Public Availability of Information; Electronic FOIA Amendment

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

[Docket No. OST-96-1430; Notice 98-17]

RIN 2105-AC69

Public Availability of Information; Electronic FOIA Amendment

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Transportation proposes to revise its

regulations implementing the Freedom of Information Act (FOIA). This

proposed revision provides changes to conform to the requirements of

the Electronic Freedom of Information Act Amendments of 1996 (EFOIA),

provides changes to DOT's fee schedule, and reflects certain

organizational changes.

DATES: Comments must be received on or before June 15, 1998.

ADDRESSES: Comments should be addressed to Information Services,

Attention: Docket Section, Room PL-401, Docket No. OST-96-1430,

Department of Transportation, SVC-124.1, Washington, DC 20590. Any

person wishing acknowledgement that his/her comments have been received

should include a self-addressed stamped postcard. Comments received

will be available for public inspection and copying in the Documentary

Services Division, Room PL-401, Department of Transportation Building,

400 Seventh Street, SW., Washington, DC, from 10:00 a.m. to 5:00 p.m.

ET Monday through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert I. Ross, Office of the General

Counsel, C-10, Department of Transportation, Washington, DC 20590,

telephone (202) 366-9156, FAX (202) 366-9170; electronic mail bob.

[email protected].

oom PL-401, Department of Transportation Building,

400 Seventh Street, SW., Washington, DC, from 10:00 a.m. to 5:00 p.m.

ET Monday through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert I. Ross, Office of the General

Counsel, C-10, Department of Transportation, Washington, DC 20590,

telephone (202) 366-9156, FAX (202) 366-9170; electronic mail bob.

[email protected].

SUPPLEMENTARY INFORMATION: These proposed revisions reflect changes

required by the Electronic Freedom of Information Act Amendments of

1996 (Public law 104-231). New provisions implementing the amendments

are found at Secs. 7.5 (frequently requested documents), 7.8

(electronic reading room requirements), 7.21 (deletion markings and

volume estimation), 7.31 (timing of responses, multi-track and

expedited processing), and 7.33 (unusual circumstances). Proposed

revisions to DOT's fee schedule can be found at Sec. 7.43. DOT proposes

to charge fees at rates based on an average of hourly rates for three

pay scale levels. Finally, references to DOT's Urban Mass

Transportation Administration (UMTA) are changed to the Federal Transit

Administration (FTA) to reflect a statutory revision of the name of the

agency.

Regulatory Notices and Analysis

This proposed amendment is not a ``significant regulatory action''

within the meaning of Executive Order 12866. It is also not significant

within the definition in DOT's Regulatory Policies and Procedures, 49

FR 1034 (1979), in part because it does not involve any change in

important DOT policies. Because the economic impact should be minimal,

further regulatory evaluation is not necessary. Under the Regulatory

Flexibility Act, the group of persons who will be directly affected by

this proposal are the public, who will find it easier to obtain

information from the DOT under FOIA

nd Procedures, 49

FR 1034 (1979), in part because it does not involve any change in

important DOT policies. Because the economic impact should be minimal,

further regulatory evaluation is not necessary. Under the Regulatory

Flexibility Act, the group of persons who will be directly affected by

this proposal are the public, who will find it easier to obtain

information from the DOT under FOIA. They do not qualify as small

entities, but will have burdens lessened by this proposal, as the

effect of the proposal will be to make records available through

electronic media and to streamline FOIA processing activities; however,

it is not likely that any such burden reduction will be large nor that

it will be convertible into economic equivalents. Hence, I certify that

this proposal will not have a significant economic impact on a

substantial number of small entities.

This proposal does not significantly affect the environment, and

therefore an environmental impact statement is not required under the

National Environmental Policy Act of 1969. It has also been reviewed

under Executive Order 12612, Federalism, and it has been determined

that it does not have sufficient implications for federalism to warrant

preparation of a Federalism Assessment.

Finally, the proposal does not contain any collection of

information requirements, requiring review under the Paperwork

Reduction Act, as amended.

List of Subjects in 49 CFR Part 7

Freedom of information.

In accordance with the above, DOT proposes to revise 49 CFR part 7

to read as follows:

PART 7--PUBLIC AVAILABILITY OF INFORMATION

Subpart A--General Provisions

Sec.

7.1 General.

7.2 Definitions.

Subpart B--Information Required To Be Made Public by DOT

n requirements, requiring review under the Paperwork

Reduction Act, as amended.

List of Subjects in 49 CFR Part 7

Freedom of information.

In accordance with the above, DOT proposes to revise 49 CFR part 7

to read as follows:

PART 7--PUBLIC AVAILABILITY OF INFORMATION

Subpart A--General Provisions

Sec.

7.1 General.

7.2 Definitions.

Subpart B--Information Required To Be Made Public by DOT

7.3 Publication in the Federal Register.

7.4 Publication required.

7.5 Availabiity of opinions, orders, staff manuals, statements of

policy and interpretations and indices.

7.6 Deletion of identifying detail.

7.7 Access to materials and indices.

7.8 Copies.

7.9 Protection on records.

7.10 Public records.

Subpart C--Availability of Reasonably Described Records Under the

Freedom of Information Act

7.11 Applicability.

7.12 Administration of part.

7.13 Records available.

7.14 Requests for records.

7.15 Contacts for records requested under the FOIA.

7.16 Requests for records of concern to more than one government

organization.

7.17 Consultation with submitters of commercial and financial

information.

Subpart D--Procedures for Appealing Decisions Not To Disclose Records

and/or Waive Fees

7.21 General.

Subpart E--Time Limits

7.31 Initial determinations.

7.32 Final determination.

7.33 Extension.

Subpart F--Fees

7.41 General.

7.42 Payment of fees.

7.43 Fee schedule.

7.44 Services performed without charge or at a reduced charge.

7.45 Transcripts.

7.46 Alternative sources of information.

Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O.

12600, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Provisions

Sec. 7.1 General.

determinations.

7.32 Final determination.

7.33 Extension.

Subpart F--Fees

7.41 General.

7.42 Payment of fees.

7.43 Fee schedule.

7.44 Services performed without charge or at a reduced charge.

7.45 Transcripts.

7.46 Alternative sources of information.

Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O.

12600, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Provisions

Sec. 7.1 General.

(a) This part implements 5 U.S.C. 552, and prescribes rules

governing the availability to the public of DOT records. Many documents

are made available to the public for inspection and copying through

DOT's Primary Electronic Access Facility and public record unit

locations that are discussed in subpart B of this part, which contains

the DOT regulations concerning the availability to the public of

opinions issued in the adjudication of cases, policy issuances,

administrative manuals, and other information made available to the

public, without need for a specific request.

(b) Subpart C of this part describes the records that are not

required to be disclosed on DOT's own action under this part, but that

may be available upon request under FOIA.

(c) Indices are maintained to reflect all records subject to

subpart B of this part, and are available for public inspection and

copying as provided in subpart B.

Sec. 7.2 Definitions.

As used 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 of

DOT and includes the Commandant of the Coast Guard, the Inspector

General, and the Director of the Bureau of Transportation Statistics.

