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[Federal Register Volume 79, Number 57 (Tuesday, March 25, 2014)]
[Rules and Regulations]
[Pages 16207-16218]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06503]

[[Page 16207]]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 7

[Docket No. DOT-OST-2010-0297]
RIN 2105-AD99

Public Availability of Information; Freedom of Information Act

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The U.S. Department of Transportation (DOT) is revising its 
regulations implementing the Freedom of Information Act (FOIA) 
following a period of public comment on its proposed rule. 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.

DATES: This rule is effective May 27, 2014.

ADDRESSES: Comments submitted to the docket for this rulemaking are 
available at Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, or 
electronically at http://www.regulations.gov. Anyone is able to search 
the electronic form of all comments in any one of our dockets by the 
name of the individual who submitted the comment (or signing the 
comment, if submitted on behalf of an association, business, or labor 
union). You may review the U.S. Department of Transportation's (DOT) 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: John Allread, Attorney-Advisor, Office 
of the General Counsel, Department of Transportation, Washington, DC, 
at john.allread@dot.gov or (202) 366-1497; or Claire McKenna, Attorney-
Advisor, Office of the General Counsel, Department of Transportation, 
Washington, DC, at claire.mckenna@dot.gov or (202) 366-0365; or Kathy 
Ray, Departmental FOIA Officer, Office of the General Counsel, 
Department of Transportation, Washington, DC, at kathy.ray@dot.gov or 
(202) 366-4542.

SUPPLEMENTARY INFORMATION: These regulations implementing FOIA, 5 
U.S.C. 552, were published for public comment in the Federal Register 
December 27, 2010 (75 FR 81191), the comment period ended on February 
25, 2011, and two commenters provided input. One commenter addressed 
language in proposed 49 CFR 7.26(b) that the commenter said is 
inconsistent with the FOIA, court precedent, and U.S. Department of 
Justice (DOJ) guidance. We adopt this comment, as follows:
    As originally proposed by DOT, Sec.  7.26(b) would have included a 
clause stating that DOT makes a reasonable effort to search electronic 
records in the manner in which they are designed to be searched (i.e., 
without reprogramming).
    The commenter objects to this clause, which does not appear in 
DOT's current FOIA regulations, and could be taken as an attempt by DOT 
to limit the flexibility we must have to re-program electronic records 
to meet the needs of a FOIA requester. It was not our intention to 
limit our required flexibility in this area, or to vary from DOJ 
guidance or court precedent. The commenter requests that the clause be 
deleted and we agree.
    We also received comments from the National Archives and Records 
Administration's Office of Government Information Services (OGIS). In 
general, OGIS supported DOT's proposed regulatory revisions, 
emphasizing our efforts to make them consistent with the OPEN 
Government Act of 2007 and the OPEN FOIA Act of 2009.
    The OGIS recommended that DOT reconsider language in the proposed 
rule that appears to require that a request for records be explicitly 
marked as a ``FOIA Request'' in order to qualify as such. It was not 
our intention to require that requests be explicitly identified by the 
requester to qualify as a FOIA request; in fact, the language of the 
rule states that requests ``should'' be marked ``FOIA request,'' rather 
than stating that they ``shall'' be so marked. To eliminate any 
potential misunderstanding about this aspect of the rule, we have 
revised the section heading for Sec.  7.24 from ``What must a FOIA 
request contain?'' to ``How do I submit a FOIA request?''. The OGIS 
also recommended that in cases where the requested information is 
publicly available, we so advise the requester and allow him/her access 
online or through other means. We agree and already process requests 
for publicly accessible information in a manner consistent with this 
recommendation by referring requesters to information available on the 
Internet or providing hard copies.
    With regard to Sec.  7.28, OGIS recommended that DOT components 
handle consultations and referrals received from other agencies or DOT 
components according to the date that the FOIA request was received by 
the first component or agency. We agree and added a new subsection (d) 
to Sec.  7.28 to address this comment.
    The OGIS recommended that DOT establish an individualized tracking 
number for all FOIA requests that will take longer than 10 days to 
process, inform requesters of the tracking number assigned to their 
request, and provide a mechanism for requesters to obtain information 
about the status of their requests. The DOT's existing FOIA processing 
procedures are consistent with these recommendations. We added a 
subsection (3)(b) to Sec.  7.31 to publicize these procedures, as 
further suggested by OGIS.
    The OGIS noted that Sec.  7.32(d)(1) would mandate that FOIA 
appeals must be made within 30 calendar days from the date of the 
initial determination and suggested that this time period be extended 
to 45 or 60 days, as is the standard at many agencies. The OGIS further 
recommended that the referenced date should be the postmark date. We 
agree with these suggestions and have revised Sec.  7.32(d)(1) to 
change the appeal period to 45 days, measured from the date that the 
initial determination is signed to the postmark date on the appeal 
letter.
    The OGIS also recommended that DOT accept appeals by electronic 
mail. We agree and removed the language from Sec.  7.32(d)(1) that 
prohibited submission of appeals by electronic mail.
    The OGIS had several comments regarding DOT's procedures for FOIA 
appeals. Specifically, OGIS suggested that we direct requesters to work 
with DOT components' FOIA public liaisons to resolve disputes; to work 
with OGIS to resolve disputes between FOIA requesters and DOT as a non-
exclusive alternative to litigation; and that DOT coordinate 
collaboratively with OGIS in OGIS's review of agencies' policy and 
procedures. The DOT not only appreciates OGIS' comments, but also the 
valuable service that OGIS provides to requesters and agencies. The 
DOT's existing FOIA processing procedures already comport with OGIS' 
recommendations, as documented in DOT's FOIA Reference Guide; 
therefore, we determined that further revisions to our regulations are 
unnecessary. With regard to ``Subpart E--Fees,'' OGIS recommended that 
DOT direct FOIA professionals to provide each requester with a 
breakdown of the total fee

[[Page 16208]]

estimate. The DOT agrees and already processes FOIA requests consistent 
with this recommendation; therefore, we determined that further 
revisions to our regulations are unnecessary to implement this 
recommendation.
    In addition, we removed language in Sec.  7.33(a)(2) that noted, 
parenthetically, that DOT could not extend the time limit for reply to 
an appeal based on unusual circumstances if DOT had extended the time 
limit for this reason in its initial response. Upon further review, we 
determined that this limitation is not explicitly required by FOIA's 
statutory language and that it would unduly restrict DOT's ability to 
extend timelines when needed because of unusual circumstances, as 
permitted under FOIA.
    On January 17, 2014, President Obama signed into law the 
Consolidated Appropriations Act, 2014, Division L--Transportation, 
Housing and Urban Development and Related Agencies Appropriations Act, 
2014, Public Law 113-76 (Jan. 17, 2014), which included language 
transferring the previous functions of the Research and Innovative 
Technology Administration (RITA) to the newly formed Office of the 
Assistant Secretary for Research and Technology within the Office of 
the Secretary. Thus, the Office of the Assistant Secretary for Research 
and Technology is now an office within the Office of the Secretary and, 
as a result, we have deleted the references to RITA in Sec. Sec.  7.2 
and 7.15.
    Finally, we have made a few other minor (non-substantive) changes 
to grammar or to achieve consistency in punctuation.

Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    The DOT has considered the impact of this rulemaking action under 
Executive Orders 12866 and 13563 (January 18, 2011, ``Improving 
Regulation and Regulatory Review''), and the DOT's regulatory policies 
and procedures (44 FR 11034; February 26, 1979). The DOT has determined 
that this action does not constitute a significant regulatory action 
within the meaning of Executive Order 12866 and within the meaning of 
DOT regulatory policies and procedures. Further, the Office of 
Management and Budget has advised us that this rule is not significant. 
We expect that the economic impact of this rulemaking will be minimal. 
The rule does not increase the fees that DOT charges requesters for 
copies, and increases the threshold under which DOT will not charge 
fees from $10 to $20. In addition, although the rule alters the way 
that DOT charges search fees by splitting the previous search fees 
performed by GS-9 through GS-14 into two categories (one for GS-9 to 
GS-12 and a new category for GS-13 to GS-14), we do not expect that 
this will result in an aggregate increase in search costs to 
requesters. Lastly, DOT is increasing the charge associated with 
requests for certified copies from $4 to $10 based on the resources 
necessary to satisfy these requests. Requests for certified copies make 
up a very small percentage of DOT's total number of FOIA requests each 
year, and, therefore, we expect very few requesters to be impacted by 
this modest change. We believe that any increase in fees implemented in 
this rule will be off-set by reductions in fees also implemented in 
this rule, such as the increase in the threshold under which fees will 
not be charged from $10 to $20.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), DOT has evaluated the effects of these changes on 
small entities. I hereby certify that this rule will not have a 
significant economic impact on a substantial number of small entities 
because this rule merely clarifies and updates DOT's FOIA procedures in 
light of amendments to FOIA that were signed into law on December 31, 
2007, and October 28, 2009, and will not result in an expenditure of 
funds by small entities.

National Environmental Policy Act

    The agency has analyzed the environmental impacts of this proposed 
action pursuant to the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the 
categorical exclusions for all DOT Operating Administrations. This 
action is covered by the categorical exclusion listed in the Federal 
Highway Administration's implementing procedures, ``[p]romulgation of 
rules, regulations, and directives.'' 23 CFR 771.117(c)(20). The 
purpose of this rulemaking is to revise the agency's administrative 
process in implementing the Freedom of Information Act. The agency does 
not anticipate any environmental impacts and there are no extraordinary 
circumstances present in connection with this rulemaking.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
it has been determined that it does not have sufficient implications 
for Federalism to warrant the preparation of a Federalism Assessment.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. The DOT has determined that 
this action does not contain a collection of information requirement 
for the purposes of the PRA.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4, 109 Stat. 48, March 22, 1995), requires Federal agencies to 
assess the effects of certain regulatory actions on State, local, and 
tribal Governments, and the private sector. The 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, $143.1 million or more in any 
one year (adjusted for inflation), an UMRA analysis is required. This 
rule 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.

[[Page 16209]]

    Issued in Washington, DC, on March 12, 2014.
Kathryn B. Thomson,
Acting General Counsel.

0
In consideration of the foregoing, DOT amends Title 49, Code of Federal 
Regulations, chapter I, by revising 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
7.11 What records are published in the Federal Register, and how are 
they accessed?
7.12 What records are available in reading rooms, and how are they 
accessed?
7.13 How are copies of publicly available records obtained?
7.14 Redaction of Information That is Exempt from Disclosure.
7.15 Protection of Records.
Subpart C--Availability of Reasonably Described Records

Under the Freedom of Information Act

7.21 What does this subpart cover?
7.22 Who administers this subpart?
7.23 What limitations apply to disclosure?
7.24 How do I submit a FOIA request?
7.25 How does DOT handle first-party requests?
7.26 To what extent and in what format are records searched and made 
available?
7.27 What are the designated DOT FOIA Requester Service Centers?
7.28 How does DOT handle requests that concern more than one 
Government agency?
7.29 When and how does DOT consult with submitters of commercial 
information?
Subpart D--Time Limits
7.31 What time limits apply to DOT with respect to initial 
determinations?
7.32 What time limits apply to a requester when appealing DOT's 
initial or final determination?
7.33 What time limits apply to DOT with respect to administrative 
appeals (final determinations)?
7.34 When and how are time limits applicable to DOT extended?
7.35 When and how is the twenty day time limit for rendering an 
initial determination tolled?
Subpart E--Fees
7.41 When and how are processing fees imposed for records that are 
made available under subpart B or processed under subpart C of this 
part?
7.42 What is DOT's fee schedule for records requested under subpart 
C of this part?
7.43 When are fees waived or reduced for records requested under 
subpart C of this part?
7.44 How can I pay a processing fee for records requested under 
subpart B or subpart C of this part?
7.45 When are pre-payments required for records requested under 
subpart C of this part, and how are they handled?
7.46 How are late payments handled?

    Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 
12600; E.O. 13392.

Subpart A--General Provisions

Sec.  7.1  General.

    (a) This part implements the Freedom of Information Act, 5 U.S.C. 
552, as amended, and prescribes rules governing the public availability 
of Department of Transportation (DOT) records.
    (b) Subpart B of this part contains the DOT regulations concerning 
the public availability of:
    (1) Records and indices that DOT is required to publish in the 
Federal Register pursuant to 5 U.S.C. 552(a)(1) (described in Sec.  
7.11(a)); and
    (2) Records and indices that DOT is required to make available to 
the public in a reading room without need for a specific request, 
pursuant to 5 U.S.C. 552(a)(2) (described in Sec.  7.12(a)).
    (c) Subpart C of this Part contains the DOT regulations concerning 
records that may be requested from DOT under the FOIA, namely, records 
that DOT is not required to publish in the Federal Register or make 
publicly available in a reading room under 5 U.S.C. 552(a)(2)(A), (B), 
(C), and (E) and frequently requested records even if DOT has made them 
publicly available as required under 5 U.S.C. 552(a)(2)(D). Because DOT 
and its components make many of these records available on their Web 
pages (http://www.dot.gov or http://www.dot.gov/foia), requesters may 
find it preferable to obtain such records directly from the Web pages 
instead of submitting a FOIA request, if the Web pages contain records 
that meet their needs.
    (d) Subpart D of this part contains the DOT regulations concerning 
time limits applicable to processing requests for records under subpart 
C.
    (e) Subpart E of this part contains the DOT regulations concerning 
processing fees applicable to records made available under subpart B or 
requested under subpart C.

Sec.  7.2  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    Administrator means the head of each Operating Administration.
    Components--see the definition of Department in this section.
    Concurrence means that the approval of the individual being 
consulted is required in order for the subject action to be taken.
    Confidential commercial information means trade secrets and 
confidential, privileged, and/or proprietary business or financial 
information submitted to DOT by any person.
    Consultation has its ordinary meaning; the approval of the 
individual being consulted is not required in order for the subject 
action to be taken.
    Department or DOT means the Department of Transportation, including 
the Office of the Secretary, the Office of Inspector General, and all 
DOT Operating Administrations, any of which may be referred to as a DOT 
component. This definition specifically excludes the Surface 
Transportation Board, which has its own FOIA regulations at 49 CFR part 
1001.
    First-party request means a request by an individual for records 
pertaining to that individual.
    Hourly rate means the actual hourly base pay for a civilian 
employee.
    Operating Administration means one of the following components of 
the Department:
    (1) Federal Aviation Administration;
    (2) Federal Highway Administration;
    (3) Federal Motor Carrier Safety Administration;
    (4) Federal Railroad Administration;
    (5) Federal Transit Administration;
    (6) Maritime Administration;
    (7) National Highway Traffic Safety Administration;
    (8) Pipeline and Hazardous Materials Safety Administration; and
    (9) Saint Lawrence Seaway Development Corporation.
    Reading room records are those records required to be made 
available to the public without a specific request under 5 U.S.C. 
552(a)(2), as described in Sec.  7.12 of subpart B of this part. DOT 
makes reading room records available to the public electronically 
through its FOIA Web pages (http://www.dot.gov/foia) and at the 
physical locations identified in Sec.  7.12(b). Other records may also 
be made available at DOT's discretion through DOT Web pages (http://www.dot.gov).
    Record includes any writing, drawing, map, recording, diskette, 
DVD, CD-ROM, tape, film, photograph, or other documentary material, 
regardless of medium, by which information is preserved. The term also 
includes any such documentary material stored electronically by 
computer.
    Redact means delete or mark over.
    Representative of the news media means any person or entity that 
gathers

[[Page 16210]]

information of potential interest to a segment of the public, uses its 
editorial skills to turn the raw materials into a distinct work, and 
distributes that work to an audience. ``News'' means information that 
is about current events or that would be of current interest to the 
public.
    Responsible DOT official means the head of the DOT Operating 
Administration concerned, or the General Counsel or the Inspector 
General, as the case may be, or the designee of any of them authorized 
to take an action under this Part.
    Secretary means the Secretary of Transportation or any individual 
to whom the Secretary has delegated authority in the matter concerned.
    Toll means temporarily stop the running of a time limit.

