[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2016 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 49
Transportation
________________________
Parts 1 to 99
Revised as of October 1, 2016
Containing a codification of documents of general
applicability and future effect
As of October 1, 2016
Published by the Office of the Federal Register
National Archives and Records Administration as 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:
Table of CFR Titles and Chapters........................ 703
Alphabetical List of Agencies Appearing in the CFR...... 723
List of CFR Sections Affected........................... 733
[[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
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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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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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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
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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Code users may find the text of provisions in effect on any given date
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``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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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
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
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Oliver A. Potts,
Director,
Office of the Federal Register.
October 1, 2016.
[[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
100-177, parts 178-199, parts 200-299, parts 300-399, parts 400-571,
parts 572-999, parts 1000-1199, and 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-
177) and the third volume (parts 178-199) 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 400-571) contains
the current regulations issued under chapter IV--Coast Guard (DHS), and
some of chapter V--National Highway Traffic Safety Administration (DOT);
the seventh volume (parts 572-999) contains the rest of the regulations
issued under chapter IV, and 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, 2016.
In the volume containing parts 100-177, 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, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[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
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Part Page
1 Organization and delegation of powers and
duties.................................. 5
3 Official seal............................... 51
5 Rulemaking procedures....................... 52
6 Implementation of Equal Access to Justice
Act in agency proceedings............... 55
7 Public availability of information.......... 61
8 Classified information: Classification/
declassification/access................. 78
9 Testimony of employees of the Department and
production of records in legal
proceedings............................. 83
10 Maintenance of and access to records
pertaining to individuals............... 88
11 Protection of human subjects................ 101
15 Protection of sensitive security information 111
17 Intergovernmental review of Department of
Transportation programs and activities.. 118
18-19 [Reserved]
20 New restrictions on lobbying................ 121
21 Nondiscrimination in federally-assisted
programs of the Department of
Transportation--Effectuation of Title VI
of the Civil Rights Act of 1964......... 133
22 Short-term lending program (STLP)........... 144
23 Participation of disadvantaged business
enterprise in airport concessions....... 153
24 Uniform relocation assistance and real
property acquisition for Federal and
federally-assisted programs............. 174
25 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 221
26 Participation by disadvantaged business
enterprises in Department of
Transportation financial assistance
programs................................ 237
[[Page 4]]
27 Nondiscrimination on the basis of disability
in programs or activities receiving
Federal financial assistance............ 314
28 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Transportation....................... 330
30 Denial of public works contracts to
suppliers of goods and services of
countries that deny procurement market
access to U.S. contractors.............. 337
31 Program fraud civil remedies................ 342
32 Governmentwide requirements for drug-free
workplace (financial assistance)........ 358
33 Transportation priorities and allocation
system.................................. 363
37 Transportation services for individuals with
disabilities (ADA)...................... 388
38 Americans with Disabilities Act (ADA)
accessibility specifications for
transportation vehicles................. 486
39 Transportation for individuals with
disabilities: passenger vessels......... 524
40 Procedures for transportation workplace drug
and alcohol testing programs............ 540
41 Seismic safety.............................. 656
71 Standard time zone boundaries............... 658
79 Medals of honor............................. 664
80 Credit assistance for surface transportation
projects................................ 665
89 Implementation of the Federal Claims
Collection Act.......................... 670
91 International air transportation fair
competitive practices................... 677
92 Recovering debts to the United States by
salary offset........................... 679
93 Aircraft allocation......................... 689
95 [Reserved]
98 Enforcement of restrictions on post-
employment activities................... 689
99 Employee responsibilities and conduct....... 692
Appendix to Subtitle A--United States Railway Association--
Employee Responsibilities and Conduct..................... 694
[[Page 5]]
PART 1_ORGANIZATION AND DELEGATION OF POWERS AND DUTIES--
Table of Contents
Subpart A_General
Sec.
1.1 Overview.
1.2 Organization of the Department.
1.3 Exercise of authority.
1.4 Construction.
Subpart B_Office of the Secretary
1.11 Overview.
1.13 OST key responsibilities.
1.15 OST structure.
1.17 OST line of secretarial succession.
OST Officials
1.20 Secretary of Transportation.
1.21 Reservations of Authority to the Secretary of Transportation.
1.22 Deputy Secretary.
1.23 Delegations to the Deputy Secretary.
1.24 Under Secretary of Transportation for Policy.
1.25 Delegations to the Under Secretary of Transportation for Policy.
1.25a Redelegations by the Under Secretary of Transportation for
Policy.
1.26 General Counsel.
1.27 Delegations to the General Counsel.
1.27a Delegations to the Career Deputy General Counsel.
1.27b Delegations to the Assistant General Counsel for General Law.
1.30 Assistant Secretaries.
1.31 Assistant Secretary for Transportation Policy.
1.32 Assistant Secretary for Aviation and International Affairs.
1.33 Chief Financial Officer and Assistant Secretary for Budget and
Programs.
1.34 Delegations to the Chief Financial Officer and Assistant Secretary
for Budget and Programs.
1.35 Assistant Secretary for Governmental Affairs.
1.36 Delegations to the Assistant Secretary for Governmental Affairs.
1.37 Assistant Secretary for Administration.
1.38 Delegations to the Assistant Secretary for Administration.
1.38a Redelegations by the Assistant Secretary for Administration.
1.39 Executive Secretariat.
1.40 Departmental Office of Civil Rights.
1.41 Delegations to the Director of the Departmental Office of Civil
Rights.
1.42 Office of Small and Disadvantaged Business Utilization.
1.43 Delegations to the Director of the Office of Small and
Disadvantaged Business Utilization.
1.44 Office of Intelligence, Security and Emergency Response.
1.45 Delegations to the Director of the Office of Intelligence,
Security and Emergency Response.
1.46 Office of Public Affairs.
1.47 Delegations to the Assistant to the Secretary and Director of
Public Affairs.
1.48 Office of the Chief Information Officer.
1.49 Delegations to the Chief Information Officer.
1.50 Office of Drug & Alcohol Policy & Compliance.
1.60 General Authorizations and Delegations to Secretarial Officers.
Subpart C_Office of Inspector General
1.70 Overview.
1.71 Key responsibilities.
1.72 Structure.
1.73 Authority of Inspector General.
1.74 Delegations to Inspector General.
Subpart D_Operating Administrations
1.80 Overview.
1.81 Delegations to all Administrators.
1.81a Redelegation by all Administrators.
1.82 The Federal Aviation Administration.
1.83 Delegations to the Federal Aviation Administrator.
1.84 The Federal Highway Administration.
1.85 Delegations to the Federal Highway Administrator.
1.86 The Federal Motor Carrier Safety Administration.
1.87 Delegations to the Federal Motor Carrier Safety Administrator.
1.88 The Federal Railroad Administration.
1.89 Delegations to the Federal Railroad Administrator.
1.90 The Federal Transit Administration.
1.91 Delegations to the Federal Transit Administrator.
1.92 The Maritime Administration.
1.93 Delegations to the Maritime Administrator.
1.94 The National Highway Traffic Safety Administration.
1.95 Delegations to the National Highway Traffic Safety Administrator.
1.96 The Pipeline and Hazardous Materials Safety Administration.
1.97 Delegations to the Pipeline and Hazardous Materials Safety
Administrator.
1.98 The Research and Innovative Technology Administration.
1.99 Delegations to the Research and Innovative Technology
Administrator.
1.100 The Saint Lawrence Seaway Development Corporation.
1.101 Delegations to the Saint Lawrence Seaway Development Corporation
Administrator.
[[Page 6]]
Appendix A to Part 1--Delegations and Redelegations by Secretarial
Officers
Authority: 49 U.S.C. 322.
Source: 81 FR 19819, Apr. 5, 2016, unless otherwise noted.
Subpart A_General
Sec. 1.1 Overview.
This part describes the organization of the United States 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 Organization of the Department.
(a) The Secretary of Transportation is the head of the Department.
(b) The Department comprises the Office of the Secretary of
Transportation (OST), the Office of the Inspector General (OIG), and the
following Operating Administrations, each headed by an Administrator who
reports directly to the Secretary:
(1) The Federal Aviation Administration (FAA).
(2) The Federal Highway Administration (FHWA).
(3) The Federal Motor Carrier Safety Administration (FMCSA).
(4) The Federal Railroad Administration (FRA).
(5) The Federal Transit Administration (FTA).
(6) The Maritime Administration (MARAD).
(7) The National Highway Traffic Safety Administration (NHTSA).
(8) The Pipeline and Hazardous Materials Safety Administration
(PHMSA).
(9) The Research and Innovative Technology Administration (RITA).
(10) The Saint Lawrence Seaway Development Corporation (SLSDC).
Sec. 1.3 Exercise of authority.
(a) In exercising powers and performing duties delegated by this
part 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, the Under Secretary, the General
Counsel, an Assistant Secretary, the Inspector General, 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.
(b) Subject to the reservations of authority to the Secretary of
Transportation in Sec. 1.21, the Deputy Secretary, the Under Secretary,
the General Counsel, the Assistant Secretaries, the Inspector General,
and the Administrators exercise the powers and perform the duties
delegated to them under this part.
(c) For delegations of authority vested in the Secretary by
Executive Order 13526 (see also Executive Orders 12958 and 12065)
originally to classify documents as secret and confidential, see
Sec. 8.11 of this subtitle. Previous delegations of authority to
Department of Transportation officials to originally classify
information as secret and confidential are hereby rescinded.
Sec. 1.4 Construction.
For the purposes of this part:
(a) ``Federal Aviation Administrator'' is synonymous with
``Administrator of the Federal Aviation Administration.''
(b) ``Federal Highway Administrator'' is synonymous with
``Administrator of the Federal Highway Administration.''
(c) ``Federal Motor Carrier Safety Administrator'' is synonymous
with ``Administrator of the Federal Motor Carrier Safety
Administration.''
(d) ``Federal Railroad Administrator'' is synonymous with
``Administrator of the Federal Railroad Administration.''
(e) ``Federal Transit Administrator'' is synonymous with
``Administrator of the Federal Transit Administration.''
(f) ``Maritime Administrator'' is synonymous with ``Administrator of
the Maritime Administration.''
(g) ``National Highway Traffic Safety Administrator'' is synonymous
with ``Administrator of the National Highway Traffic Safety
Administration.''
[[Page 7]]
(h) ``Pipeline and Hazardous Materials Safety Administrator'' is
synonymous with ``Administrator of the Pipeline and Hazardous Materials
Safety Administration.''
(i) ``Saint Lawrence Seaway Development Corporation Administrator''
is synonymous with ``Administrator of the Saint Lawrence Seaway
Development Corporation.''
Subpart B_Office of the Secretary
Sec. 1.11 Overview.
This subpart sets forth the OST's key responsibilities, its basic
organizational structure, and the line of Secretarial succession in time
of need. It also describes the key responsibilities of OST officials,
and sets forth delegations and reservations of authority to those
officials.
Sec. 1.13 OST key responsibilities.
(a) The OST is responsible for:
(1) Providing leadership in formulating and executing well-balanced
national and international transportation objectives, policies, and
programs to ensure the Nation has safe, economically competitive
transportation systems that support U.S. interests, that are maintained
in a state of good repair, that foster environmental sustainability, and
that support livable communities;
(2) Chairing the Department's Safety Council;
(3) Stimulating and promoting research and development in all modes
and types of transportation, with special emphasis on transportation
safety;
(4) Coordinating the various transportation programs of the Federal
Government;
(5) Encouraging maximum private development of transportation
services;
(6) Providing responsive, timely, and effective liaison with
Congress and public and private organizations on transportation matters;
(7) Providing innovative approaches to urban transportation and
environmental enhancement programs;
(8) Overseeing the Department's multimodal freight policy;
(9) Providing effective management of the Department as a whole to
ensure it achieves organizational excellence;
(10) Leading Department-wide efforts for greater transparency and
accountability;
(11) Administering the Department's Livable Communities initiative
to increase access to convenient and affordable transportation choices
and improve transportation networks that accommodate pedestrians and
bicycles;
(12) Coordinating the Department's credit and financial assistance
programs by leading the Credit Council to ensure responsible financing
for the Nation's transportation projects;
(13) Formulating and executing policies to ensure effective
operation of the Department's aviation economic program including
functions related to consumer protection and civil rights, domestic
airline licensing matters, competition oversight, airline data
collection, and review of international route negotiations and route
awards to carriers; and
(14) Leading and coordinating Federal Government transportation
fringe benefit programs.
(b) [Reserved]
Sec. 1.15 OST structure.
(a) Secretary and Deputy Secretary. The Secretary and Deputy
Secretary are assisted by the following, all of which report directly to
the Secretary:
(1) The Chief of Staff;
(2) The Executive Secretariat;
(3) The Departmental Office of Civil Rights;
(4) The Office of Small and Disadvantaged Business Utilization;
(5) The Office of Intelligence, Security and Emergency Response;
(6) The Office of Public Affairs;
(7) The Office of the Chief Information Officer; and
(8) The Office of Drug & Alcohol Policy & Compliance.
(b) The Under Secretary of Transportation for Policy, the General
Counsel, and the Assistant Secretaries for Administration, Budget and
Programs, and Governmental Affairs also report directly to the
Secretary.
(c) Office of the Under Secretary of Transportation for Policy. This
Office is composed of:
[[Page 8]]
(1) The Office of the Assistant Secretary for Transportation Policy,
which includes:
(i) The Office of Policy Development, Strategic Planning and
Performance;
(ii) The Office of Infrastructure Finance and Innovation; and
(iii) The Office of the Chief Economist.
(2) The Office of the Assistant Secretary for Aviation and
International Affairs, which includes:
(i) The Office of International Transportation and Trade;
(ii) The Office of International Aviation; and
(iii) The Office of Aviation Analysis.
(d) Office of the General Counsel. This Office is composed of:
(1) The Office of General Law;
(2) The Office of International Law;
(3) The Office of Litigation;
(4) The Office of Legislation;
(5) The Office of Regulation and Enforcement;
(6) The Office of Operations, which includes the Freedom of
Information Act (FOIA) Office;
(7) The Office of Aviation Enforcement and Proceedings, which
includes the Aviation Consumer Protection Division; and
(8) The Center for Alternative Dispute Resolution.
(e) Office of the Chief Financial Officer and Assistant Secretary
for Budget and Programs. This Office is composed of:
(1) The Office of Budget and Program Performance;
(2) The Office of Financial Management;
(3) The Office of the Chief Financial Officer for the Office of the
Secretary; and
(4) The Office of Credit Oversight and Risk Management.
(f) Office of the Assistant Secretary for Governmental Affairs. This
Office contains the following functional areas: Congressional Affairs
and Intergovernmental Affairs; and includes a Deputy Assistant Secretary
for Tribal Government Affairs.
(g) Office of the Assistant Secretary for Administration. This
Office is composed of:
(1) The Office of Audit Relations;
(2) The Office of Human Resource Management;
(3) The Office of Hearings;
(4) The Office of Security;
(5) The Office of the Senior Procurement Executive;
(6) The Office of Financial Management and Transit Benefit Programs;
and
(7) The Office of Facilities, Information and Asset Management.
Sec. 1.17 OST line of 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 the case of a
vacancy, until a successor is appointed. Notwithstanding the provisions
of this section, the President retains discretion, to the extent
permitted by the law, to depart from this order in designating an acting
Secretary of Transportation.
(1) Deputy Secretary.
(2) Under Secretary of Transportation for Policy.
(3) General Counsel.
(4) Chief Financial Officer and Assistant Secretary for Budget and
Programs.
(5) Assistant Secretary for Transportation Policy.
(6) Assistant Secretary for Governmental Affairs.
(7) Assistant Secretary for Aviation and International Affairs.
(8) Assistant Secretary for Administration.
(9) Administrator of the Federal Highway Administration.
(10) Administrator of the Federal Aviation Administration.
(11) Administrator of the Federal Motor Carrier Safety
Administration.
(12) Administrator of the Federal Railroad Administration.
(13) Administrator of the Federal Transit Administration.
(14) Administrator of the Maritime Administration.
(15) Administrator of the Pipeline and Hazardous Materials Safety
Administration.
(16) Administrator of the National Highway Traffic Safety
Administration.
[[Page 9]]
(17) Administrator of the Research and Innovative Technology
Administration.
(18) Administrator of the Saint Lawrence Seaway Development
Corporation.
(19) Regional Administrator, Southern Region, Federal Aviation
Administration.
(20) Director, Resource Center, Lakewood, Colorado, Federal Highway
Administration.
(21) Regional Administrator, Northwest Mountain Region, Federal
Aviation Administration.
(b) Without regard to the foregoing, a person directed to perform
the duties of the Secretary pursuant to 5 U.S.C. 3347 (the Vacancies
Act) shall act as Secretary of Transportation.
OST Officials
Sec. 1.20 Secretary of Transportation.
The Secretary is the head of the Department. The Secretary exercises
oversight of all of the OST components, as well as each of the Operating
Administrations, and overall planning, direction, and control of the
Department's agenda.
Sec. 1.21 Reservations of Authority to the Secretary of Transportation.
(a) All powers and duties that are not delegated by the Secretary in
this part, 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) The delegations of authority in subpart C (Office of the
Inspector General) and subpart D (Operating Administrations) of this
part 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:
(1) General transportation matters.
(i) Transportation leadership authority pursuant to 49 U.S.C. 301
(Duties of the Secretary of Transportation: Leadership, consultation,
and cooperation).
(ii) Functions relating to transportation activities, plans, and
programs under 49 U.S.C. 304 (Joint activities with the Secretary of
Housing and Urban Development).
(iii) Authority to develop, prepare, coordinate, transmit, and
revise transportation investment standards and criteria under 49 U.S.C.
305 (Transportation investment standards and criteria).
(iv) Authority relating to standard time zones and advanced
(daylight) time (15 U.S.C. 260 et seq.).
(2) Legislation, rulemakings, and reports. (i) Submission to the
President, the Director of the Office of Management and Budget, or
Congress of proposals or recommendations for legislation, significant
rulemakings and related documents as authorized by law, Executive
Orders, proclamations or reorganization plans, or other Presidential
action.
(ii) Submission to the President or Congress of any report or any
proposed transportation policy or investment standards or criteria,
except with the prior written approval of the Secretary.
(iii) Submission of the annual statement on systems of internal
accounting and administrative control under the Federal Managers'
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
(3) Budget and finance. (i) 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. 1108).
(ii) Approval of requests for legislation which, if enacted, would
authorize subsequent appropriations for the Department (31 U.S.C. 581b).
(iii) Transfer of the balance of an appropriation from one operating
element to another within the Department (31 U.S.C. 581c).
(iv) 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).
(4) Personnel. (i) Recommendations to the Office of Personnel
Management regarding the allocation of a position to the Senior
Executive Service (SES) or Senior Level (SL), or Scientific and
[[Page 10]]
Professional Positions (ST) (5 U.S.C. 5108).
(ii) Recommendations to the Office of Personnel Management of
approval of the qualifications of any candidate for a position in the
SES or SL.
(iii) Recommendations to the Office of Personnel Management of a
Lump-Sum Incentive Award in Excess of $10,000 (5 U.S.C. 4502).
(iv) Approval of the following actions relating to Schedules A, B,
C, or D (5 CFR part 213) 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:
(A) Establishment or abolition of positions;
(B) Hires;
(C) Promotions other than quality and periodic within-grade
promotions;
(D) Transfer of personnel to Schedule A, B, C, or D positions or
non-career executive assignment positions, either permanently or on
detail; and
(E) Transfer of personnel from Schedule A, B, C, or D or non-career
executive assignment positions to career Civil Service positions.
(v) Approval of employment of experts or consultants.
(vi) Authority to determine the maximum limit of age for appointment
of air traffic controllers as provided by 5 U.S.C. 3307(b).
(vii) Authority to develop, coordinate, and issue wage schedules
under the Federal Wage system.
(5) Security. (i) 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) as
amended and Executive Order 12968 as amended by Executive Order 13467.
(ii) Requesting Presidential approval of a claim of executive
privilege with respect to information requested by a Congressional
committee or Member of Congress.
(iii) Making determinations prescribed by Executive Order 12968 as
amended by Executive Order 13467 and 32 CFR part 147 relating to the
adjudication and final denial of access to classified information to
industry personnel.
(iv) Making those determinations or delegations prescribed by
Executive Order 13526 that are reserved to the head of the Department.
(6) Procurement. Exercising the extraordinary authority for defense
contracts provided for in Pub. L. 85-804 [(50 U.S.C. 1431-1435)].
(7) Printing. Requesting approval of the Joint Committee on Printing
for any procurement or other action requiring Committee approval.
(8) Interagency agreements. Executing any written interdepartmental
or interagency agreement with the head of another executive department
or agency.
(9) 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, 158, 159, 161, and 163 which are specifically delegated in
Secs. 1.85 (FHWA) and 1.95 (NHTSA).
(10) National Highway Safety Advisory Committee. Directing the
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
(11) Maritime Subsidy Board. Reviewing decisions, reports, orders
and other actions of the Maritime Subsidy Board.
(12) Cash purchases of passenger transportation. The authority under
41 CFR 301-51.100 to authorize and approve cash purchases for emergency
passenger transportation services costing more than $100.
(13) Solicitation of gifts. The implied authority to solicit gifts
associated with 49 U.S.C. 326(a).
(14) Foreign travel. Approving official travel outside of the United
States.
(15) United States Merchant Marine Academy. Pursuant to 49 U.S.C.
51303, the authority to appoint each year without competition as cadets
at the United States Merchant Marine Academy not more than 40 qualified
individuals with qualities the Secretary considers to be of special
value to the Academy.
(16) Challenges and competitions. Approving any challenge or
competition
[[Page 11]]
administered by any office or Operating Administration of the
Department.
(17) Committees. Approving the establishment, modification,
extension, or termination of all advisory committees (including industry
advisory committees) subject to the Federal Advisory Committee Act (Pub.
L. 92-463; 5 U.S.C. App.), and the designation of Departmental
representatives to those committees.
(18) Credit assistance approval. Granting final approval of
applications for credit assistance under the Transportation
Infrastructure Finance and Innovation Act (TIFIA), 23 U.S.C. 601-609.
Sec. 1.22 Deputy Secretary.
Along with the Secretary, the Deputy Secretary exercises oversight
of all of the OST components, as well as each of the Operating
Administrations, and overall planning, direction, and control of the
Department's agenda. The Deputy Secretary:
(a) May exercise the authority of the Secretary, except where
specifically limited by law, order, regulation, or instructions of the
Secretary;
(b) Serves as the Chief Operating Officer; and
(c) Serves as the Chief Acquisition Officer.
Sec. 1.23 Delegations to the 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 Departmental Budgeting and
Program Evaluation.
(b) Serve as Chairman of the Departmental Executive Resources Board
and its Executive Committee.
(c) Serve as the Chair of the Department's Safety Council.
(d) Serve as the Chair of the Department's Credit Council.
(e) Approve the establishment, modification, extension, or
termination of:
(1) Department-wide (intra-department) committees affecting more
than one program.
(2) OST-sponsored interagency committees.
(f) Approve the designation of:
(1) Departmental representatives and the chairman for interagency
committees sponsored by the Office of the Secretary.
(2) Departmental members for international committees.
(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 49
U.S.C. 24302.
(h) Approve the initiation of regulatory action, as defined in
Executive Order 12866, by Secretarial offices and Operating
Administrations.
Sec. 1.24 Under Secretary of Transportation for Policy.
The Under Secretary provides leadership in the Department's
development of policies and programs to protect and enhance the safety,
adequacy, and efficiency of the transportation system and services. The
Office of the Under Secretary 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.
Sec. 1.25 Delegations to the Under Secretary of Transportation
for Policy.
The Under Secretary is delegated the following authorities:
(a) Lead the development of transportation policy and serve as the
principal adviser to the Secretary on all transportation policy matters.
