Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 81191 

terminate all licenses for full-power 

television stations and broadcasting by 

full power stations in the analog service 

by June 13, 2009. Therefore, the 

Commission no longer has the authority 

to act on rulemaking proposals in the 

full-power analog television service. 

FOR FURTHER INFORMATION CONTACT: 

Joyce L. Bernstein, 

joyce.bernstein@fcc.gov, (202) 418– 

1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Order, 

MB Docket No. 01–323, adopted 

December 14, 2010, and released 

December 15, 2010. The full text of this 

document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street, SW., 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1– 

800–478–3160 or via e-mail http:// 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

information collection burden ‘‘for small 

business concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

This document is not subject to the 

Congressional Review Act. (The 

Commission, is, therefore, not required 

to submit a copy of this Order to the 

Government Accountability Office, 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A) since this 

proposed rule is dismissed, herein.) 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. 2010–32492 Filed 12–23–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 7 

[Docket No. OST–2010–0297] 

RIN 2105–AD99 

Public Availability of Information; 

Freedom of Information Act 

AGENCY: Office of the Secretary (OST), 

Department of Transportation (DOT). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of 

Transportation (DOT) is proposing to 

revise and republish its regulations 

implementing the Freedom of 

Information Act (FOIA). The purposes 

for the revision are to update the 

regulations to be consistent with 

amendments to FOIA that were signed 

into law on December 31, 2007 and 

October 28, 2009, to revise DOT’s fee 

schedule and other charges, and to make 

provisions clearer and easier to locate. 

The regulations are being republished in 

their entirety because of numerous 

changes to the organization and 

headings. 

DATE: Comments are due February 25, 

2011. 

ADDRESSES: You may submit comments, 

identified by the docket number in the 

heading of this document, by any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

M–30, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., West Building, Ground 

Floor, Room W12–140, Washington, DC 

20590. 

• Hand Delivery: 1200 New Jersey 

Avenue SE., West Building, Ground 

Floor, Room W12–140, Washington, DC 

20590, between 9 a.m. and 5 p.m. 

Eastern Time, Monday through Friday, 

except Federal holidays. 

• Fax: 202–493–2251. 

Regardless of how you submit 

comments, you should mention the 

docket number of this document. 

You may call the Docket Management 

Facility at 202–366–9826 for assistance. 

Instructions: For detailed instructions 

on submitting comments and additional 

information on the rulemaking process, 

see the Public Participation heading of 

the SUPPLEMENTARY INFORMATION section 

of this document. Note that all 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Privacy Act: Anyone is able to search 

the electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review the complete User Notice and 

Privacy Notice for Regulations.gov at: 

http://www.regulations.gov/search/ 

Regs/home.html#privacyNotice. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov, or the street 

address listed above. Follow the online 

instructions for accessing the dockets. 

FOR FURTHER INFORMATION CONTACT: Beth 

Kramer, Departmental FOIA Attorney, 

Office of the General Counsel, 

Department of Transportation, 

Washington, DC, at 

beth.kramer@dot.gov or (202) 366–0365, 

or Robert I. Ross, Senior Attorney, 

Office of the General Counsel, 

Department of Transportation, 

Washington, DC, at bob.ross@dot.gov or 

(202) 366–9156. 

SUPPLEMENTARY INFORMATION: These 

regulations implementing the Freedom 

of Information Act (FOIA), 5 U.S.C. 552, 

were last revised on August 17, 1998, to 

reflect changes required by the 

Electronic Freedom of Information Act 

Amendments of 1996 (Pub. L. 104–231); 

on August 26, 2002, to make technical 

corrections to reflect the creation of the 

Transportation Security Administration; 

and on June 12, 2008, to make technical 

corrections to names of DOT 

components and locations and phone 

numbers for DOT’s FOIA Offices and 

Primary Electronic Access Facility. On 

December 31, 2007, the OPEN 

Government Act of 2007 (Pub. L. 110– 

175) was signed into law, amending 

FOIA. On October 28, 2009, FOIA was 

amended by the OPEN FOIA Act of 

2009 (Pub. L. 111–83). 

This revision proposes to update the 

regulations to make them consistent 

with the OPEN Government Act of 2007 

and OPEN FOIA Act of 2009, to revise 

DOT’s fee schedule and other charges, 

and to make provisions clearer and 

easier to locate. New provisions 

implementing the OPEN Government 

Act of 2007 have been included in the 

following sections addressing the 

following subjects: § 7.2 (definitions of 

‘‘record’’ and ‘‘representative of the news 

media’’); § 7.22(a) and (c) (Chief FOIA 

Officer and FOIA Public Liaisons); 

§ 7.24(d) and (e) (receipt of requests); 

§ 7.35 (tolling of time limits); and 

§ 7.43(f) (ability to charge fees when a 


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time limit is missed). One provision has 

been changed in § 7.23(c)(3) to 

implement the OPEN FOIA Act of 2009, 

affecting FOIA Exemption 3. Revisions 

to DOT’s fee schedule and other charges 

can be found at § 7.41(e) (increasing fees 

for certified copies from $4 to $10 with 

seal and from $2 to $5 without seal); 

§ 7.42(a) (splitting one employee rate 

category into two, so that there are now 

four employee rate categories instead of 

three); and § 7.43(a)(1) (increasing the 

threshold for de minimis requests for 

which fees are not charged from $10 to 

$20). No change has been made to the 

$.10 per page fee for photocopies not 

larger than 8.5 x 14 inches (see 

§§ 7.13(b)(1) and 7.42(d)(1)). Other 

provisions have been clarified or 

reorganized; for example, clarifying 

provisions have been added to 

§§ 7.22(d) (delegations of authority) and 

7.26(a) (addressing the search cut-off 

date), and appeal provisions that were 

formerly in a separate subpart are now 

in the subpart entitled ‘‘Time Limits.’’ 

Regulatory Analyses and Notices: 

This proposal is not a ‘‘significant 

regulatory action’’ within the meaning of 

Executive Order 12886. It is also not 

significant within the definition in 

DOT’s Regulatory Policies and 

Procedures, 49 FR 11034 (1979), in part 

because it does not involve any change 

in important Departmental policies. 

Because the economic impact should be 

minimal, further regulatory evaluation 

is not necessary. Moreover, I certify that 

this proposal would not have a 

significant economic impact on a 

substantial number of small entities. 

This proposal would not significantly 

affect the environment, and therefore an 

environmental impact statement is not 

required under the National 

Environmental Policy Act of 1969. This 

proposal 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. 

Collection of Information. This 

proposal contains no collection of 

information requirements under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) 

Unfunded Mandates. Title II of the 

Unfunded Mandates Reform Act of 1995 

(UMRA), (Pub. L. 104–4, 109 Stat. 48), 

requires Federal agencies to assess the 

effects of certain regulatory actions on 

State, local, and tribal Governments, 

and the private sector. UMRA requires 

a written statement of economic and 

regulatory alternatives for proposed and 

final rules that contain Federal 

mandates. A ‘‘Federal mandate’’ is a new 

or additional enforceable duty, imposed 

on any State, local, or tribal 

Government, or the private sector. If any 

Federal mandate causes those entities to 

spend, in aggregate, $100 million or 

more in any one year (adjusted for 

inflation), an UMRA analysis is 

required. This proposal would not 

impose Federal mandates on any State, 

local, or tribal Governments or the 

private sector. 

List of Subjects in 49 CFR Part 7 

Public availability of information. 

In consideration of the foregoing, DOT 

proposes to revise Part 7 of Title 49, 

Code of Federal Regulations, 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 

7.11 What records are published in the 

Federal Register, and how are they 

accessed? 

7.12 What records are available in reading 

rooms, and how are they accessed? 

7.13 How are copies of publicly available 

records obtained? 

7.14 Redaction of information that is 

exempt from disclosure. 

7.15 Protection of records. 

Subpart C—Availability of Reasonably 

Described Records Under the Freedom of 

Information Act 

7.21 What does this subpart cover? 

7.22 Who administers this subpart? 

7.23 What limitations apply to disclosure? 

7.24 What must a FOIA request contain? 

7.25 How does DOT handle first-party 

requests? 

7.26 To what extent and in what format are 

records searched and made available? 

7.27 What are the designated DOT FOIA 

Requester Service Centers? 

7.28 How does DOT handle requests that 

concern more than one Government 

agency? 

7.29 When and how does DOT consult with 

submitters of commercial information? 

Subpart D—Time Limits 

7.31 What time limits apply to DOT with 

respect to initial determinations? 

