[Federal Register Volume 82, Number 25 (Wednesday, February 8, 2017)]
[Rules and Regulations]
[Pages 9682-9689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00950]


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NATIONAL RAILROAD PASSENGER CORPORATION

49 CFR Part 701


Revision of the Freedom of Information Act Regulations of the 
National Railroad Passenger Corporation

AGENCY: National Railroad Passenger Corporation.

ACTION: Final rule.

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SUMMARY: This final rule sets forth revisions of the Freedom of 
Information Act (FOIA) regulations of the National Railroad Passenger 
Corporation (``Amtrak''). Amtrak is revising its FOIA regulations to 
incorporate the changes brought about by the FOIA Improvement Act of 
2016 and to update, clarify, and streamline the language of its 
regulations to make the FOIA process easier for the public to navigate.

DATES: This final rule is effective March 10, 2017.

FOR FURTHER INFORMATION CONTACT: Sharron H. Hawkins, Lead FOIA 
Specialist, 202-906-3741 or [email protected].

SUPPLEMENTARY INFORMATION: Amtrak's FOIA regulations were last revised 
on February 13, 1998. Since that time, there have been several major 
changes to the FOIA, including the FOIA Improvement Act of 2016 (Pub. 
L. 114-185), which requires all agencies to review and update their 
FOIA regulations in accordance with its provisions. The Act contains 
several substantive and procedural amendments to the FOIA, which 
include requirements that agencies establish a minimum of 90 days for 
requesters to file an administrative appeal and that they provide 
dispute resolution services at various times throughout the FOIA 
process.
    Based on the amendments to the FOIA, developments in the case law, 
and the practical experience of its FOIA staff, Amtrak issued a 
proposed rule on November 23, 2016 to amend its FOIA regulations. See 
81 FR 84531. Amtrak accepted comments on the proposed rule through 
December 23, 2016. Amtrak received several comments in response to its 
proposed rule. Amtrak has given due consideration to the comments it 
has received and has made a few modifications to its rule. The majority 
of these changes was stylistic and involved clarifying, reorganizing, 
or revising provisions. Some of the substantive changes included: 
Revision of section 701.5(c)(2) so that a revised request will not be 
treated as a new request; removal of ``staff'' in section 701.5 (e); 
reformulation of section 701.6;

[[Page 9683]]

addition of the ``exceptional circumstances'' exception to section 
701.7(e); and modification of Amtrak's definition of ``representative 
of the news media'' in section 701.11(c)(2). Comments that called for 
Amtrak to incorporate standards and clarifications arising under 
current case law were considered but were not ultimately incorporated 
because Amtrak already adheres to developments in case law without 
relying on additional regulatory text. Other comments suggesting minor 
changes were not adopted because the practical experience of Amtrak's 
FOIA staff advised against adoption.

List of Subjects in 49 CFR Part 701

    Freedom of Information.


0
For the reasons stated in the preamble, Amtrak revises 49 CFR part 701 
to read as follows:

Part 701--AMTRAK FREEDOM OF INFORMATION ACT PROGRAM

Sec.
701.1 General provisions.
701.2 Definitions.
701.3 Policy.
701.4 Amtrak public information.
701.5 Requirements for making requests.
701.6 Release and processing procedures.
701.7 Timing of responses to requests.
701.8 Responses to requests.
701.9 Business information.
701.10 Appeals.
701.11 Fees.
701.12 Other rights and services.

    Authority: 5 U.S.C. 552; 49 U.S.C. 24301(e).


Sec.  701.1  General provisions.

    This part contains the rules that the National Railroad Passenger 
Corporation (``Amtrak'') follows in processing requests for records 
under the Freedom of Information Act (FOIA), Title 5 of the United 
States Code, section 552. Information routinely provided to the public 
(i.e., train timetables, press releases) may be obtained at Amtrak's 
Web site www.amtrak.com without following Amtrak's FOIA procedures.


Sec.  701.2  Definitions.

