or matter required to be published in the Federal Register,
but not so published.
[[Page 61]]
Sec. 7.5 Availability of opinions, orders, staff manuals, statements of
policy, and interpretations and indices.
(a) This section implements 5 U.S.C. 552(a)(2). It prescribes the
rules governing the availability for public inspection and copying of
the following reading room materials:
(1) Any final opinion (including a concurring or dissenting opinion)
or order made in the adjudication of a case.
(2) Any policy or interpretation that has been adopted under DOT
authority, including any policy or interpretation concerning a
particular factual situation, if that policy or interpretation can
reasonably be expected to have precedential value in any case involving
a member of the public in a similar situation.
(3) Any administrative staff manual or instruction to staff that
affects any member of the public, including the prescribing of any
standard, procedure, or policy that, when implemented, requires or
limits any action of any member of the public or prescribes the manner
of performance of any activity by any member of the public. However,
this does not include staff manuals or instructions to staff concerning
internal operating rules, practices, guidelines, and procedures for DOT
inspectors, investigators, law enforcement officers, examiners,
auditors, and negotiators and other information developed predominantly
for internal use, the release of which could significantly risk
circumvention of agency regulations or statutes.
(4) Copies of all records, regardless of form or format, that have
been released to any person under subpart C of this part and which,
because of the nature of their subject matter, a DOT component
determines have become or are likely to become the subject of subsequent
requests for substantially the same records.
(5) A general index of the records listed in this paragraph.
(b) Any material listed in paragraph (a) of this section that is not
made available for public inspection and copying, or that is not indexed
as required by Sec. 7.7, may not be cited, relied on, or used as
precedent by DOT to affect any member of the public adversely unless the
person to whose detriment it is relied on, used, or cited has had actual
timely notice of the material.
(c) This section does not apply to material that is published in the
Federal Register or covered by subpart C of this part.
Sec. 7.6 Deletion of identifying detail.
Whenever it is determined to be necessary to prevent a clearly
unwarranted invasion of personal privacy, identifying details will be
deleted from any record covered by this subpart that is published or
made available for inspection. Whenever it is determined to be necessary
to prevent the disclosure of information required or authorized to be
withheld by another Federal statute, such information shall be deleted
from any record covered by this subpart that is published or made
available for inspection. A full explanation of the justification for
the deletion will accompany the record published or made available for
inspection.
Sec. 7.7 Access to materials and indices.
(a) Except as provided in paragraph (b) of this section, material
listed in Sec. 7.5 will be made available for inspection and copying to
any member of the public at DOT document inspection facilities. It has
been determined that it is unnecessary and impracticable to publish the
index of materials in the Federal Register. Information as to the kinds
of materials available at each facility may be obtained from the
facility or the headquarters of the DOT component of which it is a part.
(b) The material listed in Sec. 7.5 that is published and offered
for sale will be indexed, but is not required to be kept available for
public inspection. Whenever practicable, however, it will be made
available for public inspection at the appropriate DOT reading room.
(c) Each DOT component will also make the reading room records
identified in section 7.5(a) that are created by DOT on or after
November 1, 1996, available electronically. This includes indices of its
reading room records as required by law after December 1, 1999.
[[Page 62]]
Sec. 7.8 Copies
Copies of any material covered by this subpart that is not published
and offered for sale may be ordered, upon payment of the appropriate
fee, from the Docket Offices listed in Sec. 7.10. Copies will be
certified upon request and payment of the fee prescribed in Sec.
7.43(f).
Sec. 7.9 Protection of records.
(a) Records made available for inspection and copying may not be
removed, altered, destroyed, or mutilated.
(b) 18 U.S.C. 641 provides for criminal penalties for embezzlement
or theft of government records.
(c) 18 U.S.C. 2071 provides for criminal penalties for the willful
and unlawful concealment, mutilation or destruction of, or the attempt
to conceal, mutilate, or destroy, government records.
Sec. 7.10 Public records.
Publicly available records are located in DOT's Primary Electronic
Access Facility at 400 7th Street, S.W., Washington, D.C. 20590.
(a) The Primary Electronic Access Facility maintains materials for
the Office of the Secretary, including former Civil Aeronautics Board
material, and materials for the DOT components. This facility is located
at Plaza Level 401, and the hours of operation are 10:00-17:00.
(b) Certain DOT components also maintain public record units at
regional offices and at the offices of the Commandant and District
Commanders of the United States Coast Guard. These facilities are open
to the public Monday through Friday except Federal holidays, during
regular working hours. The Saint Lawrence Seaway Development Corporation
has facilities at 180 Andrews Street, Massena, New York 13662-0520.
(c) Operating Administrations may have separate facilities for
manual records. Additional information on the location and hours of
operations for Docket Offices and inspection facilities can be obtained
through DOT's Primary Electronic Access Facility, at (202) 366-9322.
Subpart C_Availability of Reasonably Described Records Under the Freedom
of Information Act
Sec. 7.11 Applicability.
(a) This subpart implements 5 U.S.C 552(a)(3), and prescribes the
regulations governing public inspection and copying of reasonably
described records under FOIA.
(b) This subpart does not apply to:
(1) Records published in the Federal Register, opinions in the
adjudication of cases, statements of policy and interpretations, and
administrative staff manuals that have been published or made available
under subpart B of this part.
(2) Records or information compiled for law enforcement purposes and
covered by the disclosure exemption described in Sec. 7.13(c)(7) if--
(i) The investigation or proceeding involves a possible violation of
criminal law; and
(ii) There is reason to believe that--
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
(3) Informant records maintained by a criminal law enforcement
component of DOT under an informant's name or personal identifier, if
requested by a third party according to the informant's name or personal
identifier, unless the informant's status as an informant has been
officially confirmed.
Sec. 7.12 Administration of subpart.
Authority to administer this subpart and to issue determinations
with respect to initial requests is delegated as follows:
(a) To the General Counsel for the records of the Office of the
Secretary other than the Office of Inspector General.
(b) To the Inspector General for records of the Office of Inspector
General.
[[Page 63]]
(c) To the Administrator of each DOT component, who may redelegate
to officers of that administration the authority to administer this part
in connection with defined groups of records. However, each
Administrator may redelegate the duties under subpart D of this part to
consider appeals of initial denials of requests for records only to his
or her deputy or to not more than one other officer who reports directly
to the Administrator and who is located at the headquarters of that DOT
component.
Sec. 7.13 Records available.
(a) Policy. It is DOT policy to make its records available to the
public to the greatest extent possible, in keeping with the spirit of
FOIA. This includes providing reasonably segregable information from
documents that contain information that may be withheld.
(b) Statutory disclosure requirement. FOIA requires that DOT, on a
request from a member of the public submitted in accordance with this
subpart, make requested records available for inspection and copying.
(c) Statutory exemptions. Exempted from FOIA's statutory disclosure
requirement are matters that are:
(1)(i) Specifically authorized under criteria established by
Executive Order to be kept secret in the interest of national defense or
foreign policy, and
(ii) In fact properly classified pursuant to such Executive order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from mandatory disclosure by statute
(other than the Privacy Act or the Government in the Sunshine Act),
provided that such statute--
(i) Requires that the matters be withheld from the public in such a
manner as to leave not any discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular criteria for withholding or refers to particular types of
matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information--
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair or an impartial
adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, Tribal, or foreign agency
or authority or any private institution that furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(d) Deleted information. The amount of information deleted from
frequently-requested electronic records that are available in a public
reading room will be indicated on the released portion of the record,
unless doing so would harm
[[Page 64]]
an interest protected by the exemption concerned. If technically
feasible, the amount of information deleted will be indicated at the
place in the record where the deletion is made.
Sec. 7.14 Requests for records.
(a) Each person desiring access to or a copy of a record covered by
this subpart shall comply with the following provisions:
(1) A written request must be made for the record.
(2) Such request should indicate that it is being made under FOIA.
(3) The envelope in which a mailed request is sent should be
prominently marked: ``FOIA.''
(4) The request should be addressed to the appropriate office as set
forth in Sec. 7.15.
(5) The request should state the format (e.g., paper, microfiche,
computer diskette, etc.) in which the information is sought, if the
requestor has a preference.
(b) If the requirements of paragraph (a) of this section are not
met, treatment of the request will be at the discretion of the agency.
The twenty-day limit for responding to requests, described in Sec.
7.31, will not start to run until the request has been identified, or
would have been identified with the exercise of due diligence, by an
employee of DOT as a request pursuant to FOIA and has been received by
the office to which it should have been originally sent.
(c) Form of requests. (1) Each request should describe the
particular record to the fullest extent possible. The request should
describe the subject matter of the record, and, if known, indicate the
date when it was made, the place where it was made, and the person or
office that made it. If the description does not enable the office
handling the request to identify or locate the record sought, that
office will notify the requestor and, to the extent possible, indicate
the additional data required.
(2) Each request shall--
(i) Specify the fee category (commercial use, news media,
educational institution, noncommercial scientific institution, or other)
in which the requestor claims the request to fall and the basis of this
claim (see subpart F of this part for fees and fee waiver requirements),
(ii) State the maximum amount of fees that the requestor is willing
to pay or include a request for a fee waiver, and
(iii) A request seeking a fee waiver shall, to the extent possible,
address why the requestor believes that the criteria for fee waivers set
out in Sec. 7.44(f) are met.
(3) Requesters are advised that the time for responding to requests
set forth in subpart E will not begin to run--
(i) If a requestor has not sufficiently identified the fee category
applicable to the request,
(ii) If a requestor has not stated a willingness to pay fees as high
as anticipated by DOT,
(iii) If a fee waiver request is denied and the requestor has not
included an alternative statement of willingness to pay fees as high as
anticipated by DOT, or
(iv) If a fee waiver request does not address fee waiver criteria.
(d) Creation of records. A request may seek only records that are in
existence at the time the request is received. A request may not seek
records that come into existence after the date on which it is received
and may not require that new records be created in response to the
request by, for example, combining or compiling selected items from
manual files, preparing a new computer program, or calculating
proportions, percentages, frequency distributions, trends, or
comparisons. In those instances where DOT determines that creating a new
record will be less burdensome than disclosing large volumes of
unassembled material, DOT may, in its discretion, agree to creation of a
new record as an alternative to disclosing existing records. Records
will be provided in the form or format sought by the requestor if the
record is readily reproducible in the requested format.
(e) Search for records. (1) Each record made available under this
subpart will be made available for inspection and copying during regular
business hours at the place where it is located, or photocopying may be
arranged with the copied materials being mailed to
[[Page 65]]
the requestor upon payment of the appropriate fee. Original records
ordinarily will be copied except in this instance where, in DOT's
judgment, copying would endanger the quality of the original or raise
the reasonable possibility of irreparable harm to the record. In these
instances, copying of the original would not be in the public interest.
In any event, original records will not be released from DOT custody.
Original records, regardless of format, may be returned to agency
service upon provision of a copy of the record to the requestor, or, in
the case of a denial, upon creation and retention of a copy of the
original for purposes of FOIA processing.
(2) DOT will make a reasonable effort to search for requested
records in electronic form or format, unless doing so would
significantly interfere with operation of the affected automated
information system.
(f) If a requested record is known not to exist in the files of the
agency, or to have been destroyed or otherwise disposed of, the
requestor will be so notified.
(g) Fees will be determined in accordance with subpart F of this
part.
(h) Notwithstanding paragraphs (a) through (g) of this section,
informational material, such as news releases, pamphlets, and other
materials of that nature that are ordinarily made available to the
public as a part of any information program of the Government will be
available upon oral or written request. A fee will be not be charged for
individual copies of that material so long as the material is in supply.
In addition DOT will continue to respond, without charge, to routine
oral or written inquiries that do not involve the furnishing of records.
Sec. 7.15 Contacts for records requested under the FOIA.
Each person desiring a record under this subpart should submit a
request in writing (via paper, facsimile, or electronic mail) to the DOT
component where the records are located:
(a) FOIA Offices at 400 7th Street, S.W., Washington, DC 20590:
(1) Office of the Secretary of Transportation, Room 5432.
(2) Federal Highway Administration, Room 4428.
(3) National Highway Traffic Safety Administration, Room 5221.
(4) Federal Transit Administration, Room 9400.
(5) Maritime Administration, Room 7221.
(6) Research and Special Programs Administration, Room 8419.
(7) Bureau of Transportation Statistics, Room 3430.
(8) Office of Inspector General, Room 9210.
(b) Federal Aviation Administration, 800 Independence Avenue, S.W.,
Room 906A, Washington, DC 20591.
(c) United States Coast Guard, 2100 2nd Street, S.W., Room 6106,
Washington, DC 20593-0001.
(d) Director, Office of Finance, Saint Lawrence Seaway Development
Corporation, 180 Andrews Street, P.O. Box 520, Massena, New York 13662-
0520.
(e) Federal Railroad Administration, 1120 Vermont Avenue NW, 7th
Floor, Washington, DC. (Mailing address: 400 Seventh St., SW,
Washington, DC 20590.)
(f) Transportation Security Administration, 301 Seventh Street, SW.
(General Services Administration Regional Office Building), Room 3624,
Washington, DC (Mailing address: 400 Seventh Street, SW., Washington, DC
20590).
(g) Certain DOT components also maintain FOIA contacts at regional
offices and at the offices of the Commandant and District Commanders of
the United States Coast Guard. Additional information on the location of
these offices can be obtained through the FOIA contact offices listed in
this section.
(h) If the person making the request does not know where in DOT the
record is located, he or she may make an inquiry to the Chief, FOIA
Division, Office of the General Counsel (voice: 202.366.4542; facsimile:
202.366.8536).
(i) Requests for records under this part, and Freedom of Information
Act inquiries generally, may be made by accessing the DOT Home Page on
the Internet (www.dot.gov) and clicking on
[[Page 66]]
the Freedom of Information Act link (www.dot.gov/foia).
[Amdt. 1, 63 FR 38331, July 16, 1998, 67 FR 54746, Aug. 26, 2002]
Sec. 7.16 Requests for records of concern to more than one government
organization.
(a) If the release of a record covered by this subpart would be of
concern to both DOT and another Federal agency, the determination as to
release will be made by DOT only after consultation with the other
interested agency.
(b) If the release of the record covered by this subpart would be of
concern to both DOT and a State, local, or Tribal government, a
territory or possession of the United States, or a foreign government,
the determination as to release will be made by DOT only after
consultation with the interested government.
(c) Alternatively, DOT may refer the request (or relevant portion
thereof) for decision by a Federal agency that originated or is
substantially concerned with the records, but only if that agency is
subject to FOIA. Such referrals will be made expeditiously and the
requestor notified in writing that a referral has been made.
Sec. 7.17 Consultation with submitters of commercial and financial
information.
(a) If a request is received for information that has been
designated by the submitter as confidential commercial information, or
which DOT has some other reason to believe may contain information of
the type described in Sec. 7.13(c)(4), the submitter of such
information will, except as is provided in paragraphs (c) and (d) of
this section, be notified expeditiously and asked to submit any written
objections to release. At the same time, the requestor will be notified
that notice and an opportunity to comment are being provided to the
submitter. The submitter will, to the extent permitted by law, be
afforded a reasonable period of time within which to provide a detailed
statement of any such objections. The submitter's statement shall
specify all grounds for withholding any of the information. The burden
shall be on the submitter to identify all information for which exempt
treatment is sought and to persuade the agency that the information
should not be disclosed.
(b) The responsible DOT component will, to the extent permitted by
law, consider carefully a submitter's objections and specific grounds
for nondisclosure prior to determining whether to disclose business
information. Whenever a decision is made to disclose such information
over the objection of a submitter, the office responsible for the
decision will forward to the submitter a written notice of intent to
disclose that will, to the extent permitted by law, be forwarded to the
submitter a reasonable number of days prior to the specified date upon
which disclosure is intended. At the same time the submitter is
notified, the requestor will be notified of the decision to disclose
information. The written notice will include:
(1) A statement of the reasons for which the submitter's disclosure
objections were not accepted;
(2) A description of the business information to be disclosed; and
(3) A specific disclosure date.
(c) The notice requirements of this section will not apply if:
(1) The office responsible for the decision determines that the
information should not be disclosed;
(2) The information lawfully has been published or otherwise made
available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552).
(d) The procedures established in this section will not apply in the
case of:
(1) Business information submitted to the National Highway Traffic
Safety Administration and addressed in 49 CFR Part 512.
(2) Information contained in a document to be filed or in oral
testimony that is sought to be withheld pursuant to Rule 39 of the Rules
of Practice in Aviation Economic Proceedings (14 CFR 302.39).
(e) Whenever a requestor brings suit seeking to compel disclosure of
confidential commercial information, the responsible DOT component will
promptly notify the submitter.
[[Page 67]]
Subpart D_Procedures for Appealing Decisions Not To Disclose Records
and/or Waive Fees
Sec. 7.21 General.
(a) Each officer or employee of DOT who, upon a request by a member
of the public for a record under this part, makes a determination that
the record is not to be disclosed, either because it is subject to an
exemption or not in DOT's custody and control, will give a written
statement of the reasons for that determination to the person making the
request; and indicate the names and titles or positions of each person
responsible for the initial determination not to comply with such
request, and the availability of an appeal within DOT. The denial letter
will include an estimate of the volume of records or information
withheld, in number of pages or in some 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. Records disclosed in part will be marked or
annotated to show both the amount and the location of the information
deleted whenever practicable.
(b) When a request for a waiver of fees pursuant to Sec. 7.44 has
been denied in whole or in part, the requestor may appeal the denial.
(c) Any person to whom a record has not been made available within
the time limits established by Sec. 7.31 and any person who has been
given a determination pursuant to paragraph (a) of this section that a
record will not be disclosed may appeal to the responsible DOT official.
Any person who has not received an initial determination on his or her
request within the time limits established by Sec. 7.31 can seek
immediate judicial review, which may be sought without the need first to
submit an administrative appeal. Judicial review may be sought in the
United States District Court for the judicial district in which the
requestor resides or has his or her principal place of business, the
judicial district in which the records are located, or in the District
of Columbia. A determination that a record will not be disclosed and/or
that a request for a fee waiver or reduction will not be granted does
not constitute final agency action for the purposes of judicial review
unless:
(1) It was made by the responsible DOT official; or
(2) The applicable time limit has passed without a determination on
the initial request or the appeal, as the case may be, having been made.
(d) Each appeal must be made in writing within thirty days from the
date of receipt of the original denial and should include the DOT file
or reference number assigned to the request and all information and
arguments relied upon by the person making the request. (Appeals may be
submitted via facsimile and conventional mail, but not via electronic
mail.) Such letter should indicate that it is an appeal from a denial of
a request made under FOIA. The envelope in which a mailed appeal is sent
should be prominently marked: ``FOIA Appeal.'' If these requirements are
not met, the twenty-day limit described in Sec. 7.32 will not begin to
run until the appeal has been identified, or would have been identified
with the exercise of due diligence, by a DOT employee as an appeal under
FOIA, and has been received by the appropriate office.