7.32 What time limits apply to a requester 

when appealing DOT’s initial or final 

determination? 

7.33 What time limits apply to DOT with 

respect to administrative appeals (final 

determinations)? 

7.34 When and how are time limits 

applicable to DOT extended? 

7.35 When and how is the 20-day time limit 

for rendering an initial determination 

tolled? 

Subpart E—Fees 

7.41 When and how are processing fees 

imposed for records that are made 

available under subpart B or processed 

under subpart C? 

7.42 What is DOT’s fee schedule for records 

requested under subpart C? 

7.43 When are fees waived or reduced, for 

records requested under subpart C? 

7.44 How can I pay a processing fee for 

records requested under subpart B or 

subpart C? 

7.45 When are pre-payments required for 

records requested under subpart C, and 

how are they handled? 

7.46 How are late payments handled? 

Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 

49 U.S.C. 322; E.O. 12600; E.O. 13392. 

Subpart A—General Provisions 

§ 7.1 General. 

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

as amended, and prescribes rules 

governing the public availability of 

Department of Transportation (DOT) 

records. 

(b) Subpart B of this part contains the 

DOT regulations concerning the public 

availability of: 

(1) Records that DOT is required to 

publish in the Federal Register 

pursuant to 5 U.S.C. 552(a)(1) (described 

in § 7.11(a)), and indices to such 

records; and 

(2) Records that DOT is required to 

make available to the public in a reading 

room without need for a specific 

request, pursuant to 5 U.S.C. 552(a)(2) 

(described in § 7.12(a)), and indices to 

such records. 

(c) Subpart C of this part contains the 

DOT regulations concerning records that 

may be requested from DOT under the 

Freedom of Information Act (FOIA), 

namely, records that DOT is not 

required to publish in the Federal 

Register or make publicly available in a 

reading room under 5 U.S.C. 

552(a)(2)(A), (B), (C) and (E) and 

frequently requested records even if 

DOT has made them publicly available 

as required under 5 U.S.C. 552(a)(2)(D). 

Because DOT and its components have 

made many of these records available on 

their Web pages (http://www.dot.gov or 

http://www.dot.gov/foia), requesters 

may find it preferable to obtain such 

records directly from the Web pages in 

lieu of submitting a FOIA request, if the 

Web pages contain records that meet 

their needs. 

(d) Subpart D of this part contains the 

DOT regulations concerning time limits 

applicable to processing requests for 

records under subpart C. 

(e) Subpart E of this part contains the 

DOT regulations concerning processing 

fees applicable to records made 

available under subpart B or requested 

under subpart C. 


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§ 7.2 Definitions. 

Unless the context requires otherwise, 

the following definitions apply in this 

part: 

Act and FOIA mean the Freedom of 

Information Act, 5 U.S.C. 552, as 

amended. 

Administrator means the head of each 

component of DOT and includes the 

Inspector General. 

Confidential commercial information 

means trade secrets and confidential, 

privileged, and/or proprietary business 

or financial information submitted to 

DOT by any person. 

Components– see the definition of 

Department in this section. 

Concurrence means that the approval 

of the individual being consulted is 

required in order for the subject action 

to be taken. 

Consultation has its ordinary 

meaning: the approval of the individual 

being consulted is not required in order 

for the subject action to be taken. 

Department (1) Means the Department 

of Transportation, including the Office 

of the Secretary, the Office of Inspector 

General, and the DOT Operating 

Administrations, all of which may be 

referred to as DOT components: 

(i) Federal Aviation Administration, 

(ii) Federal Highway Administration, 

(iii) Federal Motor Carrier Safety 

Administration, 

(iv) Federal Railroad Administration, 

(v) Federal Transit Administration, 

(vi) Maritime Administration, 

(vii) National Highway Traffic Safety 

Administration, 

(viii) Office of Inspector General, 

(ix) Office of the Secretary of 

Transportation, 

(x) Pipeline and Hazardous Materials 

Safety Administration, 

(xi) Research and Innovative 

Technology Administration, and 

(xii) Saint Lawrence Seaway 

Development Corporation. 

(2) Each of these DOT components 

can be contacted through its FOIA 

Requester Service Center(s) as provided 

in § 7.27. This definition specifically 

excludes the Surface Transportation 

Board, which has its own FOIA 

regulations at 49 CFR Part 1001. 

First-party request means a request by 

an individual for records pertaining to 

that individual. 

Hourly rate means the actual hourly 

base pay for a civilian employee. 

Reading room records are those 

records required to be made available to 

the public without a specific request 

under 5 U.S.C. 552(a)(2), as described in 

§ 7.12 of subpart B of this part. DOT and 

its components make their reading room 

records available to the public 

electronically through their FOIA Web 

pages (http://www.dot.gov/foia) and at 

the physical locations identified in 

§ 7.12(b). Other records may also be 

made available at DOT’s discretion 

through DOT Web pages (http:// 

www.dot.gov). 

Record includes any writing, drawing, 

map, recording, diskette, DVD, CD– 

ROM, tape, film, photograph, or other 

documentary material, regardless of 

medium, by which information is 

preserved. The term also includes any 

such documentary material stored 

electronically by computer. 

Redact means delete or mark over. 

Representative of the news media 

means any person or entity that gathers 

information of potential interest to a 

segment of the public, uses its editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. ‘‘News’’ means 

information that is about current events 

or that would be of current interest to 

the public. 

Responsible DOT official means the 

head of the DOT component concerned, 

or the General Counsel or the Inspector 

General, as the case may be, or the 

designee of any of them, authorized to 

take an action under this part. 

Secretary means the Secretary of 

Transportation or any individual to 

whom the Secretary has delegated 

authority in the matter concerned. 

Toll means temporarily stop the 

running of a time limit. 

Subpart B—Information Required To 

Be Made Public by DOT 

§ 7.11 What records are published in the 

Federal Register, and how are they 

accessed? 

(a) General. Pursuant to 5 U.S.C. 

552(a)(1), DOT publishes the following 

records in the Federal Register and 

makes an index of the records publicly 

available. For purposes of this 

paragraph, material that is reasonably 

available to the class of persons affected 

by the material is considered to be 

published in the Federal Register when 

the material is incorporated by reference 

with the approval of the Director of the 

Federal Register. 

(1) Descriptions of DOT’s 

organization, including its components 

and the established places at which, the 

officers from whom, and the methods by 

which, the public may secure 

information and make submittals or 

obtain decisions; 

(2) Statements of the general course 

and methods by which DOT’s functions 

are channeled and determined, 

including the nature and requirements 

of all formal and informal procedures 

available; 

(3) Rules of procedure, descriptions of 

forms available or the places at which 

forms may be obtained, and instructions 

as to the scope and contents of all 

papers, reports, or examinations; 

(4) Substantive rules of general 

applicability adopted as authorized by 

law and statements of general policy or 

interpretations of general applicability 

formulated and adopted by DOT; and 

(5) Each amendment, revision, or 

repeal of any material listed in 

paragraphs (a)(1) through (4) of this 

section. 

(b) Federal Register locations. DOT 

makes its Federal Register publications 

and indices publicly available at the 

physical locations identified in 

§ 7.12(b). The publications and indices 

can be accessed online at http:// 

www.gpoaccess.gov/fr/index.html. 

§ 7.12 What records are available in 

reading rooms, and how are they 

accessed? 

(a) General. Pursuant to 5 U.S.C. 

552(a)(2), unless the following records 

are promptly published and offered for 

sale or published in the Federal 

Register, DOT and its components make 

the following records, and an index to 

the records, available in a reading room, 

including an electronic reading room if 

the records were created by DOT on or 

after November 1, 1996: 

(1) Final opinions, including 

concurring and dissenting opinions, as 

well as orders, made in the adjudication 

of cases. 

(2) Those statements of policy and 

interpretations which have been 

adopted by DOT and are not published 

in the Federal Register. 

(3) Administrative staff manuals and 

instructions to staff that affect a member 

of the public. 

(4) Copies of all records, regardless of 

form or format, that have been released 

to any person under subpart C of this 

part and that, because of the nature of 

their subject matter, DOT determines 

have become or are likely to become the 

subject of subsequent requests for 

substantially the same records. 

(5) A general index of the records 

listed in (a)(4) of this section. 