    Unless the context requires otherwise in this part, masculine 
pronouns include the feminine gender and ``includes'' means ``includes 
but is not limited to.''
    Amtrak or Corporation means the National Railroad Passenger 
Corporation.
    Appeal means a request submitted to the President of Amtrak or 
designee for review of an adverse initial determination.
    Business days means working days; Saturdays, Sundays, and legal 
public holidays are excluded in computing response time for processing 
FOIA requests.
    Disclose or disclosure means making records available for 
examination or copying, or furnishing a copy of nonexempt responsive 
records.
    Electronic data means records and information (including email) 
that are created, stored, and retrievable by electronic means.
    Exempt information means information that is exempt from disclosure 
as permitted by 5 U.S.C. 552.
    Final determination means a decision by the President of Amtrak or 
designee concerning a request for review of an adverse initial 
determination received in response to an FOIA request.
    FOIA Officer means the Amtrak official designated to fulfill the 
responsibilities of implementing and administering the Freedom of 
Information Act as specifically designated under this part.
    Freedom of Information Act or ``FOIA'' means the statute as 
codified in section 552 of Title 5 of the United States Code as 
amended.
    Initial determination means a decision by the Amtrak FOIA Officer 
in response to a request for information under the FOIA.
    Pages means paper copies of standard office size or the cost 
equivalent in other media.
    President means the President and Chief Executive Officer (CEO) of 
the National Railroad Passenger Corporation (Amtrak) or designee.
    Record means any writing, drawing, map, recording, tape, film, 
photograph, or other documentary material by which information is 
preserved in any format, including electronic format. A record must 
exist and be in the possession and control of Amtrak at the time of the 
request to be subject to this part and the FOIA. The following are not 
included within the definition of the word ``record'':
    (1) Library materials compiled for reference purposes or objects of 
substantial intrinsic value.
    (2) Routing and transmittal sheets, notes, and filing notes which 
do not also include information, comments, or statements of substance.
    (3) Anything that is not a tangible or documentary record such as 
an individual's memory or oral communication.
    (4) Objects or articles, whatever their historical or value as 
evidence.
    Request means any request for records made pursuant to 5 U.S.C. 
552.
    Requester or requesting party means any person who has submitted a 
request to Amtrak.
    Responsive records means documents or electronic records determined 
to be within the scope of a FOIA request.


Sec.  701.3  Policy.

    (a) Amtrak will make records of the Corporation available to the 
public to the greatest practicable extent in keeping with the spirit of 
the law. Therefore, records of the Corporation are available 
electronically, which can be accessed at the Amtrak FOIA Web site 
http://www.amtrak.com/foia and www.amtrak.com, as provided in this part 
with the exception of those that the Corporation specifically 
determines should not be disclosed either in the public interest, for 
the protection of private rights, or for the efficient conduct of 
public or corporate business, but only to the extent withholding is 
permitted by law.
    (b) A record of the Corporation, or parts thereof, may be withheld 
from disclosure if the Corporation reasonably foresees that disclosure 
would harm an interest protected by a FOIA exemption or when disclosure 
is prohibited by law. Disclosure to a properly constituted advisory 
committee, to Congress, or to Federal agencies does not waive the 
exemption.
    (c) In the event full disclosure of a requested record is not 
possible, any reasonably segregable portion of the record will be made 
available to the requesting person after deletion of the exempt 
portions. The entire record may be withheld if a determination is made 
that nonexempt material is so inextricably intertwined that disclosure 
would leave only essentially meaningless words or phrases, or when it 
can be reasonably assumed that a skillful and knowledgeable person 
could reconstruct the deleted information.
    (d) The procedures in this part apply only to records in existence 
at the time of a request. The Corporation has no obligation to create a 
record solely for the purpose of making it available under the FOIA or 
to provide a record that will be created in the future.
    (e) Each officer and employee of the Corporation dealing with FOIA 
requests is directed to cooperate in making records available for 
disclosure under the Act in a prompt manner consistent with this part.
    (f) The FOIA time limits will not begin to run until a request has 
been identified as being made under the Act and deemed received by the 
FOIA Office.
    (g) Generally, when a member of the public complies with the 
procedures established in this part for obtaining records under the 
FOIA, the request

[[Page 9684]]

shall receive prompt attention, and a response shall be made within 
twenty business days.


Sec.  701.4  Amtrak public information.

    (a) Amtrak FOIA Web site. Amtrak will make available electronically 
records created by the Corporation that are required under the FOIA to 
be made available for public inspection which can be accessed at the 
Amtrak FOIA Web site http://www.amtrak.com/foia and www.amtrak.com.
    (b) Frequently requested information. The FOIA requires that copies 
of records, regardless of form or format, that have been released 
pursuant to a FOIA request under 5 U.S.C. 552(a)(3) be made publicly 
available in an electronic format if because of the nature of their 
subject matter they have become or are likely to become the subject of 
subsequent requests for substantially the same records or they have 
been requested three or more times.
    (1) Amtrak shall decide on a case-by-case basis whether records 
fall into the first category of ``frequently requested FOIA records'' 
based on the following factors:
    (i) Previous experience with similar records;
    (ii) The nature and type of information contained in the records;
    (iii) The identity and number of requesters and whether there is 
widespread media or commercial interest in the records.
    (c) Guide for making requests. A guide on how to use the FOIA for 
requesting records from Amtrak shall be made available to the public 
upon request. Amtrak's major information systems will be described in 
the guide.


Sec.  701.5  Requirements for making requests.