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

Sec.  7.11  What records are published in the Federal Register, and how 
are they accessed?

    (a) General. Pursuant to 5 U.S.C. 552(a)(1), DOT publishes the 
following records in the Federal Register and makes an index of the 
records publicly available. For purposes of this paragraph, material 
that is reasonably available to the class of persons affected by the 
material is considered to be published in the Federal Register when the 
material is incorporated by reference with the approval of the Director 
of the Federal Register.
    (1) Descriptions of DOT's organization and the established places 
at which, the officers from whom, and the methods by which, the public 
may secure information and make submittals or obtain decisions;
    (2) Statements of the general course and methods by which DOT's 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as 
authorized by law and statements of general policy or interpretations 
of general applicability formulated and adopted by DOT; and
    (5) Each amendment, revision, or repeal of any material listed in 
paragraphs (a)(1) through (4) of this section.
    (b) Federal Register locations. DOT makes its Federal Register 
publications and indices publicly available at the physical locations 
identified in Sec.  7.12(b). The publications and indices can be 
accessed online at http://www.federalregister.gov.

Sec.  7.12  What records are available in reading rooms, and how are 
they accessed?

    (a) General. Pursuant to 5 U.S.C. 552(a)(2), unless the following 
records are promptly published and offered for sale or published in the 
Federal Register, DOT and its components make the following records, 
and an index to the records, available in a reading room, including an 
electronic reading room if the records were created by DOT on or after 
November 1, 1996:
    (1) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of cases;
    (2) Statements of policy and interpretations that have been adopted 
by DOT and are not published in the Federal Register;
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public; and
    (4) Copies of all records, regardless of form or format, that have 
been released to any person under subpart C of this Part and that, 
because of the nature of their subject matter, DOT determines have 
become or are likely to become the subject of subsequent requests for 
substantially the same records.
    (5) A general index of the records listed in paragraph (a)(4) of 
this section.
    (b) Reading room locations. DOT makes its reading room records and 
indices (in the form of lists or links) available at http://www.dot.gov/foia and at the following physical locations:
    (1) DOT Dockets Office, 1200 New Jersey Avenue SE., Room W12-140, 
Washington, DC 20590: hours of operation: 9 a.m. to 5 p.m. ET, Monday 
through Friday except Federal holidays; telephone: (202) 366-9322, 
(202) 366-9826, or (800) 647-5527. DOT provides a computer terminal and 
printer at this location for accessing electronic reading room records.
    (2) National Highway Traffic Safety Administration (NHTSA) 
Technical Information Services public record unit: 1200 New Jersey 
Avenue SE., Room W12-300, Washington, DC 20590; hours of operation: 
9:30 a.m. to 5 p.m. ET, Monday through Friday except Federal holidays; 
telephone (202) 366-2588. NHTSA provides a computer terminal and 
printer at this location for accessing electronic reading room records.
    (3) Other public record units maintained by DOT components (e.g., 
at regional offices): Information concerning the availability of a 
computer terminal and printer at such units, and the location and hours 
of operation of such units, can be obtained through the DOT Dockets 
Office at (202) 366-9322, (202) 366-9826, or (800) 647-5527.

Sec.  7.13  How are copies of publicly available records obtained?

    (a) Copies of materials covered by this subpart that are published 
and offered for sale. Records that are ordinarily made available to the 
public as a part of an information program of the Government, such as 
news releases and pamphlets, may be obtained upon request by contacting 
the appropriate DOT location identified in Sec.  7.12(b) or the sources 
identified in Sec.  7.41(g), and paying the applicable duplication fee 
or purchase price. Whenever practicable, DOT also makes the 
publications available at the appropriate physical locations identified 
in Sec.  7.12(b).
    (b) Copies of materials covered by this subpart that are not 
published and offered for sale. Such records may be ordered, upon 
payment of the appropriate fee (if any fee applies), through the 
applicable FOIA Requester Service Center or through the DOT Dockets 
Office identified in Sec.  7.12(b):
    (1) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means--US $0.10.
    (2) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (3) Copies are certified upon request by contacting the applicable 
FOIA Requester Service Center listed in Sec.  7.27 and paying the fee 
prescribed in Sec.  7.41(e).

Sec.  7.14  Redaction of information that is exempt from disclosure.

    Whenever DOT determines it to be necessary to prevent the 
disclosure of information required or authorized to be withheld by FOIA 
or another Federal statute (such as, to prevent a clearly unwarranted 
invasion of personal privacy), DOT redacts such information from any 
record covered by this subpart that is published or made available. A 
full explanation of the justification for the deletion accompanies the 
record published or made available.

Sec.  7.15  Protection of records.

    Records made available to the public under this subpart may not be 
removed, altered, destroyed, or mutilated (this excludes duplicate 
copies that are provided to a member of the public to take and keep). 
18 U.S.C. 641 provides for criminal penalties for embezzlement or theft 
of Government records. 18 U.S.C. 2071 provides for criminal

[[Page 16211]]

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

Sec.  7.21  What does this subpart cover?

    (a) Except as otherwise provided in paragraph (b) of this section, 
this subpart applies to reasonably described records that are made 
available in response to written requests under FOIA.
    (b) This subpart does not apply to:
    (1) Records published in the Federal Register.
    (2) Records published and offered for sale.
    (3) Records (other than frequently requested records) made 
available in a reading room.
    (4) Records or information compiled for law enforcement purposes 
and covered by the disclosure exemption described in Sec.  
7.23(c)(7)(A) if--
    (i) The investigation or proceeding involves a possible violation 
of criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency; and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (5) Informant records maintained by any criminal law enforcement 
component of DOT under an informant's name or personal identifier, if 
requested by a third party according to the informant's name or 
personal identifier, unless the informant's status as an informant has 
been officially confirmed.

Sec.  7.22  Who administers this subpart?