(b) Reading room locations. DOT 

makes its reading room records and 

indices (in the form of lists or links) 

available at http://www.dot.gov/foia and 

at the following physical locations: 

(1) DOT Dockets Office, 1200 New 

Jersey Avenue, SE., Room W12–140, 

Washington, DC 20590: hours of 

operation: 9 a.m. to 5 p.m. ET, Monday 

through Friday except Federal holidays; 

telephone: (202) 366–9322, (202) 366– 

9826, or (800) 647–5527. DOT provides 

a computer terminal and printer at this 


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location for accessing electronic reading 

room records. 

(2) National Highway Traffic Safety 

Administration (NHTSA) Technical 

Information Services public record unit: 

1200 New Jersey Avenue, SE., Room 

W12–300, Washington, DC 20590; hours 

of operation: 9:30 a.m. to 5 p.m. ET, 

Monday through Friday except Federal 

holidays; telephone (202) 366–2588. 

NHTSA provides a computer terminal 

and printer at this location for accessing 

electronic reading room records. 

(3) Other public record units 

maintained by DOT components (e.g., at 

regional offices): Information 

concerning the availability of a 

computer terminal and printer at such 

units, and the location and hours of 

operation of such units, can be obtained 

through the DOT Dockets Office at (202) 

366–9322, (202) 366–9826, or (800) 647– 

5527. 

§ 7.13 How are copies of publicly available 

records obtained? 

(a) Copies of materials covered by this 

subpart that are published and offered 

for sale: Records that are ordinarily 

made available to the public as a part of 

an information program of the 

Government, such as news releases and 

pamphlets, may be obtained upon 

request by contacting the appropriate 

DOT location identified in § 7.12(b) or 

the sources identified in § 7.41(g), and 

paying the applicable duplication fee or 

purchase price. Whenever practicable, 

DOT also makes the publications 

available at the appropriate physical 

locations identified in § 7.12(b). 

(b) Copies of materials covered by this 

subpart that are not published and 

offered for sale: Such records may be 

ordered, upon payment of the 

appropriate fee (if any fee applies), 

through the applicable FOIA Requester 

Service Center or through the DOT 

Dockets Office identified in § 7.12(b): 

(1) Per copy of each page (not larger 

than 8.5 x 14 inches) reproduced by 

photocopy or similar means—US $0.10. 

(2) Per copy prepared by any other 

method of duplication—actual direct 

cost of production. 

(c) Certified copies. Copies are 

certified upon request by contacting the 

applicable FOIA Requester Service 

Center listed in § 7.27 and paying the 

fee prescribed in § 7.41(e). 

§ 7.14 Redaction of information that is 

exempt from disclosure. 

Whenever DOT determines it to be 

necessary to prevent the disclosure of 

information required or authorized to be 

withheld by FOIA or another Federal 

statute (such as, to prevent a clearly 

unwarranted invasion of personal 

privacy), DOT redacts such information 

from any record covered by this subpart 

that is published or made available. A 

full explanation of the justification for 

the deletion accompanies the record 

published or made available. 

§ 7.15 Protection of records. 

Records made available to the public 

under this subpart may not be removed, 

altered, destroyed, or mutilated (this 

excludes duplicate copies that are 

provided to a member of the public to 

take and keep). 18 U.S.C. 641 provides 

for criminal penalties for embezzlement 

or theft of Government records. 18 

U.S.C. 2071 provides for criminal 

penalties for the willful and unlawful 

concealment, mutilation or destruction 

of, or the attempt to conceal, mutilate, 

or destroy, Government records. 

Subpart C—Availability of Reasonably 

Described Records Under the Freedom 

of Information Act 

§ 7.21 What does this subpart cover? 

(a) Except as otherwise provided in 

paragraph (b) of this section, this 

subpart applies to reasonably described 

records that are made available in 

response to written requests under 

FOIA. 

(b) This subpart does not apply to: 

(1) Records published in the Federal 

Register. 

(2) Records published and offered for 

sale. 

(3) Records (other than frequently 

requested records) made available in a 

reading room. 

(4) Records or information compiled 

for law enforcement purposes and 

covered by the disclosure exemption 

described in § 7.23(c)(7)(A) if— 

(i) The investigation or proceeding 

involves a possible violation of criminal 

law; and 

(ii) There is reason to believe that— 

(A) The subject of the investigation or 

proceeding is not aware of its pendency, 

and 

(B) Disclosure of the existence of the 

records could reasonably be expected to 

interfere with enforcement proceedings. 

(5) Informant records maintained by 

any criminal law enforcement 

component of DOT under an 

informant’s name or personal identifier, 

if requested by a third party according 

to the informant’s name or personal 

identifier, unless the informant’s status 

as an informant has been officially 

confirmed. 

7.22 Who administers this subpart? 

(a) A Chief FOIA Officer is appointed 

by the Secretary to oversee DOT’s 

compliance with the Act pursuant to 5 

U.S.C. 552(k). The DOT official 

designated to serve as Chief FOIA 

Officer is identified at http:// 

www.dot.gov/foia. 

(b) Each DOT FOIA Requester Service 

Center listed in § 7.27 is the initial point 

of contact for providing information 

about its processing of requests. 

(c) One or more Public Liaisons are 

designated by the Chief FOIA Officer for 

each DOT FOIA Requester Service 

Center listed in § 7.27. Public Liaisons 

assist requesters in reducing delays and 

resolving disputes, as described in 5 

U.S.C. 552(k)(6). 

(d) Authority to administer this 

subpart and to issue determinations 

with respect to initial requests and 

appeals of initial denials is delegated as 

follows: 

(1) To the General Counsel for the 

records of the Office of the Secretary 

other than the Office of Inspector 

General, and for the concurrences 

required in paragraph (3)(C). 

(i) The General Counsel may 

redelegate the authority to administer 

this part to other officials in the Office 

of the General Counsel. 

(ii) The General Counsel or the 

General Counsel’s designee may 

designate one or more attorneys on his 

or her staff to provide the concurrences 

required in paragraph (3)(C). 

(2) To the Inspector General for 

records of the Office of Inspector 

General. The Inspector General may 

redelegate the authority to officers of 

that component. 

(3) To the Administrator of each DOT 

component (other than the Inspector 

General) for records of that component. 

(i) Each Administrator may redelegate 

to officers of that component the 

authority to administer this part in 

connection with defined groups of 

records. 

(ii) Each Administrator may 

redelegate the authority to issue final 

determinations of appeals of initial 

denials to the Administrator’s deputy or 

to not more than one other officer who 

reports directly to the Administrator 

and who is located at the headquarters 

of that DOT component. 

(iii) Any such final determination by 

an Administrator or the Administrator’s 

designee (following an appeal of an 

initial denial) is subject to concurrence 

by the General Counsel or the General 

Counsel’s designee, if the final 

determination is not to disclose a record 

or portion of a record under this part, 

or not to grant a request for a fee waiver 

or reduction. 

§ 7.23 What limitations apply to 

disclosure? 

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

records available to the public to the 


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greatest extent possible, in keeping with 

the spirit of FOIA. This includes 

releasing reasonably segregable and 

meaningful nonexempt information in a 

document from which exempt 

information is withheld. 

(b) Statutory disclosure requirement. 

As provided in 5 U.S.C. 552(a)(3)(A), 

DOT makes reasonably described 

records available upon request from a 

member of the public, when the request 

is submitted in accordance with this 

subpart, except to the extent that the 

records contain information exempt 

from FOIA’s mandate of disclosure as 

provided in 5 U.S.C. 552(b). 