    (a) General requirements. (1) A FOIA request can be made by ``any 
person'' as defined in 5 U.S.C. 551(2), which encompasses individuals 
(including foreign citizens; partnerships; corporations; associations; 
and local, state, tribal, and foreign governments). A FOIA request may 
not be made by a Federal agency.
    (2) A request must be in writing, indicate that it is being made 
under the FOIA, and provide an adequate description of the records 
sought. The request should also include applicable information 
regarding fees as specified in paragraphs (d) and (e) of this section.
    (b) How to submit a request. (1) The request letter and envelope 
should be marked prominently that it is a Freedom of Information Act or 
``FOIA'' request to ensure that it is properly routed.
    (2) The request must be addressed to the Freedom of Information 
Office; National Railroad Passenger Corporation; 60 Massachusetts 
Avenue NE., Washington, DC 20002. Requests will also be accepted by 
facsimile at (202) 906-2004 or via email at [email protected]. 
Amtrak cannot assure that a timely or satisfactory response under this 
part will be given to written requests addressed to Amtrak offices, 
officers, or employees other than the FOIA Office. Amtrak employees 
receiving a communication in the nature of a FOIA request shall forward 
it to the FOIA Office expeditiously. Amtrak shall advise the requesting 
party of the date that an improperly addressed request is received by 
the FOIA Office.
    (c) Content of the request--(1) Description of records. 
Identification of records sought under the FOIA is the responsibility 
of the requester. The records sought should be described in sufficient 
detail so that Amtrak personnel can locate them with a reasonable 
amount of effort. When possible, the request should include specific 
information such as dates, title or name, author, recipient, subject 
matter of the record, file designation or number, or other pertinent 
details for each record or category of records sought. Requesters may 
contact Amtrak's FOIA Public Liaison to discuss the records they seek 
and to receive assistance in describing the records.
    (2) Reformulation of a request. Amtrak is not obligated to act on a 
request until the requester provides sufficient information to locate 
the record. Amtrak may offer assistance in identifying records and 
reformulating a request where: The description is considered 
insufficient, the production of voluminous records is required, or a 
considerable number of work hours would be required that would 
interfere with the business of the Corporation. The FOIA Office shall 
notify the requester within ten business days of the type of 
information that will facilitate the search. The requesting party shall 
be given an opportunity to supply additional information and may submit 
a revised request. Requesters may contact Amtrak's FOIA Public Liaison 
to receive assistance in reformulating or modifying their request.
    (d) Payment of fees. The submission of a FOIA request constitutes 
an agreement to pay applicable fees accessed up to $25.00 unless the 
requesting party specifies a willingness to pay a greater or lesser 
amount or seeks a fee waiver or reduction in fees.
    (1) Fees in excess of $25.00. When Amtrak determines or estimates 
that applicable fees are likely to exceed $25.00, the requesting party 
shall be notified of estimated or actual fees, unless a commitment has 
been made in advance to pay all fees. If only a portion of the fee can 
be estimated readily, Amtrak shall advise the requester that the 
estimated fee may be a portion of the total fee.
    (i) In order to protect requesters from large and/or unexpected 
fees, Amtrak will request a specific commitment when it estimates or 
determines that fees will exceed $100.00.
    (ii) A request shall not be considered received and further 
processing shall not be carried out until the requesting party agrees 
to pay the anticipated total fee. Any such agreement must be 
memorialized in writing. A notice under this paragraph will offer the 
requesting party an opportunity to discuss the matter in order to 
reformulate the request to meet the requester's needs at a lower cost.
    (iii) Amtrak will hold in abeyance for a reasonable amount of time 
requests requiring agreement to pay fees and will thereafter deem the 
request closed. This action will not prevent the requesting party from 
refiling the FOIA request with a fee commitment at a subsequent date.
    (2) Fees in excess of $250. When Amtrak estimates or determines 
that allowable charges are likely to exceed $250, an advance deposit of 
the entire fee may be required before continuing to process the 
request.
    (e) Information regarding fee category. In order to determine the 
appropriate fee category, a request should indicate whether the 
information sought is intended for commercial use or whether the 
requesting party is a member of an educational or noncommercial 
scientific institution or a representative of the news media.
    (f) Records concerning other individuals. If the request is for 
records concerning another individual, either of the following may be 
required in order to process the request:
    (1) A notarized written authorization signed by that individual 
permitting disclosure of those records to the requesting party, 
together with a copy of a photo ID of that individual; or
    (2) Proof that the individual is deceased (i.e., a copy of a death 
certificate or an obituary). A form of identification from the 
requesting party may also be required. Such records are also subject to 
any applicable FOIA exemptions.


Sec.  701.6  Release and processing procedures.

    (a) General provisions. In determining records that are responsive 
to a request,

[[Page 9685]]

Amtrak will ordinarily include only records that exist and are in the 
possession and control of the Corporation as of the date that the 
search is begun. If any other date is used, the requesting party will 
be informed of that date.
    (b) Authority to grant or deny requests. Amtrak's FOIA Officer is 
authorized to grant or deny any request for records.
    (c) Notice of referral. If Amtrak refers all or any part of the 
responsibility for responding to a request to another organization, the 
requesting party will be notified. A referral shall not be considered a 
denial of access within the meaning of this part. All consultations and 
referrals of requests will be handled according to the date that the 
FOIA request was initially received.
    (d) Creating a record. There is no obligation on the part of Amtrak 
to create a record to satisfy a FOIA request. Amtrak may create a new 
record in its sole discretion, however, when doing so would result in a 
more useful response to the requesting party or would be less 
burdensome to Amtrak than providing existing records. The cost of 
creating such a record may not be charged to the requester unless the 
fee for creating the record is equal to or less than the fee that would 
be charged for providing the existing record.
    (e) Incomplete records. If the records requested are not complete 
at the time of a request, Amtrak may, at its discretion, inform the 
requester that complete nonexempt records will be provided when 
available without having to submit an additional request.
    (f) Electronic records. Amtrak is not obligated to process a 
request for electronic records where creation of a record, programming, 
or a particular format would result in a significant expenditure of 
resources or interfere with the corporation's operations.