(b) Establish policy and ensure uniform departmental implementation
of the National Environmental Policy Act of 1969, Pub. L. 91-190, as
amended (42 U.S.C. 4321-4347) within the Department of Transportation.
(c) Oversee the implementation of 49 U.S.C. 303 (Policy on lands,
wildlife and waterfowl refuges, and historic sites).
(d) Represent the Secretary of Transportation on various interagency
boards, committees, and commissions
[[Page 12]]
to include the Architectural and Transportation Barriers Compliance
Board and the Advisory Council on Historic Preservation and the Trade
Policy Review Group and the Trade Policy Staff Committee.
(e) Serve as the Department's designated principal conservation
officer pursuant to section 656 of the Department of Energy Organization
Act, Pub. L. 94-91 [42 U.S.C. 7266], and carry out the functions vested
in the Secretary by section 656 of the Act, which pertains to planning
and implementing energy conservation matters with the Department of
Energy.
(f) Carry out the functions of the Secretary pertaining to aircraft
with respect to Transportation Order T-1 (44 CFR chapter IV) under the
Defense Production Act of 1950, as amended, Pub. L. 81-774, 64 Stat. 798
[50 U.S.C. App. 2061 et seq.] and Executive Order 10480, as amended (see
also Executive Order 10773 and 12919).
(g) Serve as Department of Transportation member of the Interagency
Group on International Aviation, and pursuant to Executive Order 11382,
as amended, serve as Chair of the Group.
(h) 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), as amended,
and Executive Order 12188, as amended.
(i) As supplemented by 14 CFR part 385, and except as provided in
Secs. 1.99(j) (RITA), and 1.27 (General Counsel) of this part, carry out
the functions transferred to the Department from the Civil Aeronautics
Board and other related functions and authority vested in the Secretary
under the following:
(1) Sections 40103(a)(2) (relating to the consultation with the
Architectural and Transportation Barriers Compliance Board before
prescribing regulations or procedures that will have a significant
impact on accessibility of commercial airports for handicapped
individuals), and (c) (relating to foreign aircrafts); 40105 (relating
to international negotiations, agreements, and obligations); 40109(a),
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the
authority to exempt certain air carriers) and (h); 40113(a) and (c);
40114(a) (relating to reports and records); 40115 (relating to the
withholding of information from public disclosure) of Chapter 401 of 49
U.S.C.; and 40116 (relating to the Anti-Head Tax Act);
(2) The following chapters of title 49, U.S.C., except as related to
departmental regulation of airline consumer protection and civil rights
which is delegated to the General Counsel at Sec. 1.27:
(i) Chapter 411 of title 49, U.S.C., relating to air carrier
certification;
(ii) Chapter 413 of title 49, U.S.C., relating to foreign air
transportation;
(iii) Chapter 415 of title 49, U.S.C., relating to pricing;
(iv) Chapter 417 of title 49, U.S.C., relating to the operations of
air carriers, except sections 41721-41723;
(v) Chapter 419 of title 49, U.S.C. and 39 U.S.C. 5402, relating to
the transportation of mail; and
(vi) Section 42303 of 49 U.S.C., relating to the management of the
Web site regarding the use of insecticides in passenger aircraft.
(3) Section 42111 of title 49, U.S.C. with respect to mutual aid
agreements as it relates to foreign air transportation;
(4) Chapters 461 and 463 of title 49, U.S.C., relating to aviation
investigations, proceedings, and penalties under Part A of Subtitle VII
of title 49, U.S.C. except for those sections delegated to the General
Counsel under Sec. 1.27, and to the Federal Aviation Administrator under
Sec. 1.83;
(5) Chapter 473 of title 49, U.S.C., relating to international
airport facilities.
(6) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21],
relating to air carriers and foreign air carriers.
(7) Section 3 of An Act to Encourage Travel in the United States,
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
(8) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of the
Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C. 1607(a)(4),
1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
(j) Carry out the functions vested in the Secretary by 49 U.S.C.
44907(b)(1), (c), and (e) related to the security of foreign airports in
coordination with
[[Page 13]]
the General Counsel, the Federal Aviation Administrator, and the
Assistant Secretary for Administration.
(k) Carry out section 101(a)(2) of the Air Transportation Safety and
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as
delegated to the Secretary of Transportation by the President pursuant
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001
Comp., p. 911.
(l) Exercise the authority vested in the Secretary by section 11143
of the Safe, Accountable, Flexible, Efficient Transportation Equity Act:
A Legacy for Users, Pub. L. 109-59, 119 Stat. 1144 (SAFETEA-LU), to
manage the day-to-day activities associated with implementation of
section 11143 regarding private activity bonds and tax-exempt financing
of highway projects and rail-truck facilities.
(m) In coordination with the General Counsel, carry out the duties
of the Secretary under Executive Orders 12866 and 13563 to establish the
values of time and statistical life in connection with assessing the
costs and benefits of Departmental regulatory action.
(n) Carry out the functions vested in the Secretary by 49 U.S.C.
47129, relating to resolution of disputes over the reasonableness of
fees imposed upon air carriers.
(o) Carry out the functions and exercise the authority vested in the
Secretary by 23 U.S.C. 167(f) (National Freight Strategic Plan).
Sec. 1.25a Redelegations by the Under Secretary of Transportation
for Policy.
(a) The Assistant Secretary for Transportation Policy is redelegated
authority to:
(1)(i) Redelegate and authorize successive redelegation of authority
granted in this paragraph (a) to officials within the Office of the
Assistant Secretary for Transportation Policy, except as limited by law
or specific administrative reservation.
(ii) Publish, in appendix A of this part, redelegations made under
paragraph (a)(1)(i) of this section.
(2) Establish policy and maintain oversight of implementation of the
National Environmental Policy Act of 1969, Pub. L. 91-190, as amended
(42 U.S.C. 4321-4347) within the Department of Transportation.
(3) Oversee the implementation of 49 U.S.C. 303 (Policy on lands,
wildlife and waterfowl refuges, and historic sites).
(4) 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 and the Trade Policy Review Group and the Trade
Policy Staff Committee.
(5) Serve as the Department's designated principal conservation
officer pursuant to section 656 of the Department of Energy Organization
Act, Pub. L. 94-91 [ 42 U.S.C. 7266], and carry out the functions vested
in the Secretary by section 656 of the Act, which pertains to planning
and implementing energy conservation matters with the Department of
Energy.
(6) Carry out the functions of section 42303 of 49 U.S.C., relating
to the management of the Web site regarding the use of insecticides in
passenger aircraft.
(7) In coordination with the General Counsel, carry out the duties
of the Secretary under Executive Orders 12866 and 13563 to establish the
value of statistical life in connection with assessing the costs and
benefits of Departmental regulatory action.
(8) Carry out the duties of the Secretary under Executive Orders
12866 and 13563 to establish the value of time in connection with
assessing the costs and benefits of Departmental regulatory action.
(b) The Assistant Secretary for Aviation and International Affairs
is redelegated authority to:
(1)(i) Redelegate and authorize successive redelegation of authority
granted in this paragraph (b) to officials within the Office of the
Assistant Secretary for Aviation and International Affairs, except as
limited by law or specific administrative reservation.
(ii) Publish, in appendix A of this part, redelegations made under
paragraph (b)(1)(i) of this section.
(2) Carry out the functions of the Secretary pertaining to aircraft
with respect to Transportation Order T-1 (44
[[Page 14]]
CFR chapter IV) under the Defense Production Act of 1950, as amended,
Pub. L. 81-774, 64 Stat. 798 [50 U.S.C. App. 2061 et seq.] and Executive
Order 10480, as amended (see also Executive Order 10773 and 12919).
(3) Serve as Department of Transportation member of the Interagency
Group on International Aviation, and pursuant to Executive Order 11382,
serve as Chair of the Group.
(4) 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), as amended,
and Executive Order 12188.
(5) Represent the Department of Transportation at the Trade Policy
Committee Review Group and the Trade Policy Staff Committee, which were
established at 15 CFR part 2002 as subordinate bodies of the Trade
Policy Committee.
(6) As supplemented by 14 CFR part 385, and except as provided in
Secs. 1.99 (RITA), and 1.27 (General Counsel), carry out the functions
transferred to the Department from the Civil Aeronautics Board and other
related functions and authority vested in the Secretary under the
following provisions of Title 49, U.S.C.:
(i) Sections 40103(a)(2) (relating to the consultation with the
Architectural and Transportation Barriers Compliance Board before
prescribing regulations or procedures that will have a significant
impact on accessibility of commercial airports for handicapped
individuals), and (c) (relating to foreign aircrafts); 40105 (relating
to international negotiations, agreements, and obligations); 40109(a),
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the
authority to exempt certain air carriers) and (h); 40113(a) and (c);
40114(a) (relating to reports and records); 40115 (relating to the
withholding of information from public disclosure; and 40116 (relating
to the Anti-Head Tax Act);
(ii) The following chapters of title 49, U.S.C., except as related
to departmental regulation of airline consumer protection and civil
rights which is delegated to the General Counsel at Sec. 1.27:
(A) Chapter 411, relating to air carrier certification;
(B) Chapter 413, relating to foreign air transportation;
(C) Chapter 415, relating to pricing;
(D) Chapter 417, relating to the operations of air carriers, except
section 41721-41723;
(E) Chapter 419, and 39 U.S.C. 5402, relating to the transportation
of mail;
(iii) Section 42111 of title 49, U.S.C. with respect to mutual aid
agreements as it relates to foreign air transportation;
(iv) Chapters 461 and 463 of title 49, U.S.C., relating to aviation
investigations, proceedings, and penalties under Part A of 49 U.S.C.
Subtitle VII except for those sections delegated to the General Counsel
under Sec. 1.27, and to the Federal Aviation Administrator under
Sec. 1.83;
(v) Chapter 473 of title 49, U.S.C., relating to international
airport facilities.
(vi) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21],
relating to air carriers and foreign air carriers.
(vii) Section 3 of An Act to Encourage Travel in the United States,
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
(viii) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of
the Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C.
1607(a)(4), 1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
(7) Carry out the functions vested in the Secretary by 49 U.S.C.
44907(b)(1), (c), and (e) related to the security of foreign airports in
coordination with the General Counsel, the Federal Aviation
Administrator, and the Assistant Secretary for Administration.
(8) Carry out section 101(a)(2) of the Air Transportation Safety and
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as
delegated to the Secretary of Transportation by the President pursuant
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001
Comp., p. 911.
(9) Carry out the functions vested in the Secretary by 49 U.S.C.
47129, relating to resolution of disputes over the reasonableness of
fees imposed upon air carriers.
Sec. 1.26 General Counsel.
The General Counsel is the chief legal officer of the Department,
legal
[[Page 15]]
advisor to the Secretary, and final authority within the Department on
questions of law. The Office of the General Counsel provides legal
advice to the Secretary and secretarial offices, and supervision,
coordination, and review of the legal work of the Chief Counsel Offices
in the Department. The General Counsel participates with each Operating
Administrator in the performance reviews of Chief Counsel. The General
Counsel is responsible for retention of outside counsel, and for the
approval of the hiring and promotion of departmental attorneys (other
than in the Federal Aviation Administration). The General Counsel is
also responsible for departmental regulation under statutes including
the Air Carrier Access Act, statutes prohibiting unfair and deceptive
practices in air transportation, the Americans with Disabilities Act,
the Disadvantaged Business Enterprise program, and the Uniform Time Act.
The General Counsel coordinates all international legal matters, and
departmental participation in proceedings before other federal and state
agencies. The General Counsel provides oversight of departmental
litigation, regulation, legislation, Freedom of Information Act
compliance, and administrative enforcement.
Sec. 1.27 Delegations to the General Counsel.
The General Counsel is delegated authority to:
(a) Conduct all rulemaking proceedings under the Americans with
Disabilities Act, the Disadvantaged Business Enterprise program, and the
Uniform Time Act, as amended (15 U.S.C. 260 et seq.).
(b) 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 issue operating exceptions in any
case in which the General Counsel determines that it is impractical to
apply the standard time (49 CFR 71.1).
(c) Issue regulations making editorial changes or corrections to the
regulations of the Office of the Secretary.
(d) Grant permission, under specific circumstances, to deviate from
a policy or procedure prescribed by the regulations of the Office of the
Secretary (49 CFR part 9) with respect to the 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.
(e) Respond to petitions for rulemaking or petitions for exemptions
in accordance with 49 CFR 5.13(c) (Processing of petitions), and notify
petitioners of decisions in accordance with 49 CFR 5.13(d).
(f) Provide counsel to employees on questions of conflict of
interest covered by departmental regulations on employee responsibility
and conduct.
(g) Coordinate the issuance of proposed Executive Orders and
proclamations for transmittal to the Office of Management and Budget for
action by the White House.
(h) Except with respect to proceedings relating to safety fitness of
an applicant (49 U.S.C. 307), decide on requests to intervene or appear
before courts (with the consent of the Department of Justice) or
agencies to present the views of the Department, subject to the
concurrence 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. (See also Appendix 1 relating to delegations
to Operating Administration Chief Counsel).
(j) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28
CFR part 14, related to the administrative disposition of federal tort
claims, for claims involving the Office of the Secretary.
(k) Compromise, suspend collection action on, or terminate claims of
the United States that are referred to, or arise out of the activities
of the Office of the Secretary of Transportation.
(l) Conduct coordination with foreign governments under section 118
of the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1428).
(m) Exercise review authority under 49 U.S.C. 41307 (related actions
about
[[Page 16]]
foreign air transportation) delegated to the Secretary by the President
in Executive Order 12597.
(n) Assist and protect consumers in their dealings with the air
transportation industry and conduct all departmental regulation of
airline consumer protection and civil rights pursuant to chapters 401
(General Provisions), 411 (Air Carrier Certificates), 413 (Foreign Air
Transportation), 417 (Operations of Carriers), and 423 (Passenger Air
Service Improvements) of title 49 U.S.C.
(o) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b) (Security and research and development activities), as
implemented by 49 CFR part 15 (Protection of Sensitive Security
Information), in consultation and coordination with the Office of
Intelligence, Security and Emergency Response.
(p) Appear on behalf of the Department on the record in hearing
cases, and 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 Secs. 1.25 and 1.25a
(delegations to and redelegations by the Under Secretary), and 1.99
(RITA). This includes the authority to compromise penalties under 49
U.S.C. 46301 (civil penalties); to issue appropriate orders, including
cease and desist orders, under 49 U.S.C. 46101 (complaints and
investigations); and to require the production of information, under 49
U.S.C. 41708, enter carrier property and inspect records, under 49
U.S.C. 41709, and inquire into the management of the business of a
carrier under 49 U.S.C. 41711 (Air carrier management inquiry and
cooperation with other authorities), as appropriate to the enforcement
responsibilities. In the event that such an enforcement matter comes
before the Secretary of Transportation for adjudication, the Deputy
General Counsel shall advise the Secretary.
(q) 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 (Pub. L. 98-443) [15 U.S.C.
1607(a)(4), 1681s(b)(5), 1691c(a)(5) and 1692l(b)(5)].
(r) Administer 5 U.S.C. 552 (FOIA) and 49 CFR part 7 (Public
Availability of Information) in connection with the records of the
Office of the Secretary and issue procedures to ensure uniform
departmental implementation of statutes and regulations regarding public
access to records.
(s) Prepare reports by carriers on incidents involving animals
during air transport pursuant to 49 U.S.C. 41721.
(t) Exercise authority vested in the Secretary by the Federal Civil
Penalties Inflation Adjustment 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), to promulgate rules that adjust civil
penalties with respect to aviation enforcement.
(u) In coordination with the Under Secretary, to carry out the
duties of the Secretary under Executive Orders 12866 and 13563 to
establish the value of statistical life in connection with assessing the
costs and benefits of Departmental regulatory action.
(v) Approve the initiation of regulatory action, as defined in
Executive Order 12866, by Secretarial offices and Operating
Administrations in the event that the Deputy Secretary is absent or
otherwise unavailable to exercise such authority (see Sec. 1.23(h)).
(w) Approve requests to reclassify rulemakings as non-significant
under DOT procedures.
Sec. 1.27a Delegations to the Career Deputy General Counsel.
The career Deputy General Counsel is delegated authority to:
(a) Serve as the Department's Designated Agency Ethics Official in
accordance with 5 CFR 2638.202;
(b) Serve as the Department's Dispute Resolution Specialist pursuant
to section 3(b) of the Alternative Dispute Resolution Act of 1996, Pub.
L. 104-320, 5 U.S.C. App.; and
(c) Serve as the Department's Chief FOIA Officer under 5 U.S.C.
552(j).
Sec. 1.27b Delegations to the Assistant General Counsel for General Law.
The Assistant General Counsel for General Law is delegated authority
to
[[Page 17]]
serve as the Department's Alternate Agency Ethics Official in accordance
with 5 CFR 2638.202.
Sec. 1.30 Assistant Secretaries.
(a) 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 or other legal authorities; 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) 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.
Sec. 1.31 Assistant Secretary for Transportation Policy.
The Assistant Secretary for Transportation Policy provides policy
advice to the Secretary, the Deputy Secretary, and the Under Secretary.
The Office of the Assistant Secretary for Transportation Policy is
responsible for: Public policy development, coordination, and evaluation
for all aspects of transportation, except in the areas of aviation and
international affairs, 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. For delegations to the Assistant Secretary for Transportation
Policy, see Sec. 1.25a(a).
Sec. 1.32 Assistant Secretary for Aviation and International Affairs.
The Office of the Assistant Secretary for Aviation and International
Affairs is responsible for policy development, coordination, and
evaluation of issues involving aviation, as well as international issues
involving all areas of transportation; 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;
economic regulation of the airline industry while placing maximum
reliance on market forces and on actual and potential competition; the
essential air service program and other rural air service programs; and,
in coordination with the FAA, promotion of the aerospace industry. For
delegations to the Assistant Secretary for Aviation and International
Affairs, see Sec. 1.25a(b).
Sec. 1.33 Chief Financial Officer and Assistant Secretary for Budget
and Programs.
(a) The Chief Financial Officer (CFO) is the principal budget and
financial advisor to the Secretary and serves as Assistant Secretary for
Budget and Programs. The CFO and Assistant Secretary for Budget and
Programs provides oversight and policy guidance for all budget,
financial management, program performance, and internal control
activities of the Department and its Operating Administrations.
(b) The CFO and Assistant Secretary for Budget and Programs concurs
in the appointment and promotion of Chief Financial Officers, Budget
Officers, and Directors of Finance of the Department and its Operating
Administrations, and participates with each
[[Page 18]]
Administrator in the performance reviews of Chief Financial Officers,
Budget Officers, and Directors of Finance in each of the Operating
Administrations.
(c) The CFO and Assistant Secretary for Budget and Programs, in
consultation with the Chief Information Officer, may designate any
information technology system as a financial management system under the
CFO's policy and oversight area of responsibility.
(d) The CFO and Assistant Secretary for Budget and Programs serves
as the Vice Chair of the Department's Credit Council. The Office of the
Assistant Secretary supports the Department's Credit Council by
analyzing applications for the Department's various credit programs. The
CFO also oversees the TIFIA program and the TIFIA Joint Program Office
on behalf of the Secretary, including the evaluation of individual
projects, and provides overall policy direction and program decisions
for the TIFIA program.
(e) The CFO and Assistant Secretary for Budget and Programs is
responsible for preparation, review, and presentation of Department
budget estimates; liaison with the Office of Management and Budget and
Congressional Budget and Appropriations Committees; preparation of the
Department's annual financial statements; 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 Congress; and
budget and financial management relating to the Office of the Secretary.
Sec. 1.34 Delegations to the Chief Financial Officer and Assistant
Secretary for Budget and Programs.
The Chief Financial Officer and Assistant Secretary for Budget and
Programs is delegated authority to:
(a) Serve as the Department's Chief Financial Officer pursuant to 31
U.S.C. 901 (Establishment of Agency Chief Financial Officers).
(b) Exercise day-to-day operating management responsibility over the
Office of Budget and Program Performance, the Office of the OST Chief
Financial Officer, the Office of Financial Management, and the Office of
Credit Oversight and Risk Management.
(c) Direct and manage the Departmental planning, evaluation, budget,
financial management, and internal control activities.
(d) Exercise oversight and provide exclusive policy guidance to the
Enterprise Services Center (ESC) regarding all financial management
activities conducted by ESC and financial systems operated by ESC. This
authority includes concurrence with any organizational changes within
the Federal Aviation Administration that may affect financial management
operations of the ESC.
(e) 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.
(f) Issue allotments or allocations of funds to components of the
Department.
(g) 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.
(h) Issue monetary authorizations for use of reception and
representation funds.
(i) Except as otherwise delegated, establish or operate or both, any
special funds that are required by statute or administrative
determination.
(j) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of, the Office of the Secretary (excluding claims pertaining
to the Working Capital Fund), subject to the limits on that authority
imposed by 31 U.S.C. 3711 and the Federal Claims Collection Standards,
31 CFR chapter IX.
[[Page 19]]
(k) Exercise the Secretary's authority under the Improper Payments
Elimination and Recovery Act of 2010 (Pub. L. 111-204) (33 U.S.C. 3301
note).
(l) Exercise the Secretary's authority under the Improper Payments
Information Act of 2002 (Pub. L. 107-300) (31 U.S.C. 3321 note).
(m) Exercise the Secretary's authority under the Recovery Auditing
Act (Section 831, Defense Authorization Act for FY 2002 (Pub. L. 107-
107)).
(n) Exercise the Secretary's authority under the Federal Financial
Management Improvement Act of 1996 (31 U.S.C. 3512 note).
(o) Exercise the Secretary's authority under Federal Managers'
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
(p) Exercise the Secretary's authority under the Accounting and
Auditing Act of 1950 (31 U.S.C. 3512), as amended by FMFIA.
(q) Exercise the Secretary's authority under the Government
Performance and Results Act (GPRA) (Pub. L. 103-623).
(r) Exercise the Secretary's authority under the Accountability of
Tax Dollars Act of 2002, 31 U.S.C. 3515.
(s) Exercise the Secretary's authority under the Government
Management Reform Act of 1994 (GMRA) (Pub. L. 103-356).
(t) Exercise the Secretary's authority under 5 U.S.C. 5584 and the
OMB memorandum, ``Determination with Respect to Transfer of Functions
Pursuant to Public Law 104-316'' (December 17, 1996) to waive claims of
the United States arising out of an erroneous payment to an employee of
pay or allowances, or travel, transportation, or relocation expenses and
allowances, and deny requests for waiver of such claims.
(u) Serve as the Department's Performance Improvement Officer under
31 U.S.C. 1124.
Sec. 1.35 Assistant Secretary for Governmental Affairs.
The Assistant Secretary for Governmental Affairs serves as the
Department's primary point of contact for Congressional offices, as well
as State and locally elected officials; works with other departmental
offices to ensure that Congressional mandates are fully implemented by
the Department; and works with the White House, other Federal agencies,
and Congress to fulfill the Department's legislative priorities. The
Assistant Secretary coordinates congressional and intergovernmental
activities with governmental affairs offices in the Operating
Administrations. The Assistant Secretary participates with each
Administrator in the performance reviews of the Operating
Administrations' Directors of Governmental Affairs. The Assistant
Secretary supervises the Deputy Assistant Secretary for Tribal
Government Affairs who plans and coordinates the Department's policies
and programs with respect to Indian tribes and tribal organizations.
Sec. 1.36 Delegations to the Assistant Secretary for Governmental
Affairs.
The Assistant Secretary for Governmental Affairs is delegated
authority to:
(a) Establish procedures for responding to Congressional
correspondence; and
(b) Supervise the Deputy Assistant Secretary for Tribal Government
Affairs.
Sec. 1.37 Assistant Secretary for Administration.