    (a) A Chief FOIA Officer is appointed by the Secretary to oversee 
DOT's compliance with the Act pursuant to 5 U.S.C. 552(k). The DOT 
Chief FOIA Officer is designated at 49 CFR 1.27a as the Career Deputy 
General Counsel.
    (b) Each DOT FOIA Requester Service Center listed in Sec.  7.27 is 
the initial point of contact for providing information about its 
processing of requests.
    (c) One or more Public Liaisons are designated by the Chief FOIA 
Officer for each DOT FOIA Requester Service Center listed in Sec.  
7.27. Public Liaisons assist requesters in reducing delays and 
resolving disputes, as described in 5 U.S.C. 552(k)(6).
    (d) Authority to administer this subpart and to issue 
determinations with respect to initial requests and appeals of initial 
denials has been delegated as follows:
    (1) To the General Counsel for the records of the Office of the 
Secretary by 49 CFR 1.27.
    (2) To the Inspector General for records of the Office of Inspector 
General by 49 CFR 1.74.
    (3) To the Administrator of each DOT Operating Administration for 
records of that component by 49 CFR 1.81.
    (4) Each responsible DOT official may redelegate the authority to 
issue final determinations of appeals of initial denials to that 
official's deputy or to not more than one other officer who reports 
directly to the official and who is located at the headquarters of that 
DOT component.
    (5) Any such final determination by an Administrator or an 
Administrator's designee (following an appeal of an initial denial) is 
subject to concurrence by the General Counsel or the General Counsel's 
designee, if the final determination is not to disclose a record or 
portion of a record under this part, or not to grant a request for a 
fee waiver or reduction.
    (6) The Inspector General or the Inspector General's designee must 
consult with the General Counsel or the General Counsel's designee 
before issuing a final determination following an appeal of an initial 
denial, if the final determination is not to disclose a record or 
portion of a record under this part, or not to grant a request for a 
fee waiver or reduction.

Sec.  7.23  What limitations apply to disclosure?

    (a) Policy. It is DOT policy to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
FOIA. This includes releasing reasonably segregable and meaningful 
nonexempt information in a document from which exempt information is 
withheld.
    (b) Statutory disclosure requirement. As provided in 5 U.S.C. 
552(a)(3)(A), DOT makes reasonably described records available upon 
request from a member of the public, when the request is submitted in 
accordance with this subpart, except to the extent that the records 
contain information exempt from FOIA's mandate of disclosure as 
provided in 5 U.S.C. 552(b).
    (c) Statutory exemptions. Exempted from FOIA's statutory disclosure 
requirement are matters that are:
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy, and are in fact properly classified pursuant to such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than 
the Privacy Act, 5 U.S.C. 552a, or Open Meetings Act, 5 U.S.C. 552b, as 
amended), in that the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, establishes particular 
criteria for withholding, or refers to particular types of matters to 
be withheld; or
    (ii) Specifically allows withholding from release under FOIA by 
citation to 5 U.S.C. 552;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, tribal, or foreign 
agency or authority or any private institution which furnished 
information on a confidential basis, and, in the case of a record or 
information compiled by a criminal law enforcement authority in the 
course of a criminal investigation or by an agency conducting a lawful 
national security intelligence investigation, information furnished by 
a confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions, if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the

[[Page 16212]]

regulation or supervision of financial institutions; or
    (9) Geological and geophysical information and data, including 
maps, concerning wells.
    (d) Redacted information. DOT indicates the amount of information 
redacted from records released under the FOIA and the exemption(s) 
relied upon in redacting the information, at the place in the record 
where the redaction is made, when technically feasible and when doing 
so does not harm an interest protected by the exemption concerned.
    (e) Non-confidentiality of requests. DOT releases the names of FOIA 
requesters and descriptions of the records they have sought, as shown 
on DOT FOIA logs, except to the extent that a statutory exemption 
authorizes or requires withholding of the log information.

Sec.  7.24  How do I submit a FOIA request?

    (a) Each person desiring access to or a copy of a record covered by 
this subpart must make a written request (via paper, facsimile or 
electronic mail) for the record. The request should--
    (1) Indicate that it is being made under FOIA;
    (2) Display the word ``FOIA'' prominently on the envelope or on the 
subject line of the email or facsimile;
    (3) Be addressed to the appropriate FOIA Requester Service Center 
as set forth in Sec.  7.27;
    (4) State the format (e.g., paper, compact disc) in which the 
information is sought, if the requester has a preference (see Sec.  
7.26(c)); and
    (5) Describe the record or records sought to the fullest extent 
possible. In this regard, the request should describe the subject 
matter of the record and, if known, indicate the date when it was made, 
the place where it was made, and the individual or office that made it. 
If the description does not enable the office handling the request to 
identify or locate the record sought, that office will contact the 
requester for additional information. So that the office may contact 
the requester for additional information, the request should provide 
the requester's complete contact information, including name, address, 
telephone number, and email address, if any.
    (b) With respect to fees, the request must--
    (1) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or 
other; see Sec.  7.42(g)) in which the requester claims the request 
falls and the basis of this claim (see subpart E of this Part for fees 
and fee waiver requirements);
    (2) Support any request for fee waiver by addressing, to the 
fullest extent possible, how the criteria set out in Sec.  7.43(c) for 
establishing that the request is in the public interest have been met, 
if relevant;
    (3) State the maximum amount of fees that the requester is willing 
to pay and/or include a request for a fee waiver or reduction (if a 
maximum amount is not stated by the requester, DOT will assume the 
requester is willing to pay up to US $25);
    (c) If the requester seeks expedited processing at the time of the 
initial request, the request must include a statement supporting 
expedited processing, as set forth in Sec.  7.31(c);
    (d) A request is not considered to be a FOIA request if the record 
or records sought are insufficiently described such that DOT is unable 
to respond as required by FOIA. The twenty Federal working day limit 
for responding to requests, described in Sec.  7.31(a)(2), will not 
start to run until the request is determined by DOT to be sufficiently 
understood to enable DOT to respond as contemplated under FOIA (or 
would have been so determined with the exercise of due diligence by an 
employee of DOT) and is considered received (see paragraph (e)); and
    (e) Provided the request is considered to be a FOIA request (see 
paragraph (d)), the request is considered received when it is first 
received by the FOIA office to which it should have been originally 
sent, as shown in Sec.  7.27, but in any event not later than ten 
Federal working days after it is first received by any DOT FOIA 
Requester Service Center identified in Sec.  7.27.
    (f) As provided in Sec.  7.35, DOT's time limit for responding to a 
FOIA request as set forth in subpart D may be tolled one time to seek 
additional information needed to clarify the request and as often as 
necessary to clarify fee issues with the requester.

Sec.  7.25  How does DOT handle first-party requests?

    (a) DOT processes FOIA requests from first-party requesters in 
accordance with this regulation. DOT also processes such requests in 
accordance with the Privacy Act (5 U.S.C. 552a) if the records reside 
in a Privacy Act system of records (defined in 5 U.S.C. 552a(a)(5) as a 
system from which information is retrieved by the individual's name or 
some other personal identifier). Whichever statute provides greater 
access is controlling.
    (b) First party requesters must establish their identity to DOT's 
satisfaction before DOT will process the request under the Privacy Act. 
DOT may request that first party requesters authenticate their identity 
to assist with our evaluation of the application of FOIA exemptions, 
such as FOIA Exemption 6, 5 U.S.C. 552(b)(6), to the requested records. 
Acceptable methods of authenticating the requester's identity include 
those outlined in DOT's Privacy Act regulations at 49 CFR 10.37.

Sec.  7.26  To what extent and in what format are records searched and 
made available?