(e) Whenever the responsible DOT official determines it necessary,
he/she may require the requestor to furnish additional information, or
proof of factual allegations, and may order other proceedings
appropriate in the circumstances; in any case in which a request or
order is made, DOT's time for responding ceases to count while the
requestor responds to the request or order. The decision of the
responsible DOT official as to the availability of the record or the
appropriateness of a fee waiver or reduction constitutes final agency
action for the purpose of judicial review.
(f) The decision of the responsible DOT official not to disclose a
record under this part or not to grant a request for a fee waiver or
reduction is considered to be a denial by the Secretary for the purpose
of 5 U.S.C. 552(a)(4)(B).
[[Page 68]]
(g) Any final determination by the head of an DOT component not to
disclose a record under this part, or not to grant a request for a fee
waiver or reduction, is subject to concurrence by a representative of
the General Counsel.
(h) Upon a determination that an appeal will be denied, the
requestor will be informed in writing of the reasons for the denial of
the request and the names and titles or positions of each person
responsible for the determination, and that judicial review of the
determination is available in the United States District Court for the
judicial district in which the requestor resides or has his or her
principal place of business, the judicial district in which the
requested records are located, or the District of Columbia.
Subpart E_Time Limits
Sec. 7.31 Initial determinations.
An initial determination whether to release a record requested
pursuant to subpart C of this part will be made within twenty Federal
working days after the request is received by the appropriate office in
accordance with Sec. 7.14, except that this time limit may be extended
by up to ten Federal working days in accordance with Sec. 7.33. The
person making the request will be notified immediately of such
determination. If the determination is to grant the request, the desired
record will be made available as promptly as possible. If the
determination is to deny the request, the person making the request will
be notified in writing, at the same time he or she is notified of such
determination, of the reason for the determination, the right of such
person to appeal the determination, and the name and title of each
person responsible for the initial determination to deny the request.
(a) In general. Components ordinarily will respond to requests
according to their order of receipt.
(b) Multitrack processing. (1) A component may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the amount of work and/or time needed to process the
request, or on the number of pages involved.
(2) A component using multitrack processing may provide requesters
in its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing within the specified
limits of the component's faster track(s). A component doing so will
contact the requestor either by telephone, letter, facsimile, or
electronic mail, whichever is most efficient in each case.
(c) Expedited processing. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever a compelling need is
demonstrated and it is determined that the compelling need involves:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) Requests made by a person primarily engaged in disseminating
information, with an urgency to inform the public of actual or alleged
Federal Government activity.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing must be received by
the proper component. Requests must be submitted to the component that
maintains the records requested.
(3) A requestor who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining in detail the basis for requesting
expedited processing. For example, a requestor within the category in
paragraph (c)(1)(ii) of this section, if not a full-time member of the
news media, must establish that he or she is a person whose main
professional activity or occupation is information dissemination, though
it need not be his or her sole occupation. A requestor within the
category in paragraph (c)(1)(ii) of this section also must establish a
particular urgency to inform the public about the government activity
involved in the request, beyond the public's right to know about
government activity generally. The formality of certification may be
waived as a matter of discretion.
[[Page 69]]
(4) Within ten calendar days of receipt of a request for expedited
processing, the proper component will decide whether to grant it and
will notify the requestor of the decision. If a request for expedited
treatment is granted, the request will be given priority and will be
processed as soon as practicable. If a request for expedited processing
is denied, any appeal of that decision will be acted on expeditiously.
Sec. 7.32 Final determinations.
(a) A determination with respect to any appeal made pursuant to
Sec. 7.21 will be made within twenty Federal working days after receipt
of such appeal except that this time limit may be extended by up to ten
Federal working days in accordance with Sec. 7.33. The person making
the request will be notified immediately of such determination pursuant
to Sec. 7.21.
(b) In general. Components ordinarily will respond to appeals
according to their order of receipt.
(c) Multitrack processing. (1) A component may use two or more
processing tracks by distinguishing between simple and more complex
appeals based on the amount of work and/or time needed to process the
appeal, or on the number of pages involved.
(2) A component using multitrack processing may provide persons
making appeals in its slower track(s) with an opportunity to limit the
scope of their appeals in order to qualify for faster processing within
the specified limits of the component's faster track(s). A component
doing so will contact the person making the appeal either by telephone,
letter, facsimile, or electronic mail, whichever is most efficient in
each case.
(d) Expedited processing. (1) An appeal will be taken out of order
and given expedited treatment whenever a compelling need is demonstrated
and it is determined that the compelling need involves:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) A request made by a person primarily engaged in disseminating
information, with an urgency to inform the public of actual or alleged
Federal Government activity.
(2) A request for expedited processing may be made at the time of
the appeal or at any later time. For a prompt determination, a request
for expedited processing must be received by the proper component, which
is the component that is processing the appeal for the records
requested.
(3) A requestor who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining in detail the basis for requesting
expedited processing. For example, a requestor within the category in
Sec. 7.31(c)(1)(ii), if not a full-time member of the news media, must
establish that he or she is a person whose main professional activity or
occupation is information dissemination, though it need not be his or
her sole occupation. A requestor within the category in Sec.
7.31(c)(1)(ii) also must establish a particular urgency to inform the
public about the government activity involved in the request, beyond the
public's right to know about government activity generally. The
formality of certification may be waived as a matter of discretion. A
person who was granted expedited processing under Sec. 7.31 need merely
certify that the same circumstances apply.
(4) Within ten calendar days of receipt of a request for expedited
processing, the proper component will decide whether to grant it and
will notify the requestor of the decision. If a request for expedited
treatment is granted, the appeal will be given priority and will be
processed as soon as practicable. If a request for expedited processing
of an appeal is denied, no further administrative recourse is available.
Sec. 7.33 Extension.
(a) In unusual circumstances as specified in this section, the time
limits prescribed in Sec. 7.31 and Sec. 7.32 may be extended by
written notice to the person making the request setting forth the
reasons for such extension and the date on which a determination is
expected to be dispatched. Such notice may not specify a date that would
result in a cumulative extension of more than 10
[[Page 70]]
Federal working days without providing the requestor an opportunity to
modify the request as noted in this section. As used in this paragraph,
``unusual circumstances'' means, but only to the extent reasonably
necessary to the proper processing of the particular request:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request.
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are demanded in
a single request; or
(3) The need for consultation, which will be conducted with all
practicable speed, with any other agency or DOT component having a
substantial interest in the determination of the request or among two or
more components of the agency having substantial subject-matter interest
therein.
(b) Where the extension is for more than 10 working days, the DOT
component will provide the requestor with an opportunity either to
modify the request so that it may be processed within the time limits or
to arrange an alternative time period with the component for processing
the request or a modified request.
(c) Where a component reasonably believes that multiple requests
submitted by a requestor, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, they
may be aggregated for the purposes of fees and processing activities.
Multiple requests involving unrelated matters will not be aggregated.
Subpart F_Fees
Sec. 7.41 General.
(a) This subpart prescribes fees for services performed for the
public under subparts B and C of this part by DOT.
(b) All terms defined by FOIA apply to this subpart, and the term
``hourly rate'' means the actual hourly base pay for a civilian employee
or, for members of the Coast Guard, the equivalent hourly pay rate
computed using a 40-hour week and the member's normal basic pay and
allowances.
(c) This subpart applies to all employees of DOT, including those of
non-appropriated fund activities of the Coast Guard and the Maritime
Administration.
(d) This subpart does not apply to any special study, special
statistical compilation, table, or other record requested under 49
U.S.C. 329(c). The fee for the performance of such a service is the
actual cost of the work involved in compiling the record. All such fees
received by DOT in payment of the cost of such work are deposited in a
separate account administered under the direction of the Secretary, and
may be used for the ordinary expenses incidental to providing the
information.
(e) This subpart does not apply to requests from record subjects for
records about themselves in DOT systems of records, which are determined
in accordance with the Privacy Act, as implemented by DOT regulations
(49 CFR part 10).
Sec. 7.42 Payment of fees.
(a) The fees prescribed in this subpart may be paid by check, draft,
or money order, payable to the DOT component where fees were incurred,
for deposit in the General Fund of the Treasury of the United States,
e.g. DOT/FAA.
(b) Charges may be assessed by DOT for time spent searching for
requested records even if the search fails to locate records or the
records located are determined to be exempt from disclosure. In
addition, if records are requested for commercial use, DOT may assess a
fee for time spent reviewing any responsive records located to determine
whether they are exempt from disclosure.
(c) When it is estimated that the search charges, review charges,
duplication fees, or any combination of fees that could be charged to
the requestor will likely exceed US $25, the requestor will be notified
of the estimated amount of the fees, unless the requestor has indicated
in advance his or her willingness to pay fees as high as those
anticipated. In cases where a requestor has been notified that actual or
estimated fees may amount to more than US $25, the request will be
deemed
[[Page 71]]
not to have been received until the requestor has agreed to pay the
anticipated total fee. The notice will also inform the requestor how to
consult with the appropriate DOT officials with the object of
reformulating the request to meet his or her needs at a lower cost.
(d) Payment of fees may be required prior to actual duplication or
delivery of any releasable records to a requestor. However, advance
payment, i.e., before work is commenced or continued on a request, may
not be required unless:
(1) Allowable charges that a requestor may be required to pay are
likely to exceed US $250; or
(2) The requestor has failed to pay within 30 days of the billing
date fees charged for a previous request to any part of DOT.
(e) When paragraph (d)(1) of this section applies, the requestor
will be notified of the likely cost and, where he/she has a history of
prompt payment of FOIA fees, requested to furnish satisfactory assurance
of full payment of FOIA fees. Where the requestor does not have any
history of payment, he or she may be required to make advance payment of
any amount up to the full estimated charges.
(f) When paragraph (d)(2) of this section applies, the requestor
will be required to demonstrate that the fee has, in fact, been paid or
to pay the full amount owed, including any applicable interest, late
handling charges, and penalty charges as discussed in paragraphs (g) and
(h) of this section. The requestor will also be required to make an
advance payment of the full amount of the estimated fee before
processing of a new request or continuation of a pending request is
begun.
(g) DOT will assess interest on an unpaid bill starting on the 31st
day following the day on which the notice of the amount due is first
mailed to the requestor. Interest will accrue from the date of the
notice of amount due and will be at the rate prescribed in 31 U.S.C.
3717. Receipt by DOT of a payment for the full amount of the fees owed
within 30 calendar days after the date of the initial billing will stay
the accrual of interest, even if the payment has not been processed.
(h) If payment of fees charged is not received within 30 calendar
days after the date the initial notice of the amount due is first mailed
to the requestor, an administrative charge will be assessed by DOT to
cover the cost of processing and handling the delinquent claim. In
addition, a penalty charge will be applied with respect to any principal
amount of a debt that is more than 90 days past due. Where appropriate,
other steps permitted by Federal debt collection statutes, including
disclosure to consumer reporting agencies and use of collection
agencies, will be used by DOT to encourage payment of amounts overdue.
(i) Notwithstanding any other provision of this subpart, when the
total amount of fees that could be charged for a particular request (or
aggregation of requests) under subpart C of this part, after taking into
account all services that must be provided free of, or at a reduced,
charge, is less than US $10.00 DOT will not make any charge for fees.
Sec. 7.43 Fee schedule.
The rates for manual searching, computer operator/programmer time
and time spent reviewing records will be calculated based on the grades
and rates established by the Washington-Baltimore Federal White-Collar
Pay Schedule or equivalent grades, as follows:
When performed by employees:
GS-1 through GS-8--Hourly rate of GS-5 step 7 plus 16%
GS-9 through GS-14--Hourly rate of GS-12 step 7 plus 16%
GS-15 and above--Hourly rate of GS-15 step 7 plus 16%
(a) The standard fee for a manual search to locate a record
requested under subpart C of this part, including making it available
for inspection, will be determined by multiplying the searcher's rate as
calculated from the chart in this section and the time spent conducting
the search.
(b) The standard fee for a computer search for a record requested
under subpart C of this part is the actual cost. This includes the cost
of operating the central processing unit for the time directly
attributable to searching for records responsive to a
[[Page 72]]
FOIA request and the operator/programmer's rate as calculated from the
chart for costs apportionable to the search.
(c) The standard fee for review of records requested under subpart C
of this part is the reviewer's rate as calculated from the chart
multiplied by the time he/she spent determining whether the requested
records are exempt from mandatory disclosure.
(d) The standard fee for duplication of a record requested under
subpart C of this part is determined as follows:
(1) Per copy of each page (not larger than 8.5x14 inches) reproduced
by photocopy or similar means (includes costs of personnel and
equipment)--US $0.10.
(2) Per copy prepared by computer such as tapes or printout--actual
costs, including operator time.
(3) Per copy prepared by any other method of duplication--actual
direct cost of production.
(e) Depending upon the category of requestor, and the use for which
the records are requested, in some cases the fees computed in accordance
with the standard fee schedule in paragraph (d) of this section will
either be reduced or not charged, as prescribed by other provisions of
this subpart.
(f) The following special services not required by FOIA may be made
available upon request, at the stated fees: Certified copies of
documents, with DOT or DOT component seal (where authorized)--US $4.00;
or true copy, without seal--US $2.00.
Sec. 7.44 Services performed without charge or at a reduced charge.
(a) A fee is not to be charged to any requestor making a request
under subpart C of this part for the first two hours of search time
unless the records are requested for commercial use. For purposes of
this subpart, when a computer search is required two hours of search
time will be considered spent when the hourly costs of operating the
central processing unit used to perform the search added to the computer
operator's salary cost (hourly rate plus 16 percent) equals two hours of
the computer operator's salary costs (hourly rate plus 16 percent).
(b) A fee is not to be charged for any time spent searching for a
record requested under subpart C if the records are not for commercial
use and the requestor is a representative of the news media, an
educational institution whose purpose is scholarly research, or a non-
commercial scientific institution whose purpose is scientific research.
(c) A fee is not to be charged for duplication of the first 100
pages (standard paper, not larger than 8.5x14 inches) of records
provided to any requestor in response to a request under Subpart C
unless the records are requested for commercial use.
(d) A fee is not to be charged to any requestor under subpart C to
determine whether a record is exempt from mandatory disclosure unless
the record is requested for commercial use. A review charge may not be
charged except with respect to an initial review to determine the
applicability of a particular exemption to a particular record or
portion of a record. A review charge may not be assessed for review at
the administrative appeal level. When records or portions of records
withheld in full under an exemption that is subsequently determined not
to apply are reviewed again to determine the applicability of other
exemptions not previously considered, this is considered an initial
review for purposes of assessing a review charge.
(e) Documents will be furnished without charge or at a reduced
charge if the official having initial denial authority determines that
disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requestor.
(f) Factors to be considered by DOT officials authorized to
determine whether a waiver or reduction of fees will be granted include:
(1) Whether the subject matter of the requested records concerns the
operations or activities of the Federal government;
(2) Whether the disclosure is likely to contribute to an
understanding of Federal government operations or activities;
(3) Whether disclosure of the requested information will contribute
to the understanding of the public at
[[Page 73]]
large, as opposed to the individual understanding of the requestor or a
narrow segment of interested persons;
(4) Whether the contribution to public understanding of Federal
government operations or activities will be significant;
(5) Whether the requestor has a commercial interest that would be
furthered by the requested disclosure; and
(6) Whether the magnitude of any identified commercial interest to
the requestor is sufficiently large in comparison with the public
interest in disclosure that disclosure is primarily in the commercial
interest of the requestor.
(g) Documents will be furnished without charge or at a reduced
charge if the official having initial denial authority determines that
the request concerns records related to the death of an immediate family
member who was, at the time of death, a DOT employee or a member of the
Coast Guard.
(h) Documents will be furnished without charge or at a reduced
charge if the official having initial denial authority determines that
the request is by the victim of a crime who seeks the record of the
trial or court-martial at which the requestor testified.
Sec. 7.45 Transcripts.
Transcripts of hearings or oral arguments are available for
inspection. Where transcripts are prepared by a nongovernmental
contractor, and the contract permits DOT to handle the reproduction of
further copies, Sec. 7.43 applies. Where the contract for transcription
services reserves the sales privilege to the reporting service, any
duplicate copies must be purchased directly from the reporting service.
Sec. 7.46 Alternative sources of information.
In the interest of making documents of general interest publicly
available at as low a cost as possible, alternative sources will be
arranged whenever possible. In appropriate instances, material that is
published and offered for sale may be obtained from the Superintendent
of Documents, U.S. Government Printing Office, Washington, DC 20402;
U.S. Department of Commerce's National Technical Information Service
(NTIS), Springfield, Virginia 22151; or National Audio-Visual Center,
National Archives and Records Administration, Capital Heights, MD 20743-
3701.
PART 8_CLASSIFIED INFORMATION: CLASSIFICATION/DECLASSIFICATION/ACCESS--Table
of Contents
Subpart A_General
Sec.
8.1 Scope.
8.3 Applicability.
8.5 Definitions.
8.7 Spheres of responsibility.
Subpart B_Classification/Declassification of Information
8.9 Information Security Review Committee.
8.11 Authority to classify information.
8.13 Authority to downgrade or declassify.
8.15 Mandatory review for classification.
8.17 Classification challenges.
8.19 Procedures for submitting and processing requests for
classification reviews.
8.21 Burden of proof.
8.23 Classified information transferred to the Department of
Transportation.
Subpart C_Access to Information
8.25 Personnel Security Review Board.
8.27 Public availability of declassified information.
8.29 Access by historical researchers and former Presidential
appointees.
8.31 Industrial security.
Authority: E. O. 10450, 3 CFR, 1949-1953 Comp., p. 936; E. O. 12829,
3 CFR, 1993 Comp., p. 570; E. O. 12958, 3 CFR, 1995 Comp., p. 333; E. O.
12968, 3 CFR, 1995 Comp., p. 391.
Source: 62 FR 23661, May 1, 1997, unless otherwise noted.
Subpart A_General
Sec. 8.1 Scope.
This part sets forth procedures for the classification,
declassification, and availability of information that must be protected
in the interest of national security, in implementation of Executive
Order 12958 of April 17, 1995, ``Classified National Security
Information;'' and for the review of decisions to revoke, or not to
issue, national security information clearances, or to deny access to
classified information, under
[[Page 74]]
Executive Order 12968 of August 2, 1995, ``Access to National Security
Information''.
Sec. 8.3 Applicability.
This part applies to all elements of the Department of
Transportation.
Sec. 8.5 Definitions.
As used in this part:
Classification means the act or process by which information is
determined to be classified information.