Concurrence means that the approval of the person being consulted

is required in order for the subject action to be taken.

Consultation means that the approval of the person being consulted

is not required in order for the subject action to be taken

ation of

DOT and includes the Commandant of the Coast Guard, the Inspector

General, and the Director of the Bureau of Transportation Statistics.

Concurrence means that the approval of the person being consulted

is required in order for the subject action to be taken.

Consultation means that the approval of the person being consulted

is not required in order for the subject action to be taken.

Department or DOT means the Department of Transportation, including

the Office of the Secretary of Transportation, the Office of the

Inspector General, and the following operating administrations, all of

which may be referred to as DOT components:

(Means of contacting each of these DOT components appear in

Sec. 7.15. This definition specifically excludes the Surface

Transportation Board, which has its own FOIA regulations (49 CFR

part 1001.)

(1) United States Coast Guard,

(2) Federal Aviation Administration,

(3) Federal Highway Administration,

(4) Federal Railroad Administration,

(5) National Highway Traffic Safety Administration,

(6) Federal Transit Administration,

(7) Saint Lawrence Seaway Development Corporation,

(8) Maritime Administration,

(9) Research and Special Programs Administration, and

(10) Bureau of Transportation Statistics.

Primary Electronic Access Facility means the electronic docket

facility in the DOT Headquarters Building, 400 7th Street, SW.,

Washington, DC 20590.

Reading room records are those records required to be made

available to the public under 5 U.S.C. 552(a)(2) as described in

Sec. 7.5 of subpart B. These records are made available through DOT's

Primary Electronic Access Facility. Other records may also be made

available at DOT's discretion at DOT inspection facilities, including

DOT's Primary Electronic Access Facility.

Record includes any writing, drawing, map, recording, tape, film,

photograph, or other documentary material by which information is

preserved. The term also includes any such documentary material stored

by computer

Primary Electronic Access Facility. Other records may also be made

available at DOT's discretion at DOT inspection facilities, including

DOT's Primary Electronic Access Facility.

Record includes any writing, drawing, map, recording, tape, film,

photograph, or other documentary material by which information is

preserved. The term also includes any such documentary material stored

by computer.

Responsible DOT official means the head of the 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 person to

whom the Secretary has delegated authority in the matter concerned.

Subpart B--Information Required To Be Made Public by DOT

Sec. 7.3 Publication in the Federal Register

This section implements 5 U.S.C. 552(a)(1), and prescribes rules

governing publication in the Federal Register of the following:

(A) Descriptions of DOT's organization, including its operating

administrations and the established places at which, the officers from

whom, and the methods by which, the public may secure information and

make submittals or obtain decisions;

(b) Statements of the general course and methods by which DOT's

functions are channeled and determined, including the nature and

requirements of all formal and informal procedures available;

(c) Rules of procedure, descriptions of forms available or the

places at which forms may be obtained, and instructions as to the scope

and contents of all papers, reports, or examinations;

(d) Substantive rules of general applicability adopted as

authorized by law and statements of general policy or interpretations

of general applicability formulated and adopted by DOT; and

(e) Each amendment, revision, or repeal of any material listed in

paragraphs (a) through (d) of this section.

Sec. 7.4 Publication required.

the scope

and contents of all papers, reports, or examinations;

(d) Substantive rules of general applicability adopted as

authorized by law and statements of general policy or interpretations

of general applicability formulated and adopted by DOT; and

(e) Each amendment, revision, or repeal of any material listed in

paragraphs (a) through (d) of this section.

Sec. 7.4 Publication required.

(a) General. The material described in Sec. 7.3 will be published

in the Federal Register. For the purposes of this paragraph, material

that will reasonably be available to the class of persons affected by

it will be considered to be published in the Federal Register if it has

been incorporated by reference with the approval of the Director of the

Federal Register.

(b) Effect of nonpublication. Except to the extent that he/she has

actual and timely notice of the terms thereof, a person may not in any

manner be required to resort to, or be adversely affected by, any

procedure or matter required to be published in the Federal Register,

but not so published.

Sec. 7.5 Availability of opinions, orders, staff manuals, statements

of policy, and interpretations and indices.

(a) This section implements 5 U.S.C. 552(a)(2). It prescribes the

rules governing the availability for public inspection and copying of

the following reading room materials:

(1) Any final opinion (including a concurring or dissenting

opinion) or order made in the adjudication of a case.

(2) Any policy or interpretation that has been adopted under DOT

authority, including any policy or interpretation concerning a

particular factual situation, if that policy or interpretation can

reasonably be expected to have precedential value in any case involving

a member of the public in a similar situation.

a concurring or dissenting

opinion) or order made in the adjudication of a case.

(2) Any policy or interpretation that has been adopted under DOT

authority, including any policy or interpretation concerning a

particular factual situation, if that policy or interpretation can

reasonably be expected to have precedential value in any case involving

a member of the public in a similar situation.

(3) Any administrative staff manual or instruction to staff that

affects any member of the public, including the prescribing of any

standard, procedure, or policy that, when implemented, requires or

limits any action of any member of the public or prescribes the manner

of performance of any activity by any member of the public. However,

this does not include staff manuals or instruction to staff concerning

internal operating rules, practices, guidelines, and procedures for DOT

inspectors, investigators, law enforcement officers, examiners,

auditors, and negotiators and other information developed predominantly

for internal use, the release of which could significantly risk

circumvention of agency regulations or statutes.

(4) Copies of all records, regardless of form or format, that have

been released to any person under subpart C of this part and which,

because of the nature of their subject matter, a DOT component

determines have become or are likely to become the subject of

subsequent requests for substantially the same records.

(5) A general index of the records listed in this paragraph.

(b) Any material listed in paragraph (a) of this section that is

not made available for public inspection and copying, or that is not

indexed as required by Sec. 7.7, may not be cited, relied on, or used

as precedent by DOT to affect any member of the public adversely unless

the person to whose detriment it is relied on, used, or cited has had

actual timely notice of the material.

paragraph.

(b) Any material listed in paragraph (a) of this section that is

not made available for public inspection and copying, or that is not

indexed as required by Sec. 7.7, may not be cited, relied on, or used

as precedent by DOT to affect any member of the public adversely unless

the person to whose detriment it is relied on, used, or cited has had

actual timely notice of the material.

(c) This section does not apply to material that is published in

the Federal Register or covered by subpart C of this part.

Sec. 7.6 Deletion of identifying detail.

Whenever it is determined to be necessary to prevent a clearly

unwarranted invasion of personal privacy, identifying details will be

deleted from any record covered by this subpart that is published or

made available for inspection. Whenever it is determined to be

necessary to prevent the disclosure of information required or

authorized to be withheld by another Federal statute, such information

shall be deleted from any record covered by this subpart that is

published or made available for inspection. A full explanation of the

justification for the deletion will accompany the record published or

made available for inspection.

Sec. 7.7 Access to materials and indices.