    (a) Existing records. A request may seek only records that are in 
existence at the time of the request. In determining which records are 
responsive to a request, DOT ordinarily will include only records in 
its possession as of the date it begins its search for them. If any 
other date is used, DOT will inform the requester of that date. DOT 
considers records created after the beginning of the search to be non-
responsive to a request. A request made under this subpart may not 
require that new records be created in response to the request by, for 
example, combining or compiling selected items from manual files, 
preparing a new computer program, or calculating proportions, 
percentages, frequency distributions, trends, or comparisons. DOT may, 
in its discretion, create a new record as an alternative to disclosing 
existing records, if DOT determines that creating a new record will be 
less burdensome than disclosing large volumes of unassembled material 
and if the requester consents to accept the newly-created record in 
lieu of the existing records.
    (b) Electronic records. DOT makes a reasonable effort to search 
electronic records without significantly interfering with the operation 
of the affected information system.
    (c) Format of production. DOT provides records in the form or 
format sought by the requester, if the records are readily reproducible 
in that form or format.
    (d) Photocopying of records. Original records ordinarily are copied 
except where, in DOT's judgment, copying would endanger the quality of 
the original or raise the reasonable possibility of irreparable harm to 
the record. Original records are not released from DOT custody. DOT may 
make records requested under this subpart available for inspection and 
copying during regular business hours at the place where the records 
are located.
    (e) If no responsive record is located. If DOT cannot locate a 
requested record in agency files after a reasonable search (e.g., 
because the record was never

[[Page 16213]]

created or was disposed of), DOT so notifies the requester.

Sec.  7.27  What are the designated DOT FOIA Requester Service Centers?

    (a) A request for a record under this subpart may be submitted via 
paper, facsimile, or electronic mail to the FOIA Requester Service 
Center designated for the DOT component where the records are located, 
at the electronic mail addresses or facsimile numbers identified at 
http://www.dot.gov/foia or the mailing addresses indicated below 
(unless a more up-to-date mailing address has been designated at http://www.dot.gov/foia):
    (1) FOIA Requester Service Centers at 1200 New Jersey Avenue SE., 
Washington, DC 20590:
    (i) FOIA Requester Service Center at Federal Highway 
Administration, Room E64-302 (unless a more specific address has been 
designated by FHWA at http://www.fhwa.dot.gov/foia);
    (ii) FOIA Requester Service Center at Federal Motor Carrier Safety 
Administration, Room W66-458;
    (iii) FOIA Requester Service Center at Federal Railroad 
Administration, Room W33-437;
    (iv) FOIA Requester Service Center at Federal Transit 
Administration, Room E42-315;
    (v) FOIA Requester Service Center at Maritime Administration, Room 
W24-233;
    (vi) FOIA Requester Service Center at National Highway Traffic 
Safety Administration, Room W41-311;
    (vii) FOIA Requester Service Center at Office of the Secretary of 
Transportation, Room W94-122;
    (viii) FOIA Requester Service Center at Office of Inspector 
General, Room W70-329;
    (ix) FOIA Requester Service Center at Pipeline and Hazardous 
Materials Safety Administration, Room E23-306; and
    (2) FOIA Requester Service Center at Federal Aviation 
Administration, 800 Independence Avenue SW., Room 306, Washington, DC 
20591 (unless a more specific address has been designated by FAA at 
http://www.faa.dot.gov/foia).
    (3) FOIA Requester Service Center at Associate Administrator's 
Office, Saint Lawrence Seaway Development Corporation, 180 Andrews 
Street, P.O. Box 520, Massena, NY 13662-0520.
    (b) If the person making the request does not know where in DOT the 
records are located, the person may submit the request to the FOIA 
Requester Service Center at Office of the Secretary of Transportation, 
1200 New Jersey Avenue SE., Room W94-122, Washington, DC 20590 or by 
facsimile: 202-366-8536. Requesters also may contact the FOIA Requester 
Service Center at the Office of the Secretary of Transportation at 202-
366-4542 with questions about how to submit a FOIA request or to 
confirm the mailing addresses indicated in this part.
    (c) Requests for records under this part, and FOIA inquiries 
generally, may be made by accessing the DOT Home Page on the Internet 
(http://www.dot.gov) and clicking on the Freedom of Information Act 
link (http://www.dot.gov/foia).

Sec.  7.28  How does DOT handle requests that concern more than one 
Government agency?

    (a) If the release of a DOT-created record covered by this subpart 
would be of concern to DOT and one or more other Federal agencies, the 
determination as to release is made by DOT, but only after consultation 
with the other concerned agency.
    (b) If the release of a DOT-created record covered by this subpart 
would be of concern to DOT and a State, local, or tribal Government, a 
territory or possession of the United States, or a foreign Government, 
the determination as to release is made by DOT, but only after 
consultation with the other concerned Governmental jurisdiction.
    (c) DOT refers a request for a non-DOT-created record covered by 
this subpart (or the relevant portion thereof) for decision by the 
Federal agency that is best able to determine the record's exemption 
status (usually, this is the agency that originated the record), but 
only if that agency is subject to FOIA. DOT makes such referrals 
expeditiously and notifies the requester in writing that a referral has 
been made. DOT informs the 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.
    (d) DOT components will handle all consultations and referrals they 
receive from other agencies or DOT components according to the date the 
FOIA request initially was received by the first agency or DOT 
component, not any later date.

Sec.  7.29  When and how does DOT consult with submitters of commercial 
information?

    (a) If DOT receives a request for a record that includes 
information designated by the submitter of the information as 
confidential commercial information, or that DOT has some other reason 
to believe may contain information of that type (see Sec.  7.23(c)(4)), 
DOT notifies the submitter expeditiously and asks the submitter to 
submit any written objections to release (unless paragraphs (c) and (d) 
of this section apply). At the same time, DOT notifies the requester 
that notice and an opportunity to comment are being provided to the 
submitter. To the extent permitted by law, DOT affords the submitter a 
reasonable period of time to provide a detailed statement of any such 
objections. The submitter's statement must specify all grounds for 
withholding any of the information. The burden is on the submitter to 
identify with specificity all information for which exempt treatment is 
sought and to persuade the agency that the information should not be 
disclosed.
    (b) The responsible DOT component, to the extent permitted by law, 
considers carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose commercial 
information. Whenever DOT decides to disclose such information over the 
objection of a submitter, the office responsible for the decision 
provides the submitter with a written notice of intent to disclose, 
which is sent to the submitter a reasonable number of days prior to the 
specified date upon which disclosure is intended. The written notice to 
the submitter includes:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not accepted;
    (2) A description of the commercial information to be disclosed; 
and
    (3) A specific disclosure date.
    (c) The notice requirements of this section do not apply if:
    (1) DOT determines that the information should not be disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (d) The procedures established in this section do not apply in the 
case of:
    (1) Information submitted to the National Highway Traffic Safety 
Administration and addressed in 49 CFR part 512.
    (2) Information contained in a document to be filed or in oral 
testimony that is sought to be withheld pursuant to Rule 12 of the 
Rules of Practice in Aviation Economic Proceedings (14 CFR 302.12).
    (e) Whenever a requester brings suit seeking to compel disclosure 
of confidential commercial information, the responsible DOT component 
promptly notifies the submitter. The submitter may be joined as a 
necessary party in any suit brought against DOT or a DOT component for 
nondisclosure.

[[Page 16214]]

Subpart D--Time Limits

Sec.  7.31  What time limits apply to DOT with respect to initial 
determinations?