(c) Statutory exemptions. Exempted 

from FOIA’s statutory disclosure 

requirement are matters that are: 

(1) Specifically authorized under 

criteria established by Executive Order 

to be kept secret in the interest of 

national defense or foreign policy, and 

in fact properly classified pursuant to 

such Executive Order; 

(2) Related solely to the internal 

personnel rules and practices of an 

agency; 

(3) Specifically exempted from 

disclosure by statute (other than the 

Privacy Act, 5 U.S.C. 552a or the Open 

Meetings Act, 5 U.S.C. 552b, as 

amended), in that the statute: 

(i) Requires that the matters be 

withheld from the public in such a 

manner as to leave no discretion on the 

issue, establishes particular criteria for 

withholding, or refers to particular types 

of matters to be withheld; and 

(ii) If enacted after October 28, 2009, 

specifically cites to Exemption 3 of the 

FOIA (5 U.S.C. 552(b)(3)); 

(4) Trade secrets and commercial or 

financial information obtained from a 

person and privileged or confidential; 

(5) Inter-agency or intra-agency 

memoranda or letters that would not be 

available by law to a party other than an 

agency in litigation with the agency; 

(6) Personnel and medical files and 

similar files the disclosure of which 

would constitute a clearly unwarranted 

invasion of personal privacy; 

(7) Records or information compiled 

for law enforcement purposes, but only 

to the extent that the production of such 

law enforcement records or 

information— 

(i) Could reasonably be expected to 

interfere with enforcement proceedings, 

(ii) Would deprive a person of a right 

to a fair or an impartial adjudication, 

(iii) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy, 

(iv) Could reasonably be expected to 

disclose the identity of a confidential 

source, including a State, local, Tribal, 

or foreign agency or authority or any 

private institution that furnished 

information on a confidential basis, and, 

in the case of a record or information 

compiled by a criminal law enforcement 

authority in the course of a criminal 

investigation or by an agency 

conducting a lawful national security 

intelligence investigation, information 

furnished by a confidential source, 

(v) Would disclose techniques and 

procedures for law enforcement 

investigations or prosecutions or would 

disclose guidelines for law enforcement 

investigations or prosecutions if such 

disclosure could reasonably be expected 

to risk circumvention of the law, or 

(vi) Could reasonably be expected to 

endanger the life or physical safety of 

any individual; 

(8) Contained in or related to 

examination, operating, or condition 

reports prepared by, on behalf of, or for 

the use of an agency responsible for the 

regulation or supervision of financial 

institutions; or 

(9) Geological and geophysical 

information and data, including maps, 

concerning wells. 

(d) Redacted information. DOT 

indicates the amount of information 

redacted from records released under 

the FOIA and the exemption(s) relied 

upon in redacting the information, at 

the place in the record where the 

redaction is made, when technically 

feasible and when doing so does not 

harm an interest protected by the 

exemption concerned. 

(e) Non-confidentiality of requests. 

DOT releases the names of FOIA 

requesters and descriptions of the 

records they have sought, as shown on 

DOT FOIA logs, when the logs are 

requested under FOIA, except to the 

extent that a statutory exemption 

authorizes or requires withholding of 

the log information (for example, if the 

log information identifies a first-party 

requester). 

§ 7.24 What must a FOIA request contain? 

(a) Each person desiring access to or 

a copy of a record covered by this 

subpart must make a written request 

(via paper, facsimile or electronic mail) 

for the record. The request should— 

(1) Indicate that it is being made 

under FOIA. 

(2) Display the word ‘‘FOIA’’ 

prominently on the envelope or on the 

subject line of the e-mail or facsimile. 

(3) Be addressed to the appropriate 

FOIA Requester Service Center as set 

forth in § 7.27. 

(4) State the format (e.g., paper, 

microfiche, computer diskette) in which 

the information is sought, if the 

requester has a preference (see 

§ 7.26(c)). 

(5) Describe the record or records 

sought to the fullest extent possible. In 

this regard, the request should describe 

the subject matter of the record and, if 

known, indicate the date when it was 

made, the place where it was made, and 

the individual or office that made it. If 

the description does not enable the 

office handling the request to identify or 

locate the record sought, that office will 

contact the requester for additional 

information. So that the office may 

contact the requester for additional 

information, the request should provide 

the requester’s complete contact 

information, including name, address, 

telephone number, and e-mail address, 

if any. 

(b) With respect to fees, the request 

must— 

(1) Specify the fee category 

(commercial use, news media, 

educational institution, noncommercial 

scientific institution, or other; see 

§ 7.42(g)) in which the requester claims 

the request to fall and the basis of this 

claim (see subpart E of this part for fees 

and fee waiver requirements). 

(2) Support any request for fee waiver 

by addressing, to the fullest extent 

possible, how the criteria set out in 

§ 7.43(c) for establishing that the request 

is in the public interest have been met, 

if relevant. 

(3) State the maximum amount of fees 

that the requester is willing to pay 

and/or include a request for a fee waiver 

or reduction (if a maximum amount is 

not stated by the requester, DOT will 

assume the requester is willing to pay 

up to US $25). 

(c) If the requester seeks expedited 

processing at the time of the initial 

request, the request must include a 

statement supporting expedited 

processing, as set forth in § 7.31(c). 

(d) A request is not considered to be 

a FOIA request if the record or records 

sought are insufficiently described such 

that DOT is unable to respond as 

required by FOIA. The twenty Federal 

working day limit for responding to 

requests, described in § 7.31(a)(2), will 

not start to run until the request is 

determined by DOT to be sufficiently 

understood to enable DOT to respond as 

contemplated under FOIA (or would 

have been so determined with the 

exercise of due diligence by an 

employee of DOT) and is considered 

received (see paragraph (e)). 

(e) Provided the request is considered 

to be a FOIA request (see paragraph (d)), 

the request is considered received when 

it is first received by the FOIA office to 

which it should have been originally 

sent, as shown in § 7.27, but in any 

event not later than ten Federal working 

days after it is first received by any DOT 


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FOIA Requester Service Center 

identified in § 7.27. 

(f) As provided in § 7.35, DOT’s time 

limit for responding to a FOIA request 

as set forth in subpart D may be tolled 

one time to seek additional information 

needed to clarify the request and as 

often as necessary to clarify fee issues 

with the requester. 

§ 7.25 How does DOT handle first-party 

requests? 

(a) DOT processes FOIA requests from 

first-party requesters in accordance with 

this regulation. DOT also processes such 

requests in accordance with the Privacy 

Act (5 U.S.C. 552a) if the records reside 

in a Privacy Act system of records 

(defined in 5 U.S.C. 552a(a)(5) as a 

system from which information is 

retrieved by the individual’s name or 

some other personal identifier). 

Whichever statute provides greater 

access is controlling. 

(b) The identity of a first-party 

requester must be established to DOT’s 

satisfaction before DOT will process the 

request. Acceptable methods of 

authenticating the requester’s identity 

include those outlined in DOT’s Privacy 

Act regulations at 49 CFR 10.37. 

Additional requirements may be 

imposed for systems of records 

containing particularly sensitive 

records. At a minimum, the requester’s 

signature on the request letter must 

either be witnessed by a notary or 

include the date and the following 

statement immediately above the 

requester’s signature: ‘‘I declare under 

penalty of perjury that the foregoing is 

true and correct.’’ 

§ 7.26 To what extent and in what format 

are records searched and made available? 

(a) Existing records. A request may 

seek only records that are in existence 

at the time of the request. In 

determining which records are 

responsive to a request, DOT ordinarily 

will include only records in its 

possession as of the date it begins its 

search for them. If any other date is 

used, DOT shall inform the requester of 

that date. DOT considers records created 

after the beginning of the search to be 

non-responsive to a request. A request 

made under this subpart may not 

require that new records be created in 

response to the request by, for example, 

combining or compiling selected items 

from manual files, preparing a new 

computer program, or calculating 

proportions, percentages, frequency 

distributions, trends, or comparisons. 

DOT may, in its discretion, create a new 

record as an alternative to disclosing 

existing records, if DOT determines that 

creating a new record will be less 

burdensome than disclosing large 

volumes of unassembled material and if 

the requester consents to accept the 

newly-created record in lieu of the 

existing records. 

(b) Electronic records. DOT makes a 

reasonable effort to search electronic 

records in the manner in which they are 

designed to be searched (i.e., to the 

extent that they are electronically 

searchable without reprogramming and 

without significantly interfering with 

the operation of the affected information 

system). 

(c) Format of production. DOT 

provides records in the form or format 

sought by the requester, if the records 

are readily reproducible in that form or 

format. 

(d) Photocopying of records. Original 

records ordinarily are copied except 

where, in DOT’s judgment, copying 

would endanger the quality of the 

original or raise the reasonable 

possibility of irreparable harm to the 

record. Original records are not released 

from DOT custody. DOT may make 

records requested under this subpart 

available for inspection and copying 

during regular business hours at the 

place where the records are located. 

(e) If no responsive record is located. 

If DOT cannot locate a requested record 

in agency files after a reasonable search 

(e.g., because the record was never 

created or was disposed of), DOT so 

notifies the requester. 

§ 7.27 What are the designated DOT FOIA 

Requester Service Centers? 

(a) A request for a record under this 

subpart may be submitted via paper, 

facsimile, or electronic mail to the FOIA 

Requester Service Center designated for 

the DOT component where the records 

are located, as indicated below (unless 

a more up-to-date address has been 

designated at http://www.dot.gov/foia): 

(1) FOIA Requester Service Centers at 

1200 New Jersey Avenue, SE., 

Washington, DC 20590: 

(i) FOIA Requester Service Center at 

Federal Highway Administration, Room 

E64–302 (unless a more specific address 

has been designated by FHWA at 

http://www.fhwa.dot.gov/foia). 