(a) Except as provided in paragraph (b) of this section, material

listed in Sec. 7.5 will be made available for inspection and copying to

any member of the public at DOT document inspection facilities. It has

been determined that it is unnecessary and impracticable to publish the

index of materials in the Federal Register. Information as to the kinds

of materials available at each facility may be obtained from the

facility or the headquarters of the operating administration of which

it is a part.

for inspection and copying to

any member of the public at DOT document inspection facilities. It has

been determined that it is unnecessary and impracticable to publish the

index of materials in the Federal Register. Information as to the kinds

of materials available at each facility may be obtained from the

facility or the headquarters of the operating administration of which

it is a part.

(b) The material listed in Sec. 7.5 that is published and offered

for sale will be indexed, but is not required to be kept available for

public inspection. Whenever practicable, however, it will be made

available for public inspection at the appropriate DOT reading room.

(c) Each DOT component will also make the reading room records

identified in Sec. 7.5(a) that are created by DOT on or after November

1, 1996, available electronically. This includes indices of its reading

room records as required by law after December 1, 1999.

Sec. 7.8 Copies.

Copies of any material covered by this subpart that is not

published and offered for sale may be ordered, upon payment of the

appropriate fee, from the Docket Offices listed in Sec. 7.10. Copies

will be certified upon request and payment of the fee prescribed in

Sec. 7.43(f).

Sec. 7.9 Protection of records.

(a) Records made available for inspection and copying may not be

removed, altered, destroyed, or mutilated.

(b) 18 U.S.C. 641 provides for criminal penalties for embezzlement

or theft of government records.

(c) 18 U.S.C. 2071 provides for criminal penalties for the willful

and unlawful concealment, mutilation or destruction of, or the attempt

to conceal, mutilate, or destroy, government records.

Sec. 7.10 Public records.

Publicly available records are located in DOT'S Primary Electronic

Access Facility at 400 7th Street, SW., Washington, DC 20590.

embezzlement

or theft of government records.

(c) 18 U.S.C. 2071 provides for criminal penalties for the willful

and unlawful concealment, mutilation or destruction of, or the attempt

to conceal, mutilate, or destroy, government records.

Sec. 7.10 Public records.

Publicly available records are located in DOT'S Primary Electronic

Access Facility at 400 7th Street, SW., Washington, DC 20590.

(a) The Primary Electronic Access Facility maintains materials for

the Office of the Secretary, including former Civil Aeronautics Board

material, and materials for the operating administrations. This

facility is located at Plaza Level 401, and the hours of operation are

10 a.m. to 5 p.m.

(b) Certain operating administrations also maintain public record

units at regional offices and at the offices of the Commandant and

District Commanders of the United States Coast Guard. These facilities

are open to the public Monday through Friday except Federal holidays,

during regular working hours. The Saint Lawrence Seaway Development

Corporation has facilities at 180 Andrews Street, Massena, New York

13662-0520.

(c) Operating Administrations may have separate facilities for

manual records. Additional information on the location and hours of

operations for Docket Offices and inspection facilities can be obtained

through DOT's Primary Electronic Access Facility, at (202) 366-9322.

Subpart C--Availability of Reasonably Described Records Under the

Freedom of Information Act

Sec. 7.11 Applicability.

(a) This subpart implements 5 U.S.C. 552(a)(3), and prescribes the

regulations governing public inspection and copying of reasonably

described records under FOIA.

and inspection facilities can be obtained

through DOT's Primary Electronic Access Facility, at (202) 366-9322.

Subpart C--Availability of Reasonably Described Records Under the

Freedom of Information Act

Sec. 7.11 Applicability.

(a) This subpart implements 5 U.S.C. 552(a)(3), and prescribes the

regulations governing public inspection and copying of reasonably

described records under FOIA.

(b) This subpart does not apply to:

(1) Records published in the Federal Register, opinions in the

adjudication of cases, statements of policy and interpretations, and

administrative staff manuals that have been published or made available

under subpart B of this part.

(2) Records or information compiled for law enforcement purposes

and covered by the disclosure exemption described in Sec. 7.13(c)(7)

if--

(i) The investigation or proceeding involves a possible violation

of criminal law; and

(ii) There is reason to believe that--

(A) The subject of the investigation or proceeding is not aware of

its pendency, and

(B) Disclosure of the existence of the records could reasonably be

expected to interfere with enforcement proceedings.

(3) Informant records maintained by a criminal law enforcement

component of DOT under an informant's name or personal identifier, if

requested by a third party according to the informant's name or

personal identifier, unless the informant's status as an informant has

been officially confirmed.

Sec. 7.12 Administration of part.

Authority to administer this part and to issue determinations with

respect to initial requests is delegated as follows:

(a) To the General Counsel for the records of the Office of the

Secretary other than the Office of Inspector General.

(b) To the Inspector General for records of the Office of Inspector

General.

n informant has

been officially confirmed.

Sec. 7.12 Administration of part.

Authority to administer this part and to issue determinations with

respect to initial requests is delegated as follows:

(a) To the General Counsel for the records of the Office of the

Secretary other than the Office of Inspector General.

(b) To the Inspector General for records of the Office of Inspector

General.

(c) To the Administrator of each operating administration, who may

redelegate to officers of that administration the authority to

administer this part in connection with defined groups of records.

However, each Administrator may redelegate the duties under subpart D

of this part to consider appeals of initial denials of requests for

records only to his or her deputy or to not more than one other officer

who reports directly to the Administrator and who is located at the

headquarters of that operating administration.

Sec. 7.13 Records available.

(a) Policy. It is DOT policy to make its records available to the

public to the greatest extent possible, in keeping with the spirit of

FOIA. This includes providing reasonably segregable information from

documents that contain information that may be withheld.

(b) Statutory disclosure requirement. FOIA requires that DOT, on a

request from a member of the public submitted in accordance with this

subpart, make requested records available for inspection and copying.

(c) Statutory exemptions. Exempted from FOIA's statutory disclosure

requirement are matters that are:

(1)(i) Specifically authorized under criteria established by

Executive order to be kept secret in the interest of national defense

or foreign policy, and

(ii) In fact properly classified pursuant to such Executive order;

(2) Related solely to the internal personnel rules and practices of

an agency;

(3) Specifically exempted from mandatory disclosure by statute

(other than the Privacy Act or the Government in the Sunshine Act),

provided that such statute--

tive order to be kept secret in the interest of national defense

or foreign policy, and

(ii) In fact properly classified pursuant to such Executive order;

(2) Related solely to the internal personnel rules and practices of

an agency;

(3) Specifically exempted from mandatory disclosure by statute

(other than the Privacy Act or the Government in the Sunshine Act),

provided that such statute--

(i) Requires that the matters be withheld from the public in such a

manner as to leave not any discretion on the issue, or

(ii) Establishes particular criteria for withholding or refers to

particular criteria for withholding or refers to particular types of

matters to be withheld;

(4) Trade secrets and commercial or financial information obtained

from a person and privileged or confidential;

(5) Inter-agency or intra-agency memorandums or letters that would

not be available by law to a party other than an agency in litigation

with the agency;

(6) Personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal

privacy;