    (a) In general. (1) DOT ordinarily responds to requests according 
to their order of receipt.
    (2) DOT makes an initial determination whether to release a record 
requested pursuant to subpart C of this Part within twenty Federal 
working days after the request is received by the appropriate FOIA 
Requester Service Center designated in Sec.  7.27, except that DOT may 
extend this time limit by up to ten Federal working days, or longer, in 
accordance with Sec.  7.34. In addition, DOT may toll this time limit 
one time to seek additional information needed to clarify the request 
and as often as necessary to clarify fee issues with the requester (see 
Sec.  7.35).
    (3) DOT notifies the requester of DOT's initial determination. If 
DOT decides to grant the request in full or in part, DOT makes the 
record (or the granted part) available as promptly as possible. If DOT 
denies the request in full or in part, because the record (or the 
denied part) is subject to an exemption, is not within DOT's custody 
and control, or was not located following a reasonable search, DOT 
notifies the requester of the denial in writing and includes in the 
notice the reason for the determination, the right of the requester to 
appeal the determination, and the name and title of each individual 
responsible for the initial determination to deny the request. The 
denial letter includes an estimate of the volume of records or 
information withheld, in number of pages or other reasonable form of 
estimation. This estimate does not need to be provided if the volume is 
otherwise indicated through deletions on records disclosed in part, or 
if providing an estimate would harm an interest protected by an 
applicable exemption. DOT marks or annotates records disclosed in part 
to show both the amount and location of the information deleted 
whenever practicable (see Sec.  7.23(d)).
    (b) Multi-track processing of initial requests. (1) A DOT component 
may use two or more processing tracks by distinguishing between simple 
and more complex requests based on the amount of work and/or time 
needed to process the request, or based on the number of pages 
involved.
    (2) A DOT component using multi-track processing may provide 
requesters in its slower track(s) with an opportunity to limit the 
scope of their requests in order to qualify for faster processing 
within the specified limits of the component's faster track(s). In that 
event, the component contacts the requester either by telephone, 
letter, facsimile, or electronic mail, whichever is most efficient in 
each case.
    (3) Upon receipt of a request that will take longer than ten days 
to process, a DOT component shall assign an individualized tracking 
number to the request and notify the requester of the assigned number. 
Requesters may contact the appropriate DOT component FOIA Requester 
Service Center to determine the status of the request.
    (c) Expedited processing of initial requests. (1) Requests are 
processed out of order and given expedited treatment whenever a 
compelling need is demonstrated and DOT determines that the compelling 
need involves:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) A request made by a person primarily engaged in disseminating 
information, with a time urgency to inform the public of actual or 
alleged Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, the request for expedited processing must be received by 
the FOIA office for the component that maintains the records requested, 
as identified in Sec.  7.27.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
individual's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. A requester within the category in 
paragraph (c)(1)(ii) of this section must establish a particular 
urgency to inform the public about the Government activity involved in 
the request, beyond the public's right to know about Government 
activity generally.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component decides whether to grant it and 
notifies the requester of the decision. If DOT grants a request for 
expedited treatment, the request is given priority and is processed as 
soon as practicable. If DOT denies a request for expedited processing, 
any appeal of that denial is acted on expeditiously.

Sec.  7.32  What time limits apply to a requester when appealing DOT's 
initial or final determination?

    (a) Denial of records request. When the responsible DOT official 
determines that a record request will be denied, in whole or in part, 
because the record is subject to an exemption, is not in DOT's custody 
and control, or was not located following a reasonable search, DOT 
provides the requester with a written statement of the reasons for that 
determination, as described in Sec.  7.31(a)(3), and of the right to 
appeal the determination within DOT.
    (b) Denial of fee waiver. When the responsible DOT official denies, 
in whole or in part, a request for a waiver of fees made pursuant to 
Sec.  7.24(b) or Sec.  7.43(c), DOT provides the requester with written 
notification of that determination and of the right to appeal the 
determination within DOT.
    (c) Denial of expedited processing. When the responsible DOT 
official denies a request for expedited processing made pursuant to 
Sec.  7.31(c), DOT provides the requester with written notice of that 
determination and of the right to appeal the determination within DOT.
    (d) Right to administrative appeal. Any requester to whom a record 
has not been made available within the time limits established by Sec.  
7.31 and any requester who has been provided a written determination 
pursuant to paragraphs (a), (b), or (c) of this section may appeal to 
the responsible DOT official.
    (1) Each appeal must be made in writing to the appropriate DOT 
appeal official and postmarked or, in the case of electronic or 
facsimile transmissions transmitted, within forty-five calendar days 
from the date the initial determination is signed and should include 
the DOT file or reference number assigned to the request and all 
information and arguments relied upon by the person making the request. 
The contact information for all DOT component appeal officials is 
identified in the DOT FOIA Reference Guide. The envelope in which a 
mailed appeal is sent or the subject line of an appeal sent 
electronically or by facsimile should be prominently marked: ``FOIA 
Appeal.'' The twenty Federal working day limit described in Sec.  
7.33(a) will not begin to run until the appeal has been received by the 
appropriate office and identified as an appeal under FOIA, or would 
have been so identified with the exercise of due diligence, by a DOT 
employee.
    (2) Whenever the responsible DOT official determines it is 
necessary, the official may require the requester to furnish additional 
information, or proof of factual allegations, and may order other 
proceedings appropriate in the circumstances. DOT's time limit for 
responding to an appeal may be extended as provided in Sec.  7.34. The 
decision of the responsible DOT official as to the availability of the 
record, the

[[Page 16215]]

appropriateness of a fee waiver or reduction, or the appropriateness of 
expedited processing, constitutes final agency action for the purpose 
of judicial review.
    (3) The decision of the responsible DOT official to deny a record 
request, to deny a request for a fee waiver or reduction, or to deny a 
request for expedited processing is considered to be a denial by the 
Secretary for the purpose of 5 U.S.C. 552(a)(4)(B).
    (4) When the responsible DOT official denies an appeal, the 
requester is informed in writing of the reasons for the denial of the 
request and the names and titles or positions of each person 
responsible for the determination, and that judicial review of the 
determination is available in the United States District Court for the 
judicial district in which the requester resides or has his or her 
principal place of business, the judicial district in which the 
requested records are located, or the District of Columbia.
    (e) Right to judicial review. Any requester who has not received an 
initial determination on his or her request within the time limits 
established by Sec.  7.31 can seek immediate judicial review, which may 
be sought without the need to first submit an administrative appeal. 
Any requester who has received a written determination denying his or 
her administrative appeal or who has not received a written 
determination of his or her administrative appeal within the time 
limits established by Sec.  7.33 can seek judicial review. A 
determination that a record request is denied, that a request for a fee 
waiver or reduction is denied, and/or that a request for expedited 
processing is denied does not constitute final agency action for the 
purpose of judicial review unless it is made by the responsible DOT 
official. Judicial review may be sought in the United States District 
Court for the judicial district in which the requester resides or has 
his or her principal place of business, the judicial district in which 
the requested records are located, or the District of Columbia.

Sec.  7.33  What time limits apply to DOT with respect to 
administrative appeals (final determinations)?

    (a) In general. (1) DOT ordinarily processes appeals according to 
their order of receipt.
    (2) DOT issues a determination with respect to any appeal made 
pursuant to Sec.  7.32(d) within twenty Federal working days after 
receipt of such appeal, except that in unusual circumstances DOT may 
extend this time limit by up to ten Federal working days in accordance 
with Sec.  7.34(a) or for more than ten Federal working days in 
accordance with Sec.  7.34(b). DOT notifies the requester making the 
appeal immediately, in writing, if the agency takes an extension of 
time. DOT may inform the requester making the appeal, at any time, of 
exceptional circumstances delaying the processing of the appeal (see 
Sec.  7.34(c)).
    (b) Multi-track processing of appeals. (1) A DOT component may use 
two or more processing tracks by distinguishing between simple and more 
complex appeals based on the amount of work and/or time needed to 
process the appeal, or based on the amount of information involved.
    (2) A DOT component using multi-track processing may provide 
persons making appeals in its slower track(s) with an opportunity to 
limit the scope of their appeals in order to qualify for faster 
processing within the specified limits of the component's faster 
track(s). A component doing so will contact the person making the 
appeal either by telephone, letter, facsimile, or electronic mail, 
whichever is most efficient in each case.
    (c) Expedited processing of appeals. (1) An appeal is processed out 
of order and given expedited treatment whenever a compelling need is 
demonstrated and DOT determines that the compelling need involves:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) A request made by a person primarily engaged in disseminating 
information, with a time urgency to inform the public of actual or 
alleged Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the appeal or at a later time. For a prompt determination, a request 
for expedited processing must be received by the component that is 
processing the appeal for the records requested.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
individual's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. A requester within the category in 
paragraph (c)(1)(ii) of this section must establish a particular time 
urgency to inform the public about the Government activity involved in 
the request, beyond the public's right to know about Government 
activity generally. A person granted expedited processing under Sec.  
7.31(c) need merely certify that the same circumstances apply.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component will decide whether to grant it and 
will notify the requester of the decision. If a request for expedited 
treatment is granted, the appeal will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
of an appeal is denied, no further administrative recourse is 
available.