The Assistant Secretary for Administration is the principal advisor
to the Secretary and Deputy Secretary on Department-wide administrative
matters. The Assistant Secretary for Administration serves as the
Designated Agency Safety and Health Official. The Office of the
Assistant Secretary for Administration's responsibilities include:
Strategic management of human capital; monitoring the progress of
departmental offices related to sustainability goals; controls and
standards to ensure that procurement and financial assistance programs
are in accord with good business practice; follow-up and resolution of
Government Accountability Office and Inspector General audit reviews;
information resource management; property management information;
facilities; and security. The Assistant Secretary for Administration is
[[Page 20]]
responsible for recommending performance objectives for the Operating
Administrations' Directors of Human Resources.
Sec. 1.38 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 or an Operating
Administration, if requested under an agreement with that Operating
Administration.
(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) Except as delegated to the National Highway Traffic Safety
Administrator by Sec. 1.95, carry out the functions vested in the
Secretary by section 3 of Executive Order 11912 (``Delegation of
Authorities Relating to Energy Policy and Conservation''), as amended.
(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.
(7) Provide departmental guidance on grants, cooperative agreements,
and other financial assistance transactions, but not including loans,
loan guarantees, interest subsidies, or insurance.
(8) Issue departmental procurement regulations, subject to
coordination with the General Counsel and interested Operating
Administrations. In commenting upon proposed provisions for the
procurement regulations, the Operating Administrations will indicate the
nature and purpose of any additional implementing or supplementing
policy guidance which they propose to issue at the Operating
Administration level.
(b) Personnel. (1) Conduct a personnel management program for the
Office of the Secretary of Transportation, with authority to take,
direct others to take, recommend or approve any personnel action with
respect to such authority.
(2) Serve as Vice Chair of the Departmental Executive Resources
Board.
(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 verify the essentiality of the position.
(5) Approve employment of experts and consultants in accordance with
5 U.S.C. 3109.
(6) Provide policy and overall direction in the execution of the DOT
Labor-Management Relations Program.
(7) Develop and operate the Federal Employee Workplace Drug and
Alcohol Testing Program in accordance with Executive Order 12564 and The
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143,
Title V.
(8) Serve as the Chief Human Capital Officer:
(i) Oversee, direct, and execute all authorities included in the
Chief Human Capital Officers Act of 2002 (5 U.S.C. 1401 et seq.); and
(ii) Advise the Secretary on the Department's human capital needs
and obligations, and implement all related rules and regulations of the
President and the Office of Personnel Management, and all laws governing
human resource management.
(9) Serve as the Telework Managing Officer under 5 U.S.C. 6505.
(c) Sustainability. (1) Responsible for ensuring that the Department
meets its sustainability goals pursuant to the Energy Independence and
Security Act
[[Page 21]]
(EISA) of 2007 (Pub. L. 110-140); the Energy Policy Act of 2005 (Pub. L.
109-58); and Executive Order 13693 (``Planning for Federal
Sustainability in the Next Decade'').
(2) Serve as the Chief Sustainability Officer under Executive Order
13693.
(d) Finance. (1) Settle and pay claims by employees of the Office of
the Secretary for personal property losses as provided by 31 U.S.C.
3721.
(2) Oversee the Working Capital Fund for the Office of the
Secretary, established by 49 U.S.C. 327.
(3) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of the Working Capital Fund, subject to the limits on that
authority imposed by 31 U.S.C. 3711 and the Federal Claims Collection
Standards, 31 CFR chapter IX.
(e) Security. (1) Serves as the agency representative appointed by
the Secretary of Transportation to participate on the Interagency
Security Committee in accordance with Executive Order 12977, to
establish policies for the security in and protection of Federal
facilities.
(2) Represents the department on the White House Communications
Agency Principal Communications Working Group and the Department of
State Overseas Security Policy Board.
(3) Conducts an internal security management program for the
Department of Transportation with authority to take, direct others to
take, recommend, or approve security actions with respect to such
authorities related to personnel security, physical security, technical
security, and classified and sensitive information management.
(4) Issues identification media as directed by Homeland Security
Presidential Directive 12, ``Policy for Common Identification Standard
for Federal Employees and Contractors'' and other identification media
(including credentials, passports and visas) by direction of the
Secretary.
(5) Manages the Department's classified information program as
directed by Executive Order 13526 (``Classified National Security
Information'').
(6) Takes certain classified actions on behalf of the Department in
connection with technical counter-surveillance programs as required by
Executive Order 13526 (``Classified National Security Information'').
(7) In conjunction with the Office of Security, Intelligence and
Emergency Response, and the Office of the General Counsel, carries out
the functions vested in the Secretary by 49 U.S.C. 40119(b), as
implemented by 49 CFR part 15, related to the protection of information
designated as Sensitive Security Information.
(8) Ensure Department-wide compliance with Executive Orders 12968 as
amended, 13467, 13488, 13526, 13556, and related regulations and
issuances.
(f) Printing. Request approval of the Joint Committee on Printing,
Congress of the United States, for any procurement or other action
requiring Committee approval.
(g) Hearings. Provide logistical and administrative support to the
Department's Office of Hearings.
(h) Federal real property management. Carry out the functions
assigned to the Secretary with respect to Executive Order 13327, as
amended.
(i) The Uniform Act. Carry out the functions vested in the Secretary
to implement the Uniform Relocation Assistance and Real Property
Acquisition Act of 1970 (Uniform Act), 42 U.S.C. Chapter 61, with
respect to programs administered by the Office of the Secretary. The
Assistant Secretary may prescribe additional Uniform Act guidance that
is appropriate to those particular programs, provided that such
additional guidance must be consistent with the Uniform Act and 49 CFR
part 24. The lead agency for Uniform Act matters is the Federal Highway
Administration (see Sec. 1.85 and 49 CFR part 24).
(j) Designated Agency Safety and Health Official. Serve as the
Designated Agency Safety and Health Official under 29 CFR 1960.6(a) to
represent the interest of, and support, the Department's occupational
safety and health program.
(k) Senior Real Property Officer. Serve as the Senior Real Property
Officer for the Department pursuant to Executive Order 13327 (``Federal
Real Property
[[Page 22]]
Asset Management'') (as amended), and chair the Departmental Real
Property Planning Council.
(l) Transportation fringe benefits. (1) Oversee the Department's
transportation fringe benefit program under 5 U.S.C. 7905 and 26 U.S.C.
132(f).
(2) Consult with and provide guidance to other Federal agencies on
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C.
132(f).
(3) Establish and maintain uniform Federal Government standards for
developing and supporting Federal agencies' transportation fringe
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).
Sec. 1.38a Redelegations by the Assistant Secretary for Administration.
(a) The Director, Office of the Senior Procurement Executive is
redelegated 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 (CAO)
except for those functions specifically reserved for the Deputy
Secretary. In carrying out these functions and in support of
requirements under Services Acquisition Reform Act (SARA), enacted as
part of the National Defense Authorization Act for 2004--Public Law 108-
136, the Senior Procurement Executive (SPE) is expected to interact
directly, and without intervening authority, with the CAO on issues
related to strategic acquisition policy, implementation, and management.
The nature and frequency of interactions with the CAO will be determined
mutually between the SPE and the CAO.
(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 Director of Human Resources Management is redelegated the
authority to:
(1) Develop departmental human capital policies and objectives, and
monitor and oversee the implementation of those policies.
(2) Establish departmental human capital performance objectives and
metrics.
(3) 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.
(4) Concur in the appointment and promotion of all Human Resources
(HR) Directors in each Operating Administration and participate in the
performance reviews of HR Directors.
(5) Provide policy and overall direction in the execution of the DOT
Labor-Management Relations Program.
(6) Develop and operate the Federal Employee Workplace Drug and
Alcohol Testing Program in accordance with Executive Order 12564 and The
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143,
Title V.
(7) Develop, coordinate, and issue wage schedules for Department
employees under the Federal Wage System.
(c) The Director of Financial Management within the Office of the
Assistant Secretary for Administration is redelegated the authority to:
(1) Settle and pay claims by Working Capital Fund employees for
personal property losses as provided by 31 U.S.C. 3721 if the amount of
the payment does not exceed $500.
(d) The Director, Transit Benefit Program is redelegated the
authority to:
(1) Oversee the Department's transportation fringe benefit program
under 5 U.S.C. 7905 and 26 U.S.C. 132(f).
(2) Consult with and provide guidance to other Federal agencies on
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C.
132(f).
(3) Establish and maintain uniform Federal Government standards for
developing and supporting Federal agencies' transportation fringe
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).
Sec. 1.39 Executive Secretariat.
The Executive Secretariat provides organized staff services to the
Secretary and Deputy Secretary to assist
[[Page 23]]
them in carrying out their management functions and their
responsibilities for formulating, coordinating and communicating major
policy decisions. The Office controls and coordinates internal and
external material directed to the Secretary and Deputy Secretary and
ensures that their decisions and instructions are implemented.
Sec. 1.40 Departmental Office of Civil Rights.
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, the Equal Pay Act of 1963, the ADA Amendments Act of 2008,
and the Genetic Information Nondiscrimination Act of 2008. The
Departmental Office of Civil Rights provides guidance to the Operating
Administrations and Secretarial officers on these matters. The Office
periodically reviews and evaluates the civil rights programs of the
Operating Administrations to ensure that recipients of financial
assistance meet applicable Federal civil rights requirements.
Sec. 1.41 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 employment discrimination
complaints process (including acceptance/dismissal, investigation, and
final adjudication); to provide 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 VI and VII of the Civil Rights Act of 1964, 42 U.S.C.
2000d et seq. and 2000e et seq.
(b) Sections 501 and 504 of the Rehabilitation Act of 1973, 29
U.S.C. 791 and 794-794a.
(c) Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et
seq.
(d) Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq.
(e) Americans with Disabilities Act of 1990, 42 U.S.C. 12101-121213.
(f) ADA Amendments Act of 2008 (Pub. L. 110-325) [42 U.S.C. 12101
Note].
(g) Genetic Information Nondiscrimination Act of 2008, 42 U.S.C.
2000ff et seq.
(h) Equal Pay Act of 1963, 29 U.S.C. 206(d).
(i) Alcohol, Drug Abuse, and Mental Health Administration
Reorganization Act (Pub. L. 102-321)
(j) Chapter XIV of subtitle B, of title 29 of the CFR (Equal
Employment Opportunity Commission Regulations).
(k) Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-284) [42
U.S.C. 3601 et seq.].
(l) 40 U.S.C. 476 (prohibition on sex discrimination).
(m) Title IX of the Education Amendments of 1972, 20 U.S.C. 1681.
(n) In coordination with the Assistant Secretary for Transportation
Policy, Executive Order 12898 (``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'') (See also Executive Order 12948).
(o) 49 U.S.C. 306 (prohibition on discrimination in programs
receiving financial assistance), 5310 (transportation for elderly
persons and persons with disabilities), 5332 (nondiscrimination in mass
transportation), 41705 (discrimination by air carriers against
handicapped persons), 47113 (minority and disadvantaged business
participation), and 47123 (nondiscrimination in airport improvement
programs).
(p) 23 U.S.C. 324 and 402(b)(1)(D) (nondiscrimination in highway
programs).
[[Page 24]]
(q) The Intermodal Surface Transportation Efficiency Act of 1991,
Public Law 102-240, 105 Stat. 1919, section 1003.
Sec. 1.42 Office of Small and Disadvantaged Business Utilization.
The Director of the Office of Small and Disadvantaged Business
Utilization ensures that the Department's small and disadvantaged
business policies and programs are developed in a fair, efficient, and
effective manner. The Office is responsible for the Department's
implementation and execution of the functions and duties under the Small
Business Act, and providing opportunities, technical assistance, and
financial services to the small and disadvantaged business community.
Sec. 1.43 Delegations to the Director of the Office 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 2[8] and 2[15] of the
Small Business Act (Pub. L. 85-836) [15 U.S.C. 637 and 644].
(b) Carry out the functions vested in the Secretary by 49 U.S.C. 332
(Minority Resource Center).
Sec. 1.44 Office of Intelligence, Security and Emergency Response.
The Director of the Office of Intelligence, Security and Emergency
Response is responsible for the development, coordination, and execution
of plans and procedures for the Department to balance transportation
security requirements with the safety, mobility and economic needs of
the Nation through effective intelligence, security, preparedness and
emergency response programs. The Director is the Department's principal
Emergency Coordinator for the implementation of these programs.
Sec. 1.45 Delegations to the Director of the Office of Intelligence,
Security and Emergency Response.
The Director of Intelligence, Security, and Emergency Response is
delegated authority to:
(a) Carry out the functions related to emergency preparedness and
response vested in the Secretary by the following authorities: 49 U.S.C.
101 and 301; Executive Order 12148, as amended (``Federal Emergency
Management''); Executive Order 12656 (``Assignment of Emergency
Preparedness Responsibilities'') (as amended; see Executive Order
13286); Executive Order 12742 (``National Security Industrial
Responsiveness''); Executive Order 13434 (``National Security
Professional Development''); Reorganization Plan No. 3 of 1978 (5 U.S.C.
app at 235 (2012); and such other statutes, executive orders, and other
directives as may pertain to emergency preparedness and response.
(b) Serve as the Department's Continuity Coordinator in accordance
with National Security Presidential Directive 51/Homeland Security
Presidential Directive 20, National Continuity Policy, and Federal
Continuity Directives (FCD) 1 Federal Executive Branch National
Continuity Program and Requirements and FCD 2 Federal Executive Branch
Mission Essential Function and Primary Mission Essential Function
Identification and Submission Process. Provide leadership for
departmental programs pertaining to intelligence related to the
transportation sector, transportation security policy, and civil
transportation emergency preparedness and response activities.
(c) Lead departmental collaboration efforts with the Department of
Homeland Security and other Departments and Agencies related to
transportation security and transportation infrastructure protection as
required by Homeland Security Presidential Directive 7, Critical
Infrastructure Identification, Prioritization, and Protection.
(d) Together with the Assistant Secretary for Administration, carry
out oversight and management of the duties pertaining to national
security professional development assigned to the Secretary under
Executive Order 13434 (``National Security Professional Development'').
(e) Together with the Office of the Assistant Secretary for Aviation
and International Affairs, coordinate the Department's responsibilities
under
[[Page 25]]
National Security Presidential Directive 44, Management of Interagency
Efforts Concerning Reconstruction and Stabilization, and Presidential
Decision Directive 56, Managing Complex Contingency Operations,
pertaining to interagency reconstruction and stabilization assistance.
(f) Lead departmental efforts pertaining to transportation-related
international civil emergency preparedness activities, including
coordinating DOT representation on North Atlantic Treaty Organization
committees, as directed under Executive Order 12656 (as amended; see
Executive Order 13286).
(g) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b), as implemented by 49 CFR part 15, in consultation and
coordination with the General Counsel.
(h) Oversee the Department's protective service program.
(i) Serve as the Secretary's representative to the Transportation
Security Oversight Board, in accordance with 49 U.S.C. 115, when so
designated.
(j) Lead Departmental participation in internal and interagency
planning efforts related to preparedness in accordance with Presidential
Policy Directive 8, National Preparedness, in coordination with the
Under Secretary.
(k) Serve as the Secretary's senior advisor on matters pertaining to
public health, biological, and medical matters.
(l) Develop departmental plans to support the Department of Defense
Civil Reserve Air Fleet (CRAF) program and allocate civil air carrier
aircraft to CRAF based on Department of Defense requirements.
(m) Oversee operation of the Department's Crisis Management Center.
(n) Lead departmental efforts for all interaction with the Program
Manager, Information Sharing Environment to include appointing the
Associate Director for Intelligence as the DOT Information Sharing
Program Manager to coordinate day-to-day Information Sharing Environment
matters.
(o) Carry out departmental responsibilities under Executive Order
13587 (``Structural Reforms to Improve the Security of Classified
Networks and the Responsible Sharing and Safeguarding of Classified
Information'') including overseeing classified information sharing and
safeguarding efforts for DOT. Oversee the day-to-day activities for
monitoring the Top Secret and Secret classified network used by DOT and
function as the Senior Official principally responsible for establishing
and implementing the DOT Insider Threat Program.
(p) Serve as the department's program manager responsible for
oversight of all intelligence programs, to include the DOT
Counterintelligence effort as it pertains to the DOT classified
networks, and coordinate intelligence matters throughout the department.
Nothing in this provision is intended to prohibit or limit a component's
ability to conduct intelligence activities authorized by law.
(q) Carry out the functions under the Defense Production Act of
1950, Public Law 81-774, 64 Stat. 798, as amended (50 U.S.C. app. 2061
et seq.), that were vested in the Secretary by Executive Order 13603
(``National Defense Resources Preparedness'').
Sec. 1.46 Office of Public Affairs.
The Director of Public Affairs is the principal advisor to the
Secretary and Secretarial Officers on public affairs issues. The Office
of Public Affairs prepares news releases and supporting media materials,
and maintains a new media presence. The Office also provides information
to the Secretary on opinions and reactions of the public and news media
on programs and transportation issues. The Office of Public Affairs is
responsible for the supervision, coordination, and review of the
activities of the public affairs offices within the Operating
Administrations.
Sec. 1.47 Delegations to the Assistant to the Secretary and Director
of Public Affairs.
The Assistant to the Secretary and Director of Public Affairs is
delegated authority to:
(a) Monitor the overall public information program and review and
approve departmental informational materials having policy-making
ramifications before they are printed and disseminated.
[[Page 26]]
(b) Carry out the functions to promote carpooling and vanpooling
transferred to the Department of Transportation by section 310 of the
Department of Energy Organization Act of 1977 (Pub. L. 95-91) [42 U.S.C.
7159].
Sec. 1.48 Office of the Chief Information Officer.
The Chief Information Officer (CIO) is the principal information
technology (IT), cyber security, privacy, and records management advisor
to the Secretary. The Office of the CIO supports the Organizational
Excellence Strategic Goal by providing leadership on all matters
associated with the Department's $3.5 billion IT portfolio.
Sec. 1.49 Delegations to the Chief Information Officer.
The Chief Information Officer is delegated authority to:
(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. 11312
to 11314, and 11317);
(c) Carry out all functions and responsibilities assigned to the
Secretary with respect to the E-Government Act of 2002, Public Law 107-
347;
(d) Carry out all functions and responsibilities necessary to ensure
compliance with the Federal Information Security Management Act of 2002
(44 U.S.C. 3534 and 3544);
(e) Serve as the Chief Privacy Officer, 42 U.S.C. 2000ee-2, and
administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR part 10
(Maintenance of and Access to Records Pertaining to Individuals) in
connection with the records of the Office of the Secretary;
(f) Carry out all functions and responsibilities necessary to issue
notices of Department of Transportation systems of records as required
by the Privacy Act;
(g) Carry out all functions and responsibilities assigned to the
Secretary with respect to the Federal Records Act (44 U.S.C. 3101-3102)
and necessary to ensure compliance with the regulations of the National
Archives and Records Administration (36 CFR parts 1220 through 1299; 44
U.S.C. Chapters 21, 29, 31, and 33), in coordination with the General
Counsel; and
(h) Serve as the Senior Agency Official for Geospatial Information
under Office of Management and Budget Memorandum M-06-07, ``Designation
of a Senior Agency Official for Geospatial Information'' (March 3,
2006).
Sec. 1.50 Office of Drug & Alcohol Policy & Compliance.
The Office of Drug & Alcohol Policy & Compliance advises the
Secretary on national and international drug testing and control issues
and is the principal advisor to the Secretary on rules related to the
drug and alcohol testing of safety-sensitive transportation employees in
aviation, trucking, railroads, mass transit, pipelines, and other
transportation industries. The Office, in coordination with the Office
of the General Counsel, publishes and provides interpretations of rules
related to 49 CFR part 40 on the conduct of drug and alcohol tests,
including how to conduct tests, and which procedures to use when
testing. The Office coordinates with Federal Agencies and assists
foreign governments in developing drug and alcohol testing programs and
implementing the President's National Drug Control Strategy.
Sec. 1.60 General Authorizations and Delegations to Secretarial
Officers.
(a) Acting in his or her own name and title, the Under Secretary,
the General Counsel, and each Assistant Secretary, within his or her
sphere of responsibility, is authorized to identify and 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.
(b) Except for nondelegable statutory duties including those that
transfer as
[[Page 27]]
a result of succession to act as Secretary of Transportation, each
Deputy Assistant Secretary and 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.
(c) The Deputy Secretary, the Under Secretary, the General Counsel,
and the Assistant Secretaries for Administration, Budget and Programs,
and Governmental Affairs are 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.
(3) Establish ad hoc committees for specific tasks within their
assigned staff area.
(4) Establish, modify, extend, or terminate standing committees
within their specific areas of responsibility when directed or
authorized to do so by the Secretary.
(5) Designate members of interagency committees when such committees
are specifically concerned with responsibilities of direct interest to
their office.
(6) Exercise the following authorities with respect to positions in
the Senior Executive Service and Senior Level within their respective
areas of responsibility:
(i) Determine how executive level positions will be filled; i.e., by
reassignment, promotion, or 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 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 Resources Board and approval by the Secretary and the Office
of Personnel Management.
(7) 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.
(8) Administer and perform the functions described in their
respective functional statements.
(9) 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 redelegated.
(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.
(11) Exercise the authority vested in the Secretary by 49 U.S.C.
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the
Designated Agency Ethics Official, the following: Gifts of property
(other than real property) not exceeding $1,000 in value, gifts of
services (in carrying out aviation duties and powers) not exceeding
$1,000 in value, and reimbursement of travel expenses from non-federal
sources not exceeding $3,000 in value. Acceptance of gifts or travel
reimbursement that exceed these limits in value or are otherwise
significant may only take place with the additional concurrence of the
General Counsel. This delegation extends only to the acceptance of gifts
or travel expenses and does not authorize the solicitation of gifts,
which is reserved to the Secretary at Sec. 1.21.
[[Page 28]]
Subpart C_Office of Inspector General
Sec. 1.70 Overview.
This subpart describes the key responsibilities of the Office of
Inspector General, the structure of the office, and the authority of the
Inspector General.
Sec. 1.71 Key responsibilities.
The Inspector General conducts, supervises, and coordinates audits
and investigations; reviews existing and proposed legislation and makes
recommendations to the Secretary and Congress concerning their effect on
the economy and efficiency of program administration, or the prevention
and detection of fraud and abuse; recommends policies for and conducts,
supervises, or coordinates other activities of the Department for the
purpose of promoting economy and efficiency in program administration,
or preventing and detecting fraud and abuse; and keeps the Secretary and
the Congress fully and currently informed.
Sec. 1.72 Structure.
This Office is composed of:
(a) The Office of the Deputy Inspector General;
(b) The Office of the Principal Assistant Inspector General for
Investigations;
(c) The Office of the Principal Assistant Inspector General for
Auditing and Evaluation;
(d) The Office of the Assistant Inspector General for
Administration; and
(e) The Office of the Assistant Inspector General for Legal,
Legislative and External Affairs.
Sec. 1.73 Authority of Inspector General.
The Inspector General shall report to and be under the general
supervision of the Secretary and Deputy Secretary. The Inspector General
has such authority as is provided by the Inspector General Act of 1978,
as amended, and as is otherwise provided by law. Authorities provided to
the Inspector General by law are reserved to the Inspector General. 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.
Sec. 1.74 Delegations to Inspector General.
The Inspector General is delegated authority to:
(a) Redelegate and authorize successive redelegations of authority
granted by the Secretary within the Office of Inspector General, except
as limited by law or specific administrative reservation.
(b) Authorize and approve official travel, including foreign travel
and transportation for themselves, their subordinates, and others
performing services for, or in cooperation with, the Office of Inspector
General.
(c) Exercise the authority of the Secretary to resolve informal
allegations of discrimination arising in or relating to the Office of
Inspector General through Equal Employment Opportunity counseling or the
Alternative Dispute Resolution process and to develop and implement
affirmative action and diversity plans.