Sec.  701.7  Timing of responses to requests.

    (a) General. (1) The time limits prescribed in the FOIA will begin 
only after the requirements for submitting a request as established in 
Sec.  701.5 have been met, and the request is deemed received by the 
FOIA Office.
    (2) A request for records shall be considered to have been received 
on the later of the following dates:
    (i) The requester has agreed in writing to pay applicable fees in 
accordance with Sec.  701.5(d); or
    (ii) The fees have been waived in accordance with Sec.  701.11(k); 
or
    (iii) Payment in advance has been received from the requester when 
required in accordance with Sec.  701.11(i).
    (3) The time for responding to requests set forth in paragraph (b) 
of this section may be delayed if:
    (i) The request does not sufficiently identify the fee category 
applicable to the request;
    (ii) The request does not state a willingness to pay all fees;
    (iii) A request seeking a fee waiver does not address the criteria 
for fee waivers set forth in Sec.  701.11(k);
    (iv) A fee waiver request is denied, and the request does not 
include an alternative statement indicating that the requesting party 
is willing to pay all fees.
    (b) Initial determination. Whenever possible, an initial 
determination to release or deny a record shall be made within twenty 
business days after receipt of the request. In ``unusual 
circumstances'' as described in paragraph (d) of this section, the time 
for an initial determination may be extended for ten business days.
    (c) Multitrack processing. (1) Amtrak may use two or more 
processing tracks by distinguishing between simple, complex, and 
expedited requests based on the amount of work and/or time needed to 
process a request or the number of pages involved.
    (2) In general, when requests are received, Amtrak's FOIA Office 
will review and categorize them for tracking purposes. Requests within 
each track will be processed according to date of receipt.
    (3) The FOIA Office may contact a requester when a request does not 
appear to qualify for fast track processing to provide an opportunity 
to limit the scope of the request and qualify for a faster track. Such 
notification shall be at the discretion of the FOIA Office and will 
depend largely on whether it is believed that a narrowing of the 
request could place the request on a faster track.
    (d) Unusual circumstances. (1) The requesting party shall be 
notified in writing if the time limits for processing a request cannot 
be met because of unusual circumstances, and it will be necessary to 
extend the time limits for processing the request. The notification 
shall set forth the unusual circumstances for such extension and shall 
include the date by which the request can be expected to be completed. 
Where the extension is for more than ten business days, the requesting 
party will be afforded an opportunity to either modify the request so 
that it may be processed within the time limits or to arrange an 
alternative time period for processing the initial request or modified 
request. In such a case, the requesting party has the right to seek 
assistance from Amtrak's FOIA Public Liaison and to seek dispute 
resolution services from the Office of Government Information Services 
(OGIS).
    (2) If Amtrak believes that multiple requests submitted by a 
requester or by a group of requesters acting in concert constitute a 
single request that would otherwise involve unusual circumstances and 
the requests involve clearly related matters, the requests may be 
aggregated. Multiple requests concerning unrelated matters may not be 
aggregated.
    (3) Unusual circumstances that may justify delay include:
    (i) The need to search for and collect the requested records from 
other facilities that are separate from Amtrak's headquarters offices.
    (ii) The need to search for, collect, and examine a voluminous 
amount of separate and distinct records sought in a single request.
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with agencies having a substantial interest in the 
determination of the request, or among two or more Amtrak components 
having a substantial subject-matter interest in the request.
    (e) Exceptional circumstances. If a court has determined that 
exceptional circumstances exist, as defined by the FOIA, a failure to 
comply with the time limits shall be excused for the length of time 
provided by the court order.
    (f) Expedited processing. (1) Requests and appeals may be taken out 
of order and given expedited treatment whenever it is determined that 
they involve a compelling need, which means:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; and
    (ii) An urgency to inform the public about an actual or alleged 
Amtrak activity, if made by a person primarily engaged in disseminating 
information.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at a later date.
    (3) A requester seeking expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. This statement must accompany the 
request in order to be considered and responded to within the ten 
calendar days required for decisions on expedited access.
    (4) A requester who is not a full-time member of the news media 
must

[[Page 9686]]

establish that he is a person whose main professional activity or 
occupation is information dissemination, though it need not be his sole 
occupation. A requester must establish a particular urgency to inform 
the public about the Amtrak activity involved in the request.
    (5) Within ten business days of receipt of a request for expedited 
processing, Amtrak shall determine whether to grant such a request and 
notify the requester of the decision. If a request for expedited 
treatment is granted, the request shall be given priority and shall be 
processed as soon as practicable.
    (6) Amtrak shall provide prompt consideration of appeals of 
decisions denying expedited processing.


Sec.  701.8  Responses to requests.