Sec.  7.34  When and how are time limits applicable to DOT extended?

    (a) In unusual circumstances as specified in this section, DOT may 
extend the time limits prescribed in Sec. Sec.  7.31 and 7.33 by 
written notice to the person making the request or appeal, setting 
forth the reasons for the extension and the date on which a 
determination is expected to be issued. Such notice may not specify a 
date that would result in a cumulative extension of more than ten 
Federal working days without providing the requester an opportunity to 
modify the request as noted in this section. As used in this paragraph, 
``unusual circumstances'' means, but only to the extent reasonably 
necessary to the proper processing of the particular request:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are demanded in 
a single request; and/or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with any other agency having a substantial interest 
in the determination of the request or among two or more DOT components 
having substantial interest therein.
    (b) When the extension is for more than ten Federal working days, 
the written notice provides the requester with an opportunity to either 
modify the request (e.g., by narrowing the record types or date ranges) 
so that it may be processed within the extended time limit, or arrange 
an alternative time period with the DOT component for processing the 
request (e.g., by prioritizing portions of the request).
    (c) The DOT component may inform the requester, at any time, of 
exceptional circumstances that apply to the processing of the request 
or appeal (e.g., if the component is reducing a backlog of requests or 
appeals in addition to processing current requests, or is experiencing 
an unexpected deluge of

[[Page 16216]]

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.

Sec.  7.35  When and how is the twenty day time limit for rendering an 
initial determination tolled?

    The twenty Federal working day time period in which to render an 
initial determination will proceed without interruption except as 
provided in the following circumstances:
    (a) DOT may toll the initial twenty Federal working day time period 
one time for the purpose of seeking additional information needed to 
clarify the request. Examples of such instances include but are not 
limited to:
    (1) When clarification is needed with regard to the scope of a 
request; or
    (2) When the description of the record(s) being sought does not 
enable the component handling the request to identify or locate the 
record(s).
    (b) DOT may toll the initial twenty Federal working day time period 
as often as necessary to clarify fee issues with the requester. 
Examples of such instances include but are not limited to:
    (1) When the requester has not sufficiently identified the fee 
category applicable to the request;
    (2) When the requester has not stated a willingness to pay fees as 
high as anticipated by DOT; or
    (3) When a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by DOT.

Subpart E--Fees

Sec.  7.41  When and how are processing fees imposed for records that 
are made available under subpart B or processed under subpart C of this 
part?

    (a) DOT imposes fees for services that DOT performs for the public 
under subparts B and C of this part. Fees apply to all required and 
special services performed by DOT employees, including employees of 
non-appropriated fund activities, and contractors, if utilized.
    (b) DOT may assess a fee for time spent searching for records 
requested under subpart C even if the search fails to locate records or 
the records located are determined to be exempt from disclosure. In 
addition, if records are requested for commercial use, DOT may assess a 
fee for time spent reviewing any responsive records located to 
determine whether they are exempt from disclosure.
    (c) When a request is made under subpart C by a first-party 
requester and DOT processes the request under both FOIA and the Privacy 
Act, DOT determines the fees for records in DOT Privacy Act systems of 
record in accordance with the Privacy Act (as implemented by DOT 
regulations at 49 CFR part 10) rather than the FOIA.
    (d) When DOT aggregates requests made under subpart C (see Sec.  
7.34(d)), DOT apportions fees as set forth in Sec.  7.43(b).
    (e) As a special service, DOT may certify copies of records made 
available under subpart B or released under subpart C, upon request and 
payment of the applicable fee: with the DOT seal (where authorized)--US 
$10; or true copy, without seal--US $5. Certified copies can be 
requested by contacting the applicable FOIA Requester Service Center 
(see Sec.  7.27) or the DOT Dockets Office identified in Sec.  
7.12(b)(1).
    (f) DOT makes transcripts of hearings or oral arguments available 
for inspection only. If transcripts are prepared by a nongovernmental 
contractor and the contract permits DOT to handle the reproduction of 
further copies, DOT assesses duplication fees as set forth in Sec.  
7.42(d). If the contract for transcription services reserves the sales 
privilege to the reporting service, any duplicate copies must be 
purchased directly from the reporting service.
    (g) In the interest of making documents of general interest 
publicly available at as low a cost as possible, DOT arranges 
alternative sources whenever possible. In appropriate instances, 
material that is published and offered for sale may be purchased from 
the Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402-0001; U.S. Department of Commerce's National 
Technical Information Service (NTIS), Springfield, VA 22151; or 
National Audio-Visual Center, National Archives and Records 
Administration, Capital Heights, MD 20743-3701.

Sec.  7.42  What is DOT's fee schedule for records requested under 
subpart C of this part?

    (a) DOT calculates the hourly rates for manual searching, computer 
operator/programmer time, and time spent reviewing records, when 
performed by employees, based on the grades and rates in the General 
Schedule Locality Pay Table for the Locality of Washington-Baltimore-
Northern Virginia, DC-MD-VA-WV-PA, or equivalent grades, plus 16% to 
cover fringe benefits, as follows:
    (1) GS-1 through GS-8 (or equivalent)--Hourly rate of GS-5 step 7 
plus 16%;
    (2) GS-9 through GS-12 (or equivalent)--Hourly rate of GS-10 step 7 
plus 16%;
    (3) GS-13 through GS-14 (or equivalent)--Hourly rate of GS-13 step 
7 plus 16%; and
    (4) GS-15 and above (or equivalent)--Hourly rate of GS-15 step 7 
plus 16%.
    (b) DOT determines the standard fee for a manual or electronic 
search to locate records by multiplying the searcher's hourly rate as 
set forth in paragraph (a) of this section by the time spent conducting 
the search.
    (c) DOT's standard fee for review of records is the reviewer's rate 
set forth in paragraph (a) of this section, multiplied by the time the 
reviewer spent determining whether the located records are responsive 
to the request and whether the responsive records or segregable 
portions are exempt from disclosure, as explained in paragraphs (h), 
(i), and (j) of this section.
    (d) DOT determines the standard fee for duplication of records as 
follows:
    (1) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means (includes costs of personnel 
and equipment)--US $0.10.
    (2) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (e) If DOT utilizes a contractor to perform any services described 
in this section, the standard fee is based on the equivalent hourly 
rate(s). DOT does not utilize contractors to discharge responsibilities 
that only DOT may discharge under the FOIA.
    (f) In some cases, depending upon the category of requester and the 
use for which the records are requested, the fees computed in 
accordance with the standard fee schedule in paragraphs (a) through (e) 
of this section are either reduced or not charged, as prescribed by 
other provisions of this subpart.
    (g) For purposes of fees only, there are four categories of FOIA 
requests:
    (1) Requests submitted by a commercial entity and/or for a 
commercial use;
    (2) Requests submitted by an educational or noncommercial 
scientific institution whose purpose is scholarly or scientific 
research (and not for a commercial use);

[[Page 16217]]

    (3) Requests submitted by a representative of the news media; and
    (4) All other requests.
    (h) When records are requested by a commercial requester and/or for 
a commercial use, the fees assessed are reasonable standard charges for 
document search, duplication, and review.
    (i) When records are requested by an educational or noncommercial 
scientific institution whose purpose is scholarly or scientific 
research or by a representative of the news media (i.e., for a non-
commercial use), fees are limited to reasonable standard charges for 
document duplication.
    (j) For any request not described in paragraph (h) or (i) of this 
section, fees are limited to reasonable standard charges for document 
search and duplication.
    (k) Fees under this subpart do not apply to any special study, 
special statistical compilation, table, or other record requested under 
49 U.S.C. 329(c). The fee for the performance of such a service is the 
actual cost of the work involved in compiling the record. All such fees 
received by DOT in payment of the cost of such work are deposited in a 
separate account administered under the direction of the Secretary, and 
may be used for the ordinary expenses incidental to providing the 
information.