Classification levels means the following three levels at which
information may be classified:
(a) Top secret. Information that requires the highest degree of
protection, and the unauthorized disclosure of which could reasonably be
expected to cause exceptionally grave damage to the national security
that the original classification authority is able to identify or
describe.
(b) Secret. Information that requires a substantial degree of
protection, and the unauthorized disclosure of which could reasonably be
expected to cause serious damage to the national security that the
original classification authority is able to identify or describe.
(c) Confidential. Information that requires protection and the
unauthorized disclosure of which could reasonably be expected to cause
damage to the national security that the original classification
authority is able to identify or describe.
Classified information or ``classified national security
information'' means information that has been determined under Executive
Order 12958, or any predecessor or successor order, to require
protection against unauthorized disclosure, and is marked to indicate
its classified status when in documentary form.
Clearance means that an individual is eligible, under the standards
of Executive Orders 10450 and 12968 and appropriate DOT regulations, for
access to classified information.
Damage to the national security means harm to the national defense
or foreign relations of the United States from the unauthorized
disclosure of information, to include the sensitivity, value, and
utility of that information.
Declassification means the authorized change in the status of
information from classified information to unclassified information.
Downgrading means a determination by a declassification authority
that information classified and safeguarded at a specific level shall be
classified and safeguarded at a lower level.
Information means any knowledge that can be communicated, or
documentary material, regardless of its physical form or
characteristics, that is owned by, produced by or for, or is under the
control of the United States Government. ``Control'' means the authority
of the agency that originates information, or its successor in function,
to regulate access to the information.
Mandatory declassification review means the review for
declassification of classified information in response to a request for
declassification that qualifies under Section 3.6 of Executive Order
12958.
Original classification means an initial determination that
information requires, in the interest of national security, protection
against unauthorized disclosure.
Original classification authority means an individual authorized in
writing, either by the President or by agency heads or other officials
designated by the President, to classify information in the first
instance.
Sec. 8.7 Spheres of responsibility.
(a) Pursuant to Section 5.6(c) of Executive Order 12958, and to
section 6.1 of Executive Order 12968, the Assistant Secretary for
Administration is hereby designated as the senior agency official of the
Department of Transportation with assigned responsibilities to assure
effective compliance with and implementation of Executive Order 12958,
Executive Order 12968, Office of Management and Budget Directives, the
regulations in this part, and related issuances.
(b) In the discharge of these responsibilities, the Assistant
Secretary for Administration will be assisted by the Director of
Security and Administrative Management, who, in addition to other
actions directed by this part, will evaluate the overall application of
and
[[Page 75]]
adherence to the security policies and requirements prescribed in this
part and who will report his/her findings and recommendations to the
Assistant Secretary for Administration, heads of Departmental elements,
and, as appropriate, to the Secretary.
(c) Secretarial Officers and heads of Departmental elements will
assure that the provisions in this part are effectively administered,
that adequate personnel and funding are provided for this purpose, and
that corrective actions that may be warranted are taken promptly.
Subpart B_Classification/Declassification of Information
Sec. 8.9 Information Security Review Committee.
(a) There is hereby established a Department of Transportation
Information Security Review Committee, which will have authority to:
(1) Act on all suggestions and complaints not otherwise resolved
with respect to the Department's administration of Executive Order 12958
and implementing directives, including those regarding
overclassification, failure to declassify, or delay in declassifying;
(2) Act on appeals of requests for classification reviews, and
appeals of requests for records under 5 U.S.C. 552 (Freedom of
Information Act) when the initial, and proposed final, denials are based
on continued classification of the record; and
(3) Recommend to the Secretary, when necessary, appropriate
administrative action to correct abuse or violation of any provision of
Executive Order 12598 and implementing directives.
(b) The Information Security Review Committee will be composed of
the Assistant Secretary for Administration, who will serve as Chair; the
General Counsel; and the Director of Security and Administrative
Management. When matters affecting a particular Departmental agency are
at issue, the Associate Administrator for Administration for that
agency, or the Chief of Staff for the U.S. Coast Guard, as the case may
be, will participate as an ad hoc member, together with the Chief
Counsel of that agency. Any regular member may designate a
representative with full power to serve in his/her place.
(c) In carrying out its responsibilities to review decisions to
revoke or not to issue clearances, or to deny access to classified
information, the Committee will establish whatever procedures it deems
fit.
Sec. 8.11 Authority to classify information.
(a) Executive Order 12958 confers upon the Secretary of
Transportation the authority to originally classify information as
SECRET or CONFIDENTIAL with further authorization to delegate this
authority.
(b) The following delegations of authority originally to classify
information as ``Secret'' or ``Confidential'', which may not be
redelegated, are hereby made:
(1) Office of the Secretary of Transportation. The Deputy Secretary;
Assistant Secretary for Administration; Director of Intelligence and
Security; Director of Security and Administrative Management.
(2) United States Coast Guard. Commandant; Chief, Office of Law
Enforcement and Defense Operations.
(3) Federal Aviation Administration. Administrator; Assistant
Administrator for Civil Aviation Security.
(4) Maritime Administration. Administrator.
(c) Although the delegations of authority set out in paragraph (b)
of this section are expressed in terms of positions, the authority is
personal and is invested only in the individual occupying the position.
The authority may not be exercised ``by direction of'' a designated
official. The formal appointment or assignment of an individual to one
of the identified positions or a designation in writing to act in the
absence of one of these officials, however, conveys the authority
originally to classify information as ``SECRET''.
(d) Previous delegations and redelegations of authority within the
Department of Transportation originally to classify information are
hereby rescinded.
[[Page 76]]
Sec. 8.13 Authority to downgrade or declassify.
Information originally classified by the Department may be
specifically downgraded or declassified by either the official
authorizing the original classification, if that official is still
serving in the same position, the originator's current successor in
function, a supervisory official of either, officials delegated
declassification authority in writing by the Secretary, or by the
Departmental Information Security Review Committee.
Sec. 8.15 Mandatory review for classification.
(a) All information classified by the Department of Transportation
under Executive Order 12958 or predecessor orders shall be subject to a
review for declassification if:
(1) The request for review describes the information with sufficient
specificity to enable its location with a reasonable amount of effort;
and
(2) The information has not been reviewed for declassification
within the prior two years. If the information has been reviewed within
the prior two years, or the information is the subject of pending
litigation, the requestor will be informed of this fact, and of the
Department's decision not to declassify the information and of his/her
right to appeal the Department's decision not to declassify the
information to the Interagency Security Classification Appeals Panel.
(b) All information reviewed for declassification because of a
mandatory review will be declassified if it does not meet the standards
for classification in Executive Order 12958. The information will then
be released unless withholding is otherwise authorized and warranted
under applicable law.
Sec. 8.17 Classification challenges.
(a) Authorized holders of information classified by the Department
of Transportation who, in good faith, believe that its classification
status is improper are encouraged and expected to challenge the
classification status of the information before the Departmental
Information Security Review Committee.
(1) No individual will be subject to retribution for bringing such a
challenge; and
(2) Each individual whose challenge is denied will be advised that
he/she may appeal to the Interagency Security Classification Appeals
Panel established by section 5.4 of Executive Order 12958.
(b) This classification challenge provision is not intended to
prevent an authorized holder of information classified by the Department
of Transportation from informally questioning the classification status
of particular information. Such information inquiries should be
encouraged as means to resolve classification concerns and reduce the
administrative burden of formal challenges.
Sec. 8.19 Procedures for submitting and processing requests for
classification reviews.
(a) The Director of Security and Administrative Management is hereby
designated as the official to whom a member of the public or another
department or agency should submit a request for a classification review
of classified information produced by or under the primary cognizance of
the Department. Elements of the Department that receive a request
directly will immediately notify the Director.
(b) If the request for classification review involves material
produced by or under the cognizance of the U.S. Coast Guard or the
Federal Aviation Administration, the Director will forward the request
to the headquarters security staff of the element concerned for action.
If the request involves material produced by other Departmental
elements, the Director will serve as the office acting on the request.
(c) The office acting on the request will:
(1) Immediately acknowledge receipt of the request and provide a
copy of the correspondence to the Director. If a fee for search of
records is involved pursuant to 49 CFR Part 7, the requester will be so
notified;
(2) Conduct a security review, which will include consultation with
the office that produced the material and with source authorities when
the classification, or exemption of material
[[Page 77]]
from automatic declassification, was based upon determinations by an
original classifying authority; and
(3) Assure that the requester is notified of the determination
within 30 calendar days or given an explanation as to why further time
is necessary, and provide a copy of the notification to the Director.
(d) If the determination reached is that continued classification is
required, the notification to the requester will include, whenever
possible, a brief statement as to why the requested material cannot be
declassified. The notification will also advise the requester of the
right to appeal the determination to the Departmental Information
Security Review Committee. A requester who wishes to appeal a
classification review decision, or who has not been notified of a
decision after 60 calendar days, may submit an appeal to the
Departmental Information Security Review Committee.
(e) If the determination reached is that continued classification is
not required, the information will be declassified and the material
remarked accordingly. The office acting on the request will then refer
the request to the office originating the material or higher authority
to determine if it is otherwise withholdable from public release under
the Freedom of Information Act (5 U.S.C. 552) and the Department's
implementing regulations (49 CFR Part 7).
(1) If the material is available under the Freedom of Information
Act, the requester will be advised that the material has been
declassified and is available. If the request involves the furnishing of
copies and a fee is to be collected, the requester will be so advised
pursuant to 49 CFR Part 7, Departmental regulations implementing the
Freedom of Information Act.
(2) If the material is not available under the Freedom of
Information Act, the requester will be advised that the material has
been declassified but that the record is unavailable pursuant to the
Freedom of Information Act, and that the provisions concerning
procedures for reconsidering decisions not to disclose records,
contained in 49 CFR Part 7, apply.
(f) Upon receipt of an appeal from a classification review
determination based upon continued classification, the Departmental
Information Security Review Committee will acknowledge receipt
immediately and act on the matter within 30 calendar days. With respect
to information originally classified by or under the primary cognizance
of the Department, the Committee, acting for the Secretary, has
authority to overrule previous determinations in whole or in part when,
in its judgment, continued protection in the interest of national
security is no longer required. When the classification of the material
produced in the Department is based upon a classification determination
made by another department or agency, the Committee will immediately
consult with its counterpart committee for that department or agency.
(1) If it is determined that the material produced in the Department
requires continued classification, the requester will be so notified and
advised of the right to appeal the decision to the Interagency
Classification Review Committee.
(2) If it is determined that the material no longer requires
classification, it will be declassified and remarked. The Committee will
refer the request to the General Counsel, or to the head of the
Departmental agency concerned, as the case may be, to determine if the
material is otherwise withholdable from the public under the Freedom of
Information Act (5 U.S.C. 552) and Departmental regulations, (49 CFR
Part 7), and paragraphs (f)(1) and (2) of this section will be followed.
A copy of the response to the requester will be provided to the
Committee.
(g) Requests for a classification review of material more than 25
years old will be referred directly to the Archivist of the United
States and the requester will be notified of the referral. In this
event, the provisions of this section apply.
(h) Whenever a request is insufficient in the description of the
record sought, the requester will be asked to limit his request to
records that are reasonably obtainable. If, in spite of these steps, the
requester does not describe the records with sufficient particularity,
or
[[Page 78]]
the record requested cannot be obtained with a reasonable amount of
effort, the requester will be notified of the reasons why the request is
denied and of his/her right to appeal the determination to the
Departmental Information Security Review Committee.
Sec. 8.21 Burden of proof.
For the purpose of determinations to be made under Sec. Sec. 8.13,
8.15, and 8.17, the burden of proof is on the originating Departmental
agency to show that continued classification is warranted.
Sec. 8.23 Classified information transferred to the Department of
Transportation.
(a) Classified information officially transferred to the Department
in conjunction with a transfer of function, and not merely for storage
purposes, will be considered to have been originated by the Department.
(b) Classified information in the custody of the Department
originated by a department or agency that has ceased to exist and for
whom there is no successor agency will be deemed to have been originated
by the Department. This information may be declassified or downgraded by
the Department after consultation with any other agency that has an
interest in the subject matter of the information. Such agency will be
allowed 30 calendar days in which to express an objection, if it so
desires, before action is taken. A difference of opinion that cannot be
resolved will be referred to the Departmental Information Security
Review Committee, which will consult with its counterpart committee for
the other agency.
(c) Classified information transferred to the National Archives and
Records Administration (NARA) will be declassified or downgraded by the
Archivist of the United States in accordance with Executive Order 12958,
Departmental classification guides, and any existing procedural
agreement between NARA and the Department. The Department will take all
reasonable steps to declassify information contained in records
determined to have permanent historical value before they are
accessioned in NARA.
(d) To the extent practicable, the Department will adopt a system of
records management that will facilitate the public release of documents
at the time such documents are declassified under the provisions of this
part for automatic declassification. To the maximum extent possible
without destroying the integrity of the Department's files, all such
material will be segregated or set aside for public release upon
request. The Department will cooperate with the Archivist in efforts to
establish a Government-wide database of information that has been
declassified.
Subpart C_Access to Information
Sec. 8.25 Personnel Security Review Board.
(a) There is hereby established a Department of Transportation
Personnel Security Review Board, which will, on behalf of the Secretary
of Transportation (except in any case in which the Secretary personally
makes the decision), make the administratively final decision on an
appeal arising in any part of the Department from:
(1) A decision not to grant access to classified information;
(2) A decision to revoke access to classified information; or
(3) A decision under Sec. 8.29 to deny access to classified
information.
(b) The Personnel Security Review Board will be composed of:
(1) Two persons appointed by the Assistant Secretary for
Administration: one from the Office of Personnel and Training, and one,
familiar with personnel security adjudication, from the Office of
Security and Administrative Management, who will serve as Chair;
(2) One person appointed by the General Counsel, who, in addition to
serving as a member of the Board, will provide to the Board whatever
legal services it may require; and
(3) One person appointed by each of the Commandant of the Coast
Guard and the Federal Aviation Administrator.
(4) Any member may designate a representative, meeting the same
criteria as the member, with full power to serve in his/her place.
[[Page 79]]
(c) In carrying out its responsibilities to review final decisions
to revoke or deny access to classified information, the Board will
establish whatever procedures it deems fit.
Sec. 8.27 Public availability of declassified information.
(a) It is a fundamental policy of the Department to make information
available to the public to the maximum extent permitted by law.
Information that is declassified for any reason loses its status as
material protected in the interest of national security. Accordingly,
declassified information will be handled in every respect on the same
basis as all other unclassified information. Declassified information is
subject to the Departmental public information policies and procedures,
with particular reference to the Freedom of Information Act (5 U.S.C.
552) and implementing Departmental regulations (49 CFR Part 7).
(b) In furtherance of this policy, all classified material produced
after June 1, 1972 that is of sufficient historical or other value to
warrant preservation as permanent records in accordance with appropriate
records administrative standards, and that becomes declassified, will be
systematically reviewed prior to the end of each calendar year for the
purpose of making the material publicly available. To the maximum extent
possible without destroying the integrity of the Department's files, all
such material will be segregated or set aside for public release upon
request.
Sec. 8.29 Access by historical researchers and former Presidential
appointees.
(a) Historical researchers. (1) Persons outside the executive branch
who are engaged in historical research projects may have access to
classified information provided that:
(i) Access to the information is clearly consistent with the
interests of national security; and
(ii) The person to be granted access is trustworthy.
(2) The provisions of this paragraph apply only to persons who are
conducting historical research as private individuals or under private
sponsorship and do not apply to research conducted under Government
contract or sponsorship. The provisions are applicable only to
situations where the classified information concerned, or any part of
it, was originated by the Department or its contractors, or where the
information, if originated elsewhere, is in the sole custody of the
Department. Any person requesting access to material originated in
another agency or to information under the exclusive jurisdiction of the
National Archives and Records Administration (NARA) will be referred to
the other agency or to NARA, as appropriate.
(3) When a request for access to classified information for
historical research is received, it will be referred to the appropriate
local security office. That office will obtain from the applicant
completed Standard Form 86, Questionnaire for National Security
Positions, in triplicate, and Standard Form 87, Fingerprint Chart; a
statement in detail to justify access, including identification of the
kind of information desired and the organization or organizations, if
any, sponsoring the research; and a written statement (signed, dated,
and witnessed) with respect to the following:
(i) That the applicant will abide by regulations of the Department:
(A) To safeguard classified information; and
(B) To protect information that has been determined to be
proprietary or privileged and is therefore not eligible for public
dissemination.
(ii) That the applicant understands that any classified information
that the applicant receives affects the security of the United States.
(iii) That the applicant acknowledges an obligation to safeguard
classified information or privileged information of which the applicant
gains possession or knowledge as a result of the applicant's access to
files of the Department.
(iv) That the applicant agrees not to reveal to any person or agency
any classified information or privileged information obtained as a
result of the applicant's access except as specifically authorized in
writing by the Department, and further agrees that the applicant shall
not use the information for purposes other than those set forth in the
applicant's application.
[[Page 80]]
(v) That the applicant agrees to authorize a review of the
applicant's notes and manuscript for the sole purpose of determining
that no classified information or material is contained therein.
(vi) That the applicant understands that failure to abide by
conditions of this statement will constitute sufficient cause for
canceling the applicant's access to classified information and for
denying the applicant any future access, and may subject the applicant
to criminal provisions of Federal law as referred to in this statement.
(vii) That the applicant is aware and fully understands that title
18, United States Code, Crimes and Criminal Procedures, and the Internal
Security Act of 1950, as amended, title 50, United States Code,
prescribe, under certain circumstances, criminal penalties for the
unauthorized disclosure of information respecting the national security,
and for loss, destruction, or compromise of such information.
(viii) That this statement is made to the U.S. Government to enable
it to exercise its responsibilities for the protection of information
affecting the national security.
(ix) That the applicant understands that any material false
statement that the applicant makes knowingly and willfully will subject
the applicant to the penalties of 18 U.S.C. 1001.
(4) The security office will process the forms in the same manner as
specified for a preappointment national agency check for a critical-
sensitive position. Upon receipt of the completed national agency check,
the security office, if warranted, may determine that access by the
applicant to the information will be clearly consistent with the
interests of national security and the person to be granted access is
trustworthy. If deemed necessary, before making its determination, the
office may conduct or request further investigation. Before access is
denied in any case, the matter will be referred through channels to the
Director of Security and Administrative Management for review and
submission to the Personnel Security Review Board for final review.
(5) If access to TOP SECRET or intelligence or communications
security information is involved a special background investigation is
required. However, this investigation will not be requested until the
matter has been referred through channels to the Director of Security
and Administrative Management for determination as to adequacy of the
justification and the consent of other agencies as required.
(6) When it is indicated that an applicant's research may extend to
material originating in the records of another agency, approval must be
obtained from the other agency prior to the grant of access.