(d) Exercise the authority vested in the Secretary by 49 U.S.C.
326(a) to accept gifts of property (other than real property) or
services (in carrying out aviation duties and powers), and the authority
to accept travel reimbursements from non-federal sources under 31 U.S.C.
1353.
(e) Exercise the implied authority to solicit gifts associated with
49 U.S.C. 326(a), notwithstanding the reservation of authority to the
Secretary in Sec. 1.21.
(f) Carry out the emergency preparedness functions assigned to the
Secretary by Executive Order 12656 (as amended; see Executive Order
13286) and by the Federal Emergency Management Agency and General
Services Administration (FEMA and GSA) as they
[[Page 29]]
pertain to the Office of Inspector General, including those relating to
continuity of operations, emergency resource management, and training.
(g) Determine the existence and amount of indebtedness and the
method of collecting repayments from employees and members within the
Office of Inspector General and collect repayments accordingly, as
provided by 5 U.S.C. 5514.
(h) Waive claims of the United States arising out of an erroneous
payment to an employee of the Office of Inspector General of pay or
allowances, or travel, transportation, or relocation expenses and
allowances, and deny requests for waiver of such claims, as authorized
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to
Transfer of Functions Pursuant to Public Law 104-316'' (December 17,
1996). But for claims arising from erroneous payments to current
employees, this delegation of authority is limited to claims greater
than $500. For claims arising from erroneous payments to former
employees, this delegation of authority is not limited by claim amount.
Redelegation of this authority may be made only to the principal
officials responsible for financial management or such officials'
principal assistants.
(i) Settle and pay claims by employees of the Office of Inspector
General for personal property losses as provided by 31 U.S.C. 3721
(Claims of personnel of agencies and the District of Columbia government
for personal property damage or loss).
(j) 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.
(k) [Reserved]
(l) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of, the Office of Inspector General, subject to the limits on
that authority imposed by 31 U.S.C. 3711 and the Federal Claims
Collection Standards, 31 CFR chapter IX.
(m) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28
CFR part 14, related to the administrative disposition of federal tort
claims, for claims involving the Office of Inspector General. The
Inspector General may request the approval of the Attorney General to
adjust, compromise, and settle any such claim if the amount of the
adjustment, compromise, or award exceeds $100,000, but only after the
General Counsel concurs with the request. If the Inspector General
believes that a pending claim presents a novel question of law or of
policy, he or she shall coordinate with the General Counsel to obtain
the advice of the Assistant Attorney General in charge of the Civil
Division. If the Inspector General settles a claim for an amount greater
than $50,000, the Inspector General shall prepare a memorandum fully
explaining the basis for the action taken and coordinate with the
General Counsel before sending a copy of the memorandum to the Director,
Federal Torts Claims Act Staff, Torts Branch of the Civil Division, U.S.
Department of Justice.
(n) Make written requests under subsection (b)(7) of the Privacy Act
of 1974, 5 U.S.C. 552a(b)(7), for records maintained by other agencies
that are necessary to carry out an authorized law enforcement activity.
(o) Administer the Freedom of Information Act, 5 U.S.C. 552, and 49
CFR part 7 (Public Availability of Information) in connection with the
records of the Office of the Inspector General.
(p) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR
part 10 (Maintenance of and Access to Records Pertaining to Individuals)
in connection with the records of the Office of the Inspector General.
(q) Exercise the authority of the Secretary over and with respect to
any personnel within the Office of Inspector General, except as
prescribed by the Secretary or limited by law.
(r) Approve payment of recruitment, relocation, and retention
incentives under 5 U.S.C. 5753 and 5754.
(s) Administer 49 CFR part 9 (Testimony of Employees of the
Department and Production of Records in Legal Proceedings) in connection
with the records of the Office of Inspector General and testimony of
current and former employees of the Office of Inspector General.
[[Page 30]]
Subpart D_Operating Administrations
Sec. 1.80 Overview.
This subpart sets forth the key responsibilities of the Operating
Administrations, and the delegations of authority from the Secretary of
Transportation to the Administrators.
Sec. 1.81 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) [Reserved]
(3) Exercise the authority vested in the Secretary to prescribe
regulations under 49 U.S.C. 322(a) with respect to statutory provisions
for which authority is delegated by other sections in this part.
(4) Carry out the functions of the Secretary concerning
environmental enhancement by 49 U.S.C. 303 (Duties of the Secretary of
Transportation: Policy on lands, wildlife and waterfowl refuges, and
historic sites) and 23 U.S.C. 138 as they relate to matters within the
primary responsibility of each Operating Administration.
(5) Carry out the functions of the Secretary under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), section
176(c) of the Clean Air Act (42 U.S.C. 7506(c)), and related
environmental laws as they relate to matters within the primary
responsibility of each Operating Administration.
(6) Carry out the functions of the Secretary under section 106 of
the Historic Preservation Act of 1966, 16 U.S.C. 470f, as they relate to
matters within the primary responsibility of each Operating
Administration.
(7) Administer FOIA and 49 CFR part 7 (Public Availability of
Information) in connection with the records of the Operating
Administration.
(8) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR
part 10 (Maintenance of and Access to Records Pertaining to Individuals)
in connection with the records of the Operating Administration.
(9) Make written requests under subsection (b)(7) of the Privacy Act
for records maintained by other agencies that are necessary to carry out
an authorized law enforcement activity.
(10) Carry out the emergency preparedness functions assigned to the
Secretary by Executive Order 12656, (as amended; see Executive Order
13286) and by the Federal Emergency Management Agency and General
Services Administration (FEMA and GSA) as they pertain to his or her
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.
(11) Enter into inter- and intradepartmental reimbursable agreements
other than with the head of another department or agency. This authority
may be redelegated only to Office Directors, Regional Directors,
District Commanders or other comparable levels and Contracting Officers.
(12) Determine the existence and amount of indebtedness and the
method of collecting repayments from employees 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.
(13) Waive claims of the United States arising out of an erroneous
payment to an employee of the Operating Administration of pay or
allowances, or travel, transportation, or relocation expenses and
allowances, and deny requests for waiver of such claims, as authorized
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to
Transfer of Functions Pursuant to Public Law 104-316'' (December 17,
1996). But for claims arising from erroneous payments to current
employees, this delegation of authority is limited to claims greater
than $500. For claims arising from erroneous payments to former
employees, this delegation of authority is not limited by
[[Page 31]]
claim amount. Redelegation of this authority may be made only to the
principal officials responsible for financial management or such
officials' principal assistants.
(14) Settle and pay claims by employees of the Operating
Administration for personal property losses as provided by 31 U.S.C.
3721 (Claims of personnel of agencies and the District of Columbia
government for personal property damage or loss). This authority may be
redelegated only to Office Directors, Regional Directors, or other
comparable levels and to those individuals that report to the above
officials.
(15) 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 this subpart to carry out these
programs, under the 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.
(16) 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.
(17) 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.
(18) Exercise the authority of the Secretary to make certifications,
findings and determinations under the Regulatory Flexibility Act (5
U.S.C. 601, et seq.) 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.
(19) Carry out the functions vested in the Secretary by 15 U.S.C.
3710(a), which authorizes agencies to permit their laboratories to enter
into cooperative research and development agreements.
(20) [Reserved]
(21) Exercise the Secretary's authority under 31 U.S.C. 3711 to
collect, compromise, suspend collection action on, or terminate claims
of the United States which are referred to, or arise out of the
activities of, the Operating Administration, subject to the limits on
that authority imposed by 31 U.S.C. 3711 and the Federal Claims
Collection Standards, 31 CFR chapter IX.
(22) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28
CFR part 14, related to the administrative disposition of federal tort
claims, for claims involving the Operating Administration. The
Administrator may request the approval of the Attorney General to
adjust, compromise, and settle any such claim if the amount of the
adjustment, compromise, or award exceeds $100,000, but only after the
General Counsel concurs with the request. If the Administrator believes
that a pending claim presents a novel question of law or of policy, he
or she shall coordinate with the General Counsel to obtain the advice of
the Assistant Attorney General in charge of the Civil Division. If the
Administrator settles a claim for an amount greater than $50,000, the
Administrator shall prepare a memorandum fully explaining the basis for
the action taken and coordinate with the General Counsel before sending
a copy of the memorandum to the Director, Federal Torts Claims Act
Staff, Torts Branch of the Civil Division, U.S. Department of Justice.
(23) Enter into memoranda of agreement with the Occupational Safety
and Health Administration (OSHA) in regard to setting and enforcing
occupational safety or health standards and whistleblower protection 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.
[[Page 32]]
(24) Enter into memoranda of agreement with the Mine Safety Health
Administration (MSHA) in regard to setting and enforcing safety
standards for employees in DOT-regulated industries while on mine
property. The General Counsel shall concur in each memorandum of
agreement with MSHA prior to its execution by the Administrator of the
Operating Administration concerned.
(25) Exercise the authority vested in the Secretary by Section 329A
of the Department of Transportation and Related Agencies Appropriations
Act, 1995, Public Law 103-331, 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, Public Law 102-484,
106 Stat. 2658 (October 23, 1992), and related legislation.
(26) Carry out the functions vested in the Secretary by 49 U.S.C.
40119(b), as implemented by 49 CFR part 15, in coordination with the
Office of the General Counsel and the Office of Intelligence, Security
and Emergency Response, relating to the determination that information
is Sensitive Security Information within their respective organizations.
(27) Exercise the authority vested in the Secretary by 49 U.S.C.
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the
Operating Administration's Deputy Ethics Official, the following: Gifts
of property (other than real property) not exceeding $1,000 in value,
gifts of services (in carrying out aviation duties and powers) not
exceeding $1,000 in value, and reimbursement of travel expenses from
non-federal sources not exceeding $3,000. Acceptance of gifts or travel
reimbursement that exceed these limits in value or are otherwise
significant may only take place with the additional concurrence of the
General Counsel. This delegation extends only to the acceptance of gifts
or travel expenses and does not authorize the solicitation of gifts,
which is reserved to the Secretary at Sec. 1.21.
(28) Exercise the authority vested in the Secretary by the Federal
Civil Penalties Inflation Adjustment 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), to promulgate rules that adjust civil
penalties.
(29) Carry out the functions vested in the Secretary to implement
the Uniform Relocation Assistance and Real Property Acquisition Act of
1970 (Uniform Act), 42 U.S.C. Chapter 61, with respect to programs
administered by their respective Operating Administrations. Each
Operating Administration may prescribe additional Uniform Act guidance
that is appropriate to those particular programs, provided that such
additional guidance must be consistent with the Uniform Act and 49 CFR
part 24. The lead agency for Uniform Act matters is the Federal Highway
Administration (see Sec. 1.85 and 49 CFR part 24).
Sec. 1.81a Redelegation by all Administrators.
Except as otherwise specifically provided in this part, each
Administrator may redelegate and authorize successive redelegations of
authority within the organization under that official's jurisdiction.
Sec. 1.82 The Federal Aviation Administration.
Is responsible for:
(a) Promulgating and enforcing regulations on all safety matters
relating to the operation of airports, the manufacture, operation, and
maintenance of aircraft, and the efficiency of the National Airspace
System;
(b) Planning and supporting the development of an integrated
national system of airports, with due consideration of safety, capacity,
efficiency, environmental compatibility and sustainability;
(c) Administering federal financial assistance programs for airports
including airport grants-in-aid;
(d) Preserving and enhancing the safety and efficiency of the
Nation's air
[[Page 33]]
transportation system by implementing NextGen and other technologies, as
appropriate;
(e) Registering aircraft and recording rights in aircraft;
(f) Developing, modifying, testing, and evaluating systems,
procedures, facilities, and devices needed for the safe and efficient
navigation and traffic control of aircraft;
(h) Locating, constructing or installing, maintaining and operating
Federal aids to air navigation, wherever necessary;
(i) Developing air traffic regulations, and administering air
navigation services for control of civil and military air operations
within U.S. airspace, as well as administering such air navigation
services as the FAA has accepted responsibility for providing in
international airspace and the airspace of foreign countries;
(j) Promoting aviation safety and efficiency through technical
aviation assistance to foreign aviation authorities;
(k) Developing strategies to improve runway safety at all commercial
service airports;
(l) Administering the Continuous Lower Energy, Emissions and Noise
program, improving connections to surface transportation, and other
efforts to increase the environmental sustainability of the Nation's air
transportation systems;
(m) Conducting an effective airport technology research program to
improve airport safety, efficiency, and sustainability;
(n) Exercising the final authority for carrying out all functions,
powers, and duties of the Administration in accordance with 49 U.S.C.
106(f) and adjudication in accordance with 49 U.S.C. 40110(d) and that
such authorities supersede any conflicting provisions elsewhere in this
part.
(o) Promoting and encouraging U.S. leadership in commercial space
activities, and promulgating and enforcing regulations on safety matters
relating to commercial space transportation.
Sec. 1.83 Delegations to the Federal Aviation Administrator.
The Federal Aviation Administrator is delegated authority to:
(a) Carry out the following functions vested in the Secretary by 49
U.S.C. Subtitle VII (Aviation Programs):
(1) Sections 40103(a)(2), relating to the consultation with the
Architectural and Transportation Barriers Compliance Board before
prescribing regulations or procedures that will have a significant
impact on accessibility of commercial airports or commercial air
transportation for individuals with disabilities; 40109(c), but only as
it relates to the regulation of 49 U.S.C. 46301(b) (smoke alarm device
penalties), and 40109(e), relating to maximum flying hours 40113(a) as
it relates to the functions vested in the Secretary and delegated in
this section; 40114, relating to reports and records requirements;
40115, relating to withholding information from public disclosure;
40116, relating to the prohibition on State taxation as the prohibition
may affect an airport sponsor's grant assurances; 40117, relating to
passenger facility charges; 40119(b), relating to the issuance of
regulations on disclosure of information obtained or developed in
ensuring security; and 40127(b) of chapter 401, relating to prohibition
on discrimination by private airports;
(2) Section 41723 of subchapter I of chapter 417, relating to notice
concerning aircraft assembly;
(3) Section 44102(b) of chapter 441, relating to defining the term
``based and primarily used in the United States'';
(4) Chapter 443, relating to insurance;
(5) Chapter 445, relating to facilities, personnel, and research,
except section 44502(a)(3) as it relates to authorizing a department,
agency, or instrumentality of the United States Government to carry out
any duty or power under subsection 44502(a) with the consent of the head
of the department, agency, or instrumentality;
(6) Chapter 447, relating to safety regulation;
(7) Chapter 451, relating to alcohol and controlled substances
testing;
(8) Subpart IV of Part A of 49 U.S.C. Subtitle VII (chapters 461-
465) relating to the Secretary's authority to enforce and impose
penalties under sections of Subtitle VII that have been delegated to the
Federal Aviation Administrator in this section;
[[Page 34]]
(9) Part B of 49 U.S.C. Subtitle VII (chapters 471-475) relating to
airport development and noise, except 49 U.S.C. 47129(a);
(10) Part C of 49 U.S.C. Subtitle VII (chapters 481-483) relating to
financing; and
(11) Part E of 49 U.S.C. Subtitle VII (chapter 501) relating to Buy-
American Preferences.
(b) Carry out the functions vested in the Secretary by chapters 509
and 511 (commercial space) of title 51, U.S.C. and coordinate with the
Assistant Secretary for Aviation and International Affairs regarding
those functions related to the promotion of the aerospace industry.
(c) Carry out the functions vested in the Secretary by part B of
title II of the Clean Air Act, as amended (Pub. L. 91-604, sec. 11, 84
Stat. 1703), and by 40 CFR part 87 as it relates to exemptions from
aircraft air pollution standards.
(d)(1) Except as delegated to the Under Secretary of Transportation
for Policy by Sec. 1.25, carry out the functions vested in the Secretary
by 49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, relating
to the transportation or shipment of hazardous materials by air.
(2) Carry out the functions vested in the Secretary by 49 U.S.C.
5114, relating to the establishment of procedures for monitoring and
enforcing regulations with respect to the transportation of radioactive
materials on passenger-carrying aircraft.
(3) Participate, with the Administrator of the Pipeline and
Hazardous Materials Safety Administration, in the Dangerous Goods Panel
at the International Civil Aviation Organization, under the authority
vested in the Secretary by 49 U.S.C. 5120.
(e) 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 the interagency
agreement of December 9, 1960, and Executive Order 11382, and provide
for the administrative operation of the IGIA Secretariat.
(f) Carry out the functions assigned to the Secretary by Executive
Order 12465 relating to commercial expendable launch vehicle activities.
(g) 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).
Sec. 1.84 The Federal Highway Administration.
Is responsible for:
(a) Improving mobility on our Nation's highways through national
leadership, innovation, and program delivery.
(b) Developing safety strategies using a data-driven, systematic
approach to address safety for motorists, bicyclists, and pedestrians
from engineering, education, enforcement, and emergency medical services
perspectives and coordinating with FMCSA and NHTSA as appropriate.
(c) Planning, in cooperation with the States, the nation's highway
system.
(d) Improving, in cooperation with the States (via the provision of
grants), infrastructure condition, safety, mobility and freight movement
roads on the National Highway System, including the Interstate System
and to other federal-aid roads and other surface transportation
infrastructure.
(e) Identifying and deploying innovation aimed at shortening project
delivery, enhancing the safety of our roadways, and protecting the
environment.
(f) Surveying and constructing Federal lands transportation
facilities, Federal lands access transportation facilities, tribal
transportation facilities, defense highways and access roads, and
parkways and roads in national parks and other federally-administered
areas.
(g) Developing and administering uniform State standards for highway
safety programs with respect to identification and surveillance of crash
locations; highway design, construction, and maintenance, including
context sensitive solutions, highway-related aspects of pedestrian
safety, and traffic control devices.
(h) Administering the Department's National Bridge Inspection
Standards and the National Tunnel Inspection Standards to ensure the
Nation has safe, well-maintained bridges and tunnels for use by the
traveling public.
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(i) In coordination with NHTSA, RITA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research.
(j) Managing TIFIA funds, 23 U.S.C. 601-609, in conjunction with the
TIFIA Joint Program Office, including managing accounting and budgeting
activities, and procuring any necessary financial or technical support
services for the TIFIA program.
(k) Maximizing the positive impacts on the U.S. economy by
encouraging domestic manufacturing on highway projects through the
enforcement of Buy America provisions.
Sec. 1.85 Delegations to the Federal Highway Administrator.
(a) The Federal Highway Administrator is delegated authority to
administer the following provisions of title 23, U.S.C. (Highways):
(1) Chapter 1, Federal-Aid Highways, except for:
(i) Section 142 (as it relates to matters within the primary
responsibility of the Federal Transit Administrator);
(ii) The following sections as they relate to matters within the
primary responsibility of the National Highway Traffic Safety
Administration: 153, 154, 158, 161, 163, and 164; and
(iii) Section 167(f) (National Freight Strategic Plan).
(2) Chapter 2, Other Highways, except for section 205.
(3) Chapter 3, General Provisions (as it relates to matters within
the primary responsibility of the Federal Highway Administration),
except for section 322.
(4) Section 409 of chapter 4, Highway Safety.
(5) Chapter 5, Research, Technology, and Education, except for
section 508.
(6) Chapter 6, Infrastructure Finance, subject to the limitations
set forth in Secs. 1.33 (Assistant Secretary for Budget and Programs)
and 1.21 (reservation to the Secretary of final approval of TIFIA credit
assistance applications).
(b) The Federal Highway Administrator is delegated authority to
administer the following provisions of title 49, U.S.C.
(Transportation):
(1) Section 20134(a) with respect to the laws administered by the
Federal Highway Administrator pertaining to highway safety and highway
construction; and
(2) Sections 31111 and 31112 (as it relates to matters within the
primary responsibility of the Federal Highway Administration).
(3) Section 31314 (as it relates to matters within the primary
responsibility of the Federal Highway Administration).
(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,
Public Law 79-601, tit. V, 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).
(4) The Federal-Aid Highway Act of 1956, as amended (Pub. L. 84-627,
tit. I, 70 Stat. 374).
(5) The Highway Revenue Act of 1956, as amended (Pub. L. 84-627,
tit. II, 70 Stat. 374, 387).
(6) The Alaska Omnibus Act, as amended (Pub. L. 86-70, 73 Stat.
141).
(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).
(11) The Federal-Aid Highway Act of 1966, as amended (Pub. L. 889-
574, 80 Stat. 766).
(12) The Federal-Aid Highway Act of 1968, as amended (Pub. L. 90-
495, 82 Stat. 815).
(13) The Federal-Aid Highway Act of 1970, as amended (except section
118) (Pub. L. 91-605, 84 Stat. 1713).
(14) 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).
(15) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1)
and (c); 141; 146; 147; and 152 of the Federal-Aid
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Highway Act of 1976 (Pub. L. 94-280, 90 Stat. 425).
(16) The Highway Beautification Act of 1965, as amended (Pub. L. 89-
285, 79 Stat. 1028, 23 U.S.C. 131 et seq., notes).
(17) 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.
(18) 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.
(19) 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).
(20) Sections 105, 107(c) through (e), 123(a) and (b), 124(c),
126(d) through (g), 138(c), 142, 144, 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).
(21) 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).
(22) Sections 1002(e), 1006(h), 1009(c), 1012(b) and (d) through
(f), 1015, 1016(g), 1017(c), 1021(c) and (d), 1022(c), 1023(f) through
(g), 1032(d), 1038 through 1041, 1044, 1046(d), 1047, 1051, 1057 through
1060, 1072, 1073, 1105, and 6016 of the Intermodal Surface
Transportation Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914).
(23) Sections 1108(f) and (g) and 1224 of the Transportation Equity
Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107).
(24) Sections 1101(a), 1102, 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, 1404, 1408, 1409(a) and (b), 1410, 1411, 1502,
1604, 1803, 1907, 1908, 1910, 1911, 1916, 1917, 1918, 1923, 1928, 1934,
1935, 1937, 1939, 1940, 1941, 1943, 1944, 1945, 1948, 1949, 1950, 1952,
1957, 1959, 1962, 1964, 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, 5502, 5504, 5508, 5511, 5512, 5513(b),
(f), (k), and (m) (as (m) relates to (b), (f), and (k)), 5514, 6009(b)
(as they relate 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).
(25) Sections 1101(a), 1102, 1106(b), 1112(b), 1113(c), 1116, 1123,
1201(b), 1315 (as it relates to matters within the primary
responsibility of the Federal Highway Administration), 1316 (as it
relates to matters within the primary responsibility of the Federal
Highway Administration), 1317 (as it relates to matters within the
primary responsibility of the Federal Highway Administration), 1318(a)
and (b) (as it relates to matters within the primary responsibility of
the Federal Highway Administration), 1323 (a) and (b), 1401(b), (c) and
(d), 1405, 1503(c), 1512(b), 1519(a), 1520, 1522, 1523, 1524, 1525,
1526, 1527 (as it relates to matters within the primary responsibility
of the Federal Highway Administration), 1528, 1529, 1530 (as it relates
to matters within the primary responsibility of the Federal Highway
Administration), 1533, 1534, 1535, 32801, 32802, and 51001 of the Moving
Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat.
405).
(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.
[[Page 37]]
(2) Carry out the functions of the Secretary under the Appalachian
Regional Development Act of 1965, 40 U.S.C. Subtitle IV.
(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 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) [33 U.S.C. 535c and 535e(a)].
(5) Carry out the Highway Safety Act of 1966, as amended (Pub. L.
89-564, 80 Stat. 731) for highway safety programs, research, and
development relating to highway design, construction and maintenance,
traffic control devices, identification and surveillance of crash
locations, and highway-related aspects of pedestrian 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) Prescribe regulations, as necessary, at part 24 of this title,
to implement the Uniform Act, 42 U.S.C. Chapter 61, and to act as the
lead agency in carrying out all other functions vested in the Secretary
by the Uniform Act, in coordination with the Under Secretary.