(7) Records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement

records or information--

(i) Could reasonably be expected to interfere with enforcement

proceedings,

(ii) Would deprive a person of a right to a fair or an impartial

adjudication,

(iii) Could reasonably be expected to constitute an unwarranted

invasion of personal privacy,

(iv) Could reasonably be expected to disclose the identity of a

confidential source, including a State, local, Tribal, or foreign

agency or authority or any private institution that furnished

information on a confidential basis, and, in the case of a record or

information compiled by a criminal law enforcement authority in the

course of a criminal investigation, or by an agency conducting a lawful

national security intelligence investigation, information furnished by

a confidential source,

te, local, Tribal, or foreign

agency or authority or any private institution that furnished

information on a confidential basis, and, in the case of a record or

information compiled by a criminal law enforcement authority in the

course of a criminal investigation, or by an agency conducting a lawful

national security intelligence investigation, information furnished by

a confidential source,

(v) Would disclose techniques and procedures for law enforcement

investigations or prosecutions or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law, or

(vi) Could reasonably be expected to endanger the life or physical

safety of any individual;

(8) Contained in or related to examination, operating, or condition

reports prepared by, on behalf of, or for the use of an agency

responsible for the regulation or supervision of financial

institutions; or

(9) Geological and geophysical information and data, including

maps, concerning wells.

(d) Deleted information. The amount of information deleted from

frequently-requested electronic records that are available in a public

reading room will be indicated on the released portion of the record,

unless doing so would harm an interest protected by the exemption

concerned. If technically feasible, the amount of information deleted

will be indicated at the place in the record where the deletion is

made.

Sec. 7.14 Requests for records.

eleted from

frequently-requested electronic records that are available in a public

reading room will be indicated on the released portion of the record,

unless doing so would harm an interest protected by the exemption

concerned. If technically feasible, the amount of information deleted

will be indicated at the place in the record where the deletion is

made.

Sec. 7.14 Requests for records.

(a) Each person desiring access to or a copy of a record covered by

this subpart shall comply with the following provisions:

(1) A written request must be made for the record.

(2) Such request should indicate that it is being made under FOIA.

(3) The envelope in which a mailed request is sent should be

prominently marked: ``FOIA.''

(4) The request should be addressed to the appropriate office as

set forth in Sec. 7.15.

(5) The request should state the format (e.g., paper, microfiche,

computer diskette, etc.) in which the information is sought, if the

requestor has a preference.

(b) If the requirements of paragraph (a) of this section are not

met, treatment of the request will be at the discretion of the agency.

The twenty-day limit for responding to requests, described in

Sec. 7.31, will not start to run until the request has been identified,

or would have been identified with the exercise of due diligence, by an

employee of DOT as a request pursuant to FOIA and has been received by

the office to which it should have been originally sent.

(c) Form of Requests. (1) Each request should describe the

particular record to the fullest extent possible. The request should

describe the subject matter of the record, and, if known, indicate the

date when it was made, the place where it was made, and the person or

office that made it. If the description does not enable the office

handling the request to identify or locate the record sought, that

office will notify the requestor and, to the extent possible, indicate

the additional data required.

(2) Each request shall--

be the subject matter of the record, and, if known, indicate the

date when it was made, the place where it was made, and the person or

office that made it. If the description does not enable the office

handling the request to identify or locate the record sought, that

office will notify the requestor and, to the extent possible, indicate

the additional data required.

(2) Each request shall--

(i) Specify the fee category (commercial use, news media,

educational institution, noncommercial scientific institution, or

other) in which the requestor claims the request to fall and the basis

of this claim (see subpart F of this part for fees and fee waiver

requirements),

(ii) State the maximum amount of fees that the requestor is willing

to pay or include a request for a fee waiver, and

(iii) A request seeking a fee waiver shall, to the extent possible,

address why the requestor believes that the criteria for fee waivers

set out in Sec. 7.44(f) are met.

(3) Requesters are advised that the time for responding to requests

set forth in subpart E of this part will not begin to run--

(i) If a requestor has not sufficiently identified the fee category

applicable to the request,

(ii) If a requestor has not stated a willingness to pay fees as

high as anticipated by DOT,

(iii) If a fee waiver request is denied and the requestor has not

included an alternative statement of willingness to pay fees as high as

anticipated by DOT, or

(iv) If a fee waiver request does not address fee waiver criteria.

s not sufficiently identified the fee category

applicable to the request,

(ii) If a requestor has not stated a willingness to pay fees as

high as anticipated by DOT,

(iii) If a fee waiver request is denied and the requestor has not

included an alternative statement of willingness to pay fees as high as

anticipated by DOT, or

(iv) If a fee waiver request does not address fee waiver criteria.

(d) Creation of records. A request may seek only records that are

in existence at the time the request is received. A request may not

seek records that come into existence after the date on which it is

received and may not require that new records be created in response to

the request by, for example, combining or compiling selected items from

manual files, preparing a new computer program, or calculating

proportions, percentages, frequency distributions, trends, or

comparisons. In those instances where DOT determines that creating a

new record will be less burdensome than disclosing large volumes of

unassembled material, DOT may, in its discretion, agree to creation of

a new record as an alternative to disclosing existing records.

Records will be provided in the form or format sought by the

requestor if the record is readily reproducible in the requested

format.

(e) Search for records. (1) Each record made available under this

subpart will be made available for inspection and copying during

regular business hours at the place where it is located, or

photocopying may be arranged with the copied materials being mailed to

the requestor upon payment of the appropriate fee. Original records

ordinarily will be copied except in the instances where, in DOT's

judgment, copying would endanger the quality of the original or raise

the reasonable possibility of irreparable harm to the record. In these

instances, copying of the original would not be in the public interest.

In any event, original records will not be released from DOT custody

ayment of the appropriate fee. Original records

ordinarily will be copied except in the instances where, in DOT's

judgment, copying would endanger the quality of the original or raise

the reasonable possibility of irreparable harm to the record. In these

instances, copying of the original would not be in the public interest.

In any event, original records will not be released from DOT custody.

Original records, regardless of format, may be returned to agency

service upon provision of a copy of the record to the requestor, or, in

the case of a denial, upon creation and retention of a copy of the

original for purposes of FOIA processing.

(2) DOT will make a reasonable effort to search for requested

records in electronic form or format, unless doing so would

significantly interfere with operation of the affected automated

information system.

(f) If a requested record is known not to exist in the files of the

agency, or to have been destroyed or otherwise disposed of, the

requestor will be so notified.

(g) Fees will be determined in accordance with subpart F of this

part.

(h) Notwithstanding paragraphs (a) through (g) of this section,

informational material, such as news releases, pamphlets, and other

materials of that nature that are ordinarily made available to the

public as a part of any information program of the Government will be

available upon oral or written request. A fee will not be charged for

individual copies of that material so long as the material is in

supply. In addition DOT will continue to respond, without charge, to

routine oral or written inquires that do not involve the furnishing of

records.

Sec. 7.15 Contacts for records requested under the FOIA.