(ii) FOIA Requester Service Center at 

Federal Motor Carrier Safety 

Administration, Room W66–458. 

(iii) FOIA Requester Service Center at 

Federal Railroad Administration, Room 

W33–437. 

(iv) FOIA Requester Service Center at 

Federal Transit Administration, Room 

E42–315. 

(v) FOIA Requester Service Center at 

Maritime Administration, Room W24– 

233. 

(vi) FOIA Requester Service Center at 

National Highway Traffic Safety 

Administration, Room W41–311. 

(vii) FOIA Requester Service Center at 

Office of the Secretary of 

Transportation, Room W94–122. 

(viii) FOIA Requester Service Center 

at Office of Inspector General, Room 

W73–407. 

(ix) FOIA Requester Service Center at 

Pipeline and Hazardous Materials Safety 

Administration, Room E26–109. 

(x) FOIA Requester Service Center at 

Research and Innovative Technology 

Administration, Room E35–330. 

(2) FOIA Requester Service Center at 

Federal Aviation Administration, 800 

Independence Avenue, SW., Room 306, 

Washington, DC 20591 (unless a more 

specific address has been designated by 

FAA at http://www.faa.dot.gov/foia). 

(3) FOIA Requester Service Center at 

Associate Administrator’s Office, Saint 

Lawrence Seaway Development 

Corporation, 180 Andrews Street, P.O. 

Box 520, Massena, New York 13662– 

0520. 

(b) If the person making the request 

does not know where in DOT the 

records are located, the person may 

submit the request to the FOIA 

Requester Service Center at Office of the 

Secretary of Transportation, 1200 New 

Jersey Avenue, SE., Room W94–122, 

Washington, DC 20590 (voice: 202–366– 

4542; facsimile: 202–366–8536). 

(c) 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 (http://www.dot.gov) and 

clicking on the Freedom of Information 

Act link (http://www.dot.gov/foia). 

§ 7.28 How does DOT handle requests that 

concern more than one Government 

agency? 

(a) If the release of a DOT-created 

record covered by this subpart would be 

of concern to DOT and one or more 

other Federal agencies, the 

determination as to release is made by 

DOT, but only after consultation with 

the other concerned agency. 

(b) If the release of a DOT-created 

record covered by this subpart would be 

of concern to DOT and a State, local, or 

Tribal Government, a territory or 

possession of the United States, or a 

foreign Government, the determination 

as to release is made by DOT, but only 

after consultation with the other 

concerned Governmental jurisdiction. 

(c) DOT refers a request for a nonDOT-created record covered by this 

subpart (or the relevant portion thereof) 

for decision by the Federal agency that 

is best able to determine the record’s 

exemption status (usually, this is the 


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agency that originated the record), but 

only if that agency is subject to FOIA. 

DOT makes such referrals expeditiously 

and notifies the requester in writing that 

a referral has been made. DOT informs 

the requester that the Federal agency to 

which DOT referred the request will 

respond to the request, unless DOT is 

precluded from attributing the record in 

question to that agency. 

§ 7.29 When and how does DOT consult 

with submitters of commercial information? 

(a) If DOT receives a request for 

information that has been designated by 

the submitter of the information as 

confidential commercial information, or 

that DOT has some other reason to 

believe may contain information of that 

type (see § 7.23(c)(4)), DOT notifies the 

submitter expeditiously and asks the 

submitter to submit any written 

objections to release (unless paragraphs 

(c) and (d) of this section apply). At the 

same time, DOT notifies the requester 

that notice and an opportunity to 

comment are being provided to the 

submitter. To the extent permitted by 

law, DOT affords the submitter a 

reasonable period of time to provide a 

detailed statement of any such 

objections. The submitter’s statement 

must specify all grounds for 

withholding any of the information. The 

burden is on the submitter to identify 

with specificity all information for 

which exempt treatment is sought and 

to persuade the agency that the 

information should not be disclosed. 

(b) The responsible DOT component, 

to the extent permitted by law, 

considers carefully a submitter’s 

objections and specific grounds for 

nondisclosure prior to determining 

whether to disclose commercial 

information. Whenever DOT decides to 

disclose such information over the 

objection of a submitter, the office 

responsible for the decision provides 

the submitter with a written notice of 

intent to disclose, which is sent to the 

submitter a reasonable number of days 

prior to the specified date upon which 

disclosure is intended. The written 

notice to the submitter includes: 

(1) A statement of the reasons for 

which the submitter’s disclosure 

objections were not accepted; 

(2) A description of the commercial 

information to be disclosed; and 

(3) A specific disclosure date. 

(c) The notice requirements of this 

section do not apply if: 

(1) The information lawfully has been 

published or otherwise made available 

to the public; or 

(2) Disclosure of the information is 

required by law (other than 5 U.S.C. 

552). 

(d) The procedures established in this 

section do not apply in the case of: 

(1) 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 12 of the Rules of 

Practice in Aviation Economic 

Proceedings (14 CFR 302.12). 

(e) Whenever a requester brings suit 

seeking to compel disclosure of 

confidential commercial information, 

the responsible DOT component 

promptly notifies the submitter. The 

submitter may be joined as a necessary 

party in any suit brought against DOT or 

a DOT component for nondisclosure. 

Subpart D—Time Limits 

§ 7.31 What time limits apply to DOT with 

respect to initial determinations? 

(a) In general. (1) DOT ordinarily 

responds to requests according to their 

order of receipt. 

(2) DOT makes an initial 

determination whether to release a 

record requested pursuant to subpart C 

of this part within twenty Federal 

working days after the request is 

received by the appropriate FOIA 

Requester Service Center designated in 

§ 7.27, except that DOT may extend this 

time limit by up to ten Federal working 

days, or longer, in accordance with 

§ 7.34. In addition, DOT may toll this 

time limit one time to seek additional 

information needed to clarify the 

request and as often as necessary to 

clarify fee issues with the requester (see 

§ 7.35). 

(3) DOT notifies the requester of 

DOT’s initial determination. If DOT 

decides to grant the request in full or in 

part, DOT makes the record (or the 

granted part) available as promptly as 

possible. If DOT denies the request in 

full or in part, because the record (or the 

denied part) is subject to an exemption, 

not within DOT’s custody and control, 

or was not located following a 

reasonable search, DOT notifies the 

requester of the denial in writing and 

includes in the notice the reason for the 

determination, the right of the requester 

to appeal the determination, and the 

name and title of each individual 

responsible for the initial determination 

to deny the request. The denial letter 

includes an estimate of the volume of 

records or information withheld, in 

number of pages or other reasonable 

form of estimation. This estimate does 

not need to be provided if the volume 

is otherwise indicated through deletions 

on records disclosed in part, or if 

providing an estimate would harm an 

interest protected by an applicable 

exemption. DOT marks or annotates 

records disclosed in part to show both 

the amount and location of the 

information deleted whenever 

practicable (see § 7.23(d)). 

(b) Multi-track processing of initial 

requests. (1) A DOT component may use 

two or more processing tracks by 

distinguishing between simple and 

more complex requests based on the 

amount of work and/or time needed to 

process the request, or based on the 

number of pages involved. 

(2) A DOT component using 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). In that 

event, the component contacts the 

requester either by telephone, letter, 

facsimile, or electronic mail, whichever 

is most efficient in each case. 

(c) Expedited processing of initial 

requests. (1) Requests are processed out 

of order and given expedited treatment 

whenever a compelling need is 

demonstrated and DOT determines that 

the compelling need involves: 

(i) Circumstances in which the lack of 

expedited treatment could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; or 

(ii) A request made by a person 

primarily engaged in disseminating 

information, with a time urgency to 

inform the public of actual or alleged 

Federal Government activity. 

(2) A request for expedited processing 

may be made at the time of the initial 

request for records or at any later time. 

For a prompt determination, the request 

for expedited processing must be 

received by the FOIA office for the 

component that maintains the records 

requested, as identified in § 7.27. 

(3) A requester who seeks expedited 

processing must submit a statement, 

certified to be true and correct to the 

best of that individual’s knowledge and 

belief, explaining in detail the basis for 

requesting expedited processing. A 

requester within the category in 

paragraph (c)(1)(ii) of this section must 

establish a particular urgency to inform 

the public about the Government 

activity involved in the request, beyond 

the public’s right to know about 

Government activity generally. 