(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 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.
(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) 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. 1.21.
(12) 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.
(13) Act as the lead DOT agency in matters relating to the National
Environmental Policy Act of 1969, Public Law 91-190, 83 Stat. 852 [42
U.S.C. 4321 et seq.] 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).
(14) Exercise the responsibilities of the Secretary under 49 U.S.C.
309 (high speed ground transportation).
(15) Carry out the functions vested in the Secretary by section
201(4)(d) and (e) of the Alaska National Interest Lands Conservation
Act, as amended (Pub. L. 96-487, 94 Stat. 2377) [16 U.S.C. 410hh(4)(d)
and (e)].
Sec. 1.86 The Federal Motor Carrier Safety Administration.
Is responsible for:
(a) Managing program and regulatory activities, including
administering laws and promulgating and enforcing regulations on safety
matters relating to motor carrier safety;
(b) Carrying out motor carrier registration and authority to
regulate household goods transportation;
(c) Developing strategies for improving commercial motor vehicle,
operator, and carrier safety and administering grants to implement these
strategies;
[[Page 38]]
(d) Inspecting records and equipment of commercial motor carriers,
and investigating accidents and reporting violations of motor carrier
safety regulations;
(e) Carrying out research, development, and technology transfer
activities to promote safety of operation and equipment of motor
vehicles for the motor carrier transportation program; and
(f) Carrying out an effective communications and outreach program
which includes providing relevant safety data to the public.
Sec. 1.87 Delegations to the Federal Motor Carrier Safety
Administrator.
The Federal Motor Carrier Safety Administrator is delegated
authority to:
(a) Carry out the following 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;
(3) Chapter 135, relating to jurisdiction;
(4) Sections 13704 and 13707 of chapter 137, relating to rates,
routes, and services;
(5) Chapter 139, relating to registration and financial
responsibility requirements, except section 13907(d)(2);
(6) Chapter 141, relating to operations of motor carriers;
(7) Sections 14501, 14502, and 14504a relating to Federal-State
relations, and section 14506 relating to identification of vehicles.
(8) Sections 14701 through 14705, 14707, 14708, 14710, and 14711 of
chapter 147, relating to enforcement remedies, investigations and motor
carrier liability; and
(9) Sections 14901 through 14913, 14915, and 14916 of chapter 149
relating to civil and criminal penalties for violations of 49 U.S.C.
subtitle IV, part B.
(b) Carry out the functions vested in the Secretary by sections 104
and 204 of the ICC Termination Act of 1995, Public Law 104-88, 109 Stat.
803, relating to self-insurance rules and a savings clause.
(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) Carry out the following functions and exercise the authority
vested in the Secretary by chapter 51 of title 49, U.S.C.:
(1) Except as delegated to the Under Secretary of Transportation for
Policy by Sec. 1.25, carry out the functions vested in the Secretary by
49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, relating to
the transportation or shipment of hazardous materials by highway.
(2) Carry out the functions vested in the Secretary by 49 U.S.C.
5105(e), relating to inspections of motor vehicles carrying hazardous
material; 49 U.S.C. 5109, relating to motor carrier safety permits,
except subsection (f); 49 U.S.C. 5112, relating to highway routing of
hazardous materials; 49 U.S.C. 5113, relating to unsatisfactory safety
ratings of motor carriers; 49 U.S.C. 5119, relating to uniform forms and
procedures; and 49 U.S.C. 5125(a) and (c)-(f), relating to preemption
determinations or waivers of preemption of hazardous materials highway
routing requirements.
(e) Carry out the functions vested in the Secretary by:
(1) Chapter 313 of 49, U.S.C., relating to commercial motor vehicle
operators; and
(2) Section 4123(c), (d) and (e) of SAFETEA-LU 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 subchapters
I, III, and IV of chapter 311, title 49, U.S.C., and 49 U.S.C. 31111,
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
[[Page 39]]
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.
(g) Carry out the functions vested in the Secretary by 49 U.S.C.
5701 relating to food transportation inspections of commercial motor
vehicles.
(h) Carry out the functions and exercise the authority delegated to
the Secretary in section 2(d)(2) of Executive Order 12777, as amended,
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, Pub. L.
87-88, as amended [33 U.S.C. 1321], to operate without approved response
plans.
(i) Carry out chapter 315 of title 49, U.S.C., relating to motor
carrier safety.
(j) Carry out 49 U.S.C. 502, 503, 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, 521(b), and 525.
(k) Carry out the functions and exercise the authority vested in the
Secretary by 23 U.S.C. 502(a)(1)(A).
(l) Carry out the functions vested in the Secretary by the following
sections of SAFETEA-LU:
(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 deployment program;
(3) Section 4127, relating to outreach and education;
(4) Section 4128, relating to grants under the safety data
improvement program;
(5) Section 4130-4133, amending section 229 of the Motor Carrier
Safety Improvement Act of 1999 (49 U.S.C. 31136 note) relating to the
operators of vehicles transporting agricultural commodities and farm
supplies, and hours of service for miscellaneous vehicle operators;
(6) Section 4134 (49 U.S.C. 31301 note), relating to the grant
program for persons to train operators of commercial motor vehicles;
(7) [Reserved]
(8) Section 4136 relating to interstate vans;
(9) Section 4138 relating to high risk carrier compliance (49 U.S.C.
31144 note);
(10) 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) (see
49 U.S.C. 31100 note);
(11) Section 4143, granting authority to stop commercial motor
vehicles, 18 U.S.C. 3064;
(12) Section 4144, relating to a motor carrier safety advisory
committee;
(13) [Reserved]
(14) Section 4147, relating to emergency conditions requiring
immediate response (amending section 229 of the Motor Carrier Safety
Improvement Act of 1999 (49 U.S.C. 31136 note);
(15) Section 4213, relating to the establishment of a working group
for the development of practices and procedures to enhance Federal-State
relations (49 U.S.C. 14710 note);
(16) Section 4214, relating to the establishment of a system for
collecting consumer complaint information and issuing regulations
related to reporting requirements under the system (49 U.S.C. 14701
note); and
(17) Section 4308, granting authority to adopt regulations to carry
out SAFETEA-LU, Title IV, subtitle C (49 U.S.C. 13902 note).
(m) Carry out the functions vested in the Secretary by the following
sections of the Moving Ahead for Progress in the 21st Century Act (Pub.
L. 112-141, 126 Stat. 405):
(1) Section 32101(b) concerning proficiency examination (49 U.S.C.
13902 note).
[[Page 40]]
(2) Section 32101(c) concerning conforming amendments to proficiency
examinations (49 U.S.C. 31144 note).
(3) Section 32101(d) concerning agricultural and farm transportation
exemption (49 U.S.C. 31136 note).
(4) Section 32104 concerning a study of financial responsibility
requirements (49 U.S.C. 13903 note).
(5) Section 32206 concerning a rental truck accident study.
(6) Section 32301(a) requiring an hours of service study.
(7) Section 32302(c)(2) regarding the establishment of state
licensing agency oversight (49 U.S.C. 31149 note).
(8) Section 32303(b) relating to the establishment of a driver
record notification system (49 U.S.C. 31304 note).
(9) Section 32303(c) relating to a plan for national notification
system.
(10) Section 32308 regarding a study, plan, report and
implementation of accelerated veteran's licensing procedures (49 U.S.C.
31301 note).
(11) Section 32603(i) relating to the administration of grant
programs (49 U.S.C. 31100).
(12) Section 32605 related to a report on the commercial vehicle
information system and networks.
(12) Sections 32702, 32707(b), 32708, 32709, 32710, and 32711
related to the Motorcoach Enhanced Safety Act of 2012 (49 U.S.C. 31136
note).
(13) Section 32918(b) relating to broker and forwarder financial
responsibility rulemaking requirement (49 U.S.C. 13906 note).
(14) Section 32934 related to exemptions from requirements for
covered farm vehicles (49 U.S.C. 31136 note).
Sec. 1.88 The Federal Railroad Administration.
Is responsible for:
(a) Regulating safety functions pertaining to railroads;
(b) Conducting research and development activity in support of safer
and more efficient rail transportation;
(c) Investigating and issuing reports concerning collisions,
derailments, and other railroad accidents resulting in serious injury to
persons or to the property of a railroad;
(d) Developing safety strategies to combat the causes of collisions,
derailments, and other railroad accidents, as well as to reduce overall
risk in the Nation's rail systems;
(e) Promoting and strengthening the national rail system, including
freight rail and high speed and higher performing intercity passenger
rail.
(f) Providing financial assistance, including grants, loans and loan
guarantees, for rail freight and intermodal development, as well as
high-speed and intercity passenger rail development;
(g) Maximizing the positive impacts on the U.S. economy by
encouraging domestic manufacturing on rail projects through the
enforcement of Buy America provisions; and
(h) Strengthening local communities by supporting station-area
development and strong connections among rail passenger service,
intercity bus, local transit, bicycle/pedestrian, and airport
facilities.
Sec. 1.89 Delegations to the Federal Railroad Administrator.
The Federal Railroad Administrator is delegated authority to:
(a) Carry out the functions and exercise the authority vested in the
Secretary by 49 U.S.C. Subtitle V, Part A (Safety, chapter 201 et seq.),
Part B (Assistance, chapter 221 et seq.), Part C (Passenger
Transportation, chapter 241 et seq.), Part D (High-speed Rail, chapter
261), and section 28101 of Part E, relating to the law enforcement
authority of railroad police officers; except 49 U.S.C. 20134 with
respect to highway, traffic, and motor vehicle safety and highway
construction.
(b) Carry out the functions and exercise the authority vested in the
Secretary by the Rail Safety Improvement Act of 2008 (Pub. L. 110-432,
Div. A, 122 Stat. 4848).
(c) Carry out the functions and exercise the authority vested in the
Secretary by the Passenger Rail Investment and Improvement Act of 2008
(Pub. L. 110-432, Div. B, 122 Stat. 4907), except Title VI (122 Stat.
4968) as it relates to capital and preventive maintenance projects for
the Washington Metropolitan Area Transit Authority.
(d) Carry out the functions vested in the Secretary by section 5 (as
it relates to railroad bridges not over navigable
[[Page 41]]
waterways) and section 8(a) (as it relates to railroad bridges) of the
International Bridge Act of 1972 (Pub. L. 92-434, 86 Stat. 731) (33
U.S.C. 535c and 535e(a)).
(e) Exercise the administrative powers vested in the Secretary by 49
U.S.C. Subtitle I, Chapter 5 (section 501 et seq.) pertaining to
railroad safety and 49 U.S.C. 103 (Federal Railroad Administration).
(f) Promote and undertake research and development relating to rail
matters generally (49 U.S.C. Chapter 3 (section 301 et seq). and 49
U.S.C. 102).
(g) Carry out the functions vested in the Secretary by 45 U.S.C. Ch.
15 (section 601 et seq.) with respect to emergency rail services, except
the authority to make findings required by 45 U.S.C. 662(a) and the
authority to sign guarantees of certificates issued by trustees.
(h) Carry out the functions vested in the Secretary by 45 U.S.C.
chapter 17 (section 801 et seq.) with respect to railroad revitalization
and regulatory reform and the Railroad Rehabilitation and Improvement
Financing program.
(i) Carry out the functions vested in the Secretary by 45 U.S.C.
chapter 21 (section 1201 et seq.) related to the Alaska Railroad
transfer.
(j) Except as delegated to the Under Secretary of Transportation for
Policy by Sec. 1.25, carry out the functions vested in the Secretary by
49 U.S.C. 5121-5124 relating to the transportation or shipment of
hazardous materials by railroad.
(k) Carry out the functions vested in the Secretary by section 7 of
Executive Order 12580 (delegating sections 108 and 109, respectively, of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate
to rolling stock.
(l) Carry out the functions vested in the Secretary by 33 U.S.C.
493, relating to disputes over the terms and compensation for use of
railroad bridges built under that statute.
(m) Carry out the functions vested in the Secretary by 49 U.S.C.
5701 with respect to transportation of food and other products by
railroad.
(n) Carry out the functions vested in the Secretary by 23 U.S.C. 322
(Magnetic Levitation Transportation Technology Deployment Program).
(o) Carry out the functions vested in the Secretary by sections 1307
(see note to 23 U.S.C. 322), and 1946 of SAFETEA-LU as they relate to
deployment of magnetic levitation transportation projects and a study of
rail transportation and regulation.
(p) Carry out the function vested in the Secretary by the Bankruptcy
Code (11 U.S.C. 1163), which relates to the nomination of trustees for
rail carriers in reorganization, with the concurrence of the Office of
the General Counsel.
(q) Carry out the functions vested in the Secretary by 23 U.S.C.
327, as it relates to railroad projects.
(r) Carry out the functions vested in the Secretary by the sections
1318(d) and 1534 of Moving Ahead for Progress in the 21st Century Act
(Pub. L. 112-141, 126 Stat. 405), as they relate to railroads.
(s) Carry out the functions vested in the Secretary by section
2(d)(2) of Executive Order 12777, 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 to operate without approved response plans.
Sec. 1.90 The Federal Transit Administration.
Is responsible for:
(a) Providing grants that support the development of safe,
comprehensive and coordinated public transportation systems;
(b) Creating and implementing a national public transportation
safety program that includes the development of safety practices and
standards;
(c) Assisting public transportation systems to achieve and maintain
their infrastructure, equipment and vehicles in a state of good repair;
(d) Promoting the environmental benefits of public transportation
through continuing, cooperative, and comprehensive planning that
improves the performance of the intermodal transportation system.
[[Page 42]]
(e) Supporting research, development, demonstration, and deployment
projects dedicated to assisting in the delivery of safe, efficient and
effective public transportation service;
(f) Supporting, in coordination with FHWA and FRA, strong
connections between public transportation and other modes of
transportation, including bicycle/pedestrian facilities and station-area
development that strengthen local communities; and
(g) Maximizing the positive impacts on the U.S. economy by
encouraging domestic manufacturing on transit projects through the
enforcement of Buy America provisions.
Sec. 1.91 Delegations to the Federal Transit Administrator.
The Federal Transit Administrator is delegated authority to carry
out the following:
(a) Chapter 53 of title 49, United States Code, and notes thereto.
(b) Sections 3 and 9 through 15 of the National Capital
Transportation Act of 1969 (Pub. L. 91-143, 83 Stat. 320), as amended
(DC Code, section 9-1101.01 et seq.).
(c) Sections of title 23, United States Code, and notes thereto that
involve public transportation projects, including those provisions that
pertain to planning, environmental reviews and use of historic resources
for public transportation projects.
(d) Section 303 of title 49, United States Code, as it involves
public transportation projects.
(e) The following sections of Moving Ahead for Progress in the 21st
Century Act (Pub. L. 112-141, 126 Stat. 405):
(1) Sections 1315 [23 U.S.C. 109 note], 1316 [23 U.S.C. 109 note],
1317 [23 U.S.C. 109 note], 1318 [23 U.S.C. 109 note], and 1321, as they
relate to public transit projects; and
(2) Sections 20005(b) [49 U.S.C. 5303 note], 20008(b) [49 U.S.C.
5309 note], 20013(b) [49 U.S.C. 5315 note], 20017(b) [49 U.S.C. 5324
note], 20021(b), and 20025(b) [49 U.S.C. 5335 note].
(f) Section 601 of the Passenger Rail Investment and Improvement Act
of 2008 (Pub. L. 110-432, Div. B).
Sec. 1.92 The Maritime Administration.
Is responsible for:
(a) Fostering the development and maintenance of a United States
merchant marine sufficient to meet the needs of the national security
and of the domestic and foreign commerce of the United States;
(b) Operating the U.S. Merchant Marine Academy in order to train
officers for the Nation's merchant marine;
(c) Promoting development of ports and intermodal transportation
systems through investments in port infrastructure via grant programs
and America's Marine Highway program;
(d) Promoting the growth and modernization of the U.S. merchant
marine and U.S. shipyards by administering loan and guarantee programs;
(e) Overseeing the administration of cargo preference statutes;
(f) Maintaining custody of, operating, and preserving ships in the
National Defense Reserve Fleet as well as other vessels under the
custody of MARAD and managing, maintaining and operating its Ready
Reserve Force component;
(g) Conducting research and development to improve and promote the
waterborne commerce of the United States.
Sec. 1.93 Delegations to the Maritime Administrator.
The Maritime Administrator is delegated authority to:
(a) Carry out the functions and exercise the authorities vested in
the Secretary under Subtitle V of title 46, U.S.C., except for 46 U.S.C.
51303 and 55601(c) and (d);
(b) Carry out the functions and exercise the authorities vested in
the Secretary under Subtitle III of title 46, U.S.C.;
(c) Carry out the functions and exercise the authorities vested in
the Secretary under the Merchant Ship Sales Act of 1946, as amended (50
U.S.C. App. 1735 et seq.);
(d) Carry out the functions and exercise the authorities vested in
the Secretary under 50 U.S.C. App 1744 with respect to the National
Shipping Authority;
(e) 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
[[Page 43]]
and the Federal Property and Administrative Services Act of 1949, as
amended, Public Law 81-152, 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.
(f) Carry out the functions and exercise the authorities 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;
(g) Carry out the functions vested in the Secretary by 40 U.S.C. 554
relating to authority to convey surplus real property to public entities
for use in the development or operation of port facilities;
(h) Carry out the following powers and duties and exercise the
authorities vested in the Secretary by the Deepwater Port Act of 1974,
Public Law 93-627, as amended (33 U.S.C. 1501 et seq.):
(1) Section 4: 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) Section 4: 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)), in
coordination with the Commandant of the Coast Guard;
(3) Section 5(h)(2): 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));
(4) Section 4: Make Adjacent Coastal State designations pursuant to
33 U.S.C. 1508(a)(2);
(5) Section 11: 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);
(6) Section 16(b): Submission of notice of the commencement of a
civil suit (33 U.S.C. 1515(b));
(7) Section 16(c): Intervention in any civil action to which the
Secretary is not a party (33 U.S.C. 1515(c));
(8) Sections 8(b), 12: 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);
(i) 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, 46 U.S.C. 70101 note, to
provide training for maritime security professionals;
(j) Exercise all the powers of the Secretary under 49 U.S.C. 336
with respect to civil penalties;
(k) Carry out all of the duties, authorities and powers of the
Secretary under the Reefs for Marine Life Conservation law, 16 U.S.C.
1220 et seq.;
(l) In consultation and coordination with the Office of
Intelligence, Security and Emergency Response, carry out the functions
under the Defense Production Act of 1950, Public Law 81-774, 64 Stat.
798, as amended (50 U.S.C. app. 2061 et seq.), that were vested in the
Secretary by Executive Order 13603 (``National Defense Resources
Preparedness'') as such authorities relate to the use of sealift support
and port facilities, and other maritime industry related facilities and
services, and maritime-related voluntary agreements pursuant to Section
708 of the Act;
(m) Carry out the functions related to the National Defense Reserve
Fleet vested in the Secretary pursuant to 50 U.S.C. App. 1744;
(n) Carry out all of the duties, authorities and powers of the
Secretary under the following statutes:
(1) 10 U.S.C. 2218, the National Defense Sealift Fund;
(2) 40 U.S.C. 3134, Bond waiver authority for certain contracts;
[[Page 44]]
(3) 46 U.S.C. 501(b), Waiver of navigation and vessel-inspection
laws and determination of non-availability of qualified U.S. flag
vessels;
(4) 46 U.S.C. 3316, granting authority to appoint a representative
to Executive Board of the American Bureau of Shipping (ABS);
(5) 46 U.S.C. 12119(a)(5), authority to waive or reduce the
qualified proprietary cargo requirements and determine citizenship;
(6) 50 U.S.C. 196, Emergency foreign vessel acquisition; purchase
and requisition of vessels lying idle in United States waters;
(7) 50 U.S.C. 197, Voluntary purchase or charter agreement;
(8) 50 U.S.C. 198, granting authority over requisitioned vessels;
(o) Carry out all of the duties, authorities and powers of the
Secretary with respect to 16 U.S.C. 1220 et seq. (use of obsolete ships
as reefs for marine life conservation);
(p) Carry out all of the duties, powers and authorities delegated to
the Secretary of Transportation by the Administrator of General Services
with respect to the leasing and management of property under 41 CFR 102-
72.30, Delegations of Authority;
(q) Carry out all of the duties, authorities and powers vested in
the Secretary by 46 U.S.C. 70101 note, to provide training for maritime
security professionals;
(r) Carry out the duties, authorities and powers of the Secretary
under the following statutes:
(1) Title XV, Subtitle B of the Food, Agriculture, Conservation, and
Trade Act of 1990, Public Law 101-624 (104 Stat. 3359, 3665), 7 U.S.C.
1421 and Chapter 553 of Title 46, U.S.C., authorizing the Secretary to
designate ``American Great Lakes'' vessels that are exempt from the
restrictions relating to the carriage of preference cargoes;
(2) 46 U.S.C. 2302(e) (determination of substandard vessels);
(3) Section 304(a) of Coast Guard and Maritime Transportation Act of
2006, 33 U.S.C. 1503(i), a program to promote liquefied natural gas
tanker transportation;
(4) Section 306 of Public Law 111-281, concerning the phaseout of
vessels supporting oil and gas development;
(s) Carry out the functions and exercise the authorities vested in
the President by Section 1019 of John Warner National Defense
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) and delegated
to the Secretary by the President;
(t) Lead efforts pertaining to civil emergency planning for sealift
support for North Atlantic Treaty Organization (NATO) operations,
including coordinating DOT representation on sealift-related committees,
in coordination with the Office of Intelligence, Security and Emergency
Response;
(u) Carry out the duties, functions, authorities, and powers of the
Secretary under 49 U.S.C. 109(e), (f), (h), (j)(3);
(v) Carry out all of the duties, authorities, and powers of the
Secretary of Transportation, with respect to matters involving the
Clarification Act, Public Law 78-17, 57 Stat. 45, as amended (50 U.S.C.
App. 1291);
(w) Carry out all of the duties, authorities, and powers of the
Secretary under 46 U.S.C. 12102(d).
Sec. 1.94 The National Highway Traffic Safety Administration.
Is responsible for:
(a) In highway safety, setting uniform guidelines for a coordinated
national highway safety formula grant program carried out by the States
and local communities; conducting research and development activities,
including demonstration projects and the collection and analysis of
highway and motor vehicle safety data and related information;
administering highway safety grant programs to encourage State efforts
in such areas as occupant protection, impaired and distracted driving,
traffic safety data information system improvements, motorcyclist
safety, child safety restraints, and graduated driver's licensing;
determining State compliance with highway traffic safety law
requirements; administering a nationwide high visibility enforcement
program; administering the National Driver Register; and leading and
coordinating efforts to establish, expand, and improve State, local,
tribal, and regional emergency medical services and 9-1-1 systems.
[[Page 45]]
(b) In motor vehicle safety, establishing and enforcing safety
standards and regulations for the manufacture and importation of motor
vehicles and motor vehicle equipment; conducting research, development,
and testing concerning motor vehicle safety, including vehicle-to-
vehicle and vehicle-to-infrastructure technologies and other new or
advanced vehicle technologies; and investigating safety-related defects
and non-compliance in motor vehicles and motor vehicle equipment and
administering related recalls.
(c) In automobile fuel economy, establishing automobile fuel economy
standards for passenger and non-passenger automobiles and fuel
efficiency standards for medium and heavy vehicles.
(d) In consumer protection and information, establishing
requirements and carrying out programs for passenger motor vehicle
information, such as the New Car Assessment Program; bumper standards
for passenger motor vehicles; odometer requirements; and passenger motor
vehicle theft prevention standards.
Sec. 1.95 Delegations to the National Highway Traffic Safety
Administrator.