(7) Approvals for access will be valid for the duration of the
current research project but no longer than 2 years from the date of
issuance, unless renewed. If a subsequent request for similar access is
made by the individual within one year from the date of completion of
the current project, access may again be granted without obtaining a new
National Agency Check. If more than one year has elapsed, a new National
Agency Check must be obtained. The local security office will promptly
advise its headquarters security staff of all approvals of access
granted under the provisions of this section.
(8) An applicant may be given access only to that classified
information that is directly pertinent to the applicant's approved
project. The applicant may review files or records containing classified
information only in offices under the control of the Department.
Procedures must be established to identify classified material to which
the applicant is given access. The applicant must be briefed on local
procedures established to prevent unauthorized access to the classified
material while in the applicant's custody, for the return of the
material for secure storage at the end of the daily working period, and
for the control of the applicant's notes until they have been reviewed.
In addition to the security review of the applicant's manuscript, the
manuscript must be reviewed by appropriate offices to assure that it is
technically accurate insofar as material obtained from the Department is
concerned, and is consistent with the Department's public release
policies.
[[Page 81]]
(b) Former Presidential appointees. Persons who previously occupied
policymaking positions to which they were appointed by the President may
be granted access to classified information or material that they
originated, reviewed, signed, or received, while in public office,
provided that:
(1) It is determined that such access is clearly consistent with the
interests of national security; and
(2) The person agrees to safeguard the information, to authorize a
review of the person's notes to assure that classified information is
not contained therein, and that the classified information will not be
further disseminated or published.
Sec. 8.31 Industrial security.
(a) Background. The National Industrial Security Program was
established by Executive Order 12829 of January 6, 1993 for the
protection of information classified pursuant to Executive Order 12356
of April 2, 1982, National Security Information, or its predecessor or
successor orders, and the Atomic Energy Act of 1954, as amended. The
Secretary of Defense serves as the Executive Agent for inspecting and
monitoring contractors, licensees, grantees, and certificate holders
that require or will require access to, or that store or will store,
classified information, and for determining the eligibility for access
to classified information of contractors, licensees, certificate
holders, and grantees, and their respective employees.
(b) Implementing regulations. The Secretary of Transportation has
entered into agreement for the Secretary of Defense to render industrial
security services for the Department of Transportation. Regulations
prescribed by the Secretary of Defense to fulfill the provisions of
Executive Order 12829 have been extended to protect release of
classified information for which the Secretary of Transportation is
responsible. Specifically, this regulation is DOD 5220.22-M, National
Industrial Security Program Operating Manual. This regulation is
effective within the Department of Transportation, which functions as a
User Agency as prescribed in the regulation. Appropriate security
staffs, project personnel, and contracting officers assure that actions
required by the regulation are taken.
PART 9_TESTIMONY OF EMPLOYEES OF THE DEPARTMENT AND PRODUCTION OF RECORDS
IN LEGAL PROCEEDINGS--Table of Contents
Sec.
9.1 Purpose.
9.2 Applicability.
9.3 Definitions.
9.5 General prohibition of production or disclosure in legal
proceedings.
9.7 Testimony by employees before the Department or in other legal
proceedings in which the United States is a party.
9.9 Legal proceedings between private litigants: General rules.
9.11 Legal proceedings between private litigants: Demands.
9.13 Legal proceedings between private litigants: Procedures to request
records.
9.15 Legal proceedings between private litigants: Procedures to request
testimony.
9.17 Legal proceedings between private litigants: Procedures for taking
testimony.
9.19 Acceptance of service on behalf of Secretary.
Authority: 5 U.S.C. 301; 45 U.S.C. 41-42; 49 U.S.C. 322; 49 U.S.C.
504(f); 23 U.S.C. 409.
Source: 58 FR 6724, Feb. 2, 1993, unless otherwise noted.
Sec. 9.1 Purpose.
(a) This part sets forth procedures governing the testimony of an
employee in legal proceedings in which the United States is a party. It
also sets forth procedures to be followed when an employee is issued a
subpoena, order or other demand (collectively referred to in this part
as a ``demand'') by a court or other competent authority, or is
requested by a private litigant, to provide testimony or produce records
concerning information acquired in the course of performing official
duties or because of the employee's official status. It also prescribes
the policies and procedures of the Department with respect to the
acceptance of service of legal process and pleadings in legal
proceedings involving the Department.
(b) The purposes of this part are to:
(1) Conserve the time of employees for conducting official business;
[[Page 82]]
(2) Minimize the possibility of involving the Department in
controversial issues not related to its mission;
(3) Maintain the impartiality of the Department among private
litigants;
(4) Avoid spending the time and money of the United States for
private purposes; and
(5) To protect confidential, sensitive information and the
deliberative processes of the Department.
(c) Agency counsel, in his or her discretion, may permit an
exception from any requirement in this part. The exception may be
granted only when the deviation will not interfere with matters of
operational or military necessity, and when agency counsel determines
that:
(1) It is necessary to prevent a miscarriage of justice;
(2) The Department has an interest in the decision that may be
rendered in the legal proceeding; or
(3) The exception is in the best interest of the Department or the
United States.
For Office of Inspector General employees and documents, the Inspector
General, in conjunction with the General Counsel of the Department, may
permit an exception from any requirement of this part if the Inspector
General determines, based on the Inspector General Act of 1978, as
amended, that application of the requirement would be inappropriate.
Sec. 9.2 Applicability.
This part applies to the testimony of an employee in legal
proceedings in which the United States is a party. It also applies in
legal proceedings between private litigants to requests or demands for
testimony or records concerning information acquired in the course of an
employee performing official duties or because of the employee's
official status. This part does not apply to any legal proceeding in
which an employee is to testify as to facts or events that are in no way
related to the employee's official duties or the functions of the
Department. Nor does it apply to Congressional demands for testimony or
documents.
Sec. 9.3 Definitions.
For purposes of this part:
Department means the Department of Transportation (DOT), including
the Office of the Secretary (which encompasses the Office of the
Inspector General) and the following operating administrations while
they are part of DOT:
(a) The U.S. Coast Guard.
(b) The Federal Aviation Administration.
(c) The Federal Highway Administration.
(d) The Federal Railroad Administration.
(e) The Federal Transit Administration.
(f) The St. Lawrence Seaway Development Corporation.
(g) The National Highway Traffic Safety Administration.
(h) The Maritime Administration.
(i) The Research and Special Programs Administration.
(j) Any DOT operating administration established after the effective
date of this part.
Legal proceeding means any case or controversy pending before any
federal, state, or local court (including grand jury proceedings), any
administrative proceeding pending before any federal, state, or local
agency, or any legislative proceeding pending before any state or local
agency.
Legal proceeding between private litigants means any legal
proceeding in which neither the Department of Transportation nor the
United States (including any federal agency or officer of the United
States in his or her official capacity) is a party.
Employee of the Department or Employee means any current or former
officer or employee of the Department; any active duty, retired, or
former officer or enlisted member of the Coast Guard; or any current or
former contractor (including any corporation or other entity and any
employee or subcontractor).
Agency counsel means the General Counsel of the Department or the
Chief Counsel of any operating administration of the Department
concerned, any person to whom the General Counsel or Chief Counsel has
delegated authority, or any person who is authorized to represent the
Department in a specific legal proceeding.
[[Page 83]]
Testimony means any written or oral statement by a witness,
including depositions, answers to interrogatories, affidavits,
declarations, and statements at a hearing or trial.
Sec. 9.5 General prohibition of production or disclosure in legal
proceedings.
No employee of the Department may provide testimony or produce any
material contained in the files of the Department, or disclose any
information relating to, or based upon, material contained in the files
of the Department, or disclose any information or produce any material
acquired as part of the performance of that employee's official duties
or because of that employee's official status unless authorized in
accordance with this part, or by other applicable law.
Sec. 9.7 Testimony by employees before the Department or in other legal
proceedings in which the United States is a party.
In any legal proceeding before the Department or in which the United
States (including any federal agency or officer of the United States) is
a party:
(a) Agency counsel shall arrange for an employee to testify as a
witness for the United States whenever the attorney representing the
United States requests it.
(b) An employee may testify for the United States both as to facts
within the employee's personal knowledge and as an expert or opinion
witness. Except as provided in paragraph (c) of this section, an
employee may not testify as an expert or opinion witness, with regard to
any matter arising out of the employee's official duties or the
functions of the Department, for any party other than the United States
in any legal proceeding in which the United States is a party. An
employee who receives a demand to testify on behalf of a party other
than the United States may testify as to facts within the employee's
personal knowledge, provided that the testimony be subject to the prior
approval of agency counsel and to the Federal Rules of Civil Procedure
and any applicable claims of privilege.
(c) An employee may testify as an expert or opinion witness on
behalf of an officer or enlisted member of the Coast Guard in any legal
proceeding conducted by the Coast Guard.
Sec. 9.9 Legal proceedings between private litigants: General rules.
In legal proceedings between private litigants:
(a) The proper method for obtaining testimony or records from an
employee is to submit a request to agency counsel as provided in
Sec. Sec. 9.13 and 9.15 of this part, not to serve a demand on the
employee. Whenever, in a legal proceeding between private litigants, an
employee is served with a demand, or receives a request, to testify in
that employee's official capacity or produce records, the employee shall
immediately notify agency counsel.
(b) If authorized to testify pursuant to these rules, an employee
may testify only as to facts within that employee's personal knowledge
with regard to matters arising out of his or her official duties.
(1) When the proceeding arises from an accident, an employee may
testify only as to personally known facts, not reasonably available from
other sources, observed by the employee or uncovered during the
employee's investigation of the accident or observed by the employee
even if he or she did not investigate the accident. The employee shall
decline to testify regarding facts beyond the scope of his or her
official duties.
(2) The employee shall not testify to facts that are contained in a
report, or any part of a report, unless the employee has obtained
permission from agency counsel to disclose the information.
(3) The employee shall not disclose confidential or privileged
information unless the employee has obtained permission from agency
counsel to disclose the information.
(4) The employee shall not testify as to facts when agency counsel
determines that the testimony would not be in the best interest of the
Department or the United States if disclosed.
(c) An employee shall not testify as an expert or opinion witness
with regard to any matter arising out of the employee's official duties
or the functions of the Department. An employee
[[Page 84]]
who is asked questions that call for expert or opinion testimony shall
decline to answer on the grounds that it is forbidden by this part.
Agency counsel shall advise the employee on how to proceed if the
presiding officer directs the employee to provide expert or opinion
testimony.
(d) An employee shall not provide testimony at a trial or hearing.
An employee's testimony shall be limited to a single deposition,
affidavit, or set of interrogatories, concerning the circumstances (e.g.
an accident) from which the proceeding arose. Where multiple legal
proceedings concerning those circumstances are pending, or can occur, it
shall be the duty of the private litigant seeking the testimony to
ascertain, to the extent feasible, the identities of all parties, or
potential parties, to those proceedings and notify them that a
deposition has been granted and that they have the opportunity to
participate. The private litigant shall submit an affidavit or
certification describing the extent of the search for parties and
potential parties and listing the names of the parties and potential
parties notified.
(e) Where an employee has already provided testimony, any party
wishing to obtain further testimony from that employee concerning the
same matter or occurrence, whether in the same or a different private
legal proceeding, may submit a request to agency counsel to waive the
restrictions of paragraph (d) of this section. The request shall, in
addition to meeting the requirements of Sec. 9.15 of this part, state
why the requester should be permitted to gather additional information
despite not having previously requested the information when it had an
opportunity to do so, and why the additional testimony is now required
and the prior testimony or previously supplied documents are
insufficient.
Sec. 9.11 Legal proceedings between private litigants: Demands.
(a) If an employee receives a demand that has not been validly
issued or served, agency counsel may instruct the employee not to comply
with the demand.
(b) If an employee receives a demand (validly issued and served) to
testify or produce records, agency counsel, in his or her discretion,
may grant the employee permission to testify or produce records only if
the purposes of this part are met or agency counsel determines that an
exception is appropriate.
(c) If a demand is issued to an employee, agency counsel shall
contact the requester of the demand, inform that person of the
requirements of this part, and may, in agency counsel's discretion, ask
that the demand be withdrawn.
(d) If the requester of the demand refuses to have it withdrawn or
fails to comply with this part, the Department may seek to quash the
demand.
(e) If the court or other competent authority declines to grant the
Department's motion to quash, agency counsel shall instruct the employee
whether to testify or produce documents pursuant to the demand. Agency
counsel may permit the testimony under Sec. 9.1(c) of this part. If
response to a demand is required before the court or other competent
authority rules on the motion to quash and the court fails to stay the
demand, the employee must appear at the stated time and place, produce a
copy of this part, and respectfully refuse to provide any testimony or
produce any documents. Agency counsel shall take steps to arrange for
legal representation for the employee. Agency counsel shall advise the
employee how to respond, including not to testify, if the court or other
competent authority rules that the demand must be complied with
irrespective of these regulations.
Sec. 9.13 Legal proceedings between private litigants: Procedures to
request records.
(a) In a legal proceeding between private litigants, a party who
wishes to obtain records from the Department shall submit to agency
counsel a request for the records. The request will ordinarily be
handled in accordance with the Department's procedures concerning
requests for records found at 49 CFR part 7. If the party does not
follow the procedures specified in that part, the request must be
accompanied by a statement setting forth the relevance of the records to
the proceeding. The request should be resolved before any
[[Page 85]]
request for testimony under Sec. 9.15 is submitted. Where a request for
testimony includes a request for additional records, it shall indicate
precisely how this new request differs in scope from any previous
request in order to avoid agency duplication of effort. Agency counsel
shall notify the requester of the approval or denial of the request.
(b) [Reserved]
Sec. 9.15 Legal proceedings between private litigants: Procedures to
request testimony.
(a) Any party seeking the testimony of an employee in a legal
proceeding between private litigants, concerning facts within the
employee's personal knowledge with regard to matters arising out of the
employee's official duties, shall, rather than serving a demand for the
testimony, request the testimony at least 30 days before it is intended
to be taken or received. The request must be submitted to agency counsel
and must include:
(1) The title of the case, docket number, and the court, or
otherwise clearly identify the legal proceeding involved;
(2) A statement setting forth the basic facts in the proceeding,
such as the type, date, and location of an accident;
(3) A summary of the unresolved issues applicable to the testimony
sought;
(4) A summary of the testimony sought and its relevant to the
proceeding;
(5) A certification with support, that the information desired is
not reasonably available from other sources, including Departmental
documents;
(6) Pursuant to Sec. 9.9(d) of this part, an affidavit or
certification describing the extent of a search of parties and potential
parties and listing the names of the parties and potential parties
notified; and
(7) A declaration that the party will not seek expert or opinion
testimony from the witness or seek the testimony of the witness at a
hearing or trial in the proceeding.
The request shall specify which form of testimony (deposition,
affidavit, declaration, or answers to interrogatories) is desired and
the date by which it is desired; however, only one form, the one least
burdensome to the Department that will provide the needed information,
will be permitted for each witness.
(b) The party seeking the testimony shall include with its request
for testimony a copy of any prior request(s) made by the same requester
to the Department or other agency of the United States for records
pertaining to the matter being litigated and of the response (not
including the records themselves) to the request(s). The party seeking
the testimony shall also comply with any agency counsel request that
copies of the records previously disclosed by the Department, or a list
of those records, be furnished.
(c) In accordance with the requirement of this section and the
general provisions of this part, agency counsel shall notify the
requester of the approval or denial of the request. Agency counsel may
attach special conditions to its approval.
Sec. 9.17 Legal proceedings between private litigants: Procedures for
taking testimony.
(a) Testimony of an employee of the Department may be taken only at
the office to which the employee is assigned, or any other place
designated by agency counsel. Additional conditions may be specified
under Sec. 9.15(c) of this part. The time shall be reasonably fixed to
avoid substantial interference with the performance of the employee's or
agency counsel's official duties.
(b) Upon completion of the testimony of an employee of the
Department, a copy of the transcript of the testimony shall be
furnished, at the expense of the party requesting the testimony, to
agency counsel for the Department's files.
Sec. 9.19 Acceptance of service on behalf of Secretary.
In any legal proceeding, at the option of the server, process or
pleadings may be served on agency counsel, with the same effect as if
served upon the Secretary or the head of the operating administration
concerned, as the case may be. The official accepting service under this
section shall acknowledge the service and take appropriate action. This
section does not in any way
[[Page 86]]
abrogate or modify the requirements of Rule 4(d)(4) and 4(d)(5) of the
Federal Rules of Civil Procedure regarding service of summons and
complaint.
PART 10_MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO INDIVIDUALS--Table
of Contents
Subpart A_Applicability and Policy
Sec.
10.1 Applicability.
10.3 Policy.
10.5 Definitions.
Subpart B_General
10.11 Administration of part.
10.13 Privacy Act Officer.
10.15 Protection of records.
Subpart C_Maintenance of Records
10.21 General.
10.23 Accounting of disclosures.
10.25 Mailing lists.
10.27 Government contractors.
10.29 Social Security numbers.
Subpart D_Availability of Records
10.31 Requests for records.
10.33 Acknowledgment and access.
10.35 Conditions of disclosure.
10.37 Identification of individual making request.
10.39 Location of records.
Subpart E_Correction of Records
10.41 Requests for correction of records.
10.43 Time limits.
10.45 Statement of disagreement.
Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to
or Amend Records
10.51 General.
Subpart G_Exemptions
10.61 General exemptions.
10.63 Specific exemptions.
Subpart H_Fees
10.71 General.
10.73 Payment of fees.
10.75 Fee schedule.
10.77 Services performed without charge.
Subpart I_Criminal Penalties
10.81 Improper disclosure.
10.83 Improper maintenance of records.
10.85 Wrongfully obtaining records.
Appendix to Part 10--Exemptions
Authority: 5 U.S.C. 552a; 49 U.S.C. 322.
Source: 45 FR 8993, Feb. 11, 1980, unless otherwise noted.
Subpart A_Applicability and Policy
Sec. 10.1 Applicability.
This part implements section 552a of title 5, United States Code, as
well as other provisions of the Privacy Act of 1974, and prescribes
rules governing the availability of those records of the Department of
Transportation which relate to citizens of the United States and aliens
lawfully admitted for permanent residence.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23666, May 1, 1997]
Sec. 10.3 Policy.
It is the policy of the Department of Transportation to comply with
the letter and the spirit of the Privacy Act (the Act). Therefore,
personal data contained in each system of records is afforded adequate
protection against unauthorized access, is as accurate as is feasible,
and is limited to that necessary to accomplish the stated use or uses of
the system. Further, no system of records is exempted from the
requirements of the Act unless it is determined that to do so is in the
best interest of the government with due concern for individual rights.
Sec. 10.5 Definitions.
Unless the context requires otherwise, the following definitions
apply in this part:
Administrator means the head of an operating administration and
includes the Under Secretary for Security and the Commandant of the
Coast Guard.