(4) Within ten calendar days of receipt 

of a request for expedited processing, 

the proper component decides whether 

to grant it and notifies the requester of 

the decision. If DOT grants a request for 

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priority and is processed as soon as 

practicable. If DOT denies a request for 

expedited processing, any appeal of that 

decision is acted on expeditiously. 

§ 7.32 What time limits apply to a 

requester when appealing DOT’s initial or 

final determination? 

(a) Denial of records request. When 

the responsible DOT official determines 

that a record request will be denied in 

whole or in part, because the record is 

subject to an exemption, not in DOT’s 

custody and control, or was not located 

following a reasonable search, DOT 

provides the requester with a written 

statement of the reasons for that 

determination, as described in 

§ 7.31(a)(3), and of the right to appeal 

the determination within DOT. 

(b) Denial of fee waiver. When the 

responsible DOT official denies, in 

whole or in part, a request for a waiver 

of fees made pursuant to § 7.24(b) or 

§ 7.43(c), DOT provides the requester 

with written notification of that 

determination and of the right to appeal 

the determination within DOT. 

(c) Denial of expedited processing. 

When the responsible DOT official 

denies a request for expedited 

processing made pursuant to § 7.31(c), 

DOT provides the requester with written 

notice of that determination and of the 

right to appeal the determination within 

DOT. 

(d) Right to administrative appeal. 

Any requester to whom a record has not 

been made available within the time 

limits established by § 7.31 and any 

requester who has been provided a 

written determination pursuant to 

paragraphs (a), (b), or (c) of this section 

may appeal to the responsible DOT 

official. 

(1) Each appeal must be made in 

writing within thirty calendar days from 

the date the initial determination is 

signed and should include the DOT file 

or reference number assigned to the 

request and all information and 

arguments relied upon by the person 

making the request. Appeals must be 

submitted via conventional mail or 

facsimile, not via electronic mail. The 

envelope in which a mailed appeal is 

sent or the subject line of an appeal sent 

via facsimile should be prominently 

marked: ‘‘FOIA Appeal.’’ The twenty 

Federal working day limit described in 

§ 7.33(a) will not begin to run until the 

appeal has been identified as an appeal 

under FOIA, or would have been so 

identified with the exercise of due 

diligence, by a DOT employee, and has 

been received by the appropriate office. 

(2) Whenever the responsible DOT 

official determines it is necessary, the 

official may require the requester to 

furnish additional information, or proof 

of factual allegations, and may order 

other proceedings appropriate in the 

circumstances. DOT’s time limit for 

responding to an appeal may be 

extended as provided in § 7.34. The 

decision of the responsible DOT official 

as to the availability of the record, the 

appropriateness of a fee waiver or 

reduction, or the appropriateness of 

expedited processing, constitutes final 

agency action for the purpose of judicial 

review. 

(3) The decision of the responsible 

DOT official to deny a record request, to 

deny a request for a fee waiver or 

reduction, or to deny a request for 

expedited processing is considered to be 

a denial by the Secretary for the purpose 

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

(4) When the responsible DOT official 

denies an appeal, the requester is 

informed in writing of the reasons for 

the denial of the request and the names 

and titles or positions of each person 

responsible for the determination, and 

that judicial review of the determination 

is available in the United States District 

Court for the judicial district in which 

the requester resides or has his or her 

principal place of business, the judicial 

district in which the requested records 

are located, or the District of Columbia. 

(e) Right to judicial review. Any 

requester who has not received an 

initial determination on his or her 

request within the time limits 

established by § 7.31 can seek 

immediate judicial review, which may 

be sought without the need to first 

submit an administrative appeal. Any 

requester who has received a written 

determination denying his or her 

administrative appeal or who has not 

received a written determination of his 

or her administrative appeal within the 

time limits established by § 7.33 can 

seek judicial review. A determination 

that a record request is denied, that a 

request for a fee waiver or reduction is 

denied, and/or that a request for 

expedited processing is denied does not 

constitute final agency action for the 

purpose of judicial review unless it is 

made by the responsible DOT official. 

Judicial review may be sought in the 

United States District Court for the 

judicial district in which the requester 

resides or has his or her principal place 

of business, the judicial district in 

which the requested records are located, 

or the District of Columbia. 

§ 7.33 What time limits apply to DOT with 

respect to administrative appeals (final 

determinations)? 

(a) In general. (1) FOIA offices 

ordinarily process appeals according to 

their order of receipt. 

(2) DOT issues a determination with 

respect to any appeal made pursuant to 

§ 7.32(d) within twenty Federal working 

days after receipt of such appeal, except 

that in unusual circumstances DOT may 

extend this time limit by up to ten 

Federal working days in accordance 

with § 7.34(a) or for more than ten 

Federal working days in accordance 

with § 7.34(b) (but only if DOT did not 

extend the time limit for its initial 

response based on unusual 

circumstances). DOT notifies the 

requester making the appeal 

immediately, in writing, if the agency 

takes an extension of time. DOT may 

inform the requester making the appeal, 

at any time, of exceptional 

circumstances delaying the processing 

of the appeal (see § 7.34(c)). 

(b) Multi-track processing of appeals. 

(1) A DOT component may use two or 

more processing tracks by 

distinguishing between simple and 

more complex appeals based on the 

amount of work and/or time needed to 

process the appeal, or based on the 

amount of information involved. 

(2) A DOT component using multitrack processing may provide persons 

making appeals in its slower track(s) 

with an opportunity to limit the scope 

of their appeals in order to qualify for 

faster processing within the specified 

limits of the component’s faster track(s). 

A component doing so will contact the 

person making the appeal either by 

telephone, letter, facsimile, or electronic 

mail, whichever is most efficient in each 

case. 

(c) Expedited processing of appeals. 

(1) An appeal is processed out of order 

and given expedited treatment 

whenever a compelling need is 

demonstrated and DOT determines that 

the compelling need involves: 

(i) Circumstances in which the lack of 

expedited treatment could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; or 

(ii) A request made by a person 

primarily engaged in disseminating 

information, with a time urgency to 

inform the public of actual or alleged 

Federal Government activity. 

(2) A request for expedited processing 

may be made at the time of the appeal 

or at a later time. For a prompt 

determination, a request for expedited 

processing must be received by the 

component that is processing the appeal 

for the records requested. 

(3) A requester who seeks expedited 

processing must submit a statement, 

certified to be true and correct to the 

best of that individual’s knowledge and 

belief, explaining in detail the basis for 

requesting expedited processing. A 


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requester within the category in 

paragraph (c)(1)(ii) of this section must 

establish a particular time urgency to 

inform the public about the Government 

activity involved in the request, beyond 

the public’s right to know about 

Government activity generally. A person 

granted expedited processing under 

§ 7.31(c) need merely certify that the 

same circumstances apply. 

(4) Within ten calendar days of receipt 

of a request for expedited processing, 

the proper component will decide 

whether to grant it and will notify the 

requester of the decision. If a request for 

expedited treatment is granted, the 

appeal will be given priority and will be 

processed as soon as practicable. If a 

request for expedited processing of an 

appeal is denied, no further 

administrative recourse is available. 

§ 7.34 When and how are time limits 

applicable to DOT extended? 

(a) In unusual circumstances as 

specified in this section, DOT may 

extend the time limits prescribed in 

§§ 7.31 and 7.33 by written notice to the 

person making the request or appeal, 

setting forth the reasons for the 

extension and the date on which a 

determination is expected to be issued. 

Such notice may not specify a date that 

would result in a cumulative extension 

of more than ten Federal working days 

without providing the requester an 

opportunity to modify the request as 

noted in this section. As used in this 

paragraph, ‘‘unusual circumstances’’ 

means, but only to the extent reasonably 

necessary to the proper processing of 

the particular request: 

(1) The need to search for and collect 

the requested records from field 

facilities or other establishments that are 

separate from the office processing the 

request; 

(2) The need to search for, collect, and 

appropriately examine a voluminous 

amount of separate and distinct records 

that are demanded in a single request; 

and/or 

(3) The need for consultation, which 

will be conducted with all practicable 

speed, with any other agency having a 

substantial interest in the determination 

of the request or among two or more 

DOT components having substantial 

interest therein. 

(b) When the extension is for more 

than ten Federal working days, the 

written notice provides the requester 

with an opportunity to either modify the 

request (e.g., by narrowing the record 

types or date ranges) so that it may be 

processed within the extended time 

limit, or arrange an alternative time 

period with the DOT component for 

processing the request (e.g., by 

prioritizing portions of the request). 