The National Highway Traffic Safety Administrator is delegated
authority to:
(a) Exercise the authority vested in the Secretary under chapters
301, 303, 321, 323, 325, 327, 329, and 331, of Title 49, U.S.C., except
for 49 U.S.C. 32916(b).
(b) Exercise the authority vested in the Secretary by 49 U.S.C.
20134(a) with respect to laws administered by the National Highway
Traffic Safety Administration pertaining to highway, traffic and motor
vehicle safety.
(c) Carry out, in coordination with the Federal Motor Carrier Safety
Administrator, the authority vested in the Secretary by subchapter III
of chapter 311 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.
(d) Carry out the Highway Safety Act of 1966, as amended (Pub. L.
89-564, 80 Stat. 731), for highway safety programs, research, and
development except those relating to highway design, construction and
maintenance, traffic control devices, identification and surveillance of
crash locations, and highway-related aspects of pedestrian safety.
(e) Exercise the authority vested in the Secretary under chapter 4
of title 23, U.S.C., except for 23 U.S.C. 409.
(f) Carry out the functions and exercise the authority vested in the
Secretary for the following provisions of title 23, U.S.C. (with respect
to matters within the primary responsibility of the National Highway
Traffic Safety Administration): 153, 154, 158, 161, 163, 164, and 313
(Buy America).
(g) Carry out the consultation functions vested in the Secretary by
Executive Order 11912, as amended (``Delegation of Authorities Relating
to Energy Policy and Conservation'') relating to automobiles.
(h) Exercise the authority vested in the Secretary by section 210(2)
of the Clean Air Act, Public Law 90-148, as amended [42 U.S.C. 7544(2)].
(i) Carry out the functions and exercise the authority vested in the
Secretary by the following sections of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users, Public Law 109-
59:
(1) Section 1906 [23 U.S.C. 402 note], relating to the grant program
to prohibit racial profiling;
(2) Section 2010 [23 U.S.C. 402 note], relating to motorcyclist
safety;
(3) Section 2011 [23 U.S.C. 405 note], relating to child safety and
child booster seat incentive grants;
(4) Section 10202 [42 U.S.C. 300d-4], relating to emergency medical
services, as amended by section 31108 of the Moving Ahead for Progress
in the 21st Century Act, Public Law 112-141;
(5) Section 10305(b) [49 U.S.C. 30101 note], relating to the
publication of non-traffic incident data collection; and
(6) Section 10309(a), relating to the testing of 15-passenger van
safety.
(j) Carry out the following functions and exercise the authority
vested in
[[Page 46]]
the Secretary under the Energy Independence and Security Act of 2007
(Pub. L. 110-140):
(1) Section 106 [49 U.S.C. 32902 note], relating to the continued
applicability of existing standards;
(2) Section 107 [49 U.S.C. 32902 note], relating to the National
Academy of Sciences studies;
(3) Section 108, relating to the National Academy of Sciences study
of medium-duty and heavy-duty truck fuel economy;
(4) Section 110 [49 U.S.C. 32908 note], relating to the periodic
review of accuracy of fuel economy labeling;
(5) Section 113 [49 U.S.C. 32904 note], relating to the exemption
from separate calculation requirement;
(6) Section 131(b)(2) and (c)(1) [42 U.S.C. 17011(b)(2), (c)(1)],
relating to the Plug-in Electric Drive Vehicle Program;
(7) Section 225(a), relating to the study of optimization of
flexible fueled vehicles to use E-85 fuel;
(8) Section 227(a), relating to the study of optimization of biogas
used in natural gas vehicles;
(9) Section 242 [42 U.S.C. 17051], relating to renewable fuel
dispenser requirements; and
(10) Section 248(a) [42 U.S.C. 17054(a)], relating to biofuels
distribution and advanced biofuels infrastructure.
(k) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under section 7103 of the
Transportation Equity Act for the 21st Century, Public Law 105-178.
(l) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under sections 3(d), 10, 11 and 13
through 17 [uncodified provisions] of the Transportation Recall
Enhancement, Accountability, and Documentation (TREAD) Act, Public Law
106-414.
(m) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under Anton's Law, Public Law 107-318.
(n) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under the Cameron Gulbransen Kids
Transportation Safety Act of 2007 or the K.T. Safety Act of 2007, Public
Law 110-189.
(o) Carry out the functions and exercise the motor vehicle safety
authority vested in the Secretary under the Pedestrian Safety
Enhancement Act of 2010, Public Law 111-373.
(p) Carry out the functions and exercise the authority vested in the
Secretary by the following sections of the Moving Ahead for Progress in
the 21st Century Act, Public Law 112-141:
(1) Sections 31101(d) and (f) (23 U.S.C. 402 note), Authorization of
Appropriations;
(2) Sections 31203(b), Civil Penalty Criteria Rule, 31301, Public
Availability of Recall Information, 31302, NHTSA Outreach to
Manufacturer, Dealer, and Mechanic Personnel, 31309(a), Study of Crash
Data Collection, 31401, NHTSA Electronics, Software, and Engineering
Expertise, 31402, Electronics Systems Performance, 31501, Child Safety
Seats, 31502, Child Restraint Anchorage Systems, 31503, Rear Seat Belt
Reminders, 31504, Unattended Passenger Reminders, 31505, New Deadline,
and 31601, Rulemaking on Visibility of Agricultural Equipment;
(3) Section 32201, Crashworthiness Standards; and
(4) Sections 32703, Regulations for Improved Occupant Protection,
Passenger Evacuation, and Crash Avoidance, 32704, Fire Prevention and
Mitigation, 32705, Occupant Protection, Collision Avoidance, Fire
Causation, and Fire Extinguisher Research and Testing, and 32706,
Concurrence of Research and Rulemaking.
(q) Carry out the functions and exercise the authority vested in the
Secretary to implement section 3(g)-(h) of the Automobile Information
Disclosure Act (Pub. L. 85-506, 72 Stat. 325), as amended (15 U.S.C.
1232(g)-(h)).
Sec. 1.96 The Pipeline and Hazardous Materials Safety Administration.
Is responsible for:
(a) Pipelines. (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) Increasing the gas and liquid pipeline industry's focus on
safety beyond compliance with minimum standards,
[[Page 47]]
with particular attention to developing strong safety cultures in
regulated entities;
(3) Enhancing information awareness systems at the State and local
levels to reduce pipeline damage from excavation and providing grants to
support these systems; and
(4) Encouraging the timely replacement of aging and deteriorating
pipelines in distribution systems, especially in areas with high
potential negative consequences to public safety and the environment.
(b) Hazardous materials. (1) Administering a national program of
safety, including security, in multi-modal hazardous materials
transportation including identifying hazardous materials safety
concerns, developing uniform safety standards, and promulgating and
enforcing safety and security regulations; and
(2) Conducting outreach and provide available grants assistance to
increase awareness and emergency preparedness.
Sec. 1.97 Delegations to the Pipeline and Hazardous Materials Safety
Administrator.
The Pipeline and Hazardous Materials Safety Administrator is
delegated responsibility to:
(a) Pipelines. (1) Exercise the authority vested in the Secretary
under chapter 601 of title 49, U.S.C.
(2) Exercise the authority vested in the Secretary under section 28
of the Mineral Leasing Act, as amended (30 U.S.C. 185(a) and 30 U.S.C.
185(w)(3)).
(3) Exercise the authority 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 oil or natural gas
pipelines on Federal lands and the Outer Continental Shelf.
(4) Carry out the functions vested in the Secretary by section 5 (as
it relates to pipelines not over navigable waterways) and section 8(a)
(as it relates to pipelines) of the International Bridge Act of 1972
(Pub. L. 92-434, 86 Stat. 731) (33 U.S.C. 535c and 535e(a)).
(5) Exercise the authority 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) Carry out the functions vested in the Secretary by section 7 of
Executive Order 12580 (delegating sections 108 and 109, respectively, of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate
to pipelines.
(7) Exercise the authority vested in the Secretary by 49 U.S.C.
60301 as it relates to pipeline safety user fees.
(8) Exercise the authority vested in the Secretary by 49 U.S.C. 6101
et seq. as it relates to pipeline damage prevention One Call programs.
(9) Exercise the authority vested in the Secretary by the Pipeline
Safety Improvement Act of 2002 (Pub. L. 107-355, 116 Stat. 2985).
(10) Exercise the authority vested in the Secretary by the Pipeline
Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-
90).
(b) Hazardous materials. Except as delegated to the Under Secretary
of Transportation for Policy by Sec. 1.25:
(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) Participate, with the Administrator of the Federal Aviation
Administration, in the Dangerous Goods Panel at the International Civil
Aviation Organization, under the authority vested in the Secretary by 49
U.S.C. 5120; and
(3) Carry out, in coordination with the Administrators of the
Federal Aviation Administration (for matters relating to the transport
of hazardous materials by aircraft), the Federal Motor Carrier Safety
Administration (for matters relating to the transport of hazardous
materials by public highway), and the Federal Railroad Administration
(for matters relating to the
[[Page 48]]
transport of hazardous materials by rail), 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
Secs. 1.83(d)(2) and (3) (FAA) and 1.87(d)(2) (FMCSA) and by paragraph
2(99) of Department of Homeland Security Delegation No. 0170.
(4) Exercise the authority vested in the Secretary by sections 33005
(49 U.S.C. 5121 note), 33006, 33008 (49 U.S.C. 5121 note), 33009(b)(2)
(49 U.S.C. 5121 note), and 33012 (49 U.S.C. 5117 note) of the Moving
Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat.
405).
(c) Exercise the authority delegated to the Secretary in the
following sections of Executive Order 12777:
(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.
Sec. 1.98 The Research and Innovative Technology Administration.
Is responsible for:
(a) Coordinating, facilitating, and reviewing the Department's
research and development programs and activities, except as related to
NHTSA;
(b) After consultation with Operating Administration and OST
offices, making recommendations to the Secretary on all Operating
Administration and OST research budgets;
(c) Providing leadership on technical, navigation, communication,
and systems engineering activities, and spectrum management on behalf of
the civil and civilian PNT communities;
(d) Directing and administering university transportation research
grants;
(e) In coordination with FHWA, NHTSA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research;
(f) Advancing Intelligent Transportation Systems (ITS) research and
deployment of real-time multi-modal travel information for travelers,
carriers, and public agencies;
(g) Providing oversight of the activities of the Volpe National
Transportation Systems Center, the ITS Joint Program Office, the Bureau
of Transportation Statistics, and the Transportation Safety Institute;
and
(h) Providing technical support to advance the mission of the
Secretary's Safety Council.
Sec. 1.99 Delegations to the Research and Innovative Technology
Administrator.
The Research and Innovative Technology Administrator 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 those carried
out by the National Highway Traffic Safety Administration, as described
in section 4(b) of the Norman Y. Mineta Research and Special Programs
Improvement Act (Pub. L. 108-426, 118 Stat. 2423).
(2) After consultation with Operating Administration and OST
offices, RITA shall make recommendations to the Secretary on all
Operating Administration 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 federal, state and local
government agencies.
(2) Serve as principal liaison official for the Department of
Transportation
[[Page 49]]
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
and Planning Team.
(5) Advocate Department of Transportation policy and program
coordination efforts associated with transportation research.
(6) Represent the Department of Transportation on departmental,
national and international committees and meetings dealing with
transportation research and development (R & D).
(7) 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.
(8) Carry out the transportation research and development strategic
planning function vested in the Secretary by 23 U.S.C. 508.
(9) Conduct transportation system-level assessments and policy
research.
(10) Facilitate the creation of transportation public/private
partnerships.
(11) Foster innovation in the transportation sector.
(12) Disseminate information on departmental, national, and
international transportation R & D activities.
(13) Provide legal support for Departmental intellectual property
and patent issues.
(14) Manage department- and government-wide (inter/multimodal)
transportation R & D programs.
(15) Oversee such advisory boards that deal with transportation
system-level R & D assessments and issues, such as the Transportation
Research Board 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 2004, Part V, Public Law 108-310, September 30, 2004,
118 Stat. 1144, and section 5513(j) of SAFETEA-LU.
(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 SAFETEA-LU.
(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
SAFETEA-LU.
(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 as described in 49 U.S.C.
112(d)(1)(E) 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) Exercise authority over the Transportation Safety Institute.
(h) Carry out the functions vested in the Secretary by 49 U.S.C. 111
relating to transportation statistics, analysis, and reporting.
(i) Carry out the functions vested in the Secretary by 49 U.S.C.
5503(d) (Office of Intermodalism).
(j) Aviation information. (1) Carry out the functions vested in the
Secretary
[[Page 50]]
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 (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 its air commerce and safety
responsibilities), 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, 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) Carry out the functions vested in the Secretary by section
1801(e) of SAFETEA-LU (establishing and maintaining a national ferry
database).
(m) Carry out the functions vested in the Secretary by section
5513(c), (d), (g), (h), (i), (l), and (m) of SAFETEA-LU (establishing
various research grants).
(n) Carry out the functions vested in the Secretary by section
5201(m) of SAFETEA-LU (biobased transportation research program).
(o) Carry out the functions vested in the Secretary by 23 U.S.C. 509
(establishing and supporting a national cooperative freight
transportation research program).
(p) Positioning, navigation and timing (PNT) and spectrum
management. Carry out the functions described in the Secretarial memo of
August 1, 2007, ``Positioning, Navigation and Timing (PNT) and Spectrum
Management Realignment under the Research and Innovative Technology
Administration (RITA).''
(q) Carry out the Secretary's authority to establish, operate and
manage the Nationwide Differential Global Positioning System (NDGPS) as
described in Section 346 of Public Law 105-66 (Department of
Transportation and Related Agencies Appropriations Act of 1998).
Sec. 1.100 The Saint Lawrence Seaway Development Corporation.
Is responsible for the development, operation, and maintenance of
that part of the Saint Lawrence Seaway within the territorial limits of
the United States.
Sec. 1.101 Delegations to the 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 (Pub. L. 95-474, 92 Stat. 1471) [33 U.S.C. 1223-1225, 1227, and
1231-1232] as they relate to the operation of the Saint Lawrence Seaway.
(b) Carry out the functions vested in the Secretary by section 5 and
section 8(a) of the International Bridge Act of 1972 (Pub. L. 92-434, 86
Stat. 731) [33 U.S.C. 535c and 535e(a)] as it relates to the Saint
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. 1902e] as it
relates to ships owned or operated by the Corporation when engaged in
noncommercial service.
Sec. Appendix A to Part 1--Delegations and Redelegations by Secretarial
Officers
1. Director of Budget. The Assistant Secretary for Budget and
Programs and CFO has
[[Page 51]]
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 17658,
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 (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 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 Saint Lawrence Seaway Development Corporation, Maritime
Administration, and Research and Innovative Technology Administration
are hereby authorized to approve the sufficiency of the title to land
being acquired by purchase or 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 the 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.
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
[[Page 52]]
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.
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.
[[Page 53]]
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 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]
[[Page 54]]
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 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
[[Page 55]]
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]
Sec. 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 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
[[Page 56]]
(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 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.
[[Page 57]]
(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
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
[[Page 58]]
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
(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).
[[Page 59]]
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 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
[[Page 60]]
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 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.
[[Page 61]]
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.
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
7.11 What records are published in the Federal Register, and how are
they accessed?
7.12 What records are available in reading rooms, and how are they
accessed?
7.13 How are copies of publicly available records obtained?
7.14 Redaction of Information That is Exempt from Disclosure.
7.15 Protection of Records.
Subpart C_Availability of Reasonably Described Records
Under the Freedom of Information Act
7.21 What does this subpart cover?
7.22 Who administers this subpart?
7.23 What limitations apply to disclosure?
7.24 How do I submit a FOIA request?
7.25 How does DOT handle first-party requests?
7.26 To what extent and in what format are records searched and made
available?
7.27 What are the designated DOT FOIA Requester Service Centers?
7.28 How does DOT handle requests that concern more than one Government
agency?
7.29 When and how does DOT consult with submitters of commercial
information?
Subpart D_Time Limits
7.31 What time limits apply to DOT with respect to initial
determinations?
7.32 What time limits apply to a requester when appealing DOT's initial
or final determination?
7.33 What time limits apply to DOT with respect to administrative
appeals (final determinations)?
7.34 When and how are time limits applicable to DOT extended?
7.35 When and how is the twenty day time limit for rendering an initial
determination tolled?
Subpart E_Fees
7.41 When and how are processing fees imposed for records that are made
available under subpart B or processed under subpart C of this
part?
7.42 What is DOT's fee schedule for records requested under subpart C
of this part?
[[Page 62]]
7.43 When are fees waived or reduced for records requested under
subpart C of this part?
7.44 How can I pay a processing fee for records requested under subpart
B or subpart C of this part?
7.45 When are pre-payments required for records requested under subpart
C of this part, and how are they handled?
7.46 How are late payments handled?
Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600;
E.O. 13392.
Source: 79 FR 16209, Mar. 25, 2014, unless otherwise noted.
Subpart A_General Provisions
Sec. 7.1 General.
(a) This part implements the Freedom of Information Act, 5 U.S.C.
552, as amended, and prescribes rules governing the public availability
of Department of Transportation (DOT) records.
(b) Subpart B of this part contains the DOT regulations concerning
the public availability of:
(1) Records and indices that DOT is required to publish in the
Federal Register pursuant to 5 U.S.C. 552(a)(1) (described in
Sec. 7.11(a)); and
(2) Records and indices that DOT is required to make available to
the public in a reading room without need for a specific request,
pursuant to 5 U.S.C. 552(a)(2) (described in Sec. 7.12(a)).
(c) Subpart C of this Part contains the DOT regulations concerning
records that may be requested from DOT under the FOIA, namely, records
that DOT is not required to publish in the Federal Register or make
publicly available in a reading room under 5 U.S.C. 552(a)(2)(A), (B),
(C), and (E) and frequently requested records even if DOT has made them
publicly available as required under 5 U.S.C. 552(a)(2)(D). Because DOT
and its components make many of these records available on their Web
pages (http://www.dot.gov or http://www.dot.gov/foia), requesters may
find it preferable to obtain such records directly from the Web pages
instead of submitting a FOIA request, if the Web pages contain records
that meet their needs.
(d) Subpart D of this part contains the DOT regulations concerning
time limits applicable to processing requests for records under subpart
C.
(e) Subpart E of this part contains the DOT regulations concerning
processing fees applicable to records made available under subpart B or
requested under subpart C.
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 Operating Administration.
Components--see the definition of Department in this section.
Concurrence means that the approval of the individual being
consulted is required in order for the subject action to be taken.
Confidential commercial information means trade secrets and
confidential, privileged, and/or proprietary business or financial
information submitted to DOT by any person.
Consultation has its ordinary meaning; the approval of the
individual being consulted is not required in order for the subject
action to be taken.
Department or DOT means the Department of Transportation, including
the Office of the Secretary, the Office of Inspector General, and all
DOT Operating Administrations, any of which may be referred to as a DOT
component. This definition specifically excludes the Surface
Transportation Board, which has its own FOIA regulations at 49 CFR part
1001.
First-party request means a request by an individual for records
pertaining to that individual.
Hourly rate means the actual hourly base pay for a civilian
employee.
Operating Administration means one of the following components of
the Department:
(1) Federal Aviation Administration;
(2) Federal Highway Administration;
(3) Federal Motor Carrier Safety Administration;
(4) Federal Railroad Administration;
(5) Federal Transit Administration;
(6) Maritime Administration;
(7) National Highway Traffic Safety Administration;
(8) Pipeline and Hazardous Materials Safety Administration; and
[[Page 63]]
(9) Saint Lawrence Seaway Development Corporation.
Reading room records are those records required to be made available
to the public without a specific request under 5 U.S.C. 552(a)(2), as
described in Sec. 7.12 of subpart B of this part. DOT makes reading room
records available to the public electronically through its FOIA Web
pages (http://www.dot.gov/foia) and at the physical locations identified
in Sec. 7.12(b). Other records may also be made available at DOT's
discretion through DOT Web pages (http://www.dot.gov).
Record includes any writing, drawing, map, recording, diskette, DVD,
CD-ROM, tape, film, photograph, or other documentary material,
regardless of medium, by which information is preserved. The term also
includes any such documentary material stored electronically by
computer.
Redact means delete or mark over.
Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. ``News'' means
information that is about current events or that would be of current
interest to the public.
Responsible DOT official means the head of the DOT Operating
Administration 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 individual to
whom the Secretary has delegated authority in the matter concerned.
Toll means temporarily stop the running of a time limit.
Subpart B_Information Required To Be Made Public by DOT
Sec. 7.11 What records are published in the Federal Register,
and how are they accessed?
(a) General. Pursuant to 5 U.S.C. 552(a)(1), DOT publishes the
following records in the Federal Register and makes an index of the
records publicly available. For purposes of this paragraph, material
that is reasonably available to the class of persons affected by the
material is considered to be published in the Federal Register when the
material is incorporated by reference with the approval of the Director
of the Federal Register.
(1) Descriptions of DOT's organization 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;
(2) 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;
(3) 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;
(4) 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
(5) Each amendment, revision, or repeal of any material listed in
paragraphs (a)(1) through (4) of this section.
(b) Federal Register locations. DOT makes its Federal Register
publications and indices publicly available at the physical locations
identified in Sec. 7.12(b). The publications and indices can be accessed
online at http://www.federalregister.gov.
Sec. 7.12 What records are available in reading rooms, and how are
they accessed?
(a) General. Pursuant to 5 U.S.C. 552(a)(2), unless the following
records are promptly published and offered for sale or published in the
Federal Register, DOT and its components make the following records, and
an index to the records, available in a reading room, including an
electronic reading room if the records were created by DOT on or after
November 1, 1996:
(1) Final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;
(2) Statements of policy and interpretations that have been adopted
by DOT
[[Page 64]]
and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public; and
(4) Copies of all records, regardless of form or format, that have
been released to any person under subpart C of this Part and that,
because of the nature of their subject matter, DOT determines have
become or are likely to become the subject of subsequent requests for
substantially the same records.
(5) A general index of the records listed in paragraph (a)(4) of
this section.
(b) Reading room locations. DOT makes its reading room records and
indices (in the form of lists or links) available at http://www.dot.gov/
foia and at the following physical locations:
(1) DOT Dockets Office, 1200 New Jersey Avenue SE., Room W12-140,
Washington, DC 20590: hours of operation: 9 a.m. to 5 p.m. ET, Monday
through Friday except Federal holidays; telephone: (202) 366-9322, (202)
366-9826, or (800) 647-5527. DOT provides a computer terminal and
printer at this location for accessing electronic reading room records.
(2) National Highway Traffic Safety Administration (NHTSA) Technical
Information Services public record unit: 1200 New Jersey Avenue SE.,
Room W12-300, Washington, DC 20590; hours of operation: 9:30 a.m. to 5
p.m. ET, Monday through Friday except Federal holidays; telephone (202)
366-2588. NHTSA provides a computer terminal and printer at this
location for accessing electronic reading room records.
(3) Other public record units maintained by DOT components (e.g., at
regional offices): Information concerning the availability of a computer
terminal and printer at such units, and the location and hours of
operation of such units, can be obtained through the DOT Dockets Office
at (202) 366-9322, (202) 366-9826, or (800) 647-5527.
Sec. 7.13 How are copies of publicly available records obtained?
(a) Copies of materials covered by this subpart that are published
and offered for sale. Records that are ordinarily made available to the
public as a part of an information program of the Government, such as
news releases and pamphlets, may be obtained upon request by contacting
the appropriate DOT location identified in Sec. 7.12(b) or the sources
identified in Sec. 7.41(g), and paying the applicable duplication fee or
purchase price. Whenever practicable, DOT also makes the publications
available at the appropriate physical locations identified in
Sec. 7.12(b).
(b) Copies of materials covered by this subpart that are not
published and offered for sale. Such records may be ordered, upon
payment of the appropriate fee (if any fee applies), through the
applicable FOIA Requester Service Center or through the DOT Dockets
Office identified in Sec. 7.12(b):
(1) Per copy of each page (not larger than 8.5 x 14 inches)
reproduced by photocopy or similar means--US $0.10.