    (a) Granting of requests. When an initial determination is made to 
grant a request in whole or in part, the requesting party shall be 
notified in writing and advised of any fees charged under Sec.  
701.11(e). The records shall be disclosed to the requesting party 
promptly upon payment of applicable fees. The requesting party has the 
right to seek assistance from Amtrak's FOIA Public Liaison.
    (b) Adverse determination of requests--(1) Types of denials. The 
requesting party shall be notified in writing of a determination to 
deny a request in any respect. Adverse determinations or denials of 
records consist of:
    (i) A determination to withhold any requested record in whole or in 
part;
    (ii) A determination that a requested record does not exist or 
cannot be located;
    (iii) A denial of a request for expedited treatment; and
    (iv) A determination on any disputed fee matter including a denial 
of a request for a fee waiver.
    (2) Deletions. Records disclosed in part shall be marked clearly to 
show both the amount of the information deleted and the exemption under 
which the deletion was made unless doing so would harm an interest 
protected by an applicable exemption. If technically feasible, the 
amount of the information deleted and the exemption under which the 
deletion is made shall be indicated at the place in the record where 
such deletion is made.
    (3) Content of denial letter. The denial letter shall be signed by 
the FOIA Officer or designee and shall include:
    (i) A brief statement of the reason(s) for the adverse 
determination including any FOIA exemptions applied in denying the 
request;
    (ii) An estimate of the volume of information withheld (number of 
pages or some other reasonable form of estimation). An estimate does 
not need to be provided if the volume is indicated through deletions on 
records disclosed in part, or if providing an estimate would harm an 
interest protected by an applicable exemption;
    (iii) A statement that an appeal may be filed under Sec.  701.10 
and a description of the requirements of that section and of the right 
of the requesting party to seek dispute resolution services from either 
Amtrak's FOIA Public Liaison or the Office of Government Information 
Services (OGIS); and
    (iv) The name and title or position of the person responsible for 
the denial.


Sec.  701.9  Business information.

    (a) General. Business information held by Amtrak will be disclosed 
under the FOIA only under this section.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Business information means commercial or financial information 
held by Amtrak that may be protected from disclosure under Exemption 4 
of the FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity including partnerships; 
corporations; associations; and local, state, tribal, and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests and provides justification for a longer designation period.
    (d) Notice to submitters. Amtrak shall provide a submitter with 
prompt written notice of an FOIA request or an appeal that seeks its 
business information when required under paragraph (e) of this section, 
except as provided in paragraph (h) of this section, in order to give 
the submitter an opportunity to object to disclosure of any specified 
portion of the information under paragraph (f). The notice shall either 
describe the business information requested or include copies of the 
requested records or portions of records containing the information.
    (e) When notice is required. Notice shall be given to a submitter 
when:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) Amtrak has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. Amtrak will allow a 
submitter a reasonable amount of time, as determined by Amtrak in its 
sole discretion, to respond to the notice described in paragraph (d) of 
this section.
    (1) A detailed written statement must be submitted to Amtrak if the 
submitter has any objection to disclosure. The statement must specify 
all grounds for withholding any specified portion of the information 
sought under the FOIA. In the case of Exemption 4, it must show why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential.
    (2) Unless otherwise specified, in the event that a submitter fails 
to respond within the time specified in the notice, the submitter may, 
in Amtrak's discretion, be considered to have no objection to 
disclosure of the information sought under the FOIA.
    (3) Information provided by a submitter in response to the notice 
may be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. Amtrak shall consider a 
submitter's objections and specific grounds for disclosure in making a 
determination whether to disclose the information. In any instance, 
when a decision is made to disclose information over the objection of a 
submitter, Amtrak shall give the submitter written notice which shall 
include:
    (1) A statement of the reason(s) why each of the submitter's 
objections to disclosure was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice as determined by Amtrak in its sole 
discretion.
    (h) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (1) Amtrak determines that the information should not be disclosed;
    (2) The information has been published or has been officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 
the FOIA);
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous. In such a case, Amtrak shall, 
prior to a specified disclosure date, give the submitter written notice 
of the final decision to disclose the information; or
    (5) The information requested is not designated by the submitter as 
exempt from disclosure in accordance with this

[[Page 9687]]

part, unless Amtrak has substantial reason to believe that disclosure 
of the information would result in competitive harm.
    (i) Notice of a FOIA lawsuit. Whenever a FOIA requester files a 
lawsuit seeking to compel disclosure of business information, Amtrak 
shall promptly notify the submitter.
    (j) Notice to requesters. (1) When Amtrak provides a submitter with 
notice and an opportunity to object to disclosure under paragraph (f) 
of this section, the FOIA Office shall also notify the requester(s).
    (2) When Amtrak notifies a submitter of its intent to disclose 
requested information under paragraph (g) of this section, Amtrak shall 
also notify the requester(s).
    (3) When a submitter files a lawsuit seeking to prevent the 
disclosure of business information, Amtrak shall notify the 
requester(s).


Sec.  701.10  Appeals.