(c) The DOT component may inform 

the requester, at any time, of exceptional 

circumstances that apply to the 

processing of the request or appeal (i.e., 

if the component is reducing a backlog 

of requests or appeals in addition to 

processing current requests, or is 

experiencing an unexpected deluge of 

requests or appeals), as provided in 5 

U.S.C. 552(a)(6)(C). 

(d) When a DOT component 

reasonably believes that multiple 

requests submitted by a requester, or by 

a group of requesters acting in concert, 

constitute a single request that would 

otherwise involve unusual 

circumstances, and the requests involve 

clearly related matters, DOT may 

aggregate the requests for the purposes 

of fees and processing activities, which 

may result in an extension of the 

processing time. Multiple requests 

involving unrelated matters are not 

aggregated. 

§ 7.35 When and how is the 20-day time 

limit for rendering an initial determination 

tolled? 

The twenty Federal working day time 

period in which to render an initial 

determination will proceed without 

interruption except as provided in the 

following: 

(a) DOT may toll the initial twenty 

Federal working day time period one 

time for the purpose of seeking 

additional information needed to clarify 

the request. Examples of such instances 

include but are not limited to: 

(1) When clarification is needed with 

regard to the scope of a request; or 

(2) When the description of the 

record(s) being sought does not enable 

the component handling the request to 

identify or locate the record(s). 

(b) DOT may toll the initial twenty 

Federal working day time period as 

often as necessary to clarify fee issues 

with the requester. Examples of such 

instances include but are not limited to: 

(1) When the requester has not 

sufficiently identified the fee category 

applicable to the request; or 

(2) When the requester has not stated 

a willingness to pay fees as high as 

anticipated by DOT; or 

(3) When a fee waiver request is 

denied and the requester has not 

included an alternative statement of 

willingness to pay fees as high as 

anticipated by DOT. 

Subpart E—Fees 

§ 7.41 When and how are processing fees 

imposed for records that are made available 

under subpart B or processed under 

subpart C? 

(a) DOT imposes fees for services that 

DOT performs for the public under 

subparts B and C of this part. Fees apply 

to all required and special services 

performed by DOT employees, 

including employees of nonappropriated fund activities, and 

contractors, if utilized. 

(b) DOT may assess a fee for time 

spent searching for records requested 

under subpart C even if the search fails 

to locate records or the records located 

are determined to be exempt from 

disclosure. In addition, if records are 

requested for commercial use, DOT may 

assess a fee for time spent reviewing any 

responsive records located to determine 

whether they are exempt from 

disclosure. 

(c) When a request is made under 

subpart C by a first-party requester and 

DOT processes the request under both 

FOIA and the Privacy Act, DOT 

determines the fees for records in DOT 

Privacy Act systems of record in 

accordance with the Privacy Act (as 

implemented by DOT regulations at 49 

CFR part 10) rather than the FOIA. 

(d) When DOT aggregates requests 

made under subpart C (see § 7.34(d)), 

DOT apportions fees as set forth in 

§ 7.43(b). 

(e) As a special service, DOT may 

certify copies of records made available 

under subpart B or released under 

subpart C, upon request and payment of 

the applicable fee: with the DOT seal 

(where authorized)—US $10; or true 

copy, without seal—US $5. Certified 

copies can be requested by contacting 

the applicable FOIA Requester Service 

Center (see § 7.27) or the DOT Dockets 

Office identified in § 7.12(b)(1). 

(f) DOT makes transcripts of hearings 

or oral arguments available for 

inspection only. If transcripts are 

prepared by a nongovernmental 

contractor and the contract permits DOT 

to handle the reproduction of further 

copies, DOT assesses duplication fees as 

set forth in § 7.42(d). If the contract for 

transcription services reserves the sales 

privilege to the reporting service, any 

duplicate copies must be purchased 

directly from the reporting service. 

(g) In the interest of making 

documents of general interest publicly 

available at as low a cost as possible, 

DOT arranges alternative sources 

whenever possible. In appropriate 

instances, material that is published and 

offered for sale may be purchased from 

the Superintendent of Documents, U.S. 


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81200 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 

Government Printing Office, 

Washington, DC 20402–0001; U.S. 

Department of Commerce’s National 

Technical Information Service (NTIS), 

Springfield, Virginia 22151; or National 

Audio-Visual Center, National Archives 

and Records Administration, Capital 

Heights, MD 20743–3701. 

§ 7.42 What is DOT’s fee schedule for 

records requested under subpart C? 

(a) DOT calculates the hourly rates for 

manual searching, computer operator/ 

programmer time, and time spent 

reviewing records, when performed by 

employees, based on the grades and 

rates in the Washington-Baltimore 

Federal White-Collar Pay Schedule or 

equivalent grades, plus 16% to cover 

fringe benefits, as follows: 

(1) GS–1 through GS–8 (or 

equivalent)—Hourly rate of GS–5 step 7 

plus 16%. 

(2) GS–9 through GS–12 (or 

equivalent)—Hourly rate of GS–10 step 

7 plus 16%. 

(3) GS–13 through GS–14 (or 

equivalent)—Hourly rate of GS–13 step 

7 plus 16%. 

(4) GS–15 and above (or equivalent)— 

Hourly rate of GS–15 step 7 plus 16%. 

(b) DOT determines the standard fee 

for a manual or electronic search to 

locate records by multiplying the 

searcher’s hourly rate as calculated from 

the chart in paragraph (a) of this section 

by the time spent conducting the search. 

(c) DOT’s standard fee for review of 

records is the reviewer’s rate as 

calculated from the chart in paragraph 

(a) of this section, multiplied by the 

time the reviewer spent determining 

whether the located records are 

responsive to the request and whether 

the responsive records or segregable 

portions are exempt from disclosure, as 

explained in paragraphs (h), (i), and (j) 

of this section. 

(d) DOT determines the standard fee 

for duplication of records as follows: 

(1) Per copy of each page (not larger 

than 8.5 x 14 inches) reproduced by 

photocopy or similar means (includes 

costs of personnel and equipment)—US 

$0.10. 

(2) Per copy prepared by any other 

method of duplication—actual direct 

cost of production. 

(e) If DOT utilizes a contractor to 

perform any services described in this 

section, the standard fee is based on the 

equivalent hourly rate(s). DOT does not 

utilize contractors to discharge 

responsibilities that only DOT may 

discharge under the FOIA. 

(f) In some cases, depending upon the 

category of requester and the use for 

which the records are requested, the 

fees computed in accordance with the 

standard fee schedule in paragraphs (a) 

through (e) of this section are either 

reduced or not charged, as prescribed by 

other provisions of this subpart. 

(g) For purposes of fees only, there are 

four categories of FOIA requests: 

(1) Requests submitted by a 

commercial entity and/or for a 

commercial use; 

(2) Requests submitted by an 

educational or noncommercial scientific 

institution whose purpose is scholarly 

or scientific research (and not for a 

commercial use); 

(3) Requests submitted by a 

representative of the news media; and 

(4) All other requests. 

(h) When records are requested by a 

commercial requester and/or for a 

commercial use, the fees assessed are 

reasonable standard charges for 

document search, duplication, and 

review. 

(i) When records are requested by an 

educational or noncommercial scientific 

institution whose purpose is scholarly 

or scientific research or by a 

representative of the news media (i.e., 

for a non-commercial use), fees are 

limited to reasonable standard charges 

for document duplication. 

(j) For any request not described in 

paragraph (h) or (i) of this section, fees 

are limited to reasonable standard 

charges for document search and 

duplication. 

(k) Fees under this subpart do not 

apply to any special study, special 

statistical compilation, table, or other 

record requested under 49 U.S.C. 329(c). 

The fee for the performance of such a 

service is the actual cost of the work 

involved in compiling the record. All 

such fees received by DOT in payment 

of the cost of such work are deposited 

in a separate account administered 

under the direction of the Secretary, and 

may be used for the ordinary expenses 

incidental to providing the information. 

§ 7.43 When are fees waived or reduced, 

for records requested under subpart C? 

(a) DOT does not charge fees to any 

requester making a request under 

subpart C of this part for the following 

services: 

(1) Services for which the total 

amount of fees that could be charged for 

the particular request (or aggregation of 

requests) is less than US $20, after 

taking into account all services that 

must be provided free of charge or at a 

reduced charge. 

(2) The first two hours of search time, 

unless the records are requested for 

commercial use. 