(2) Per copy prepared by any other method of duplication--actual
direct cost of production.
(3) Copies are certified upon request by contacting the applicable
FOIA Requester Service Center listed in Sec. 7.27 and paying the fee
prescribed in Sec. 7.41(e).
Sec. 7.14 Redaction of information that is exempt from disclosure.
Whenever DOT determines it to be necessary to prevent the disclosure
of information required or authorized to be withheld by FOIA or another
Federal statute (such as, to prevent a clearly unwarranted invasion of
personal privacy), DOT redacts such information from any record covered
by this subpart that is published or made available. A full explanation
of the justification for the deletion accompanies the record published
or made available.
Sec. 7.15 Protection of records.
Records made available to the public under this subpart may not be
removed, altered, destroyed, or mutilated (this excludes duplicate
copies that are provided to a member of the public to take and keep). 18
U.S.C. 641 provides for criminal penalties for embezzlement or theft of
Government records. 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.
[[Page 65]]
Subpart C_Availability of Reasonably Described Records Under the Freedom
of Information Act
Sec. 7.21 What does this subpart cover?
(a) Except as otherwise provided in paragraph (b) of this section,
this subpart applies to reasonably described records that are made
available in response to written requests under FOIA.
(b) This subpart does not apply to:
(1) Records published in the Federal Register.
(2) Records published and offered for sale.
(3) Records (other than frequently requested records) made available
in a reading room.
(4) Records or information compiled for law enforcement purposes and
covered by the disclosure exemption described in Sec. 7.23(c)(7)(A) 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.
(5) Informant records maintained by any 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. 7.22 Who administers this subpart?
(a) A Chief FOIA Officer is appointed by the Secretary to oversee
DOT's compliance with the Act pursuant to 5 U.S.C. 552(k). The DOT Chief
FOIA Officer is designated at 49 CFR 1.27a as the Career Deputy General
Counsel.
(b) Each DOT FOIA Requester Service Center listed in Sec. 7.27 is
the initial point of contact for providing information about its
processing of requests.
(c) One or more Public Liaisons are designated by the Chief FOIA
Officer for each DOT FOIA Requester Service Center listed in Sec. 7.27.
Public Liaisons assist requesters in reducing delays and resolving
disputes, as described in 5 U.S.C. 552(k)(6).
(d) Authority to administer this subpart and to issue determinations
with respect to initial requests and appeals of initial denials has been
delegated as follows:
(1) To the General Counsel for the records of the Office of the
Secretary by 49 CFR 1.27.
(2) To the Inspector General for records of the Office of Inspector
General by 49 CFR 1.74.
(3) To the Administrator of each DOT Operating Administration for
records of that component by 49 CFR 1.81.
(4) Each responsible DOT official may redelegate the authority to
issue final determinations of appeals of initial denials to that
official's deputy or to not more than one other officer who reports
directly to the official and who is located at the headquarters of that
DOT component.
(5) Any such final determination by an Administrator or an
Administrator's designee (following an appeal of an initial denial) is
subject to concurrence by the General Counsel or the General Counsel's
designee, if the final determination is not to disclose a record or
portion of a record under this part, or not to grant a request for a fee
waiver or reduction.
(6) The Inspector General or the Inspector General's designee must
consult with the General Counsel or the General Counsel's designee
before issuing a final determination following an appeal of an initial
denial, if the final determination is not to disclose a record or
portion of a record under this part, or not to grant a request for a fee
waiver or reduction.
Sec. 7.23 What limitations apply to disclosure?
(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 releasing reasonably segregable and meaningful
nonexempt information in a document from which exempt information is
withheld.
(b) Statutory disclosure requirement. As provided in 5 U.S.C.
552(a)(3)(A), DOT makes reasonably described records
[[Page 66]]
available upon request from a member of the public, when the request is
submitted in accordance with this subpart, except to the extent that the
records contain information exempt from FOIA's mandate of disclosure as
provided in 5 U.S.C. 552(b).
(c) Statutory exemptions. Exempted from FOIA's statutory disclosure
requirement are matters that are:
(1) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy, and are 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 disclosure by statute (other than the
Privacy Act, 5 U.S.C. 552a, or Open Meetings Act, 5 U.S.C. 552b, as
amended), in that the statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, establishes particular
criteria for withholding, or refers to particular types of matters to be
withheld; or
(ii) Specifically allows withholding from release under FOIA by
citation to 5 U.S.C. 552;
(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 which 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 which 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) Redacted information. DOT indicates the amount of information
redacted from records released under the FOIA and the exemption(s)
relied upon in redacting the information, at the place in the record
where the redaction is made, when technically feasible and when doing so
does not harm an interest protected by the exemption concerned.
(e) Non-confidentiality of requests. DOT releases the names of FOIA
requesters and descriptions of the records they have sought, as shown on
DOT FOIA logs, except to the extent that a statutory exemption
authorizes or requires withholding of the log information.
Sec. 7.24 How do I submit a FOIA request?
(a) Each person desiring access to or a copy of a record covered by
this subpart must make a written request (via paper, facsimile or
electronic mail) for the record. The request should--
[[Page 67]]
(1) Indicate that it is being made under FOIA;
(2) Display the word ``FOIA'' prominently on the envelope or on the
subject line of the email or facsimile;
(3) Be addressed to the appropriate FOIA Requester Service Center as
set forth in Sec. 7.27;
(4) State the format (e.g., paper, compact disc) in which the
information is sought, if the requester has a preference (see
Sec. 7.26(c)); and
(5) Describe the record or records sought to the fullest extent
possible. In this regard, 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 individual 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 contact the
requester for additional information. So that the office may contact the
requester for additional information, the request should provide the
requester's complete contact information, including name, address,
telephone number, and email address, if any.
(b) With respect to fees, the request must--
(1) Specify the fee category (commercial use, news media,
educational institution, noncommercial scientific institution, or other;
see Sec. 7.42(g)) in which the requester claims the request falls and
the basis of this claim (see subpart E of this Part for fees and fee
waiver requirements);
(2) Support any request for fee waiver by addressing, to the fullest
extent possible, how the criteria set out in Sec. 7.43(c) for
establishing that the request is in the public interest have been met,
if relevant;
(3) State the maximum amount of fees that the requester is willing
to pay and/or include a request for a fee waiver or reduction (if a
maximum amount is not stated by the requester, DOT will assume the
requester is willing to pay up to US $25);
(c) If the requester seeks expedited processing at the time of the
initial request, the request must include a statement supporting
expedited processing, as set forth in Sec. 7.31(c);
(d) A request is not considered to be a FOIA request if the record
or records sought are insufficiently described such that DOT is unable
to respond as required by FOIA. The twenty Federal working day limit for
responding to requests, described in Sec. 7.31(a)(2), will not start to
run until the request is determined by DOT to be sufficiently understood
to enable DOT to respond as contemplated under FOIA (or would have been
so determined with the exercise of due diligence by an employee of DOT)
and is considered received (see paragraph (e)); and
(e) Provided the request is considered to be a FOIA request (see
paragraph (d)), the request is considered received when it is first
received by the FOIA office to which it should have been originally
sent, as shown in Sec. 7.27, but in any event not later than ten Federal
working days after it is first received by any DOT FOIA Requester
Service Center identified in Sec. 7.27.
(f) As provided in Sec. 7.35, DOT's time limit for responding to a
FOIA request as set forth in subpart D may be tolled one time to seek
additional information needed to clarify the request and as often as
necessary to clarify fee issues with the requester.
Sec. 7.25 How does DOT handle first-party requests?
(a) DOT processes FOIA requests from first-party requesters in
accordance with this regulation. DOT also processes such requests in
accordance with the Privacy Act (5 U.S.C. 552a) if the records reside in
a Privacy Act system of records (defined in 5 U.S.C. 552a(a)(5) as a
system from which information is retrieved by the individual's name or
some other personal identifier). Whichever statute provides greater
access is controlling.
(b) First party requesters must establish their identity to DOT's
satisfaction before DOT will process the request under the Privacy Act.
DOT may request that first party requesters authenticate their identity
to assist with our evaluation of the application of FOIA exemptions,
such as FOIA Exemption 6, 5 U.S.C. 552(b)(6), to the requested records.
Acceptable methods of authenticating the requester's identity
[[Page 68]]
include those outlined in DOT's Privacy Act regulations at 49 CFR 10.37.
Sec. 7.26 To what extent and in what format are records searched
and made available?
(a) Existing records. A request may seek only records that are in
existence at the time of the request. In determining which records are
responsive to a request, DOT ordinarily will include only records in its
possession as of the date it begins its search for them. If any other
date is used, DOT will inform the requester of that date. DOT considers
records created after the beginning of the search to be non-responsive
to a request. A request made under this subpart 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. DOT may, in its discretion,
create a new record as an alternative to disclosing existing records, if
DOT determines that creating a new record will be less burdensome than
disclosing large volumes of unassembled material and if the requester
consents to accept the newly-created record in lieu of the existing
records.
(b) Electronic records. DOT makes a reasonable effort to search
electronic records without significantly interfering with the operation
of the affected information system.
(c) Format of production. DOT provides records in the form or format
sought by the requester, if the records are readily reproducible in that
form or format.
(d) Photocopying of records. Original records ordinarily are copied
except where, in DOT's judgment, copying would endanger the quality of
the original or raise the reasonable possibility of irreparable harm to
the record. Original records are not released from DOT custody. DOT may
make records requested under this subpart available for inspection and
copying during regular business hours at the place where the records are
located.
(e) If no responsive record is located. If DOT cannot locate a
requested record in agency files after a reasonable search (e.g.,
because the record was never created or was disposed of), DOT so
notifies the requester.
Sec. 7.27 What are the designated DOT FOIA Requester Service Centers?
(a) A request for a record under this subpart may be submitted via
paper, facsimile, or electronic mail to the FOIA Requester Service
Center designated for the DOT component where the records are located,
at the electronic mail addresses or facsimile numbers identified at
http://www.dot.gov/foia or the mailing addresses indicated below (unless
a more up-to-date mailing address has been designated at http://
www.dot.gov/foia):
(1) FOIA Requester Service Centers at 1200 New Jersey Avenue SE.,
Washington, DC 20590:
(i) FOIA Requester Service Center at Federal Highway Administration,
Room E64-302 (unless a more specific address has been designated by FHWA
at http://www.fhwa.dot.gov/foia);
(ii) FOIA Requester Service Center at Federal Motor Carrier Safety
Administration, Room W66-458;
(iii) FOIA Requester Service Center at Federal Railroad
Administration, Room W33-437;
(iv) FOIA Requester Service Center at Federal Transit
Administration, Room E42-315;
(v) FOIA Requester Service Center at Maritime Administration, Room
W24-233;
(vi) FOIA Requester Service Center at National Highway Traffic
Safety Administration, Room W41-311;
(vii) FOIA Requester Service Center at Office of the Secretary of
Transportation, Room W94-122;
(viii) FOIA Requester Service Center at Office of Inspector General,
Room W70-329;
(ix) FOIA Requester Service Center at Pipeline and Hazardous
Materials Safety Administration, Room E23-306; and
(2) FOIA Requester Service Center at Federal Aviation
Administration, 800 Independence Avenue SW., Room 306, Washington, DC
20591 (unless a more
[[Page 69]]
specific address has been designated by FAA at http://www.faa.dot.gov/
foia).
(3) FOIA Requester Service Center at Associate Administrator's
Office, Saint Lawrence Seaway Development Corporation, 180 Andrews
Street, P.O. Box 520, Massena, NY 13662-0520.
(b) If the person making the request does not know where in DOT the
records are located, the person may submit the request to the FOIA
Requester Service Center at Office of the Secretary of Transportation,
1200 New Jersey Avenue SE., Room W94-122, Washington, DC 20590 or by
facsimile: 202-366-8536. Requesters also may contact the FOIA Requester
Service Center at the Office of the Secretary of Transportation at 202-
366-4542 with questions about how to submit a FOIA request or to confirm
the mailing addresses indicated in this part.
(c) Requests for records under this part, and FOIA inquiries
generally, may be made by accessing the DOT Home Page on the Internet
(http://www.dot.gov) and clicking on the Freedom of Information Act link
(http://www.dot.gov/foia).
Sec. 7.28 How does DOT handle requests that concern more than one
Government agency?
(a) If the release of a DOT-created record covered by this subpart
would be of concern to DOT and one or more other Federal agencies, the
determination as to release is made by DOT, but only after consultation
with the other concerned agency.
(b) If the release of a DOT-created record covered by this subpart
would be of concern to 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 is made by DOT, but only after
consultation with the other concerned Governmental jurisdiction.
(c) DOT refers a request for a non-DOT-created record covered by
this subpart (or the relevant portion thereof) for decision by the
Federal agency that is best able to determine the record's exemption
status (usually, this is the agency that originated the record), but
only if that agency is subject to FOIA. DOT makes such referrals
expeditiously and notifies the requester in writing that a referral has
been made. DOT informs the requesterthat the Federal agency to which DOT
referred the request will respond to the request, unless DOT is
precluded from attributing the record in question to that agency.
(d) DOT components will handle all consultations and referrals they
receive from other agencies or DOT components according to the date the
FOIA request initially was received by the first agency or DOT
component, not any later date.
Sec. 7.29 When and how does DOT consult with submitters of commercial
information?
(a) If DOT receives a request for a record that includes information
designated by the submitter of the information as confidential
commercial information, or that DOT has some other reason to believe may
contain information of that type (see Sec. 7.23(c)(4)), DOT notifies the
submitter expeditiously and asks the submitter to submit any written
objections to release (unless paragraphs (c) and (d) of this section
apply). At the same time, DOT notifies the requester that notice and an
opportunity to comment are being provided to the submitter. To the
extent permitted by law, DOT affords the submitter a reasonable period
of time to provide a detailed statement of any such objections. The
submitter's statement must specify all grounds for withholding any of
the information. The burden is on the submitter to identify with
specificity 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, to the extent permitted by law,
considers carefully a submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose commercial
information. Whenever DOT decides to disclose such information over the
objection of a submitter, the office responsible for the decision
provides the submitter with a written notice of intent to disclose,
which is sent to the submitter a reasonable number of days prior to the
specified date upon which disclosure is
[[Page 70]]
intended. The written notice to the submitter includes:
(1) A statement of the reasons for which the submitter's disclosure
objections were not accepted;
(2) A description of the commercial information to be disclosed; and
(3) A specific disclosure date.
(c) The notice requirements of this section do not apply if:
(1) DOT 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 do not apply in the
case of:
(1) 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 12 of the Rules
of Practice in Aviation Economic Proceedings (14 CFR 302.12).
(e) Whenever a requester brings suit seeking to compel disclosure of
confidential commercial information, the responsible DOT component
promptly notifies the submitter. The submitter may be joined as a
necessary party in any suit brought against DOT or a DOT component for
nondisclosure.
Subpart D_Time Limits
Sec. 7.31 What time limits apply to DOT with respect to initial
determinations?
(a) In general. (1) DOT ordinarily responds to requests according to
their order of receipt.
(2) DOT makes an initial determination whether to release a record
requested pursuant to subpart C of this Part within twenty Federal
working days after the request is received by the appropriate FOIA
Requester Service Center designated in Sec. 7.27, except that DOT may
extend this time limit by up to ten Federal working days, or longer, in
accordance with Sec. 7.34. In addition, DOT may toll this time limit one
time to seek additional information needed to clarify the request and as
often as necessary to clarify fee issues with the requester (see
Sec. 7.35).
(3) DOT notifies the requester of DOT's initial determination. If
DOT decides to grant the request in full or in part, DOT makes the
record (or the granted part) available as promptly as possible. If DOT
denies the request in full or in part, because the record (or the denied
part) is subject to an exemption, is not within DOT's custody and
control, or was not located following a reasonable search, DOT notifies
the requester of the denial in writing and includes in the notice the
reason for the determination, the right of the requester to appeal the
determination, and the name and title of each individual responsible for
the initial determination to deny the request. The denial letter
includes an estimate of the volume of records or information withheld,
in number of pages or other reasonable form of estimation. This estimate
does not need to be provided if the volume is otherwise indicated
through deletions on records disclosed in part, or if providing an
estimate would harm an interest protected by an applicable exemption.
DOT marks or annotates records disclosed in part to show both the amount
and location of the information deleted whenever practicable (see
Sec. 7.23(d)).
(b) Multi-track processing of initial requests. (1) A DOT 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 based on the number of pages involved.
(2) A DOT component using multi-track 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). In that event, the
component contacts the requester either by telephone, letter, facsimile,
or electronic mail, whichever is most efficient in each case.
(3) Upon receipt of a request that will take longer than ten days to
process, a DOT component shall assign an individualized tracking number
to the request and notify the requester of the
[[Page 71]]
assigned number. Requesters may contact the appropriate DOT component
FOIA Requester Service Center to determine the status of the request.
(c) Expedited processing of initial requests. (1) Requests are
processed out of order and given expedited treatment whenever a
compelling need is demonstrated and DOT determines 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; or
(ii) A request made by a person primarily engaged in disseminating
information, with a time 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, the request for expedited processing must be received by
the FOIA office for the component that maintains the records requested,
as identified in Sec. 7.27.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
individual's knowledge and belief, explaining in detail the basis for
requesting expedited processing. A requester within the category in
paragraph (c)(1)(ii) of this section 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.
(4) Within ten calendar days of receipt of a request for expedited
processing, the proper component decides whether to grant it and
notifies the requester of the decision. If DOT grants a request for
expedited treatment, the request is given priority and is processed as
soon as practicable. If DOT denies a request for expedited processing,
any appeal of that denial is acted on expeditiously.
Sec. 7.32 What time limits apply to a requester when appealing
DOT's initial or final determination?
(a) Denial of records request. When the responsible DOT official
determines that a record request will be denied, in whole or in part,
because the record is subject to an exemption, is not in DOT's custody
and control, or was not located following a reasonable search, DOT
provides the requester with a written statement of the reasons for that
determination, as described in Sec. 7.31(a)(3), and of the right to
appeal the determination within DOT.
(b) Denial of fee waiver. When the responsible DOT official denies,
in whole or in part, a request for a waiver of fees made pursuant to
Sec. 7.24(b) or Sec. 7.43(c), DOT provides the requester with written
notification of that determination and of the right to appeal the
determination within DOT.
(c) Denial of expedited processing. When the responsible DOT
official denies a request for expedited processing made pursuant to
Sec. 7.31(c), DOT provides the requester with written notice of that
determination and of the right to appeal the determination within DOT.
(d) Right to administrative appeal. Any requester to whom a record
has not been made available within the time limits established by
Sec. 7.31 and any requester who has been provided a written
determination pursuant to paragraphs (a), (b), or (c) of this section
may appeal to the responsible DOT official.
(1) Each appeal must be made in writing to the appropriate DOT
appeal official and postmarked or, in the case of electronic or
facsimile transmissions transmitted, within forty-five calendar days
from the date the initial determination is signed and should include the
DOT file or reference number assigned to the request and all information
and arguments relied upon by the person making the request. The contact
information for all DOT component appeal officials is identified in the
DOT FOIA Reference Guide. The envelope in which a mailed appeal is sent
or the subject line of an appeal sent electronically or by facsimile
should be prominently marked: ``FOIA Appeal.'' The twenty Federal
working day limit described in Sec. 7.33(a) will not begin to run until
the appeal has been received by the appropriate office and identified as
an appeal under FOIA, or would
[[Page 72]]
have been so identified with the exercise of due diligence, by a DOT
employee.
(2) Whenever the responsible DOT official determines it is
necessary, the official may require the requester to furnish additional
information, or proof of factual allegations, and may order other
proceedings appropriate in the circumstances. DOT's time limit for
responding to an appeal may be extended as provided in Sec. 7.34. The
decision of the responsible DOT official as to the availability of the
record, the appropriateness of a fee waiver or reduction, or the
appropriateness of expedited processing, constitutes final agency action
for the purpose of judicial review.
(3) The decision of the responsible DOT official to deny a record
request, to deny a request for a fee waiver or reduction, or to deny a
request for expedited processing is considered to be a denial by the
Secretary for the purpose of 5 U.S.C. 552(a)(4)(B).
(4) When the responsible DOT official denies an appeal, the
requester is informed in writing of the reasons for the denial of the
request and the names and titles or positions of each person responsible
for the determination, and that judicial review of the determination is
available in the United States District Court for the judicial district
in which the requester resides or has his or her principal place of
business, the judicial district in which the requested records are
located, or the District of Columbia.
(e) Right to judicial review. Any requester 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 to first submit an administrative appeal. Any
requester who has received a written determination denying his or her
administrative appeal or who has not received a written determination of
his or her administrative appeal within the time limits established by
Sec. 7.33 can seek judicial review. A determination that a record
request is denied, that a request for a fee waiver or reduction is
denied, and/or that a request for expedited processing is denied does
not constitute final agency action for the purpose of judicial review
unless it is made by the responsible DOT official. Judicial review may
be sought in the United States District Court for the judicial district
in which the requester resides or has his or her principal place of
business, the judicial district in which the requested records are
located, or the District of Columbia.
Sec. 7.33 What time limits apply to DOT with respect to
administrative appeals (final determinations)?
(a) In general. (1) DOT ordinarily processes appeals according to
their order of receipt.
(2) DOT issues a determination with respect to any appeal made
pursuant to Sec. 7.32(d) within twenty Federal working days after
receipt of such appeal, except that in unusual circumstances DOT may
extend this time limit by up to ten Federal working days in accordance
with Sec. 7.34(a) or for more than ten Federal working days in
accordance with Sec. 7.34(b). DOT notifies the requester making the
appeal immediately, in writing, if the agency takes an extension of
time. DOT may inform the requester making the appeal, at any time, of
exceptional circumstances delaying the processing of the appeal (see
Sec. 7.34(c)).
(b) Multi-track processing of appeals. (1) A DOT 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 based on the amount of information involved.
(2) A DOT component using multi-track 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.
(c) Expedited processing of appeals. (1) An appeal is processed out
of order and given expedited treatment whenever a compelling need is
demonstrated and DOT determines that the compelling need involves:
[[Page 73]]
(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; or
(ii) A request made by a person primarily engaged in disseminating
information, with a time 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 a later time. For a prompt determination, a request for
expedited processing must be received by the component that is
processing the appeal for the records requested.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
individual's knowledge and belief, explaining in detail the basis for
requesting expedited processing. A requester within the category in
paragraph (c)(1)(ii) of this section must establish a particular time
urgency to inform the public about the Government activity involved in
the request, beyond the public's right to know about Government activity
generally. A person granted expedited processing under Sec. 7.31(c) 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 requester 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. 7.34 When and how are time limits applicable to DOT extended?
(a) In unusual circumstances as specified in this section, DOT may
extend the time limits prescribed in Secs. 7.31 and 7.33 by written
notice to the person making the request or appeal, setting forth the
reasons for the extension and the date on which a determination is
expected to be issued. Such notice may not specify a date that would
result in a cumulative extension of more than ten Federal working days
without providing the requester 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; and/or
(3) The need for consultation, which will be conducted with all
practicable speed, with any other agency having a substantial interest
in the determination of the request or among two or more DOT components
having substantial interest therein.
(b) When the extension is for more than ten Federal working days,
the written notice provides the requester with an opportunity to either
modify the request (e.g., by narrowing the record types or date ranges)
so that it may be processed within the extended time limit, or arrange
an alternative time period with the DOT component for processing the
request (e.g., by prioritizing portions of the request).
(c) The DOT component may inform the requester, at any time, of
exceptional circumstances that apply to the processing of the request or
appeal (e.g., if the component is reducing a backlog of requests or
appeals in addition to processing current requests, or is experiencing
an unexpected deluge of requests or appeals), as provided in 5 U.S.C.