Department means the Department of Transportation, including the
Office of the Secretary, the Office of Inspector General, and the
following operating administrations: This definition specifically
excludes the Surface Transportation Board, which has its own Privacy Act
regulations (49 CFR Part 1007), except to the extent that any system of
records notice provides otherwise.
[[Page 87]]
(a) The United States Coast Guard.
(b) The Federal Aviation Administration.
(c) The Federal Highway Administration.
(d) The Federal Railroad Administration.
(e) The National Highway Traffic Safety Administration.
(f) Federal Transit Administration.
(g) The St. Lawrence Seaway Development Corporation.
(h) The Research and Special Programs Administration.
(i) Bureau of Transportation Statistics.
(j) Maritime Administration.
(k) Transportation Security Administration.
General Counsel means the General Counsel of the Department.
Includes means ``includes but is not limited to;''
Individual means a citizen of the United States or an alien lawfully
admitted;
Maintain includes maintain, collect, use, or disseminate;
May is used in a permissive sense to state authority or permission
to do the act prescribed;
Record means any item, collection, or grouping of information about
an individual that is maintained by the Department including, but not
limited to, education, financial transactions, medical history, and
criminal or employment history and that contains the name of, or an
identifying number, symbol, or other identifying particular assigned to,
the individual, such as a finger or voice print or a photograph;
Secretary means the Secretary of Transportation or any person to
whom has been delegated authority in the matter concerned;
System of records means a group of any records under the control of
the Department from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual;
Statistical record means a record in a system of records maintained
for statistical research or reporting purposes only and not in whole or
in part in making any determination about an identifiable individual,
except as provided by section 8 of title 13, United States Code; and
Routine use means, with respect to the disclosure of a record, the
use of such record for a purpose which is compatible with the purpose
for which it was collected.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 65
FR 48184, Aug. 7, 2000; 67 FR 54746, Aug. 26, 2002]
Subpart B_General
Sec. 10.11 Administration of part.
Authority to administer this part in connection with the records of
the Office of the Secretary is delegated to the Assistant Secretary for
Administration. Authority to administer this part in connection with
records in each operating administration is delegated to the
Administrator concerned. An Administrator may redelegate to officers of
that administration the authority to administer this part in connection
with defined systems of records. An Administrator, however, may
redelegate his or her duties under subparts F and G of this part only to
his or her deputy and to not more than one other officer who reports
directly to the Administrator and who is located at the headquarters of
that administration or at the same location as the majority of that
administration's systems of records.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
Sec. 10.13 Privacy Act Officer.
(a) To assist with implementation, evaluation, and administration
issues, the Chief Information Officer appoints a principal coordinating
official with the title Privacy Act Officer, and one Privacy Act
Coordinator from his/her staff.
(b) Inquiries concerning Privacy Act matters, or requests for
assistance, may be addressed to the Privacy Act Officer (S-80),
Department of Transportation, 400 Seventh Street, S.W., Washington, DC
20590.
(c) Administrators may designate Privacy Act Officers or
Coordinators to act as central coordinators within
[[Page 88]]
their administrations to assist them in administering the Act.
[45 FR 8993, Feb. 11, 1980, as amended by Amdt. 1-290, 62 FR 51804, Oct.
3, 1997]
Sec. 10.15 Protection of records.
(a) No person may, without permission, remove any record made
available for inspection or copying under this part from the place where
it is made available. In addition, no person may steal, alter, mutilate,
obliterate, or destroy, in whole or in part, such a record.
(b) Section 641 of title 18 of the United States Code provides, in
pertinent part, as follows:
Whoever * * * steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or disposes of
any record * * * or thing of value of the United States or of any
department or agency thereof * * * shall be fined not more than $10,000
or imprisoned not more than 10 years or both; but if the value of such
property does not exceed the sum of $100, he shall be fined not more
than $1,000 or imprisoned not more than one year or both * * *.
(c) Section 2071 of title 18 of the United States Code provides, in
pertinent part, as follows:
Whoever willfully and unlawfully conceals, removes, mutilates,
obliterates, or destroys, or attempts to do so, or with intent to do so
takes and carries away any record, proceeding, map, book, paper,
document, or other thing, filed or deposited * * * in any public office,
or with any * * * public officer of the United States, shall be fined
not more than $2,000 or imprisoned not more than 3 years, or both.
Subpart C_Maintenance of Records
Sec. 10.21 General.
Except to the extent that a system of records is exempt in
accordance with subpart G of this part, the Department, with respect to
each system of records:
(a) Maintains in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
Department required to be accomplished by statute or by executive order
of the President;
(b) Collects information to the greatest extent practicable directly
from the subject individual when the information may result in adverse
determinations about an individual's rights, benefits, or privileges
under Federal programs;
(c) Informs each individual whom it asks to supply information, on
the form which it uses to collect the information or on a separate form
that can be retained by the individual of:
(1) The authority (whether granted by statute, or by executive order
of the President) which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
(2) The principal purpose or purposes for which the information is
intended to be used;
(3) The routine uses, as published pursuant to paragraph (d)(4) of
this section, which may be made of the information; and
(4) The effects, if any, on the individual of not providing all or
any part of the requested information;
(d) Publishes in the Federal Register at least annually a notice of
the existence and character of the system of records, including:
(1) The name and location of the system;
(2) The categories of individuals on whom records are maintained in
the system;
(3) The categories of records maintained in the system;
(4) Each routine use of the records contained in the system,
including the categories of users and the purpose of such use;
(5) The policies and practices regarding storage, retrievability,
access controls, retention, and disposal of the records;
(6) The title and business address of the official responsible for
the system of records;
(7) The procedures whereby an individual can be notified upon
request if the system of records contains a record pertaining to that
individual;
(8) The procedures whereby an individual can be notified upon
request how to gain access to any record pertaining to that individual
contained in the system of records, and how to contest its content; and
(9) The categories of sources of records in the system;
[[Page 89]]
(e) Maintains all records which are used in making any determination
about any individual with such accuracy, relevancy, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination;
(f) Prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to Sec. 10.35(a)(2), makes reasonable efforts to assure that such
records are accurate, complete, timely, and relevant for the
Department's purposes;
(g) Maintains no record describing how any individual exercises
rights guaranteed by the First Amendment unless:
(1) Expressly authorized by the General Counsel; and
(2) Expressly authorized by statute or by the individual about whom
the record is maintained or unless pertinent to and within the scope of
an authorized law enforcement activity;
(h) Makes reasonable efforts to serve notice on an individual when
any record on such individual is made available to any person under
compulsory legal process when such process becomes a matter of public
record.
Sec. 10.23 Accounting of disclosures.
Each operating administration, the Office of Inspector General, and
the Office of the Secretary, with respect to each system of records
under its control:
(a) Except for disclosures made under Sec. 10.35(a) (1) or (2) of
this part, keep an accurate accounting of:
(1) The date, nature, and purpose of each disclosure of a record to
any person or to another agency made under Sec. 10.33; and
(2) The name and address of the person or agency to whom the
disclosure is made;
(b) Retains the accounting made under paragraph (a) of this section
for at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made;
(c) Except for disclosures made under Sec. 10.33(a)(7) of this
part, makes the accounting made under paragraph (a)(1) of this section
available to the individual named in the record at his request; and
(d) Informs any person or other agency about any correction or
notation of dispute made by the agency in accordance with Sec. 10.45 of
any record that has been disclosed to the person or agency if an
accounting of the disclosure was made.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
Sec. 10.25 Mailing lists.
An individual's name and address is not sold or rented unless such
action is specifically authorized by law. This provision shall not be
construed to require the withholding of names and addresses otherwise
permitted to be made public.
Sec. 10.27 Government contractors.
When the Department provides by a contract for the operation by or
on behalf of the Department of a system of records to accomplish a
function of the Department, the requirements of this part are applied to
such system. For purposes of subpart I, Criminal Penalties, any such
contractor and any employee of the contractor are considered, in
accordance with section 3(m) of the Privacy Act, to be employees of the
Department.
Sec. 10.29 Social Security numbers.
(a) No individual is denied any right, benefit, or privilege
provided by law because of such individual's refusal to disclose his
Social Security account number.
(b) The provisions of paragraph (a) of this section do not apply to:
(1) Any disclosure which is required by Federal statute; or
(2) The disclosure of a Social Security number when such disclosure
was required under statute or regulation adopted prior to January 1,
1975, to verify the identity of an individual.
(c) When an individual is requested to disclose his or her Social
Security account number, that individual is informed whether that
disclosure is mandatory or voluntary, by what statutory or other
authority such number is solicited, what uses are made of it, and what
detriments, including delay in
[[Page 90]]
the location of records, are incurred if the number is not provided.
Subpart D_Availability of Records
Sec. 10.31 Requests for records.
(a) Ordinarily, each person desiring to determine whether a record
pertaining to him/her is contained in a system of records covered by
this part or desiring access to a record covered by this part, or to
obtain a copy of such a record, shall make a request in writing
addressed to the system manager. The ``Privacy Act Issuances'' published
by the Office of the Federal Register, National Archives and Records
Administration, describes the systems of records maintained by all
Federal agencies, including the Department and its components. In
exceptional cases oral requests are accepted. A description of DOT
Privacy Act systems notices is available through the Internet free of
charge at http://www.access.gpo.gov/su--docs/aces/
PrivacyAct.shtml?desc015.html. See Sec. 10.13(b) regarding inquiries
concerning Privacy Act matters or requests for assistance.
(b) Each request shall specify the name of the requesting individual
and the system of records in which the subject record is located or
thought to be located. If assistance is required to determine the system
of records identification number assigned in the systems notices, such
assistance may be obtained from the appropriate Privacy Act officer or
his assistant. Refer to Sec. 10.13 for procedures for requesting
assistance.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
Sec. 10.33 Acknowledgment and access.
(a) Requests by an individual to determine whether he or she is the
subject of a record in a system of records, or requesting access to a
record in a system of records, should be acknowledged within 10 working
days, where the request is by mail. For requests in person, an immediate
response is given, either granting access or informing such individual
when notification or access may be expected.
(b) If the response granting access or copies of the record is made
within 10 working days, separate acknowledgment is not required.
(c) Although requests for access to a record are normally in
writing, e.g., by filing a written form or letter, it is the option of
the individual to mail or present the request form in person.
Sec. 10.35 Conditions of disclosure.
(a) No record that is contained within a system of records of the
Department is disclosed by any means of communication to any person, or
to another agency, except pursuant to a written request by, or with the
prior written consent of, the individual to whom the record pertains,
unless disclosure of the record would be:
(1) To those officers and employees of the Department who have a
need for the record in the performance of their duties;
(2) Required under part 7 of this title which implements the Freedom
of Information Act;
(3) For a routine use as defined in Sec. 10.5 and described
pursuant to Sec. 10.21(d)(4);
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
title 13, United States Code;
(5) To a recipient who has provided the Department with advance
adequate written assurance that the record will be used solely as a
statistical research or reporting record, and the record is to be
transferred in a form that is not individually identifiable;
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record
[[Page 91]]
specifying the particular portion desired and the law enforcement
activity for which the record is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(9) To either House of the Congress, or to the extent of matters
within its jurisdiction, any committee or subcommittee thereof, any
joint committee of the Congress or subcommittee of any such joint
committee;
(10) To the Comptroller General, or any authorized representatives,
in the course of the performance of the duties of the General Accounting
Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(12) To a consumer reporting agency in accordance with 31 U.S.C.
3711(f).
(b) Any individual requesting access to his or her record or to any
information pertaining to that individual which is contained within a
system of records within the Department has access to that record or
information unless the system of records within which the record or
information is contained is exempted from disclosure in accordance with
subpart G, provided, however, that nothing in this part is deemed to
require that an individual be given access to any information compiled
in reasonable anticipation of a civil action or proceeding. No exemption
contained in subpart G of part 7 of the regulations of the Office of the
Secretary is relied upon to withhold from an individual any record which
is otherwise accessible to such individual under the provisions of this
part. Any individual who is given access to a record or information
pertaining to him is permitted to have a person of his or her own
choosing accompany him and to have a copy made of all or any portion of
the record or information in a form comprehensible to the individual.
When deemed appropriate, the individual may be required to furnish a
written statement authorizing discussion of his record in the
accompanying person's presence.
(c) Medical records. Where requests are for access to medical
records, including psychological records, the decision to release
directly to the individual, or to withhold direct release, shall be made
by a medical practitioner. Where the medical practitioner has ruled that
direct release will do harm to the individual who is requesting access,
normal release through the individual's chosen medical practitioner will
be recommended. Final review and decision on appeals of disapprovals of
direct release will rest with the General Counsel.
(d) Any person requesting access to records or to any information
pertaining to other individuals is not granted such access unless that
person can show that he or she has obtained permission for such access
from the individual to whom the record pertains, unless the request
comes within one of the exceptions of paragraph (a) of this section.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
Sec. 10.37 Identification of individual making request.
No record or information contained in a system of records is
disclosed to an individual nor is any correction of a record in
accordance with subpart E made at the request of an individual unless
that individual demonstrates that he or she is who he or she claims to
be. Normally, identity can be proven for individuals who appear in
person by the presentation of an identifying document issued by a
recognized organization (e.g., a driver's license or a credit card) and
which contains a means of verification such as a photograph or a
signature. For requests by mail, the unique identifier used in the
system should be included if known. Responses to mail requests are
normally sent only to the name and address listed in the system of
records. In the case of particularly sensitive records, additional
identification requirements may be imposed. In such cases, these
additional requirements are listed in the public notice for the system.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
[[Page 92]]
Sec. 10.39 Location of records.
Each record made available under this subpart is available for
inspection and copying during regular working hours at the place where
it is located, or, upon reasonable notice, at the document inspection
facilities of the Office of the Secretary or each administration.
Original records may be copied but may not be released from custody.
Upon payment of the appropriate fee, copies are mailed to the requester.
[62 FR 23667, May 1, 1997]
Subpart E_Correction of Records
Sec. 10.41 Requests for correction of records.
Any person who desires to have a record pertaining to that person
corrected shall submit a written request detailing the correction and
the reasons the record should be so corrected. Requests for correction
of records shall be submitted to the System Manager.
[62 FR 23667, May 1, 1997]
Sec. 10.43 Time limits.
Within ten days (excluding Saturday, Sunday, and legal holidays) of
the receipt in accordance with Sec. 10.41 of a request by an individual
to amend a record pertaining to him, the receipt of the request is
acknowledged in writing. If a determination is made to correct the
record as requested, the correction is promptly made. If a determination
is made not to correct a record the individual is informed promptly of
the right to appeal in accordance with subpart F. If an appeal of a
refusal to correct a record is in accordance with subpart F, a
determination whether to correct the record is made within thirty days
(excluding Saturday, Sunday, and legal holidays) of the receipt of the
appeal unless, for good cause shown the Administrator concerned, or in
the case of the Office of the Secretary, the General Counsel, extends
such period. Where an extension is taken, the party taking the appeal is
promptly notified of such fact.
Sec. 10.45 Statement of disagreement.
If a determination is made not to amend a record, the requester is
informed of the right to file a concise statement setting forth the
reasons for disagreement with the refusal to amend. In any disclosure
containing information about which an individual has filed such a
statement of disagreement, the portions of the record which are disputed
are noted clearly and copies of the statement of disagreement provided.
If the Administrator concerned or his or her delegee, or in the case of
the Office of the Secretary, the General Counsel or his or her delegee,
deems it appropriate, copies of a concise statement of the reasons for
not making the amendments requested may be provided along with the
statement of disagreement.
Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to
or Amend Records
Sec. 10.51 General.
(a) Each officer or employee of the Department who, upon a request
by a member of the public for a record under this part, makes a
determination that access is not to be granted or who determines not to
amend a record in a requested manner, gives a written statement of the
reasons for that determination to the person making the request and
indicates the name and title or position of each person responsible for
the denial of such request and the procedure for appeal within the
Department.
(b) Any person:
(1) Who has been given a determination pursuant to paragraph (a) of
this section, that access will not be granted; or
(2) Who has been informed that an amendment to a requested record
will not be made; may apply to the Administrator concerned, or in the
case of the Office of the Secretary, to the General Counsel for review
of that decision. A determination that access will not be granted or a
record amended is not administratively final for the purposes of
judicial review unless it was made by the Administrator concerned or his
or her delegee, or the General Counsel or his or her delegee, as the
case may be. Upon a determination that an appeal
[[Page 93]]
will be denied, the requester is informed in writing of the reasons for
the determination, and the names and titles or positions of each person
responsible for the determination, and that the determination may be
appealed to the District Court of the United States in the district in
which the complainant resides, or has his or her principal place of
business, or in which the records are located, or in the District of
Columbia.
(c) Each application for review must be made in writing and must
include all information and arguments relied upon by the person making
the request, and be submitted within 30 days of the date of the initial
denial; exceptions to this time period are permitted for good reason.
(d) Upon a determination that a request for the correction of a
record will be denied, the requester is informed that he may file a
concise statement in accordance with Sec. 10.45.
(e) Each application for review must indicate that it is an appeal
from a denial of a request made under the Privacy Act. The envelope in
which the application is sent should be marked prominently with the
words ``Privacy Act.'' If these requirements are not met, the time
limits described in Sec. 10.43 do not begin to run until the
application has been identified by an employee of the Department as an
application under the Privacy Act and has been received by the
appropriate office.
(f) The Administrator concerned, or the General Counsel, as the case
may be, may require the person making the request to furnish additional
information, or proof of factual allegations, and may order other
proceedings appropriate in the circumstances. The decision of the
Administrator concerned, or the General Counsel, as the case may be, as
to the availability of the record or whether to amend the record is
administratively final.
(g) The decision by the Administrator concerned, or the General
Counsel, as the case may be, not to disclose a record under this part is
considered a determination for the purposes of section 552a(g) of title
5, United States Code, ``Civil Remedies.''
(h) Any final decision by an Administrator or his/her delegate not
to grant access to or amend a record under this part is subject to
concurrence by the General Counsel or his or her delegate.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
Subpart G_Exemptions
Sec. 10.61 General exemptions.
(a) The Assistant Secretary for Administration, with regard to the
Investigations Divisions; the Federal Aviation Administrator, with
regard to the FAA's Investigative Record System (DOT/FAA 815) and also
with regard to the police functions of the National Capital Airport
Police; and the Commandant of U.S. Coast Guard, with regard to the
Intelligence and Security Division, may exempt from any part of the Act
and this part except subsections (b), (c)(1) and (2), (e)(4)(A) through
(F), (e)(6), (7), (9), (10), and (11), and (i) of the Act, and
implementing Sec. Sec. 10.35, 10.23(a) and (b), 10.21(d)(1) through
(6), 10.81, 10.83, and 10.85, any systems of records, or portions
thereof, which they maintain which consist wholly of;
(1) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition of
criminal charges, sentencing, confinement, release, and parole and
probation status;
(2) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; or
(3) Reports identifiable to an individual compiled at any stage of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
(b) The requirements (including general notice) of sections
553(b)(1), (2) and (3), and (c) and (e) of title 5, United States Code,
will be met by publication in appendix A to this part, which must, at a
minimum, specify:
(1) The name of the system; and
(2) The specific provisions of the Act from which the system is to
be exempted and the reasons therefor.