(3) Duplication of the first 100 pages 

(standard paper, not larger than 8.5 x 14 

inches) of records, unless the records 

are requested for commercial use. 

(4) Review time spent determining 

whether a record is exempt from 

disclosure, unless the record is 

requested for commercial use. (DOT 

does not charge for review time except 

with respect to an initial review to 

determine the applicability of a 

particular exemption to a particular 

record or portion of a record. DOT does 

not charge for review at the 

administrative appeal level. However, 

when records or portions of records 

withheld under an exemption that is 

subsequently determined not to apply 

are reviewed again to determine the 

applicability of other exemptions not 

previously considered, this is 

considered an initial review for 

purposes of assessing a review charge.) 

(b) When DOT aggregates requests as 

provided in § 7.34(d), DOT charges each 

requester a ratable portion of the fees 

charged for combined services rendered 

on behalf of all requesters. 

(c) DOT waives or reduces the fees 

described in § 7.42(i) and (j) when the 

requester makes a fee waiver or 

reduction request as provided in 

§ 7.24(b) and establishes that disclosure 

of the information is in the public 

interest as provided in 5 U.S.C. 552 and 

this paragraph, and the DOT official 

having initial denial authority 

determines that disclosure of the 

information is in the public interest and 

is not primarily in the commercial 

interest of the requester. The requester 

must establish all of the following 

factors to DOT’s satisfaction to show 

that the request is in the public interest: 

(1) That the subject matter of the 

requested records concerns the 

operations or activities of the Federal 

Government. 

(2) That the disclosure is likely to 

contribute to an understanding of 

Federal Government operations or 

activities. 

(3) That disclosure of the requested 

information will contribute to the 

understanding of the public at large, as 

opposed to the understanding of the 

individual requester or a narrow 

segment of interested persons (to 

establish this factor, the requester must 

show an intent and ability to 

disseminate the requested information 

to a reasonably broad audience of 

persons interested in the subject; for 

example, merely maintaining a Web site 

is insufficient to establish this factor). 

(4) That the contribution to public 

understanding of Federal Government 

operations or activities will be 

significant. 

(5) That the requester does not have 

a commercial interest that would be 

furthered by the requested disclosure or 

that the magnitude of any identified 


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Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 81201 

commercial interest to the requester is 

not sufficiently large in comparison 

with the public interest in disclosure to 

render the disclosure one that is 

primarily in the commercial interest of 

the requester. 

(d) DOT furnishes documents without 

charge or at a reduced charge when the 

official having initial denial authority 

determines that the request concerns 

records related to the death of an 

immediate family member who was, at 

the time of death, a DOT employee. 

(e) DOT furnishes documents without 

charge or at a reduced charge if the 

official having initial denial authority 

determines that the request is by the 

victim of a crime who seeks the record 

of the trial at which the requester 

testified. 

(f) DOT does not assess the following 

fees when DOT fails to comply with the 

time limits under §§ 7.31 or 7.33 and no 

unusual or exceptional circumstances 

(see § 7.34(a) and (c)) apply to the 

processing of the request or appeal: 

(1) Search fees otherwise chargeable 

under § 7.42(h) and (j); and 

(2) Duplication fees otherwise 

chargeable under § 7.42(i). 

§ 7.44 How can I pay a processing fee for 

records requested under subpart B or 

subpart C? 

(a) Fees should be paid online, using 

a credit card, debit card, or electronic 

check. The DOT FOIA page (http:// 

www.dot.gov/foia) has direct links to the 

electronic payment site. Any fees paid 

with a paper check, draft, or money 

order must be made payable to the U.S. 

Treasury and delivered as directed by 

the applicable FOIA Requester Service 

Center identified in § 7.27 (if the fees are 

for records made available under 

subpart C) or the DOT Dockets Office 

identified in § 7.12(b)(1) (if the fees are 

for records made available under 

subpart B). 

§ 7.45 When are pre-payments required for 

records requested under subpart C, and 

how are they handled? 

(a) When DOT estimates that the 

search charges, review charges, 

duplication fees, or any combination of 

fees that could be charged to the 

requester will likely exceed US $25, 

DOT notifies the requester of the 

estimated amount of the fees, unless the 

requester has previously indicated a 

willingness to pay fees as high as those 

anticipated. In cases where DOT notifies 

the requester that actual or estimated 

fees may amount to more than US $25, 

the time limit for responding to the 

request is tolled until the requester has 

agreed to pay the anticipated total fee 

(see § 7.35). The notice also informs the 

requester how to consult with the 

appropriate DOT officials with the 

object of reformulating the request to 

meet his or her needs at a lower cost. 

(b) DOT may require payment of fees 

prior to actual duplication or delivery of 

any releasable records to a requester. 

However, advance payment, i.e., before 

work is commenced or continued on a 

request, is not required unless: 

(1) Allowable charges that a requester 

may be required to pay are likely to 

exceed US $250; or 

(2) The requester has failed to pay 

within 30 days of the billing date fees 

charged for a previous request to any 

part of the U.S. Government. 

(c) When paragraph (b)(1) of this 

section applies, DOT notifies the 

requester of the estimated cost. If the 

requester has a history of prompt 

payment of FOIA fees, the requester 

must furnish satisfactory assurance of 

full payment of the estimated charges. 

Otherwise, the requester may be 

required to make advance payment of 

any amount up to the full estimated 

charges. 

(d) When paragraph (b)(2) of this 

section applies, DOT requires the 

requester to either demonstrate that the 

fee has been paid or pay the full amount 

owed, including any applicable interest, 

late handling charges, and penalty 

charges as discussed in § 7.46. DOT also 

requires such a requester to make an 

advance payment of the full amount of 

the estimated fee before DOT begins 

processing a new request or continues 

processing a pending request. 

(e) In the event that a DOT component 

is required to refund a prepayment, the 

processing of the refund may necessitate 

collection of the requester’s Taxpayer 

Identification Number or Social Security 

Number and direct deposit information 

(bank routing number and bank account 

number) under 31 U.S.C. 3325, 31 

U.S.C. 3332, and 31 CFR Part 208. 

§ 7.46 How are late payments handled? 

(a) DOT assesses interest on an 

unpaid bill starting on the 31st day 

following the day on which the notice 

of the amount due is first mailed to the 

requester. Interest accrues from the date 

of the notice of amount due at the rate 

prescribed in 31 U.S.C. 3717. Receipt by 

DOT of a payment for the full amount 

of the fees owed within 30 calendar 

days after the date of the initial billing 

stops the accrual of interest, even if the 

payment has not been processed. 

(b) If DOT does not receive payment 

of the fees charged within 30 calendar 

days after the date the initial notice of 

the amount due is first mailed to the 

requester, DOT assesses an 

administrative charge to cover the cost 

of processing and handling the 

delinquent claim. In addition, DOT 

applies a penalty charge with respect to 

any principal amount of a debt that is 

more than 90 days past due. Where 

appropriate, DOT uses other steps 

permitted by Federal debt collection 

statutes, including disclosure to 

consumer reporting agencies and use of 

collection agencies, to encourage 

payment of amounts overdue. 

Issued in Washington, DC, on December 

20, 2010. 

Ray LaHood, 

Secretary. 

[FR Doc. 2010–32407 Filed 12–23–10; 8:45 am] 

BILLING CODE 4910–62–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 222 

RIN 0648–XA016 

2011 Annual Determination for Sea 

Turtle Observer Requirement 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notification of annual 

determination. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) is providing 

notification that the agency will not 

identify additional fisheries to observe 

on the Annual Determination (AD) for 

2011, pursuant to its authority under the 

Endangered Species Act (ESA). Through 

an AD, NMFS identifies fisheries 

operating in the Atlantic Ocean, Gulf of 

Mexico, and Pacific Ocean that will be 

required to take observers upon NMFS’ 

request. The purpose of observing 

identified fisheries is to learn more 

about sea turtle interactions in a given 

fishery, evaluate existing measures to 

prevent or reduce prohibited sea turtle 

takes, and to determine whether 

additional measures to implement the 

prohibition against sea turtle takes may 

be necessary. Fisheries identified in the 

2010 AD (see Table 1) remain on the AD 

and are therefore required to carry 

observers upon NMFS’ request, until 

2014. 

ADDRESSES: See SUPPLEMENTARY

INFORMATION for a listing of all Regional 

Offices. 

FOR FURTHER INFORMATION CONTACT: 

Kristy Long, Office of Protected 

Resources, 301–713–2322; Ellen Keane, 

Northeast Region, 978–282–8476; 


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