Each person desiring a record under this subpart should submit a

request in writing (via paper, facsimile, or electronic mail) to the

DOT component where the records are located:

l is in

supply. In addition DOT will continue to respond, without charge, to

routine oral or written inquires that do not involve the furnishing of

records.

Sec. 7.15 Contacts for records requested under the FOIA.

Each person desiring a record under this subpart should submit a

request in writing (via paper, facsimile, or electronic mail) to the

DOT component where the records are located:

(a) FOIA Offices at 400 7th Street, SW., Washington, DC 20590:

(1) Office of the Secretary of Transportation, Room 5432.

(2) Federal Highway Administration, Room 4428.

(3) National Highway Traffic Safety Administration, Room 5221.

(4) Federal Transit Administration Room 9400.

(5) Maritime Administration, Room 7221.

(6) Research and Special Programs Administration, Room 8419.

(7) Bureau of Transportation Statistics, Room 3430.

(8) Office Inspector General, Room 9210.

(b) Federal Aviation Administration, 800 Independence Avenue, SW.,

Room 906A, Washington, DC 20591.

(c) United States Coast Guard, 2100 2nd Street, SW., Room 6106,

Washington, DC 20593-0001.

(d) Director, Office of Finance, Saint Lawrence Seaway Development

Corporation, 180 Andrews Street, P.O. Box 520, Massena, New York 13662-

0520.

(e) Federal Railroad Administration, 1120 Vermont Avenue NW., 7th

Floor, Washington, DC. (Mailing address: 400 Seventh St., SW.,

Washington, DC 20590.)

(f) Certain operating administrations also maintain FOIA contacts

at regional offices and at the offices of the Commandant and District

Commanders of the United States Coast Guard. Additional information on

the location of these offices can be obtained through the FOIA contact

offices listed above.

(g) If the person making the request does not know where in DOT the

record is located, he or she may make inquiry to the Chief, FOIA

Division, Office of the General Counsel (voice: 202.366.4542;

facsimile: 202.366.8536).

District

Commanders of the United States Coast Guard. Additional information on

the location of these offices can be obtained through the FOIA contact

offices listed above.

(g) If the person making the request does not know where in DOT the

record is located, he or she may make inquiry to the Chief, FOIA

Division, Office of the General Counsel (voice: 202.366.4542;

facsimile: 202.366.8536).

(h) Requests for records under this part, and Freedom of

Information Act inquiries generally, may be made by accessing the DOT

Home Page on the Internet (www.dot.gov) and clicking on the Freedom of

Information Act link.

Sec. 7.16 Requests for records of concern to more than one government

organization.

(a) If the release of a record covered by this subpart would be of

concern to both DOT and another Federal agency, the determination as to

release will be made by DOT only after consultation with the other

interested agency.

(b) If the release of the record covered by this subpart would be

of concern to both DOT and a State, local, or Tribal government, a

territory or possession of the United States, or a foreign government,

the determination as to release will be made by DOT only after

consultation with the interested government.

(c) Alternatively, DOT may refer the request (or relevant portion

thereof) for decision by a Federal agency that originated or is

substantially concerned with the records, but only if that agency is

subject to FOIA. Such referrals will be made expeditiously and the

requester notified in writing that a referral has been made.

Sec. 7.17 Consultation with submitters of commercial and financial

information.

ively, DOT may refer the request (or relevant portion

thereof) for decision by a Federal agency that originated or is

substantially concerned with the records, but only if that agency is

subject to FOIA. Such referrals will be made expeditiously and the

requester notified in writing that a referral has been made.

Sec. 7.17 Consultation with submitters of commercial and financial

information.

(a) If a request if received for information that has been

designated by the submitter as confidential commercial information, or

which DOT has some other reason to believe may contain information of

the type described in Sec. 7.13(c)(4), the submitter of such

information will, except as is provided in paragraphs (c) and (d) of

this section, be notified expeditiously and asked to submit any written

objections to release. At the same time, the requester will be notified

that notice and an opportunity to comment are

being provided to the submitter. The submitter will, to the extent

permitted by law, be afforded a reasonable period of time within which

to provide a detailed statement of any such objections. The submitter's

statement shall specify all grounds for withholding any of the

information. The burden shall be on the submitter to identify all

information for which exempt treatment is sought and to persuade the

agency that the information should not be disclosed.

(b) The responsible DOT component will, to the extent permitted by

law, consider carefully a submitter's objections and specific grounds

for nondisclosure prior to determining whether to disclose business

information. Whenever a decision is made to disclose such information

over the objection of a submitter, the office responsible for the

decision will forward to the submitter a written notice that will

include:

(1) A statement of the reasons for which the submitter's disclosure

objections were not accepted;

(2) A description of the business information to be disclosed; and

disclose business

information. Whenever a decision is made to disclose such information

over the objection of a submitter, the office responsible for the

decision will forward to the submitter a written notice that will

include:

(1) A statement of the reasons for which the submitter's disclosure

objections were not accepted;

(2) A description of the business information to be disclosed; and

(3) A specific disclosure date. Such notice of intent to disclose

will, to the extent permitted by law, be forwarded to the submitter a

reasonable number of days prior to the specified date upon which

disclosure is intended. At the same time the submitter is notified, the

requester will be notified of the decision to disclose information.

(c) The notice requirements of this section will not apply if:

(1) The office responsible for the decision determines that the

information should not be disclosed;

(2) The information lawfully has been published or otherwise made

available to the public; or

(3) Disclosure of the information is required by law (other than 5

U.S.C. 552).

(d) The procedures established in this section will not apply in

the case of:

(1) Business information submitted to the National Highway Traffic

Safety Administration and addressed in 49 CFR part 512.

(2) Information contained in a document to be filed or in oral

testimony that is sought to be withheld pursuant to Rule 39 of the

Rules of Practice in Aviation Economic Proceedings (14 CFR 302.39).

(e) Whenever a requester brings suit seeking to compel disclosure

of confidential commercial information, the responsible DOT component

will promptly notify the submitter.

Subpart D--Procedures for Appealing Decisions Not to Disclose

Records and/or Waive Fees

Sec. 7.21 General.

ught to be withheld pursuant to Rule 39 of the

Rules of Practice in Aviation Economic Proceedings (14 CFR 302.39).

(e) Whenever a requester brings suit seeking to compel disclosure

of confidential commercial information, the responsible DOT component

will promptly notify the submitter.

Subpart D--Procedures for Appealing Decisions Not to Disclose

Records and/or Waive Fees

Sec. 7.21 General.

(a) Each officer or employee of DOT who, upon a request by a member

of the public for a record under this part, makes a determination that

the record is not to be disclosed, either because it is subject to an

exemption or not in DOT's custody and control, will give a written

statement of the reasons for that determination to the person making

the request; and indicate the names and titles or positions of each

person responsible for the initial determination not to comply with

such request, and the availability of an appeal within DOT. The denial

letter will include an estimate of the volume of records or information

withheld, in number of pages or in some other reasonable form of

estimation. This estimate does not need to be provided if the volume is

otherwise indicated through deletions on records disclosed in part, or

if providing an estimate would harm an interest protected by an

applicable exemption. Records disclosed in part will be marked or

annotated to show both the amount and the location of the information

deleted whenever practicable.