    (a) Appeals of adverse determinations. (1) The requesting party may 
appeal:
    (i) A decision to withhold any requested record in whole or in 
part;
    (ii) A determination that a requested record does not exist or 
cannot be located;
    (iii) A denial of a request for expedited treatment; or
    (iv) Any disputed fee matter or the denial of a request for a fee 
waiver.
    (2) The appeal must be addressed to the President and Chief 
Executive Officer, in care of the Chief Legal Officer and General 
Counsel; National Railroad Passenger Corporation; 60 Massachusetts 
Avenue NE., Washington, DC 20002.
    (3) The appeal must be in writing and specify the relevant facts 
and the basis for the appeal. The appeal letter and envelope should be 
marked prominently that it is a Freedom of Information Act or ``FOIA'' 
appeal to ensure that it is properly routed.
    (4) The appeal must be received by the President's Office within 
ninety days of the date of denial.
    (5) An appeal will not be acted upon if the request becomes a 
matter of FOIA litigation.
    (b) Responses to appeals. The decision on any appeal shall be made 
in writing.
    (1) A decision upholding an adverse determination in whole or in 
part shall contain a statement of the reason(s) for such action, 
including any FOIA exemption(s) applied. The requesting party shall 
also be advised of the provision for judicial review of the decision 
contained in 5 U.S.C. 552(a)(4)(B).
    (2) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If Amtrak agrees to participate in 
the mediation services provided by OGIS, it will actively engage as a 
partner to the process in an attempt to resolve the dispute.
    (3) If the adverse determination is reversed or modified on appeal 
in whole or in part, the requesting party shall be notified, and the 
request shall be reprocessed in accordance with the decision.
    (c) When appeal is required. The requesting party generally must 
timely appeal any adverse determination prior to seeking judicial 
review.


Sec.  701.11  Fees.

    (a) General. Amtrak shall charge for processing requests under the 
FOIA in accordance with this section. A fee of $38 per hour shall be 
charged for search and review. For information concerning other 
processing fees, refer to paragraph (e) of this section. Amtrak shall 
collect all applicable fees before releasing copies of requested 
records to the requesting party. Payment of fees shall be made by check 
or money order payable to the National Railroad Passenger Corporation.
    (b) Definitions. For purposes of this section:
    (1) Direct costs means those expenses actually incurred in 
searching for and reproducing (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include such costs as the salary of the employee performing the work 
(the basic rate of pay for the employee plus applicable benefits and 
the cost of operating reproduction equipment). Direct costs do not 
include overhead expenses such as the costs of space and heating or 
lighting of the facility.
    (2) Reproduction means the making of a copy of a record or the 
information contained in it in order to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (i.e., magnetic tape or disk) among others. Amtrak 
shall honor a requester's specified preference for the form or format 
of disclosure if the record is readily reproducible with reasonable 
effort in the requested form or format by the office responding to the 
request.
    (3) Review means the process of examining a record located in 
response to a request to determine whether one or more of the statutory 
exemptions of the FOIA apply. Processing any record for disclosure 
includes doing all that is necessary to redact the record and prepare 
it for release. Review time includes time spent considering formal 
objection to disclosure by a commercial submitter under Sec.  701.9 but 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions. Review costs are recoverable 
even if a record ultimately is not disclosed.
    (4) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format.
    (c) Fee categories. There are four categories of FOIA requesters 
for fee purposes: ``commercial use requesters,'' ``representatives of 
the news media,'' ``educational and non-commercial scientific 
institution requesters,'' and ``all other requesters.'' The categories 
are defined in the following paragraphs (c)(1) through (5), and 
applicable fees, which are the same for two of the categories, will be 
assessed as specified in paragraph (d) of this section.
    (1) Commercial requesters. The term ``commercial use'' request 
refers to a request from or on behalf of a person who seeks information 
for a use or purpose that furthers his commercial, trade, or profit 
interests, including furthering those interests through litigation. 
Amtrak shall determine, whenever reasonably possible, the use to which 
a requester will put the records sought by the request. When it appears 
that the requesting party will put the records to a commercial use, 
either because of the nature of the request itself or because Amtrak 
has reasonable cause to doubt the stated intended use, Amtrak shall 
provide the requesting party with an opportunity to submit further 
clarification. Where a requester does not explain the use or where 
explanation is insufficient, Amtrak may draw reasonable inferences from 
the requester's identity and charge accordingly.
    (2) Representative of the news media or news media requester refers 
to any person or entity that gathers information of potential interest 
to a segment of the public, uses its editorial skills to turn the raw 
materials into a distinct work, and distributes that work to an 
audience. In this paragraph, the term `news' means information that is 
about current events or that would be of current interest to the 
public. Examples of news-media entities are television or radio 
stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators of 
`news') who make their