[[Page 94]]
(c) Any decision to exempt a system of records under this section is
subject to concurrence by the General Counsel.
(d) Any person may petition the Secretary in accordance with the
provisions of part 5 of this title, to institute a rulemaking proceeding
for the amendment or repeal of any exemptions established under this
section.
[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993]
Sec. 10.63 Specific exemptions.
The Secretary or his or her delegee, in the case of the Office of
the Secretary; or the Administrator or his or deluge, in the case of an
operating administration; or the Inspector General or his or her deluge,
in the case of the Office of Inspector General, may exempt any system of
records that is maintained by the Office of the Secretary, an operating
administration, or the Office of Inspector General, as the case may be,
from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)
of the Act and implementing Sec. Sec. 10.23(c); 10.35(b); 10.41; 10.43;
10.45; 10.21(a) and 10.21(d)(6), (7), and (8), under the following
conditions:
(a) The system of records must consist of:
(1) Records subject to the provisions of section 552(b)(1) of title
5, United States Code;
(2) Investigatory material compiled for law enforcement purposes,
other than material within the scope of Sec. 10.61(a)(2): Provided,
however, That if any individual is denied any right, privilege, or
benefit to which that individual would otherwise be entitled by Federal
law, or for which that individual would otherwise be eligible, as a
result of the maintenance of such material, such material is provided to
such individual, except to the extent that the disclosure of such
material would reveal the identity of a source who furnished information
to the Government under an express promise that the identity of the
source would be held in confidence, or, prior to September 27, 1975, the
effective date of the Privacy Act of 1974, under an implied promise that
the identity of the source would be held in confidence;
(3) Records maintained in connection with providing protective
services to the President of the United States or other individuals
pursuant to section 3056 of title 18, United States Code;
(4) Records required by statute to be maintained and used solely as
statistical records;
(5) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for Federal
civilian employment, military service, Federal contracts, or access to
classified information, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or, prior to September 27,
1975, the effective date of the Privacy Act of 1974, under an implied
promise that the identity of the source would be held in confidence;
(6) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service the disclosure of which would compromise the objectivity or
fairness of the testing or examination process; or
(7) Evaluation material used to determine potential for promotion in
the armed services, but only to the extent that the disclosure of such
material would reveal the identity of a source who furnished information
to the Government under an express promise that the identity of the
source would be held in confidence, or, prior to the effective date of
this section, under an implied promise that the identity of the source
would be held in confidence.
(b) The requirements (including general notice) of sections 553 (b)
(1), (2) and (3), and (c) and (e) of title 5, United States Code, will
be met by publication in appendix A to this part, which must, at a
minimum, specify:
(1) The name of the systems; and
(2) The specific provisions of the Act from which the system is to
be exempted and the reasons therefor.
(c) Any decision to exempt a system of records under this section is
subject to the concurrence of the General Counsel.
(d) Any person may petition the Secretary in accordance with the
provisions of 49 CFR part 5, to institute a
[[Page 95]]
rulemaking for the amendment or repeal of any exemptions established
under this section.
[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]
Subpart H_Fees
Sec. 10.71 General.
This subpart prescribes fees for services performed for the public
under this part by the Department.
Sec. 10.73 Payment of fees.
The fees prescribed in this subpart may be paid by check, draft, or
postal money order payable to the Treasury of the United States.
Sec. 10.75 Fee schedule.
(a) Copies of documents by photocopy or similar method:
Each page not larger than 11x17 inches:
First page................................................. $.25
Each page.................................................. .05
(b) Copies of documents by typewriter: Each page............... 2.00
(c) Certified copies of documents:
(1) With Department of Transportation seal................... 3.00
(2) True copy, without seal.................................. 1.00
(d) Photographs:
(1) Black and white print (from negative).................... 1.25
(2) Black and white print (from print)....................... 3.15
(3) Color print (from negative).............................. 3.50
(4) Color print (from print)................................. 6.25
(e) Duplicate data tapes--each reel of tape or fraction thereof 36.00
The applicant must furnish the necessary number of blank magnetic tapes.
The tapes must be compatible for use in the supplier's computer system,
\1/2\ inch wide and 2,400 feet long, and must be capable of recording
data at a density of 556 or 800 characters per inch. Unless otherwise
designated, the tapes will be recorded at 556 CPI density. The
Department of Transportation is not responsible for damaged tape.
However, if the applicant furnishes a replacement for a damaged tape,
the duplication process is completed at no additional charge.
(f) Microreproduction fees are as follows:
(1) Microfilm copies, each 100 foot roll or less............. $3.75
(2) Microfiche copies, each standard size sheet (4x6 containing up to 65 frames)................
(3) Apertune card to hard copy, each copy.................... .50
(4) 16mm microfilm to hard copy:
First...................................................... .25
Additional................................................. .07
(g) Computerline printer output, each 1,000 lines or fraction 1.00
thereof.......................................................
Sec. 10.77 Services performed without charge.
(a) No fee is charged for time spent in searching for records or
reviewing or preparing correspondence related to records subject to this
part.
(b) No fee is charged for documents furnished in response to:
(1) A request from an employee or former employee of the Department
for copies of personnel records of the employee;
(2) A request from a Member of Congress for official use;
(3) A request from a State, territory, U.S. possession, county or
municipal government, or an agency thereof;
(4) A request from a court that will serve as a substitute for the
personal court appearance of an officer or employee of the Department;
(5) A request from a foreign government or an agency thereof, or an
international organization.
(c) Documents are furnished without charge or at a reduced charge,
if the Assistant Secretary of Administration or the Administrator
concerned, as the case may be, determines that waiver or reduction of
the fee is in the public interest, because furnishing the information
can be considered as primarily benefiting the general public.
(d) When records are maintained in computer-readable form rather
than human-readable form, one printed copy is made available which has
been translated to human-readable form without a charge for translation
but in accordance with Sec. 10.75(g), regarding computer line-printed
charges.
Subpart I_Criminal Penalties
Sec. 10.81 Improper disclosure.
Any officer or employee of the Department who by virtue of his or
her employment or official position, has possession of, or access to,
agency records which contain individually identifiable information the
disclosure of which is prohibited by this part and who knowing that
disclosure of the specific material is so prohibited, willfully
discloses the material in any manner to any person or agency not
entitled to receive it, is guilty of a misdemeanor and fined not more
than
[[Page 96]]
$5,000 in accordance with 5 U.S.C. 552a(i)(1).
Sec. 10.83 Improper maintenance of records.
Any officer or employee of the Department who willfully maintains a
system of records without meeting the notice requirements of Sec.
10.21(d) of this part is guilty of a misdemeanor and fined not more than
$5,000 in accordance with 5 U.S.C. 552a(i)(2).
Sec. 10.85 Wrongfully obtaining records.
Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Department under false
pretenses is guilty of a misdemeanor and fined not more than $5,000 in
accordance with 5 U.S.C. 552a(i)(3).
Appendix to Part 10--Exemptions
Part I. General Exemptions
Those portions of the following systems of records that consist of
(a) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition of
criminal charges, sentencing, confinement, release, and parole and
probation status; (b) information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; or (c) reports identifiable
to an individual compiled at any stage of the process of enforcement of
the criminal laws from arrest or indictment through release from
supervision, are exempt from all parts of 5 U.S.C. 552a except
subsections (b) (Conditions of disclosure); (c) (1) and (2) (Accounting
of certain disclosures); (e)(4) (A) through (F) (Publication of
existence and character of system); (e)(6) (Ensure records are accurate,
relevant, timely, and complete before disclosure to person other than an
agency and other than pursuant to a Freedom of Information Act request),
(7) (Restrict recordkeeping on First Amendment rights), (9) (Rules of
conduct), (10) (Safeguards), and (11) (Routine use publication); and (i)
(Criminal penalties):
A. The Investigative Records System maintained by the Assistant
Inspector General for Investigations, Office of the Inspector General,
Office of the Secretary (DOT/OST 100).
B. Police Warrant Files and Central Files maintained by the Federal
Aviation Administration (DOT/FAA 807).
C. Law Enforcement Information System, maintained by the Office of
Law Enforcement and Defense Operations, U.S. Coast Guard (DOT/CG 613).
D. Investigations and Security Investigative Case Systems,
maintained by the Investigations and Security Division, U.S. Coast Guard
(DOT/CG 611).
E. The Investigative Records System maintained by the Federal
Aviation Administration regarding criminal investigations conducted by
offices of Investigations and Security at headquarters and FAA Regional
and Center Security Divisions (DOT/FAA 815).
F. Joint Maritime Intelligence Element (JMIE) Support System,
maintained by the Operations Systems, Center, US Coast Guard (DOT/CG
642).
These exemptions are justified for the following reasons:
1. From subsection (c)(3), because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest by not only DOT but also the
recipient agency, thereby permitting the record subject to take
appropriate measures to impede the investigation, as by destroying
evidence, intimidating potential witnesses, fleeing the area to avoid
the thrust of the investigation, etc.
2. From subsections (d), (e)(4) (G) and (H), (f), and (g), because
granting an individual access to investigative records, and granting
him/her rights to amend/contest that information, interfere with the
overall law enforcement process by revealing a pending sensitive
investigation, possibly identify a confidential source, disclose
information that would constitute an unwarranted invasion of another
individual's personal privacy, reveal a sensitive investigative
technique, or constitute a potential danger to the health or safety of
law enforcement personnel.
3. From subsection (e)(1), because it is often impossible to
determine relevancy or necessity of information in the early stages of
an investigation. The value of such information is a question of
judgement and timing: what appears relevant and necessary when collected
may ultimately be evaluated and viewed as irrelevant and unnecessary to
an investigation. In addition, DOT may obtain information concerning the
violation of laws other than those within the scope of its jurisdiction.
In the interest of effective law enforcement, DOT should retain this
information because it may aid in establishing patterns of unlawful
activity and provide leads for other law enforcement agencies. Further,
in obtaining evidence during an investigation, information may be
provided to DOT that relates to matters incidental to the main purpose
of the investigation but that may be pertinent to the investigative
jurisdiction of another agency. Such information cannot readily be
identified.
[[Page 97]]
4. From subsection (e)(2), because in a law enforcement
investigation it is usually counterproductive to collect information to
the greatest extent practicable directly from the subject of the
information. It is not always feasible to rely upon the subject of an
investigation as a source for information that may implicate him/her in
illegal activities. In addition, collecting information directly from
the subject could seriously compromise an investigation by prematurely
revealing its nature and scope, or could provide the subject with an
opportunity to conceal criminal activities, or intimidate potential
sources, in order to avoid apprehension.
5. From subsection (e)(3), because providing such notice to the
subject of an investigation, or to other individual sources, could
seriously compromise the investigation by prematurely revealing its
nature and scope, or could inhibit cooperation, permit the subject to
evade apprehension, or cause interference with undercover activities.
Part II. Specific Exemptions
A. The following systems of records are exempt from subsection
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records),
(e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) of
5 USC 552a, to the extent that they contain investigatory material
compiled for law enforcement purposes in accordance with 5 USC
552a(k)(2):
1. Investigative Record System (DOT/FAA 815) maintained by the
Federal Aviation Administration at the Office of Civil Aviation Security
in Washington, DC; the FAA regional Civil Aviation Security Divisions;
the Civil Aviation Security Division at the Mike Monroney Aeronautical
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff
at the FAA Technical Center in Atlantic City, New Jersey; and the
various Federal Records Centers located throughout the country.
2. FHWA Investigations Case File System, maintained by the Office of
Program Review and Investigations, Federal Highway Administration (DOT/
FHWA 214).
3. FHWA Motor Carrier Safety Proposed Civil and Criminal Enforcement
Cases, maintained by the Bureau of Motor Carrier Safety, Federal Highway
Administration (DOT/FHWA 204).
4. Recreational Boating and Law Enforcement Cases (DOT/CG 505),
maintained by the Office of Boating Safety, U.S. Coast Guard.
5. Port Safety Reporting System--Individual Violation Histories
(DOT/CG 561), maintained by the Office of Marine Environment and
Systems, U.S. Coast Guard.
6. Merchant Vessel Casualty Reporting System (DOT/CG 590),
maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.
7. U.S. Merchant Seaman's Records (DOT/CG 589), maintained by the
Office of Merchant Marine Safety, U.S. Coast Guard.
8. Intelligence and Security Investigative Case Systems (DOT/CG
611), maintained by the Office of Operations, U.S. Coast Guard.
9. Port Security Case System (DOT/CG 612), maintained by the Office
of Operations, U.S. Coast Guard.
10. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of
Interest, maintained by the Associate Administrator for Administration,
National Highway Traffic Safety Administration (DOT/NHTSA 458).
11. Investigations of Violations of Marine Safety Laws (DOT/CG 587),
maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.
12. Civil Aviation Security System (DOT/FAA 813), maintained by the
Office of Civil Aviation Security Policy and Planning, Federal Aviation
Administration.
13. Law Enforcement Information System, maintained by the Office of
Law Enforcement and Defense Operations, U.S. Coast Guard (DOT/CG 613).
14. Joint Maritime Intelligence Element (JMIE) Support System,
maintained by the Operations Systems, Center, US Coast Guard (DOT/CG
642).
15. Vessel Identification System, maintained by the Operations
Systems Center, U.S. Coast Guard (DOT/CG 590). The purpose of this
exemption is to prevent persons who are the subjects of criminal
investigations from learning too early in the investigative process that
they are subjects, what information there is in Coast Guard files that
indicates that they may have committed unlawful conduct, and who
provided such information.
16. Marine Safety Information System, maintained by the Operations
Systems Center, U.S. Coast Guard (DOT/CG 588). The purpose of this
exemption is to prevent persons who are the subjects of criminal
investigations from learning too early in the investigative process that
they are subjects, what information there is in Coast Guard files that
indicates that they may have committed unlawful conduct, and who
provided such information.
17. Suspected Unapproved Parts (SUP) Program, maintained by the
Federal Aviation Administration (DOT/FAA 852).
18. Motor Carrier Management Information System (MCMIS), maintained
by the Federal Motor Carrier Safety Administration (DOT/FMCSA 001).
These exemptions are justified for the following reasons:
These exemptions are justified for the following reasons:
1. From subsection (c)(3), because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest by not only DOT but also the
recipient agency,
[[Page 98]]
thereby permitting the record subject to take appropriate measures to
impede the investigation, as by destroying evidence, intimidating
potential witnesses, fleeing the area to avoid the thrust of the
investigation, etc.
2. From subsections (d), (e)(4)(G), (H), and (I), and (f), because
granting an individual access to investigative records, and granting
him/her access to investigative records with that information, could
interfere with the overall law enforcement process by revealing a
pending sensitive investigation, possibly identify a confidential
source, disclose information that would constitute an unwarranted
invasion of another individual's personal privacy, reveal a sensitive
investigative technique, or constitute a potential danger to the health
or safety of law enforcement personnel.
B. The following systems of records are exempt from subsections
(c)(3) (Accounting of Certain Disclosures) and (d) (Access to Records)
of 5 U.S.C. 552a, in accordance with 5 U.S.C. 552a(k)(2):
1. General Air Transportation Records on Individuals, maintained by
various offices in the Federal Aviation Administration (DOT/FAA 847).
2. Investigative Records System, maintained by the Assistant
Inspector General for Investigations in the Office of the Inspector
General (DOT/OST 100).
These exemptions are justified for the following reasons:
1. From subsection (c)(3), because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest by not only DOT but also the
recipient agency, thereby permitting the record subject to take
appropriate measures to impede the investigation, as by destroying
evidence, intimidating potential witnesses, fleeing the area to avoid
the thrust of the investigation, etc.
2. From subsection (d), because granting an individual access to
investigative records could interfere with the overall law enforcement
process by revealing a pending sensitive investigation, possibly
identify a confidential source, disclose information that would
constitute an unwarranted invasion of another individual's personal
privacy, reveal a sensitive investigative technique, or constitute a
potential danger to the health or safety of law enforcement personnel.
C. The system of records known as the Alaska Railroad Examination of
Operating Personnel, maintained by the Alaska Railroad, Federal Railroad
Administration (DOT/FRA 100), is exempt from the provisions of
subsection (d) of 5 U.S.C. 552a. The release of these records would
compromise their value as impartial measurement standards for
appointment and promotion within the Federal Service.
D. Those portions of the following systems of records consisting of
investigatory material compiled for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, military service, or access to classified information or
used to determine potential for promotion in the armed services, are
exempt from sections (c)(3) (Accounting of Certain Disclosures), (d)
(Access to Records), (e)(4) (G), (H), and (I) (Agency Requirements), and
(f) (Agency Rules) of 5 U.S.C. 552a to the extent that disclosure of
such material would reveal the identity of a source who provided
information to the Government under an express or, prior to September
27, 1975, an implied promise of confidentiality (5 U.S.C. 552a(k) (5)
and (7)):
1. Investigative Records System, maintained by the Assistant
Inspector General for Investigations in the Office of the Inspector
General (DOT/OST 100).
2. Intelligence and Security Investigative Case System (DOT/CG 611),
maintained by the Office of Operations, U.S. Coast Guard.
3. Officer Selection and Appointment System (DOT/CG 625), maintained
by the Office of Personnel, U.S. Coast Guard.
4. Official Officer Service Records (DOT/CG 626), maintained by the
Office of Personnel, U.S. Coast Guard.
5. Enlisted Recruiting Selection Record System maintained by the
Office of Personnel, U.S. Coast Guard.
6. Officer, Enlisted, and Recruiting Selection Test Files (DOT/CG
628), maintained by the Office of Personnel, U.S. Coast Guard.
7. Enlisted Personnel Record System, (DOT/CG 629), maintained by the
Office of Personnel, U.S. Coast Guard.
8. Coast Guard Personnel Security Program (DOT/CG 633), maintained
by the Office of Personnel, U.S. Coast Guard.
9. Official Coast Guard Reserve Service Record System (DOT/CG 676),
maintained by the Office of Reserve, U.S. Coast Guard.
10. Investigative Record System, maintained by the Federal Aviation
Administration at FAA Regional and Center Air Transportation Security
Divisions; the Investigations and Security Division, Aeronautical
Center; and Office of Investigations and Security, Headquarters,
Washington, D.C. (DOT/FAA 815).
11. Military Training and Education Records (DOT/CG 622), maintained
by the Office of Personnel, U.S. Coast Guard.