552(a)(6)(C).
(d) When a DOT component reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, DOT may
aggregate the requests for the purposes of fees and processing
activities, which may result in an extension of the processing time.
Multiple requests involving unrelated matters are not aggregated.
[[Page 74]]
Sec. 7.35 When and how is the twenty day time limit for rendering
an initial determination tolled?
The twenty Federal working day time period in which to render an
initial determination will proceed without interruption except as
provided in the following circumstances:
(a) DOT may toll the initial twenty Federal working day time period
one time for the purpose of seeking additional information needed to
clarify the request. Examples of such instances include but are not
limited to:
(1) When clarification is needed with regard to the scope of a
request; or
(2) When the description of the record(s) being sought does not
enable the component handling the request to identify or locate the
record(s).
(b) DOT may toll the initial twenty Federal working day time period
as often as necessary to clarify fee issues with the requester. Examples
of such instances include but are not limited to:
(1) When the requester has not sufficiently identified the fee
category applicable to the request;
(2) When the requester has not stated a willingness to pay fees as
high as anticipated by DOT; or
(3) When a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by DOT.
Subpart E_Fees
Sec. 7.41 When and how are processing fees imposed for records that
are made available under subpart B or processed under subpart C of
this part?
(a) DOT imposes fees for services that DOT performs for the public
under subparts B and C of this part. Fees apply to all required and
special services performed by DOT employees, including employees of non-
appropriated fund activities, and contractors, if utilized.
(b) DOT may assess a fee for time spent searching for records
requested under subpart C 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 a request is made under subpart C by a first-party
requester and DOT processes the request under both FOIA and the Privacy
Act, DOT determines the fees for records in DOT Privacy Act systems of
record in accordance with the Privacy Act (as implemented by DOT
regulations at 49 CFR part 10) rather than the FOIA.
(d) When DOT aggregates requests made under subpart C (see
Sec. 7.34(d)), DOT apportions fees as set forth in Sec. 7.43(b).
(e) As a special service, DOT may certify copies of records made
available under subpart B or released under subpart C, upon request and
payment of the applicable fee: with the DOT seal (where authorized)--US
$10; or true copy, without seal--US $5. Certified copies can be
requested by contacting the applicable FOIA Requester Service Center
(see Sec. 7.27) or the DOT Dockets Office identified in Sec. 7.12(b)(1).
(f) DOT makes transcripts of hearings or oral arguments available
for inspection only. If transcripts are prepared by a nongovernmental
contractor and the contract permits DOT to handle the reproduction of
further copies, DOT assesses duplication fees as set forth in
Sec. 7.42(d). If the contract for transcription services reserves the
sales privilege to the reporting service, any duplicate copies must be
purchased directly from the reporting service.
(g) In the interest of making documents of general interest publicly
available at as low a cost as possible, DOT arranges alternative sources
whenever possible. In appropriate instances, material that is published
and offered for sale may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402-0001;
U.S. Department of Commerce's National Technical Information Service
(NTIS), Springfield, VA 22151; or National Audio-Visual Center, National
Archives and Records Administration, Capital Heights, MD 20743-3701.
[[Page 75]]
Sec. 7.42 What is DOT's fee schedule for records requested under
subpart C of this part?
(a) DOT calculates the hourly rates for manual searching, computer
operator/programmer time, and time spent reviewing records, when
performed by employees, based on the grades and rates in the General
Schedule Locality Pay Table for the Locality of Washington-Baltimore-
Northern Virginia, DC-MD-VA-WV-PA, or equivalent grades, plus 16% to
cover fringe benefits, as follows:
(1) GS-1 through GS-8 (or equivalent)--Hourly rate of GS-5 step 7
plus 16%;
(2) GS-9 through GS-12 (or equivalent)--Hourly rate of GS-10 step 7
plus 16%;
(3) GS-13 through GS-14 (or equivalent)--Hourly rate of GS-13 step 7
plus 16%; and
(4) GS-15 and above (or equivalent)--Hourly rate of GS-15 step 7
plus 16%.
(b) DOT determines the standard fee for a manual or electronic
search to locate records by multiplying the searcher's hourly rate as
set forth in paragraph (a) of this section by the time spent conducting
the search.
(c) DOT's standard fee for review of records is the reviewer's rate
set forth in paragraph (a) of this section, multiplied by the time the
reviewer spent determining whether the located records are responsive to
the request and whether the responsive records or segregable portions
are exempt from disclosure, as explained in paragraphs (h), (i), and (j)
of this section.
(d) DOT determines the standard fee for duplication of records as
follows:
(1) Per copy of each page (not larger than 8.5 x 14 inches)
reproduced by photocopy or similar means (includes costs of personnel
and equipment)--US $0.10.
(2) Per copy prepared by any other method of duplication--actual
direct cost of production.
(e) If DOT utilizes a contractor to perform any services described
in this section, the standard fee is based on the equivalent hourly
rate(s). DOT does not utilize contractors to discharge responsibilities
that only DOT may discharge under the FOIA.
(f) In some cases, depending upon the category of requester and the
use for which the records are requested, the fees computed in accordance
with the standard fee schedule in paragraphs (a) through (e) of this
section are either reduced or not charged, as prescribed by other
provisions of this subpart.
(g) For purposes of fees only, there are four categories of FOIA
requests:
(1) Requests submitted by a commercial entity and/or for a
commercial use;
(2) Requests submitted by an educational or noncommercial scientific
institution whose purpose is scholarly or scientific research (and not
for a commercial use);
(3) Requests submitted by a representative of the news media; and
(4) All other requests.
(h) When records are requested by a commercial requester and/or for
a commercial use, the fees assessed are reasonable standard charges for
document search, duplication, and review.
(i) When records are requested by an educational or noncommercial
scientific institution whose purpose is scholarly or scientific research
or by a representative of the news media (i.e., for a non-commercial
use), fees are limited to reasonable standard charges for document
duplication.
(j) For any request not described in paragraph (h) or (i) of this
section, fees are limited to reasonable standard charges for document
search and duplication.
(k) Fees under this subpart do 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.
Sec. 7.43 When are fees waived or reduced for records requested
under subpart C of this part?
(a) DOT does not charge fees to any requester making a request under
subpart C of this part for the following services:
[[Page 76]]
(1) Services for which the total amount of fees that could be
charged for the particular request (or aggregation of requests) is less
than US $20, after taking into account all services that must be
provided free of charge or at a reduced charge.
(2) The first two hours of search time, unless the records are
requested for commercial use.
(3) Duplication of the first 100 pages (standard paper, not larger
than 8.5 x 14 inches) of records, unless the records are requested for
commercial use.
(4) Review time spent determining whether a record is exempt from
disclosure, unless the record is requested for commercial use. DOT does
not charge for review time except with respect to an initial review to
determine the applicability of a particular exemption to a particular
record or portion of a record. DOT does not charge for review at the
administrative appeal level. However, when records or portions of
records withheld 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.
(b) When DOT aggregates requests as provided in Sec. 7.34(d), DOT
charges each requester a ratable portion of the fees charged for
combined services rendered on behalf of all requesters.
(c) DOT waives or reduces the fees described in Sec. 7.42(i) and (j)
when the requester makes a fee waiver or reduction request as provided
in Sec. 7.24(b) and establishes that disclosure of the information is in
the public interest as provided in 5 U.S.C. 552 and this paragraph, and
the DOT official having initial denial authority determines that
disclosure of the information is in the public interest and is not
primarily in the commercial interest of the requester. The requester
must establish all of the following factors to DOT's satisfaction to
show that the request is in the public interest:
(1) That the subject matter of the requested records concerns the
operations or activities of the Federal Government;
(2) That the disclosure is likely to contribute to an understanding
of Federal Government operations or activities;
(3) That disclosure of the requested information will contribute to
the understanding of the public at large, as opposed to the
understanding of the individual requester or a narrow segment of
interested persons (to establish this factor, the requester must show an
intent and ability to disseminate the requested information to a
reasonably broad audience of persons interested in the subject);
(4) That the contribution to public understanding of Federal
Government operations or activities will be significant; and
(5) That the requester does not have a commercial interest that
would be furthered by the requested disclosure or that the magnitude of
any identified commercial interest to the requester is not sufficiently
large in comparison with the public interest in disclosure to render the
disclosure one that is primarily in the commercial interest of the
requester.
(d) DOT furnishes documents without charge or at a reduced charge
when 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.
(e) DOT furnishes documents without charge or at a reduced charge
when the official having initial denial authority determines that the
request is by the victim of a crime who seeks the record of the trial at
which the requester testified.
(f) DOT does not assess the following fees when DOT fails to comply
with the time limits under Sec. 7.31 or Sec. 7.33 and no unusual or
exceptional circumstances (see Sec. 7.34(a) and (c)) apply to the
processing of the request or appeal:
(1) Search fees otherwise chargeable under Sec. 7.42(h) and (j); and
(2) Duplication fees otherwise chargeable under Sec. 7.42(i).
Sec. 7.44 How can I pay a processing fee for records requested under
subpart B or subpart C of this part?
Fees typically should be paid online, using a credit card, debit
card, or electronic check. The DOT FOIA page (http://www.dot.gov/foia)
has direct links
[[Page 77]]
to the electronic payment site. Any fees paid with a paper check, draft,
or money order must be made payable to the U.S. Treasury and delivered
as directed by the applicable FOIA Requester Service Center identified
in Sec. 7.27 (if the fees are for records made available under subpart
C) or the DOT Dockets Office identified in Sec. 7.12(b)(1) (if the fees
are for records made available under subpart B).
Sec. 7.45 When are pre-payments required for records requested under
subpart C of this part, and how are they handled?
(a) When DOT estimates that the search charges, review charges,
duplication fees, or any combination of fees that could be charged to
the requester will likely exceed US $25, DOT notifies the requester of
the estimated amount of the fees, unless the requester has previously
indicated a willingness to pay fees as high as those anticipated. In
cases where DOT notifies the requester that actual or estimated fees may
amount to more than US $25, the time limit for responding to the request
is tolled until the requester has agreed to pay the anticipated total
fee (see Sec. 7.35). The notice also informs the requester 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.
(b) DOT may require payment of fees prior to actual duplication or
delivery of any releasable records to a requester. However, advance
payment, i.e., before work is commenced or continued on a request, is
not required unless:
(1) Allowable charges that a requester may be required to pay are
likely to exceed US $250; or
(2) The requester has failed to pay within 30 days of the billing
date fees charged for a previous request to any part of the U.S.
Government.
(c) When paragraph (b)(1) of this section applies, DOT notifies the
requester of the estimated cost. If the requester has a history of
prompt payment of FOIA fees, the requester must furnish satisfactory
assurance of full payment of the estimated charges. Otherwise, the
requester may be required to make advance payment of any amount up to
the full estimated charges.
(d) When paragraph (b)(2) of this section applies, DOT requires the
requester to either demonstrate that the fee has been paid or pay the
full amount owed, including any applicable interest, late handling
charges, and penalty charges as discussed in Sec. 7.46. DOT also
requires such a requester to make an advance payment of the full amount
of the estimated fee before DOT begins processing a new request or
continues processing a pending request.
(e) In the event that a DOT component is required to refund a
prepayment, the processing of the refund may necessitate collection of
the requester's Taxpayer Identification Number or Social Security Number
and direct deposit information (bank routing number and bank account
number) under 31 U.S.C. 3325, 31 U.S.C. 3332, and 31 CFR Part 208.
Sec. 7.46 How are late payments handled?
(a) DOT assesses interest on an unpaid bill starting on the 31st day
following the day on which the notice of the amount due is first mailed
to the requester. Interest accrues from the date of the notice of amount
due 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 stops the accrual of interest,
even if the payment has not been processed.
(b) If DOT does not receive payment of the fees charged within 30
calendar days after the date the initial notice of the amount due is
first mailed to the requester, DOT assesses an administrative charge to
cover the cost of processing and handling the delinquent claim. In
addition, DOT applies a penalty charge with respect to any principal
amount of a debt that is more than 90 days past due. Where appropriate,
DOT uses other steps permitted by Federal debt collection statutes,
including disclosure to consumer reporting agencies and use of
collection agencies, to encourage payment of amounts overdue.
[[Page 78]]
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 [Reserved]
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, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936,
amended by E.O. 10491, 18 FR 6583, 3 CFR, 1949-1953 Comp., p. 973, E.O.
10531, 19 FR 3069, 3 CFR, 1949-1953 Comp., p. 973, E.O. 10548, 19 FR
4871, 3 CFR, 1954-1958 Comp., p. 200, E.O. 10550, 19 FR 4981, 3 CFR,
1954-1958 Comp., p. 200, E.O. 11605, 20 FR 2747, 3 CFR, 1971-1975 Comp.,
p. 580, E.O. 11785, 39 FR 20053, 3 CFR, 1971-1975 Comp., p. 874, E.O.
12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 266; E.O. 12829, 58 FR 3479, 3
CFR, 1993 Comp., p. 570, amended by E.O. 12885, 58 FR 65863, 3 CFR, 1993
Comp., p. 684; E.O. 13526, 75 FR 707, 3 CFR, 2010 Comp., p. 298; E.O.
12968, 3 CFR, 1995 Comp., p. 391, amended by E.O. 13467, 73 FR 38103, 3
CFR, 2009 Comp., p. 196.
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 13526 of December 29, 2010, ``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 Executive Order 12968 of August 2, 1995,
``Access to National Security Information,'' as amended by Executive
Order 13467 of June 30, 2008, ``Reforming Processes Related to
Suitability for Government Employment, Fitness for Contractor Employees,
and Eligibility for Access to Classified National Security
Information.''
[81 FR 45980, July 15, 2016]
Sec. 8.3 Applicability.
This part applies to all elements of the Department of
Transportation.
Sec. 8.5 Definitions.
As used in this part:
Authorized holder is any individual who has been granted access to
specific classified information in accordance with Executive Order 13526
or any successor order.
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 13526, or any
[[Page 79]]
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, 12968, 13467, 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, taking into consideration such aspects of the
information as the sensitivity, value, utility, and provenance 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 meets the requirements of section 3.5 of Executive
Order 13526.
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, the Vice President, or by agency heads
or other officials designated by the President, to classify information
in the first instance.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]
Sec. 8.7 Spheres of responsibility.
(a) Pursuant to section 5.4(d) of Executive Order 13526, 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 13526,
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 , who, in addition to other actions directed by this part, will
evaluate the overall application of and 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.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]
Subpart B_Classification/Declassification of Information
Sec. 8.9 Information Security Review Committee.
(a) The Department of Transportation Information Security Review
Committee has the authority to:
(1) Act on all suggestions and complaints not otherwise resolved
with respect to the Department's administration of Executive Order 13526
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
[[Page 80]]
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. When matters affecting a
particular Departmental component are at issue, the Associate
Administrator for Administration for that component (or for the Federal
Aviation Administration, the Associate Administrator for Security and
Hazardous Materials Safety) will participate as an ad hoc member,
together with the Chief Counsel of that component. 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.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
Sec. 8.11 Authority to classify information.
(a) Presidential Order of December 29, 2009, ``Original
Classification Authority'' 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,
Security and Emergency Response; Director of Security.
(2) Federal Aviation Administration. Administrator; Associate
Administrator for Security and Hazardous Materials Safety.
(3) 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 to
originally classify information as SECRET or CONFIDENTIAL.
(d) Previous delegations and redelegations of authority within the
Department of Transportation originally to classify information are
hereby rescinded.
[62 FR 23661, May 1, 1997, as amended at 76 FR 19708, Apr. 8, 2011; 81
FR 45981, July 15, 2016]
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) Mandatory declassification review requests will be processed in
accordance with 32 CFR 2001.33.
(b) Except as provided in paragraph b of section 3.5 of Executive
Order 13526, all information classified by the Department of
Transportation under Executive Order 13526 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;
(2) The information has not been reviewed for declassification
within the
[[Page 81]]
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 (ISCAP);
(3) The document or material containing the information responsive
to the request is not contained within an operational file exempted from
search and review, publication, and disclosure under 5 U.S.C. 552 in
accordance with law; and
(4) The information is not the subject of pending litigation.
(c) 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 13526. The information will then
be released unless withholding is otherwise authorized and warranted
under applicable law.
(d) Mandatory declassification review requests for information that
has been classified by the Department of Transportation may be addressed
to the Director of Security, U.S. Department of Transportation, 1200 New
Jersey Avenue, Washington, DC 20590. The Director will forward the
request to the appropriate Departmental Original Classification
Authority for processing.
(e) Denied requests may be appealed to the DOT Information Security
Review Committee (DISRC) through the Director of Security within 60 days
of receipt of the denial. If the DISRC upholds the denial, it will
inform the requestor of his or her final appeal rights to the ISCAP.
[81 FR 45981, July 15, 2016]
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 Original
Classification Authority (OCA) having jurisdiction over the information.
A formal challenge must be in writing, but need not be any more specific
than to question why information is or is not classified, or is
classified at a certain level.
(b) Classification challenges to DOT information must be addressed
to the DOT Original Classification Authority (OCA) who is responsible
for the information. If unsure of the OCA, address the challenge to the
DOT Director of Security.
(c) Classification challenges will be processed according to 32 CFR
2001.14.
[81 FR 45981, July 15, 2016]
Sec. 8.19 [Reserved]
Sec. 8.21 Burden of proof.
For the purpose of determinations to be made under Secs. 8.15 and
8.17, the burden of proof is on the originating Departmental component
to show that continued classification is warranted.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
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 functions, 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 another 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 at a lower level 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
[[Page 82]]
of the United States in accordance with Executive Order 13526,
directives issued pursuant to Executive Order 13526, 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 into the National
Archives .
(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 for
automatic declassification in section 3.3 of Executive Order 13526 and
its implementing directives. 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.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
Subpart C_Access to Information
Sec. 8.25 Personnel Security Review Board.
(a) The Department of Transportation Personnel Security Review Board
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 Human Resource Management, and
one, familiar with personnel security adjudication, from the Office of
Security, 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;
(3) One person appointed by the Administrator of the Federal
Aviation Administration; and
(4) One person appointed by the Administrator of the Federal Highway
Administration.
(5) Any member may designate a representative, meeting the same
criteria as the member, with full power to serve in his/her place.
(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.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]
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.
[[Page 83]]
Sec. 8.29 Access by historical researchers and former Presidential
appointees.
Access to classified information may be granted to historical
researchers and former Presidents and Vice-Presidents and their
appointees as outlined in Executive Order 13526 or its successor order.
The general guidelines for access to classified information are
contained in Executive Order 12968.
[81 FR 45982, July 15, 2016]
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 an 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, and is
effective within the Department of Transportation. Appropriate security
staff, project personnel, and contracting officers must assure that
actions required by the regulation are taken.
[62 FR 23661, May 1, 1997, as amended at 81 FR 45982, July 15, 2016]
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;
(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;
[[Page 84]]
(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.
Testimony means any written or oral statement by a witness,
including depositions, answers to interrogatories, affidavits,
declarations, and statements at a hearing or trial.
[[Page 85]]
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
Secs. 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 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
[[Page 86]]
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 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
[[Page 87]]
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 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.
[[Page 88]]
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 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.
(1) Federal Aviation Administration.
(2) Federal Highway Administration.
(3) Federal Motor Carrier Safety Administration.
(4) Federal Railroad Administration.
(5) Federal Transit Administration.
[[Page 89]]
(6) National Highway Traffic Safety Administration.
(7) St. Lawrence Seaway Development Corporation.
(8) Pipeline and Hazardous Materials Safety Administration.
(9) Research and Innovative Technology Administration.
(10) Maritime 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; 73 FR 33329, June
12, 2008]
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 Chief Information
Officer. 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; 73
FR 33329, June 12, 2008]
Sec. 10.13 Privacy Officer.
(a) To assist with implementation, evaluation, and administration
issues, the Chief Information Officer appoints a principal coordinating
official with the title Privacy 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, 1200 New Jersey Avenue, SE., Washington,
DC 20590.
(c) Administrators may designate Privacy Officers or Coordinators to
act as central coordinators within their administrations to assist them
in administering the Act.
[73 FR 33329, June 12, 2008]
[[Page 90]]
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;
(e) Maintains all records which are used in making any determination
[[Page 91]]
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 the location of records, are incurred if
the number is not provided.
[[Page 92]]
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 specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
[[Page 93]]
(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]
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,
[[Page 94]]
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 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
[[Page 95]]
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 Division; and the Federal Aviation Administrator, with
regard to the FAA's Investigative Record System (DOT/FAA 815) 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 Secs. 10.35, 10.23(a) and (b),
10.21(d)(1) through (6), 10.81, 10.83, and 10.85 of this chapter, 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.
(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; 73
FR 33329, June 12, 2008]
[[Page 96]]
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 delegee, in the case of an
operating administration; or the Inspector General or his or her
delegee, 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 Secs. 10.23(c); 10.35(b);
10.41; 10.43; 10.45; 10.21(a) and 10.21(d)(6), (7), and (8) of this
chapter, 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 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; 73
FR 33329, June 12, 2008]
[[Page 97]]
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 11 x 17 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 (4" x 6" .15
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 Chief Information Officer 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.
[45 FR 8993, Feb. 11, 1980, as amended at 73 FR 33329, June 12, 2008; 75
FR 5244, Feb. 2, 2010]
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 $5,000 in accordance with 5 U.S.C. 552a(i)(1).
[[Page 98]]
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).
Sec. 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. 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).
D. General Investigations Record System, maintained by the Office of
Investigations and Security, Office of the Secretary (DOT/OST 016).
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.
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
[[Page 99]]
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 U.S.C. 552a, to the extent that they contain investigatory material
compiled for law enforcement purposes, in accordance 5 U.S.C.
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. Federal Motor Carrier Safety Administration (FMCSA) Enforcement
Management Information System, maintained by the Chief Counsel, FMCSA
(DOT/FMCSA 002).
4. 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).
5. Civil Aviation Security System (DOT/FAA 813), maintained by the
Office of Civil Aviation Security Policy and Planning, Federal Aviation
Administration.
6. Suspected Unapproved Parts (SUP) Program, maintained by the
Federal Aviation Administration (DOT/FAA 852).
7. Motor Carrier Management Information System (MCMIS), maintained
by the Federal Motor Carrier Safety Administration (DOT/FMCSA 001).
8. Suspicious Activity Reporting (SAR) database, maintained by the
Office of Intelligence, Security, and Emergency Response, Office of the
Secretary.
9. Departmental Office of Civil Rights System (DOCRS).
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), (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).
3. General Investigations Record System, maintained by the Office of
Investigations and Security, Office of the Secretary (DOT/OST 016).
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
[[Page 100]]
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. 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).
3. Files pursuant to suitability for employment with National
Highway Traffic Safety Administration (DOT/NHTSA-457) containing
confidential investigatory reports.
4. Personnel Security Records System, maintained by the Office of
Investigations and Security, Office of the Secretary (DOT/OST 035).
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 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. 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 035).
3. Civil Aviation Security System (DOT/FAA 813), maintained by the
Office of Civil Aviation Security, Federal Aviation Administration.
4. General Investigations Record System, maintained by the Office of
Investigations and Security, Office of the Secretary (DOT/OST 016).
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
[[Page 101]]
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; 73 FR 33329, June 12,
2008; 75 FR 5244, Feb. 2, 2010; 76 FR 79114, Dec. 21, 2011; 77 FR 19944,
Apr. 3, 2012]
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.
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
[[Page 102]]
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 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
[[Page 103]]
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.
(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
[[Page 104]]
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 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
[[Page 105]]
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.
(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]
Secs. 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
[[Page 106]]
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:
(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
[[Page 107]]
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]
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.
[[Page 108]]
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.
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
[[Page 109]]
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 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:
[[Page 110]]
(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 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
[[Page 111]]
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.