[[Page 9688]]

products available for purchase by or subscription by or free 
distribution to the general public. These examples are not all-
inclusive. Moreover, as methods of news delivery evolve (for example, 
the adoption of the electronic dissemination of newspapers through 
telecommunications services), such alternative media shall be 
considered to be news-media entities. A freelance journalist shall be 
regarded as working for a news-media entity if the journalist can 
demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by the 
entity. A publication contract would present a solid basis for such an 
expectation, but Amtrak may also consider the past publication record 
of the requester in making such a determination.
    (3) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education that operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for commercial use but to further scholarly 
research.
    (4) Noncommercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis, as that term is defined 
in paragraph (c)(1) of this section, and that is operated solely for 
the purpose of conducting scientific research, the results of which are 
not intended to promote any particular product or industry. To be in 
this category, the requesting party must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for commercial use but 
to further scientific research.
    (5) Other requesters refers to requesters who do not come under the 
purview of paragraphs (c)(1) through (4) of this section.
    (d) Assessing fees. In responding to FOIA requests, Amtrak shall 
charge the following fees unless a waiver or a reduction in fees has 
been granted under paragraph (k) of this section:
    (1) ``Commercial use'' requesters: The full allowable direct costs 
for search, review, and duplication of records.
    (2) ``Representatives of the news media'' and ``educational and 
non-commercial scientific institution'' requesters: Duplication charges 
only, excluding charges for the first 100 pages.
    (3) ``All other'' requesters: The direct costs of search and 
duplication of records. The first 100 pages of duplication and the 
first two hours of search time shall be provided without charge.
    (e) Schedule of fees--(1) Manual searches. Personnel search time 
includes time expended in either manual searches for paper records, 
searches using indices, review of computer search results for relevant 
records, and personal computer system searches.
    (2) Computer searches. The direct costs of conducting a computer 
search will be charged. These direct costs will include the cost of 
operating a central processing unit for that portion of the operating 
time that is directly attributable to searching for responsive records 
as well as the costs of operator/programmer salary apportionable to the 
search.
    (3) Duplication fees. Duplication fees will be charged all 
requesters subject to limitations specified in paragraph (d) of this 
section. Amtrak shall charge 25 cents per page for a paper photocopy of 
a record. For copies produced by computer (such as tapes or printouts), 
Amtrak will charge the direct costs, including the operator time in 
producing the copy. For other forms of duplication, Amtrak will charge 
the direct costs of that duplication.
    (4) Review fees. Review fees will be assessed for commercial use 
requests. Such fees will be assessed for review conducted in making an 
initial determination, or upon appeal, when review is conducted to 
determine whether an exemption not previously considered is applicable.
    (5) Charges for other services. The actual cost or amount shall be 
charged for all other types of output, production, and duplication 
(e.g., photographs, maps, or printed materials). Determinations of 
actual cost shall include the commercial cost of the media, the 
personnel time expended in making the item available for release, and 
an allocated cost for the equipment used in producing the item. The 
requesting party will be charged actual production costs when a 
commercial service is required. Items published and available through 
Amtrak will be made available at the publication price.
    (6) Charges for special services. Apart from the other provisions 
of this section, when Amtrak chooses as a matter of discretion to 
provide a special service such as sending records by other than 
ordinary mail, the direct costs of providing such services shall be 
charged.
    (f) Commitment to pay fees. When Amtrak determines or estimates 
that applicable fees will likely exceed $25.00, the requesting party 
will be notified of the actual or estimated amount unless a written 
statement has been received indicating a willingness to pay all fees. 
To protect requesters from large and/or unexpected fees, Amtrak will 
request a specific commitment when it is estimated or determined that 
fees will exceed $100.00. See Sec.  701.5(d) for additional 
information.
    (g) Restrictions in accessing fees--(1) General. Fees for search 
and review will not be charged for a quarter-hour period unless more 
than half of that period is required.
    (2) Minimum fee. No fees will be charged if the cost of collecting 
the fee is equal to or greater than the fee itself. That cost includes 
the costs to Amtrak for billing, receiving, recording, and processing 
the fee for deposit, which has been deemed to be $10.00.
    (3) Computer searches. With the exception of requesters seeking 
documents for commercial use, Amtrak shall not charge fees for a 
computer search until the cost of search equals the equivalent dollar 
amount of two hours of the salary of the operator performing the 
search.
    (4) Unusual circumstances. If Amtrak has determined that unusual 
circumstances (as defined in the FOIA) apply and Amtrak has provided 
timely written notice to the requester in accordance with 5 U.S.C. 
552(a)(6)(B), Amtrak may assess search or duplication fees, as 
applicable, for an additional 10 days. If Amtrak fails to comply with 
the extended time limit, no search fees (or, in the case of requesters 
described in paragraph (d)(2) of this section, no duplication fees) may 
be charged unless more than 5,000 pages are necessary to respond to the 
request, timely written notice has been sent out, and Amtrak has 
discussed with the requesting party via written mail, email, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requesting party could effectively limit the scope of the 
request.
    (h) Nonproductive searches. Amtrak may charge for time spent for 
search and review even if responsive records are not located or if the 
records located are determined to be entirely exempt from disclosure.
    (i) Advance payments. (1) When Amtrak estimates or determines that 
charges are likely to exceed $250, an advance payment of the entire fee 
may