(b) When a request for a waiver of fees pursuant to Sec. 7.44 has

been denied in whole or in part, the requestor may appeal the denial.

ecords disclosed in part, or

if providing an estimate would harm an interest protected by an

applicable exemption. Records disclosed in part will be marked or

annotated to show both the amount and the location of the information

deleted whenever practicable.

(b) When a request for a waiver of fees pursuant to Sec. 7.44 has

been denied in whole or in part, the requestor may appeal the denial.

(c) Any person to whom a record has not been made available within

the time limits established by Sec. 7.31 and any person who has been

given a determination pursuant to paragraph (a) of this section that a

record will not be disclosed may appeal to the responsible DOT

official. Any person who has not received an initial determination on

his or her request within the time limits established by Sec. 7.31 can

seek immediate judicial review, which may be sought without the need

first to submit an administrative appeal. Judicial review may be sought

in the United States District Court for the judicial district in which

the requestor resides or has his or her principal place of business,

the judicial district in which the records are located, or in the

District of Columbia. A determination that a record will not be

disclosed and/or that a request for a fee waiver or reduction will not

be granted does not constitute final agency action for the purposes of

judicial review unless:

(1) It was made by the responsible DOT official; or

(2) The applicable time limit has passed without a determination on

the initial request or the appeal, as the case may be, having been

made.

mination that a record will not be

disclosed and/or that a request for a fee waiver or reduction will not

be granted does not constitute final agency action for the purposes of

judicial review unless:

(1) It was made by the responsible DOT official; or

(2) The applicable time limit has passed without a determination on

the initial request or the appeal, as the case may be, having been

made.

(d) Each appeal must be made in writing within thirty days from the

date of receipt of the original denial and should include the DOT file

or reference number assigned to the request and all information and

arguments relied upon by the person making the request. (Appeals may be

submitted via facsimile and conventional mail, but not via electronic

mail.) Such letter should indicate that it is an appeal from a denial

of a request made under FOIA. The envelope in which a mailed appeal is

sent should be prominently marked: ``FOIA Appeal.'' If these

requirements are not met, the twenty-day limit described in Sec. 7.32

will not begin to run until the appeal has been identified, or would

have been identified with the exercise of due diligence, by a DOT

employee as an appeal under FOIA, and has been received by the

appropriate office.

(e) Whenever the responsible DOT official determines it necessary,

he/she may require the requestor to furnish additional information, or

proof of factual allegations, and may order other proceedings

appropriate in the circumstances; in any case in which a request or

order is made, DOT's time for responding ceases to count while the

requestor response to the request or order. The decision of the

responsible DOT official as to the availability of the record or the

appropriateness of a fee waiver or reduction constitutes final agency

action for the purpose of judicial review.

r proceedings

appropriate in the circumstances; in any case in which a request or

order is made, DOT's time for responding ceases to count while the

requestor response to the request or order. The decision of the

responsible DOT official as to the availability of the record or the

appropriateness of a fee waiver or reduction constitutes final agency

action for the purpose of judicial review.

(f) The decision of the responsible DOT official not to disclose a

record under this part or not to grant a request for a fee waiver or

reduction is considered to be a denial by the Secretary for the purpose

of 5 U.S.C. 552(a)(4)(B).

(g) Any final determination by the head of an operating

administration not to disclose a record under this part, or not to

grant a request for a fee waiver or reduction, is subject to

concurrence by a representative of the General Counsel.

(h) Upon a determination that an appeal will be denied, the

requestor will be informed in writing of the reasons for the denial of

the request and the names and titles or positions of each person

responsible for the determination, and that judicial review of the

determination is available in the United States District Court for the

judicial district in which the requestor resides or has his or her

principal place of business, the judicial district in which the

requested records are located, or the District of Columbia.

Subpart E--Time Limits

Sec. 7.31 Initial determinations.

person

responsible for the determination, and that judicial review of the

determination is available in the United States District Court for the

judicial district in which the requestor resides or has his or her

principal place of business, the judicial district in which the

requested records are located, or the District of Columbia.

Subpart E--Time Limits

Sec. 7.31 Initial determinations.

An initial determination whether to release a record requested

pursuant to subpart C of this part will be made within twenty Federal

working days after the request is received by the appropriate office in

accordance with Sec. 7.14, except that this time limit may be extended

by up to ten Federal working days in accordance with Sec. 7.33. The

person making the request will be notified immediately of such

determination. If the determination is to grant this request, the

desired record will be made available as promptly as possible. If the

determination is to deny the request, the person making the request

will be notified in writing, at the same time he or she is notified of

such determination, of the reason for the determination, the right of

such person to appeal the determination, and the name and title of each

person responsible for the initial determination to deny the request.

(a) In general. Components ordinarily will respond to requests

according to their order of receipt.

(b) Multitrack processing. (1) A component may use two or more

processing tracks by distinguishing between simple and more complex

requests based on the amount of work and/or time needed to process the

request, or on the number of pages involved.

the initial determination to deny the request.

(a) In general. Components ordinarily will respond to requests

according to their order of receipt.

(b) Multitrack processing. (1) A component may use two or more

processing tracks by distinguishing between simple and more complex

requests based on the amount of work and/or time needed to process the

request, or on the number of pages involved.

(2) A component using multitrack processing may provide requesters

in its slower track(s) with an opportunity to limit the scope of their

requests in order to qualify for faster processing within the specified

limits of the component's faster track(s). A component doing so will

contact the requestor either by telephone, letter, facsimile, or

electronic mail, whichever is not efficient in each case.

(c) Expedited processing. (1) Requests and appeals will be taken

out of order and given expedited treatment whenever a compelling need

is demonstrated and it is determined that the compelling need involves:

(i) Circumstances in which the lack of expedited treatment could

reasonably be expected to pose an imminent threat to the life or

physical safety of an individual;

(ii) Requests made by a person primarily engaged in disseminating

information, with an urgency to inform the public of actual or alleged

Federal Government activity.

(2) A request for expedited processing may be made at the time of

the initial request for records or at any later time. For a prompt

determination, a request for expedited processing must be received by

the proper component. Requests must be submitted to the component that

maintains the records requested.

with an urgency to inform the public of actual or alleged

Federal Government activity.

(2) A request for expedited processing may be made at the time of

the initial request for records or at any later time. For a prompt

determination, a request for expedited processing must be received by

the proper component. Requests must be submitted to the component that

maintains the records requested.

(3) A requestor who seeks expedited processing must submit a

statement, certified to be true and correct to the best of that

person's knowledge and belief, explaining in detail the basis for

requesting expedited processing. For example, a requestor within the

category in paragraph (c)(1)(ii) of this section, if not a full-time

member of the news media, must establish that he or she is a person

whose main professional activity or occupation is information

dissemination, though it need not be his or her sole occupation. A

requestor within the category in paragraph (c)(1)(ii) of this section

also must establish a particular urgency to inform the public about the

government activity involved in the request, beyond the public's right

to know about government activity generally. The formality of

certification may be waived as a matter of discretion.