12. Files pursuant to suitability for employment with National
Highway Traffic Safety Administration (DOT/NHTSA-457) containing
confidential investigatory reports.
The purpose of these exemptions is to prevent disclosure of the
identities of sources who provide information to the government
concerning the suitability, eligibility, or
[[Page 99]]
qualifications of individuals for Federal civilian employment,
contracts, access to classified information, or appointment or promotion
in the armed services, and who are expressly or, prior to September 27,
1975, implied promised confidentiality (5 U.S.C. 552a(k) (5) and (7)).
E. Those portions of the following systems of records consisting of
testing or examination material used solely to determine individual
qualifications for appointment or promotion in the Federal Service are
exempt from subsections (c)(3) (Accounting of Certain Disclosures), (d)
(Access to Records), (e)(4) (G), (H) and (I) (Agency Requirements), and
(f) (Agency Rules) of 5 U.S.C. 552a:
1. Officer, Enlisted and Recruiting Selection Test Files (DOT/CG
628), maintained by the Office of Personnel, U.S. Coast Guard.
2. Official Coast Guard Reserve Service Record System (DOT/CG 676),
maintained by the Office of Reserve, U.S. Coast Guard.
3. Military Training and Education Records (DOT/CG 622), maintained
by the Office of Personnel, U.S. Coast Guard.
4. Reference Files (DOT/NHTSA 457), maintained by the National
Highway Traffic Safety Administration personnel offices to determine
fitness for employment prior to hiring.
The purpose of these exemptions is to preserve the value of these
records as impartial measurement standards for appointment and promotion
within the Federal service.
F. Those portions of the following systems of records which consist
of information properly classified in the interest of national defense
or foreign policy in accordance with 5 U.S.C. 552(b)(1) are exempt from
sections (c)(3) (Accounting of Certain Disclosures), (d) (Access to
Records), (e)(4) (G), (H) and (I) (Agency Requirements), and (f) (Agency
Rules) of 5 U.S.C. 552a:
1. Investigative Record System maintained by the Assistant Inspector
General for Investigations in the Office of the Inspector General (DOT/
OST 100).
2. Personnel Security Records System, maintained by the Office of
Investigations and Security, Office of the Secretary (DOT/OST 016).
3. Civil Aviation Security System (DOT/FAA 813), maintained by the
Office of Civil Aviation Security, Federal Aviation Administration.
4. Joint Maritime Intelligence Element (JMIE) Support System,
maintained by the Operations Systems Center, US Coast Guard (DOT/CG
642).
The purpose of these exemptions is to prevent the disclosure of
material authorized to be kept secret in the interest of national
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and
552a(k)(1).
G. Those portions of the following systems of records which consist
of information properly classified in the interest of national defense
or foreign policy in accordance with 5 U.S.C. 552a(b)(1) are exempt from
subsections (c)(3) (Accounting of Certain Disclosures) and (d) (Access
to Records) of 5 U.S.C. 552a:
1. Investigative Record System (DOT/FAA 815) maintained by the
Federal Aviation Administration at the Office of Civil Aviation Security
in Washington, DC; the FAA regional Civil Aviation Security Divisions;
the Civil Aviation Security Division at the Mike Monroney Aeronautical
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff
at the FAA Technical Center in Atlantic City, New Jersey; and the
various Federal Records Centers located throughout the country.
The purpose of these exemptions is to prevent the disclosure of
material authorized to be kept secret in the interest of national
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and
552a(k)(1).
[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 59
FR 13662, Mar. 23, 1994; 60 FR 43983, Aug. 24, 1995. Redesignated at 62
FR 23667, May 1, 1997, as amended at 63 FR 2172, Jan. 14, 1998; 63 FR
4197, Jan. 28, 1998; 66 FR 20407, Apr. 23, 2001]
PART 11_PROTECTION OF HUMAN SUBJECTS--Table of Contents
Sec.
11.101 To what does this policy apply?
11.102 Definitions.
11.103 Assuring compliance with this policy--research conducted or
supported by any Federal Department or Agency.
11.104-11.106 [Reserved]
11.107 IRB membership.
11.108 IRB functions and operations.
11.109 IRB review of research.
11.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in
approved research.
11.111 Criteria for IRB approval of research.
11.112 Review by institution.
11.113 Suspension or termination of IRB approval of research.
11.114 Cooperative research.
11.115 IRB records.
11.116 General requirements for informed consent.
11.117 Documentation of informed consent.
11.118 Applications and proposals lacking definite plans for involvement
of human subjects.
11.119 Research undertaken without the intention of involving human
subjects.
11.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department
or Agency.
11.121 [Reserved]
11.122 Use of Federal funds.
[[Page 100]]
11.123 Early termination of research support: Evaluation of applications
and proposals.
11.124 Conditions.
Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).
Source: 56 FR 28012, 28023, June 18, 1991, unless otherwise noted.
Sec. 11.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by federal
civilian employees or military personnel, except that each department or
agency head may adopt such procedural modifications as may be
appropriate from an administrative standpoint. It also includes research
conducted, supported, or otherwise subject to regulation by the federal
government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in Sec. 11.102(e),
must comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in Sec.
11.102(e) must be reviewed and approved, in compliance with Sec.
11.101, Sec. 11.102, and Sec. 11.107 through Sec. 11.117 of this
policy, by an institutional review board (IRB) that operates in
accordance with the pertinent requirements of this policy.
(b) Unless otherwise required by department or agency heads,
research activities in which the only involvement of human subjects will
be in one or more of the following categories are exempt from this
policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison among
instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and
(ii) Any disclosure of the human subjects' responses outside the
research could reasonably place the subjects at risk of criminal or
civil liability or be damaging to the subjects' financial standing,
employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or (ii) federal statute(s) require(s)
without exception that the confidentiality of the personally
identifiable information will be maintained throughout the research and
thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs; (ii) procedures for
obtaining benefits or services under those programs; (iii) possible
changes in or alternatives to those programs or procedures; or (iv)
possible changes in methods or levels of payment for benefits or
services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies, (i) if wholesome foods without additives are consumed or (ii)
if a food is consumed that contains a food ingredient at or below the
level and for a use found to
[[Page 101]]
be safe, or agricultural chemical or environmental contaminant at or
below the level found to be safe, by the Food and Drug Administration or
approved by the Environmental Protection Agency or the Food Safety and
Inspection Service of the U.S. Department of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations
which may otherwise be applicable and which provide additional
protections to human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
[An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.] In these circumstances, if a
department or agency head determines that the procedures prescribed by
the institution afford protections that are at least equivalent to those
provided in this policy, the department or agency head may approve the
substitution of the foreign procedures in lieu of the procedural
requirements provided in this policy. Except when otherwise required by
statute, Executive Order, or the department or agency head, notices of
these actions as they occur will be published in the Federal Register or
will be otherwise published as provided in department or agency
procedures.
(i) Unless otherwise required by law, department or agency heads may
waive the applicability of some or all of the provisions of this policy
to specific research activities or classes of research activities
otherwise covered by this policy. Except when otherwise required by
statute or Executive Order, the department or agency head shall forward
advance notices of these actions to the Office for Human Research
Protections, Department of Health and Human Services (HHS), or any
successor office, and shall also publish them in the Federal Register or
in such other manner as provided in department or agency procedures. \1\
---------------------------------------------------------------------------
\1\ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR 46.101(b) do not apply to research involving
prisoners, subpart C. The exemption at 45 CFR 46.101(b)(2), for research
involving survey or interview procedures or observation of public
behavior, does not apply to research with children, subpart D, except
for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991, as
amended at 70 FR 36328, June 23, 2005]
Sec. 11.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or
judicial or other body authorized under applicable law to consent on
behalf of a prospective subject to the subject's participation in the
procedure(s) involved in the research.
[[Page 102]]
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for
other purposes. For example, some demonstration and service programs may
include research activities.
(e) Research subject to regulation, and similar terms are intended
to encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. ``Private information'' includes information
about behavior that occurs in a context in which an individual can
reasonably expect that no observation or recording is taking place, and
information which has been provided for specific purposes by an
individual and which the individual can reasonably expect will not be
made public (for example, a medical record). Private information must be
individually identifiable (i.e., the identity of the subject is or may
readily be ascertained by the investigator or associated with the
information) in order for obtaining the information to constitute
research involving human subjects.
(g) IRB means an institutional review board established in accord
with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the
research has been reviewed and may be conducted at an institution within
the constraints set forth by the IRB and by other institutional and
federal requirements.
(i) Minimal risk means that the probability and magnitude of harm or
discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution
to the supporting department or agency, in accordance with the
requirements of this policy, that a research project or activity
involving human subjects has been reviewed and approved by an IRB in
accordance with an approved assurance.
Sec. 11.103 Assuring compliance with this policy--research conducted or
supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Human Research Protections, HHS, or any successor office, and
approved for federalwide use by that office. When the existence of an
HHS-approved assurance is accepted in lieu of requiring submission of an
assurance, reports (except certification) required by this policy to be
made to department and agency heads shall also be made to the
[[Page 103]]
Office for Human Research Protections, HHS, or any successor office.
(b) Departments and agencies will conduct or support research
covered by this policy only if the institution has an assurance approved
as provided in this section, and only if the institution has certified
to the department or agency head that the research has been reviewed and
approved by an IRB provided for in the assurance, and will be subject to
continuing review by the IRB. Assurances applicable to federally
supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the
discharge of its responsibilities for protecting the rights and welfare
of human subjects of research conducted at or sponsored by the
institution, regardless of whether the research is subject to federal
regulation. This may include an appropriate existing code, declaration,
or statement of ethical principles, or a statement formulated by the
institution itself. This requirement does not preempt provisions of this
policy applicable to department- or agency-supported or regulated
research and need not be applicable to any research exempted or waived
under Sec. 11.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any employment
or other relationship between each member and the institution; for
example: full-time employee, part-time employee, member of governing
panel or board, stockholder, paid or unpaid consultant. Changes in IRB
membership shall be reported to the department or agency head, unless in
accord with Sec. 11.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership
shall be reported to the Office for Human Research Protections, HHS, or
any successor ofice.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
[[Page 104]]
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or agency head may limit the
period during which any particular approved assurance or class of
approved assurances shall remain effective or otherwise condition or
restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
Sec. 11.101 (b) or (i). An institution with an approved assurance shall
certify that each application or proposal for research covered by the
assurance and by Sec. 11.103 of this Policy has been reviewed and
approved by the IRB. Such certification must be submitted with the
application or proposal or by such later date as may be prescribed by
the department or agency to which the application or proposal is
submitted. Under no condition shall research covered by Sec. 11.103 of
the Policy be supported prior to receipt of the certification that the
research has been reviewed and approved by the IRB. Institutions without
an approved assurance covering the research shall certify within 30 days
after receipt of a request for such a certification from the department
or agency, that the application or proposal has been approved by the
IRB. If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under Control Number
0990-0260.)
[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991, as
amended at 70 FR 36328, June 23, 2005]
Sec. Sec. 11.104-11.106 [Reserved]
Sec. 11.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review of research
activities commonly conducted by the institution. The IRB shall be
sufficiently qualified through the experience and expertise of its
members, and the diversity of the members, including consideration of
race, gender, and cultural backgrounds and sensitivity to such issues as
community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no
IRB consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary
concerns are in scientific areas and at least one member whose primary
concerns are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with
competence in special areas to assist in the review of issues which
require expertise beyond or in addition to that available on the IRB.
These individuals may not vote with the IRB.
Sec. 11.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
[[Page 105]]
(a) Follow written procedures in the same detail as described in
Sec. 11.103(b)(4) and, to the extent required by, Sec. 11.103(b)(5).
(b) Except when an expedited review procedure is used (see Sec.
11.110), review proposed research at convened meetings at which a
majority of the members of the IRB are present, including at least one
member whose primary concerns are in nonscientific areas. In order for
the research to be approved, it shall receive the approval of a majority
of those members present at the meeting.
Sec. 11.109 IRB review of research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with Sec. 11.116. The IRB may
require that information, in addition to that specifically mentioned in
Sec. 11.116, be given to the subjects when in the IRB's judgment the
information would meaningfully add to the protection of the rights and
welfare of subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with Sec. 11.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it shall
include in its written notification a statement of the reasons for its
decision and give the investigator an opportunity to respond in person
or in writing.
(e) An IRB shall conduct continuing review of research covered by
this policy at intervals appropriate to the degree of risk, but not less
than once per year, and shall have authority to observe or have a third
party observe the consent process and the research.
(Approved by the Office of Management and Budget under Control Number
0990-0260.)
[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23,
2005]
Sec. 11.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
(a) The Secretary, HHS, has established, and published as a Notice
in the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list will
be amended, as appropriate after consultation with other departments and
agencies, through periodic republication by the Secretary, HHS, in the
Federal Register. A copy of the list is available from the Office for
Human Research Protections, HHS, or any successor office.
(b) An IRB may use the expedited review procedure to review either
or both of the following:
(1) Some or all of the research appearing on the list and found by
the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period
(of one year or less) for which approval is authorized.
Under an expedited review procedure, the review may be carried out by
the IRB chairperson or by one or more experienced reviewers designated
by the chairperson from among members of the IRB. In reviewing the
research, the reviewers may exercise all of the authorities of the IRB
except that the reviewers may not disapprove the research. A research
activity may be disapproved only after review in accordance with the
non-expedited procedure set forth in Sec. 11.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23,
2005]
[[Page 106]]
Sec. 11.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB
shall determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized: (i) By using procedures which
are consistent with sound research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appropriate, by using
procedures already being performed on the subjects for diagnostic or
treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by Sec. 11.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by Sec. 11.117.
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.
Sec. 11.112 Review by institution.
Research covered by this policy that has been approved by an IRB may
be subject to further appropriate review and approval or disapproval by
officials of the institution. However, those officials may not approve
the research if it has not been approved by an IRB.
Sec. 11.113 Suspension or termination of IRB approval of research.
An IRB shall have authority to suspend or terminate approval of
research that is not being conducted in accordance with the IRB's
requirements or that has been associated with unexpected serious harm to
subjects. Any suspension or termination of approval shall include a
statement of the reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institutional officials, and
the department or agency head.
(Approved by the Office of Management and Budget under Control Number
0990-0260.)
[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23,
2005]
Sec. 11.114 Cooperative research.
Cooperative research projects are those projects covered by this
policy which involve more than one institution. In the conduct of
cooperative research projects, each institution is responsible for
safeguarding the rights and welfare of human subjects and for complying
with this policy. With the approval of the department or agency head, an
institution participating in a cooperative project may enter into a
joint review arrangement, rely upon the review of another qualified IRB,
or make similar arrangements for avoiding duplication of effort.
[[Page 107]]
Sec. 11.115 IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and
maintain adequate documentation of IRB activities, including the
following:
(1) Copies of all research proposals reviewed, scientific
evaluations, if any, that accompany the proposals, approved sample
consent documents, progress reports submitted by investigators, and
reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to
show attendance at the meetings; actions taken by the IRB; the vote on
these actions including the number of members voting for, against, and
abstaining; the basis for requiring changes in or disapproving research;
and a written summary of the discussion of controverted issues and their
resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the
investigators.
(5) A list of IRB members in the same detail as described is Sec.
11.103(b)(3).
(6) Written procedures for the IRB in the same detail as described
in Sec. 11.103(b)(4) and Sec. 11.103(b)(5).
(7) Statements of significant new findings provided to subjects, as
required by Sec. 11.116(b)(5).
(b) The records required by this policy shall be retained for at
least 3 years, and records relating to research which is conducted shall
be retained for at least 3 years after completion of the research. All
records shall be accessible for inspection and copying by authorized
representatives of the department or agency at reasonable times and in a
reasonable manner.
(Approved by the Office of Management and Budget under Control Number
0990-0260.)
[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23,
2005]
Sec. 11.116 General requirements for informed consent.
Except as provided elsewhere in this policy, no investigator may
involve a human being as a subject in research covered by this policy
unless the investigator has obtained the legally effective informed
consent of the subject or the subject's legally authorized
representative. An investigator shall seek such consent only under
circumstances that provide the prospective subject or the representative
sufficient opportunity to consider whether or not to participate and
that minimize the possibility of coercion or undue influence. The
information that is given to the subject or the representative shall be
in language understandable to the subject or the representative. No
informed consent, whether oral or written, may include any exculpatory
language through which the subject or the representative is made to
waive or appear to waive any of the subject's legal rights, or releases
or appears to release the investigator, the sponsor, the institution or
its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in
paragraph (c) or (d) of this section, in seeking informed consent the
following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of
the purposes of the research and the expected duration of the subject's
participation, a description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts
to the subject;
(3) A description of any benefits to the subject or to others which
may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of
treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which
confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as
to whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist
of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent
questions about the research and research subjects' rights, and whom to
contact in
[[Page 108]]
the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to
participate will involve no penalty or loss of benefits to which the
subject is otherwise entitled, and the subject may discontinue
participation at any time without penalty or loss of benefits to which
the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
(1) A statement that the particular treatment or procedure may
involve risks to the subject (or to the embryo or fetus, if the subject
is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's
participation may be terminated by the investigator without regard to
the subject's consent;
(3) Any additional costs to the subject that may result from
participation in the research;
(4) The consequences of a subject's decision to withdraw from the
research and procedures for orderly termination of participation by the
subject;
(5) A statement that significant new findings developed during the
course of the research which may relate to the subject's willingness to
continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include,
or which alters, some or all of the elements of informed consent set
forth above, or waive the requirement to obtain informed consent
provided the IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or
subject to the approval of state or local government officials and is
designed to study, evaluate, or otherwise examine: (i) public benefit of
service programs; (ii) procedures for obtaining benefits or services
under those programs; (iii) possible changes in or alternatives to those
programs or procedures; or (iv) possible changes in methods or levels of
payment for benefits or services under those programs; and
(2) The research could not practicably be carried out without the
waiver or alteration.
(d) An IRB may approve a consent procedure which does not include,
or which alters, some or all of the elements of informed consent set
forth in this section, or waive the requirements to obtain informed
consent provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights
and welfare of the subjects;
(3) The research could not practicably be carried out without the
waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with
additional pertinent information after participation.
(e) The informed consent requirements in this policy are not
intended to preempt any applicable Federal, state, or local laws which
require additional information to be disclosed in order for informed
consent to be legally effective.
(f) Nothing in this policy is intended to limit the authority of a
physician to provide emergency medical care, to the extent the physician
is permitted to do so under applicable Federal, state, or local law.
(Approved by the Office of Management and Budget under Control Number
0990-0260.)
[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23,
2005]
Sec. 11.117 Documentation of informed consent.
(a) Except as provided in paragraph (c) of this section, informed
consent shall be documented by the use of a written consent form
approved by the IRB and signed by the subject or the subject's legally
authorized representative. A copy shall be given to the person signing
the form.