[[Page 9689]]

be required before continuing to process the request.
    (2) Where a requester has previously failed to pay a properly 
charged FOIA fee within thirty (30) days of the date of billing, Amtrak 
may require the full amount due plus applicable interest and an advance 
payment of the full amount of anticipated fees before beginning to 
process a new request or continuing to process a pending request. The 
time limits of the FOIA will begin only after Amtrak has received such 
payment.
    (3) Amtrak will hold in abeyance for thirty days requests where 
deposits are due.
    (4) Monies owed for work already completed (i.e., before copies are 
sent to a requester) shall not be considered an advance payment.
    (5) Amtrak shall not deem a request as being received in cases in 
which an advance deposit or payment is due, and further work will not 
be done until the required payment is received.
    (j) Charging interest. Amtrak may charge interest on any unpaid 
bill for processing charges starting on the 31st day following the date 
of billing the requester. Interest charges will be assessed at the rate 
that Amtrak pays for short-term borrowing.
    (k) Waiver or reduction of fees--(1) Automatic waiver of fees. When 
the costs for a FOIA request total $10.00 or less, fees shall be waived 
automatically for all requesters regardless of category.
    (2) Other fee waivers. Decisions to waive or reduce fees that 
exceed the automatic waiver threshold shall be made on a case-by-case 
basis. Records responsive to a request will be furnished without charge 
or at below the established charge where Amtrak determines, based on 
all available information, that disclosure of the requested information 
is in the public interest because:
    (i) It is likely to contribute significantly to public 
understanding of the operations or activities of Amtrak, and
    (ii) It is not primarily in the commercial interest of the 
requesting party.
    (3) To determine whether the fee waiver requirement in paragraph 
(k)(2)(i) of this section is met, Amtrak will consider the following 
factors:
    (i) The subject of the request--whether the subject of the 
requested records concerns the operations or activities of Amtrak. The 
subject of the requested records must concern identifiable operations 
or activities of Amtrak with a connection that is direct and clear, not 
remote or attenuated.
    (ii) The informative value of the information to be disclosed--
whether the disclosure is likely to contribute to an understanding of 
Amtrak operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about Amtrak's 
operations or activities in order to be found to be likely to 
contribute to an increased public understanding of those operations or 
activities. The disclosure of information that already is in the public 
domain, in either a duplicative or a substantially identical form, 
would not be as likely to contribute to such understanding where 
nothing new would be added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure--whether disclosure of the 
requested information will contribute to public understanding. The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject as opposed to the 
individual understanding of the requester. A requester's ability and 
expertise in the subject area as well as the requester's intention to 
effectively convey information to the public shall be considered. It 
shall be presumed that a representative of the news media will satisfy 
this consideration.
    (iv) The significance of the contribution to public understanding--
whether the disclosure is likely to contribute significantly to public 
understanding of Amtrak operations or activities. The public's 
understanding of the subject in question, as compared to the level of 
public understanding existing prior to the disclosure, must be enhanced 
by the disclosure to a significant extent.
    (4) To determine whether the fee waiver requirement in paragraph 
(k)(2)(ii) of this section is met, Amtrak will consider the following 
factors:
    (i) The existence and magnitude of a commercial interest--whether 
the requesting party has a commercial interest that would be furthered 
by the requested disclosure. Amtrak shall consider any commercial 
interest of the requesting party (with reference to the definition of 
``commercial use'' in paragraph (c)(1) of this section) or any person 
on whose behalf the requesting party may be acting that would be 
furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure--whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the 
requester.'' A fee waiver or reduction is justified where the public 
interest standard is satisfied and public interest is greater in 
magnitude than any identified commercial interest in disclosure.
    (5) Requests for a fee waiver will be considered on a case-by-case 
basis, based upon the merits of the information provided. Where it is 
difficult to determine whether the request is commercial in nature, 
Amtrak may draw inference from the requester's identity and the 
circumstances of the request.
    (6) Requests for a waiver or reduction of fees must address the 
factors listed in paragraphs (k)(3) and (4) of this section. In all 
cases, the burden shall be on the requesting party to present evidence 
of information in support of a request for a waiver of fees.
    (l) Aggregating requests. A requester may not file multiple 
requests at the same time in order to avoid payment of fees. Where 
Amtrak reasonably believes that a requester or a group of requesters 
acting in concert is attempting to divide a request into a series of 
requests for the purpose of avoiding fees, Amtrak may aggregate those 
requests and charge accordingly. Amtrak may presume that multiple 
requests of this type made within a thirty-day period have been made in 
order to avoid fees. Where requests are separated by a longer period, 
Amtrak may aggregate them only when there exists a reasonable basis for 
determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
may not be aggregated.


Sec.  701.12  Other rights and services.

    Nothing in this part shall be construed as entitling any person, as 
of right, to any service or the disclosure of any record to which such 
person is not entitled under the FOIA.

    Dated: January 11, 2017.
Eleanor D. Acheson,
Executive Vice President, Chief Legal Officer, General Counsel & 
Corporate Secretary.
[FR Doc. 2017-00950 Filed 2-7-17; 8:45 am]
BILLING CODE 7531-01-P