(4) Within ten calendar days of its receipt of a request for

expedited processing, the proper component will decide whether to grant

it and will notify the requestor of the decision. If a request for

expedited treatment is granted, the request will be given priority and

will be processed as soon as practicable. If a request for expedited

processing is denied, any appeal of that decision will be acted on

expeditiously.

Sec. 7.32 Final determination.

r

expedited processing, the proper component will decide whether to grant

it and will notify the requestor of the decision. If a request for

expedited treatment is granted, the request will be given priority and

will be processed as soon as practicable. If a request for expedited

processing is denied, any appeal of that decision will be acted on

expeditiously.

Sec. 7.32 Final determination.

A determination with respect to any appeal made pursuant to

Sec. 7.21 will be made within twenty Federal working days after receipt

of such appeal except that this time limit may be extended by up to ten

Federal working days in accordance with Sec. 7.33. The person making

the request will be notified immediately of such determination pursuant

to Sec. 7.21.

Sec. 7.33 Extension.

(a) In unusual circumstances as specified in this section, the time

limits prescribed in Sec. 7.31 and Sec. 7.32 may be extended by written

notice to the person making the request setting forth the reasons for

such extension and the date on which a determination is expected to be

dispatched. Such notice may not specify a date that would result in a

cumulative extension of more than 10 Federal working days without

providing the requestor an opportunity to modify the request as noted

below. Where the extension is for more than 10 working days, the DOT

component will provide the requestor with an opportunity either to

modify the request so that it may be processed within the time limits

or to arrange an alternative time period with the component for

processing the request or a modified request. As used in this

subparagraph, ``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;

with the component for

processing the request or a modified request. As used in this

subparagraph, ``unusual circumstances'' means, but only to the extent

reasonably necessary to the proper processing of the particular

request:

(1) The need to search for and collect the requested records from

field facilities or other establishments that are separate from the

office processing the request;

(2) The need to search for, collect, and appropriately examine a

voluminous amount of separate and distinct records that are demanded in

a single request; or

(3) The need for consultation, which will be conducted with all

practicable speed, with any other agency or DOT component having a

substantial interest in the determination of the request or among two

or more components of the agency having substantial subject-matter

interest therein.

(b) Where a component reasonably believes that multiple requests

submitted by a requestor, or by a group of requesters acting in

concert, constitute a single request that would otherwise involve

unusual circumstances, and the requests involve clearly related

matters, they may be aggregated for the purposes of fees and processing

activities. Multiple requests involving unrelated matters will not be

aggregated.

Subpart F--Fees

Sec. 7.41 General.

(a) This subpart prescribes fees for services performed for the

public under subparts B and C of this part by DOT.

(b) All terms defined by FOIA apply to this subpart, and the term

``hourly rate'' means the actual hourly base pay for a civilian

employee or, for members of the Coast Guard, the equivalent hourly pay

rate computed using a 40-hour week and the member's normal basic pay

and allowances.

(c) This subpart applies to all employees of DOT, including those

of non-appropriated fund activities of the Coast Guard and the Maritime

Administration.

bpart, and the term

``hourly rate'' means the actual hourly base pay for a civilian

employee or, for members of the Coast Guard, the equivalent hourly pay

rate computed using a 40-hour week and the member's normal basic pay

and allowances.

(c) This subpart applies to all employees of DOT, including those

of non-appropriated fund activities of the Coast Guard and the Maritime

Administration.

(d) This subpart does not apply to any special study, special

statistical compilation, table, or other record requested under 49

U.S.C. 329(c). The fee for the performance of such a service is the

actual cost of the work involved in compiling the record. All such fees

received by DOT in payment of the cost of such work are deposited in a

separate

account administered under the direction of the Secretary, and may be

used for the ordinary expenses incidental to providing the information.

(e) This subpart does not apply to requests from record subjects

for records about themselves in DOT systems of records, which are

determined in accordance with the Privacy Act, as implemented by DOT

regulations (49 CFR part 10).

Sec. 7.42 Payment of fees.

(a) The fees prescribed in this subpart may be paid by check,

draft, or money order, payable to the DOT component where fees were

incurred, for deposit in the General Fund of the Treasury of the United

States, e.g. DOT/FAA.

(b) Charges may be assessed by DOT for time spent searching for

requested records even if the search fails to locate records or the

records located are determined to be exempt from disclosure. In

addition, if records are requested for commercial use, DOT may assess a

fee for time spent reviewing any responsive records located to

determine whether they are exempt from disclosure.

.g. DOT/FAA.

(b) Charges may be assessed by DOT for time spent searching for

requested records even if the search fails to locate records or the

records located are determined to be exempt from disclosure. In

addition, if records are requested for commercial use, DOT may assess a

fee for time spent reviewing any responsive records located to

determine whether they are exempt from disclosure.

(c) When it is estimated that the search charges, review charges,

duplication fees, or any combination of fees that could be charged to

the requestor will likely exceed US $25, the requestor will be notified

of the estimated amount of the fees, unless the requestor has indicated

in advance his or her willingness to pay fees as high as those

anticipated. In cases where a requestor has been notified that actual

or estimated fees may amount to more than US $25, the request will be

deemed not to have been received until the requestor has agreed to pay

the anticipated total fee. The notice will also inform the requestor

how to consult with the appropriate DOT officials with the object of

reformulating the request to meet his or her needs at a lower cost.

(d) Payment of fees may be required prior to actual duplication or

delivery of any releasable records to a requestor. However, advance

payment, i.e., before work is commenced or continued on a request, may

not be required unless:

(1) Allowable charges that a requestor may be required to pay are

likely to exceed US $250; or

(2) The requestor has failed to pay within 30 days of the billing

date fees charged for a previous request to any part of DOT.

(e) When paragraph (d)(1) of this section applies, the requestor

will be notified of the likely cost and, where he/she has a history of

prompt payment of FOIA fees, requested to furnish satisfactory

assurance of full payment of FOIA fees. Where the requestor does not

have any history of payment, he or she may be required to make advance

payment of any amount up to the full estimated charges.

(e) When paragraph (d)(1) of this section applies, the requestor

will be notified of the likely cost and, where he/she has a history of

prompt payment of FOIA fees, requested to furnish satisfactory

assurance of full payment of FOIA fees. Where the requestor does not

have any history of payment, he or she may be required to make advance

payment of any amount up to the full estimated charges.

(f) When paragraph (d)(2) of this section applies, the requestor

will be required to demonstrate that the fee has, in fact, been paid or

to pay the full amount owed, including any applicable interest, late

handling charges, and penalty charges as discussed below. The requestor

will also be required to make an advance payment of the full amount of

the estimated fee before processing of a new request or continuation of

a pending request is begun.

(g) DOT will assess interest on an unpaid bill starting on the 31st

day following the day on which the notice of the amount due is first

mailed to the requestor. Interest will accrue from the date of the

notice of amount due and will be at the rate prescribed in 31 U.S.C.