(b) Except as provided in paragraph (c) of this section, the consent
form may be either of the following:
(1) A written consent document that embodies the elements of
informed consent required by Sec. 11.116. This form
[[Page 109]]
may be read to the subject or the subject's legally authorized
representative, but in any event, the investigator shall give either the
subject or the representative adequate opportunity to read it before it
is signed; or
(2) A short form written consent document stating that the elements
of informed consent required by Sec. 11.116 have been presented orally
to the subject or the subject's legally authorized representative. When
this method is used, there shall be a witness to the oral presentation.
Also, the IRB shall approve a written summary of what is to be said to
the subject or the representative. Only the short form itself is to be
signed by the subject or the representative. However, the witness shall
sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of
the summary shall be given to the subject or the representative, in
addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain
a signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would
be the consent document and the principal risk would be potential harm
resulting from a breach of confidentiality. Each subject will be asked
whether the subject wants documentation linking the subject with the
research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to
subjects and involves no procedures for which written consent is
normally required outside of the research context.
In cases in which the documentation requirement is waived, the IRB
may require the investigator to provide subjects with a written
statement regarding the research.
(Approved by the Office of Management and Budget under Control Number
0990-0260.)
[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23,
2005]
Sec. 11.118 Applications and proposals lacking definite plans for
involvement of human subjects.
Certain types of applications for grants, cooperative agreements, or
contracts are submitted to departments or agencies with the knowledge
that subjects may be involved within the period of support, but definite
plans would not normally be set forth in the application or proposal.
These include activities such as institutional type grants when
selection of specific projects is the institution's responsibility;
research training grants in which the activities involving subjects
remain to be selected; and projects in which human subjects' involvement
will depend upon completion of instruments, prior animal studies, or
purification of compounds. These applications need not be reviewed by an
IRB before an award may be made. However, except for research exempted
or waived under Sec. 11.101 (b) or (i), no human subjects may be
involved in any project supported by these awards until the project has
been reviewed and approved by the IRB, as provided in this policy, and
certification submitted, by the institution, to the department or
agency.
Sec. 11.119 Research undertaken without the intention of involving human
subjects.
In the event research is undertaken without the intention of
involving human subjects, but it is later proposed to involve human
subjects in the research, the research shall first be reviewed and
approved by an IRB, as provided in this policy, a certification
submitted, by the institution, to the department or agency, and final
approval given to the proposed change by the department or agency.
Sec. 11.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department or Agency.
The department or agency head will evaluate all applications and
proposals involving human subjects submitted to the department or agency
through such officers and employees of the department or agency and such
experts and consultants as the department or agency head determines to
be appropriate. This evaluation will take into consideration the risks
to the subjects, the adequacy of protection against these risks, the
potential benefits of the research to the subjects and others, and
[[Page 110]]
the importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head
may approve or disapprove the application or proposal, or enter into
negotiations to develop an approvable one.
Sec. 11.121 [Reserved]
Sec. 11.122 Use of Federal funds.
Federal funds administered by a department or agency may not be
expended for research involving human subjects unless the requirements
of this policy have been satisfied.
Sec. 11.123 Early termination of research support: Evaluation of
applications and proposals.
(a) The department or agency head may require that department or
agency support for any project be terminated or suspended in the manner
prescribed in applicable program requirements, when the department or
agency head finds an institution has materially failed to comply with
the terms of this policy.
(b) In making decisions about supporting or approving applications
or proposals covered by this policy the department or agency head may
take into account, in addition to all other eligibility requirements and
program criteria, factors such as whether the applicant has been subject
to a termination or suspension under paragarph (a) of this section and
whether the applicant or the person or persons who would direct or has/
have directed the scientific and technical aspects of an activity has/
have, in the judgment of the department or agency head, materially
failed to discharge responsibility for the protection of the rights and
welfare of human subjects (whether or not the research was subject to
Federal regulation).
Sec. 11.124 Conditions.
With respect to any research project or any class of research
projects the department or agency head may impose additional conditions
prior to or at the time of approval when in the judgment of the
department or agency head additional conditions are necessary for the
protection of human subjects.
PART 15_PROTECTION OF SENSITIVE SECURITY INFORMATION--Table of Contents
Sec.
15.1 Scope.
15.3 Terms used in this part.
15.5 Sensitive security information.
15.7 Covered persons.
15.9 Restrictions on the disclosure of SSI.
15.11 Persons with a need to know.
15.13 Marking SSI.
15.15 SSI disclosed by DOT.
15.17 Consequences of unauthorized disclosure of SSI.
15.19 Destruction of SSI.
Authority: 49 U.S.C. 40119.
Source: 69 FR 28078, May 18, 2004, unless otherwise noted.
Sec. 15.1 Scope.
(a) Applicability. This part governs the maintenance, safeguarding,
and disclosure of records and information that the Secretary of DOT has
determined to be Sensitive Security Information, as defined in Sec.
15.5. This part does not apply to the maintenance, safeguarding, or
disclosure of classified national security information, as defined by
Executive Order 12968, or to other sensitive unclassified information
that is not SSI, but that nonetheless may be exempt from public
disclosure under the Freedom of Information Act. In addition, in the
case of information that has been designated as critical infrastructure
information under section 214 of the Homeland Security Act, the receipt,
maintenance, or disclosure of such information by a Federal agency or
employee is governed by section 214 and any implementing regulations,
not by this part.
(b) Delegation. The authority of the Secretary under this part may
be further delegated within DOT.
Sec. 15.3 Terms used in this part.
In addition to the terms in Sec. 15.3 of this chapter, the
following terms apply in this part:
Administrator means the Under Secretary of Transportation for
Security referred to in 49 U.S.C. 114(b), or his or her designee.
Coast Guard means the United States Coast Guard.
Covered person means any organization, entity, individual, or other
person
[[Page 111]]
described in Sec. 15.7. In the case of an individual, covered person
includes any individual applying for employment in a position that would
be a covered person, or in training for such a position, regardless of
whether that individual is receiving a wage, salary, or other form of
payment. Covered person includes a person applying for certification or
other form of approval that, if granted, would make the person a covered
person described in Sec. 15.7.
DHS means the Department of Homeland Security and any directorate,
bureau, or other component within the Department of Homeland Security,
including the United States Coast Guard.
DOT means the Department of Transportation and any operating
administration, entity, or office within the Department of
Transportation, including the Saint Lawrence Seaway Development
Corporation and the Bureau of Transportation Statistics.
Federal Flight Deck Officer means a pilot participating in the
Federal Flight Deck Officer Program under 49 U.S.C. 44921 and
implementing regulations.
Maritime facility means any facility as defined in 33 CFR part 101.
Record includes any means by which information is preserved,
irrespective of format, including a book, paper, drawing, map,
recording, tape, film, photograph, machine-readable material, and any
information stored in an electronic format. The term record also
includes any draft, proposed, or recommended change to any record.
Security contingency plan means a plan detailing response procedures
to address a transportation security incident, threat assessment, or
specific threat against transportation, including details of
preparation, response, mitigation, recovery, and reconstitution
procedures, continuity of government, continuity of transportation
operations, and crisis management.
Security program means a program or plan and any amendments
developed for the security of the following, including any comments,
instructions, or implementing guidance:
(1) An airport, aircraft, or aviation cargo operation;
(2) A maritime facility, vessel, or port area; or
(3) A transportation-related automated system or network for
information processing, control, and communications.
Security screening means evaluating a person or property to
determine whether either poses a threat to security.
SSI means sensitive security information, as described in Sec.
15.5.
Threat image projection system means an evaluation tool that
involves periodic presentation of fictional threat images to operators
and is used in connection with x-ray or explosives detection systems
equipment.
TSA means the Transportation Security Administration.
Vulnerability assessment means any review, audit, or other
examination of the security of a transportation infrastructure asset;
airport; maritime facility, port area, vessel, aircraft, train,
commercial motor vehicle, or pipeline, or a transportation-related
automated system or network, to determine its vulnerability to unlawful
interference, whether during the conception, planning, design,
construction, operation, or decommissioning phase. A vulnerability
assessment may include proposed, recommended, or directed actions or
countermeasures to address security concerns.
Sec. 15.5 Sensitive security information.
(a) In general. In accordance with 49 U.S.C. 40119(b)(1), SSI is
information obtained or developed in the conduct of security activities,
including research and development, the disclosure of which the
Secretary of DOT has determined would--
(1) Constitute an unwarranted invasion of privacy (including, but
not limited to, information contained in any personnel, medical, or
similar file);
(2) Reveal trade secrets or privileged or confidential information
obtained from any person; or
(3) Be detrimental to transportation safety.
(b) Information constituting SSI. Except as otherwise provided in
writing by the Secretary of DOT in the interest of public safety or in
furtherance of transportation security, the following information, and
records containing such information, constitute SSI:
[[Page 112]]
(1) Security programs and contingency plans. Any security program or
security contingency plan issued, established, required, received, or
approved by DOT or DHS, including--
(i) Any aircraft operator or airport operator security program or
security contingency plan under this chapter;
(ii) Any vessel, maritime facility, or port area security plan
required or directed under Federal law;
(iii) Any national or area security plan prepared under 46 U.S.C.
70103; and
(iv) Any security incident response plan established under 46 U.S.C.
70104.
(2) Security Directives. Any Security Directive or order--
(i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other
authority;
(ii) Issued by the Coast Guard under the Maritime Transportation
Security Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. related to
maritime security; or
(iii) Any comments, instructions, and implementing guidance
pertaining thereto.
(3) Information Circulars. Any notice issued by DHS or DOT regarding
a threat to aviation or maritime transportation, including any--
(i) Information Circular issued by TSA under 49 CFR 1542.303 or
1544.305, or other authority; and
(ii) Navigation or Vessel Inspection Circular issued by the Coast
Guard related to maritime security.
(4) Performance specifications. Any performance specification and
any description of a test object or test procedure, for--
(i) Any device used by the Federal government or any other person
pursuant to any aviation or maritime transportation security
requirements of Federal law for the detection of any weapon, explosive,
incendiary, or destructive device or substance; and
(ii) Any communications equipment used by the Federal government or
any other person in carrying out or complying with any aviation or
maritime transportation security requirements of Federal law.
(5) Vulnerability assessments. Any vulnerability assessment
directed, created, held, funded, or approved by the DOT, DHS, or that
will be provided to DOT or DHS in support of a Federal security program.
(6) Security inspection or investigative information. (i) Details of
any security inspection or investigation of an alleged violation of
aviation or maritime transportation security requirements of Federal law
that could reveal a security vulnerability, including the identity of
the Federal special agent or other Federal employee who conducted the
inspection or audit.
(ii) In the case of inspections or investigations performed by TSA,
this includes the following information as to events that occurred
within 12 months of the date of release of the information: the name of
the airport where a violation occurred, the airport identifier in the
case number, a description of the violation, the regulation allegedly
violated, and the identity of any aircraft operator in connection with
specific locations or specific security procedures. Such information
will be released after the relevant 12-month period, except that TSA
will not release the specific gate or other location on an airport where
an event occurred, regardless of the amount of time that has passed
since its occurrence. During the period within 12 months of the date of
release of the information, TSA may release summaries of an aircraft
operator's, but not an airport operator's, total security violations in
a specified time range without identifying specific violations or
locations. Summaries may include total enforcement actions, total
proposed civil penalty amounts, number of cases opened, number of cases
referred to TSA or FAA counsel for legal enforcement action, and number
of cases closed.
(7) Threat information. Any information held by the Federal
government concerning threats against transportation or transportation
systems and sources and methods used to gather or develop threat
information, including threats against cyber infrastructure.
(8) Security measures. Specific details of aviation or maritime
transportation security measures, both operational and technical,
whether applied directly by the Federal government or another person,
including--
(i) Security measures or protocols recommended by the Federal
government;
[[Page 113]]
(ii) Information concerning the deployments, numbers, and operations
of Coast Guard personnel engaged in maritime security duties and Federal
Air Marshals, to the extent it is not classified national security
information; and
(iii) Information concerning the deployments and operations of
Federal Flight Deck Officers, and numbers of Federal Flight Deck
Officers aggregated by aircraft operator.
(9) Security screening information. The following information
regarding security screening under aviation or maritime transportation
security requirements of Federal law:
(i) Any procedures, including selection criteria and any comments,
instructions, and implementing guidance pertaining thereto, for
screening of persons, accessible property, checked baggage, U.S. mail,
stores, and cargo, that is conducted by the Federal government or any
other authorized person.
(ii) Information and sources of information used by a passenger or
property screening program or system, including an automated screening
system.
(iii) Detailed information about the locations at which particular
screening methods or equipment are used, only if determined by TSA to be
SSI.
(iv) Any security screener test and scores of such tests.
(v) Performance or testing data from security equipment or screening
systems.
(vi) Any electronic image shown on any screening equipment monitor,
including threat images and descriptions of threat images for threat
image projection systems.
(10) Security training materials. Records created or obtained for
the purpose of training persons employed by, contracted with, or acting
for the Federal government or another person to carry out any aviation
or maritime transportation security measures required or recommended by
DHS or DOT.
(11) Identifying information of certain transportation security
personnel. (i) Lists of the names or other identifying information that
identify persons as--
(A) Having unescorted access to a secure area of an airport or a
secure or restricted area of a maritime facility, port area, or vessel
or;
(B) Holding a position as a security screener employed by or under
contract with the Federal government pursuant to aviation or maritime
transportation security requirements of Federal law, where such lists
are aggregated by airport;
(C) Holding a position with the Coast Guard responsible for
conducting vulnerability assessments, security boardings, or engaged in
operations to enforce maritime security requirements or conduct force
protection;
(D) Holding a position as a Federal Air Marshal; or
(ii) The name or other identifying information that identifies a
person as a current, former, or applicant for Federal Flight Deck
Officer.
(12) Critical aviation or maritime infrastructure asset information.
Any list identifying systems or assets, whether physical or virtual, so
vital to the aviation or maritime transportation system that the
incapacity or destruction of such assets would have a debilitating
impact on transportation security, if the list is--
(i) Prepared by DHS or DOT; or
(ii) Prepared by a State or local government agency and submitted by
the agency to DHS or DOT.
(13) Systems security information. Any information involving the
security of operational or administrative data systems operated by the
Federal government that have been identified by the DOT or DHS as
critical to aviation or maritime transportation safety or security,
including automated information security procedures and systems,
security inspections, and vulnerability information concerning those
systems.
(14) Confidential business information. (i) Solicited or unsolicited
proposals received by DHS or DOT, and negotiations arising therefrom, to
perform work pursuant to a grant, contract, cooperative agreement, or
other transaction, but only to the extent that the subject matter of the
proposal relates to aviation or maritime transportation security
measures;
(ii) Trade secret information, including information required or
requested by regulation or Security Directive, obtained by DHS or DOT in
carrying
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out aviation or maritime transportation security responsibilities; and
(iii) Commercial or financial information, including information
required or requested by regulation or Security Directive, obtained by
DHS or DOT in carrying out aviation or maritime transportation security
responsibilities, but only if the source of the information does not
customarily disclose it to the public.
(15) Research and development. Information obtained or developed in
the conduct of research related to aviation or maritime transportation
security activities, where such research is approved, accepted, funded,
recommended, or directed by the DHS or DOT, including research results.
(16) Other information. Any information not otherwise described in
this section that TSA determines is SSI under 49 U.S.C. 114(s) or that
the Secretary of DOT determines is SSI under 49 U.S.C. 40119. Upon the
request of another Federal agency, the Secretary of DOT may designate as
SSI information not otherwise described in this section.
(c) Loss of SSI designation. The Secretary of DOT may determine in
writing that information or records described in paragraph (b) of this
section do not constitute SSI because they no longer meet the criteria
set forth in paragraph (a) of this section.
Sec. 15.7 Covered persons.
Persons subject to the requirements of part 15 are:
(a) Each airport operator and aircraft operator subject to the
requirements of Subchapter C of this title.
(b) Each indirect air carrier, as defined in 49 CFR 1540.5.
(c) Each owner, charterer, or operator of a vessel, including
foreign vessel owners, charterers, and operators, required to have a
security plan under Federal or International law.
(d) Each owner or operator of a maritime facility required to have a
security plan under the Maritime Transportation Security Act, (Pub. L.
107-295), 46 U.S.C. 70101 et seq., 33 CFR part 6, or 33 U.S.C. 1221 et
seq.
(e) Each person performing the function of a computer reservation
system or global distribution system for airline passenger information.
(f) Each person participating in a national or area security
committee established under 46 U.S.C. 70112, or a port security
committee.
(g) Each industry trade association that represents covered persons
and has entered into a non-disclosure agreement with the DHS or DOT.
(h) DHS and DOT.
(i) Each person conducting research and development activities that
relate to aviation or maritime transportation security and are approved,
accepted, funded, recommended, or directed by DHS or DOT.
(j) Each person who has access to SSI, as specified in Sec. 15.11.
(k) Each person employed by, contracted to, or acting for a covered
person, including a grantee of DHS or DOT, and including a person
formerly in such position.
(l) Each person for which a vulnerability assessment has been
directed, created, held, funded, or approved by the DOT, DHS, or that
has prepared a vulnerability assessment that will be provided to DOT or
DHS in support of a Federal security program.
(m) Each person receiving SSI under Sec. 1520.15(d) or (e).
Sec. 15.9 Restrictions on the disclosure of SSI.
(a) Duty to protect information. A covered person must--
(1) Take reasonable steps to safeguard SSI in that person's
possession or control from unauthorized disclosure. When a person is not
in physical possession of SSI, the person must store it a secure
container, such as a locked desk or file cabinet or in a locked room.
(2) Disclose, or otherwise provide access to, SSI only to covered
persons who have a need to know, unless otherwise authorized in writing
by TSA, the Coast Guard, or the Secretary of DOT.
(3) Refer requests by other persons for SSI to TSA or the applicable
component or agency within DOT or DHS.
(4) Mark SSI as specified in Sec. 15.13.
(5) Dispose of SSI as specified in Sec. 15.19.
(b) Unmarked SSI. If a covered person receives a record containing
SSI that is not marked as specified in Sec. 1520.13, the covered person
must--
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(1) Mark the record as specified in Sec. 15.13; and
(2) Inform the sender of the record that the record must be marked
as specified in Sec. 15.13.
(c) Duty to report unauthorized disclosure. When a covered person
becomes aware that SSI has been released to unauthorized persons, the
covered person must promptly inform TSA or the applicable DOT or DHS
component or agency.
(d) Additional requirements for critical infrastructure information.
In the case of information that is both SSI and has been designated as
critical infrastructure information under section 214 of the Homeland
Security Act, any covered person who is a Federal employee in possession
of such information must comply with the disclosure restrictions and
other requirements applicable to such information under section 214 and
any implementing regulations.