3717. Receipt by DOT of a payment for the full amount of the fees owed

within 30 calendar days after the date of the initial billing will stay

the accrual of interest, even if the payment has not been processed.

(h) If payment of fees charged is not received within 30 calendar

days after the date the initial notice of the amount due is first

mailed to the requestor, an administrative charge will be assessed by

DOT to cover the cost of processing and handling the delinquent claim.

In addition, a penalty charge will be applied with respect to any

principal amount of a debt that is more than 90 days past due. Where

appropriate, other steps permitted by Federal debt collection statutes,

including disclosure to consumer reporting agencies and use of

collection agencies, will be used by DOT to encourage payment of

amounts overdue.

cessing and handling the delinquent claim.

In addition, a penalty charge will be applied with respect to any

principal amount of a debt that is more than 90 days past due. Where

appropriate, other steps permitted by Federal debt collection statutes,

including disclosure to consumer reporting agencies and use of

collection agencies, will be used by DOT to encourage payment of

amounts overdue.

(i) Notwithstanding any other provision of this subpart, when the

total amount of fees that could be charged for a particular request (or

aggregation of requests) under subpart C of this part, after taking

into account all services that must be provided free of, or at a

reduced, charge, is less than US $10.00 DOT will not make any charge

for fees.

Sec. 7.43 Fee schedule.

The rates for manual searching, computer operator/programmer time

and time spent reviewing records will be calculated based on the grades

and rates established by the Washington-Baltimore Federal White-Collar

Pay Schedule or equivalent grades, as follows:

When performed by employees:

GS-1 through GS-8--Hourly rate of GS-5 step 7 plus 16%

GS-9 through GS-14--Hourly rate of GS-12 step 7 plus 16%

GS-15 and above--Hourly rate of GS-15 step 7 plus 16%

(a) The standard fee for a manual search to locate a record

requested under subpart C of this part, including making it available

for inspection, will be determined by multiplying the searcher's rate

as calculated from the above chart and the time spent conducting the

search.

(b) The standard fee for a computer search for a record requested

under subpart C of this part is the actual cost. This includes the cost

of operating the central processing unit for the time directly

attributable to searching for records responsive to a FOIA request and

the operator/programmer's rate as calculated from the above chart for

costs apportionable to the search.

ting the

search.

(b) The standard fee for a computer search for a record requested

under subpart C of this part is the actual cost. This includes the cost

of operating the central processing unit for the time directly

attributable to searching for records responsive to a FOIA request and

the operator/programmer's rate as calculated from the above chart for

costs apportionable to the search.

(c) The standard fee for review of records requested under subpart

C of this part is the reviewer's rate as calculated above multiplied by

the time he/she spent determining whether the requested records are

exempt mandatory disclosure.

(d) The standard fee for duplication of a record requested under

subpart C of this part is determined as follows:

(1) Per copy of each page (not larger than 8.5 x 14 inches)

reproduced by photocopy or similar means (includes costs of personnel

and equipment)--US $0.10.

(2) Per copy prepared by computer such as tapes or printout--actual

costs, including operator time.

(3) Per copy prepared by any other method of duplication--actual

direct cost of production.

(e) Depending upon the category of requestor, and the use for which

the records are requested, in some cases the fees computed in

accordance with the above standard fee schedule will either be reduced

or not charged, as prescribed by other provisions of this subpart.

(f) The following special services not required by FOIA may be made

available upon request, at the stated fees: Certified copies of

documents, with DOT or operating administration seal (where

authorized)--US $4.00; or true copy, without seal--US $2.00.

Sec. 7.44 Services performed without charge or at a reduced charge.

educed

or not charged, as prescribed by other provisions of this subpart.

(f) The following special services not required by FOIA may be made

available upon request, at the stated fees: Certified copies of

documents, with DOT or operating administration seal (where

authorized)--US $4.00; or true copy, without seal--US $2.00.

Sec. 7.44 Services performed without charge or at a reduced charge.

(a) A fee is not to be charged to any requestor making a request

under subpart C of this part for the first two hours of search time

unless the records are requested for commercial use. For purposes of

this subpart, when a computer search is required two hours of search

time will be considered spent when the hourly costs of operating the

central processing unit used to perform the search added to the

computer operator's salary cost (hourly rate plus 16 percent) equals

two hours of the computer operator's salary costs (hourly rate plus 16

percent).

(b) A fee is not to be charged for any time spent searching for a

record requested under subpart C of this part if the records are not

for commercial use and the requestor is a representative of the news

media, an educational institution whose purpose is scholarly research,

or a non-commercial scientific institution whose purpose is scientific

research.

(c) A fee is not to be charged for duplication of the first 100

pages (standard paper, not larger than 8.5 x 14 inches) of records

provided to any requestor in response to a request under subpart C of

this part unless the records are requested for commercial use.

institution whose purpose is scholarly research,

or a non-commercial scientific institution whose purpose is scientific

research.

(c) A fee is not to be charged for duplication of the first 100

pages (standard paper, not larger than 8.5 x 14 inches) of records

provided to any requestor in response to a request under subpart C of

this part unless the records are requested for commercial use.

(d) A fee is not to be charged to any requestor under subpart C of

this part to determine whether a record is exempt from mandatory

disclosure unless the record is requested for commercial use. A review

charge may not be charged except with respect to an initial review to

determine the applicability of a particular exemption to a particular

record or portion of a record. A review charge may not be assessed for

review at the administrative appeal level. When records or portions of

records withheld in full under an exemption that is subsequently

determined not to apply are reviewed again to determine the

applicability of other exemptions not previously considered, this is

considered an initial review for purposes of assessing a review charge.

(e) Documents will be furnished without charge or at a reduced

charge if the official having initial denial authority determines that

disclosure of the information is in the public interest because it is

likely to contribute significantly to public understanding of the

operations or activities of the government and is not primarily in the

commercial interest of the requestor.

review charge.

(e) Documents will be furnished without charge or at a reduced

charge if the official having initial denial authority determines that

disclosure of the information is in the public interest because it is

likely to contribute significantly to public understanding of the

operations or activities of the government and is not primarily in the

commercial interest of the requestor.

(f) Factors to be considered by DOT officials authorized to

determine whether a waiver or reduction of fees will be granted

include:

(1) Whether the subject matter of the requested records concerns

the operations or activities of the Federal government;

(2) Whether the disclosure is likely to contribute to an

understanding of Federal government operations or activities;

(3) Whether disclosure of the requested information will contribute

to the understanding of the public at large, as opposed to the

individual understanding of the requestor or a narrow segment of

interested persons;

(4) Whether the contribution to public understanding of Federal

government operations or activities will be significant;

(5) Whether the requestor has a commercial interest that would be

furthered by the requested disclosure; and

(6) Whether the magnitude of any identified commercial interest to

the requestor is sufficiently large in comparison with the public

interest in disclosure that disclosure is primarily in the commercial

interest of the requestor.

(g) Documents will be furnished without charge or at a reduced

charge if the official having initial denial authority determines that

the request concerns records related to the death of an immediate

family member who was, at the time of death, a DOT employee or a member

of the Coast Guard.