Sec.  7.43  When are fees waived or reduced for records requested under 
subpart C of this part?

    (a) DOT does not charge fees to any requester making a request 
under subpart C of this part for the following services:
    (1) Services for which the total amount of fees that could be 
charged for the particular request (or aggregation of requests) is less 
than US $20, after taking into account all services that must be 
provided free of charge or at a reduced charge.
    (2) The first two hours of search time, unless the records are 
requested for commercial use.
    (3) Duplication of the first 100 pages (standard paper, not larger 
than 8.5 x 14 inches) of records, unless the records are requested for 
commercial use.
    (4) Review time spent determining whether a record is exempt from 
disclosure, unless the record is requested for commercial use. DOT does 
not charge for review time except with respect to an initial review to 
determine the applicability of a particular exemption to a particular 
record or portion of a record. DOT does not charge for review at the 
administrative appeal level. However, when records or portions of 
records withheld under an exemption that is subsequently determined not 
to apply are reviewed again to determine the applicability of other 
exemptions not previously considered, this is considered an initial 
review for purposes of assessing a review charge.
    (b) When DOT aggregates requests as provided in Sec.  7.34(d), DOT 
charges each requester a ratable portion of the fees charged for 
combined services rendered on behalf of all requesters.
    (c) DOT waives or reduces the fees described in Sec.  7.42(i) and 
(j) when the requester makes a fee waiver or reduction request as 
provided in Sec.  7.24(b) and establishes that disclosure of the 
information is in the public interest as provided in 5 U.S.C. 552 and 
this paragraph, and the DOT official having initial denial authority 
determines that disclosure of the information is in the public interest 
and is not primarily in the commercial interest of the requester. The 
requester must establish all of the following factors to DOT's 
satisfaction to show that the request is in the public interest:
    (1) That the subject matter of the requested records concerns the 
operations or activities of the Federal Government;
    (2) That the disclosure is likely to contribute to an understanding 
of Federal Government operations or activities;
    (3) That disclosure of the requested information will contribute to 
the understanding of the public at large, as opposed to the 
understanding of the individual requester or a narrow segment of 
interested persons (to establish this factor, the requester must show 
an intent and ability to disseminate the requested information to a 
reasonably broad audience of persons interested in the subject);
    (4) That the contribution to public understanding of Federal 
Government operations or activities will be significant; and
    (5) That the requester does not have a commercial interest that 
would be furthered by the requested disclosure or that the magnitude of 
any identified commercial interest to the requester is not sufficiently 
large in comparison with the public interest in disclosure to render 
the disclosure one that is primarily in the commercial interest of the 
requester.
    (d) DOT furnishes documents without charge or at a reduced charge 
when the official having initial denial authority determines that the 
request concerns records related to the death of an immediate family 
member who was, at the time of death, a DOT employee.
    (e) DOT furnishes documents without charge or at a reduced charge 
when the official having initial denial authority determines that the 
request is by the victim of a crime who seeks the record of the trial 
at which the requester testified.
    (f) DOT does not assess the following fees when DOT fails to comply 
with the time limits under Sec.  7.31 or Sec.  7.33 and no unusual or 
exceptional circumstances (see Sec.  7.34(a) and (c)) apply to the 
processing of the request or appeal:
    (1) Search fees otherwise chargeable under Sec.  7.42(h) and (j); 
and
    (2) Duplication fees otherwise chargeable under Sec.  7.42(i).

Sec.  7.44  How can I pay a processing fee for records requested under 
subpart B or subpart C of this part?

    Fees typically should be paid online, using a credit card, debit 
card, or electronic check. The DOT FOIA page (http://www.dot.gov/foia) 
has direct links to the electronic payment site. Any fees paid with a 
paper check, draft, or money order must be made payable to the U.S. 
Treasury and delivered as directed by the applicable FOIA Requester 
Service Center identified in Sec.  7.27 (if the fees are for records 
made available under subpart C) or the DOT Dockets Office identified in 
Sec.  7.12(b)(1) (if the fees are for records made available under 
subpart B).

Sec.  7.45  When are pre-payments required for records requested under 
subpart C of this part, and how are they handled?

    (a) When DOT estimates that the search charges, review charges, 
duplication fees, or any combination of fees that could be charged to 
the requester will likely exceed US $25, DOT notifies the requester of 
the estimated amount of the fees, unless the requester has previously 
indicated a willingness to pay fees as high as those anticipated. In 
cases where DOT notifies the requester that actual or estimated fees 
may amount to more than US $25, the time limit for responding to the 
request is tolled until the requester has agreed to pay the anticipated 
total fee (see Sec.  7.35). The notice also informs the requester how 
to consult with the appropriate DOT officials with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (b) DOT may require payment of fees prior to actual duplication or 
delivery of any releasable records to a requester. However, advance 
payment, i.e., before work is commenced or continued on a request, is 
not required unless:
    (1) Allowable charges that a requester may be required to pay are 
likely to exceed US $250; or

[[Page 16218]]

    (2) The requester has failed to pay within 30 days of the billing 
date fees charged for a previous request to any part of the U.S. 
Government.
    (c) When paragraph (b)(1) of this section applies, DOT notifies the 
requester of the estimated cost. If the requester has a history of 
prompt payment of FOIA fees, the requester must furnish satisfactory 
assurance of full payment of the estimated charges. Otherwise, the 
requester may be required to make advance payment of any amount up to 
the full estimated charges.
    (d) When paragraph (b)(2) of this section applies, DOT requires the 
requester to either demonstrate that the fee has been paid or pay the 
full amount owed, including any applicable interest, late handling 
charges, and penalty charges as discussed in Sec.  7.46. DOT also 
requires such a requester to make an advance payment of the full amount 
of the estimated fee before DOT begins processing a new request or 
continues processing a pending request.
    (e) In the event that a DOT component is required to refund a 
prepayment, the processing of the refund may necessitate collection of 
the requester's Taxpayer Identification Number or Social Security 
Number and direct deposit information (bank routing number and bank 
account number) under 31 U.S.C. 3325, 31 U.S.C. 3332, and 31 CFR Part 
208.

Sec.  7.46  How are late payments handled?

    (a) DOT assesses interest on an unpaid bill starting on the 31st 
day following the day on which the notice of the amount due is first 
mailed to the requester. Interest accrues from the date of the notice 
of amount due at the rate prescribed in 31 U.S.C. 3717. Receipt by DOT 
of a payment for the full amount of the fees owed within 30 calendar 
days after the date of the initial billing stops the accrual of 
interest, even if the payment has not been processed.
    (b) If DOT does not receive payment of the fees charged within 30 
calendar days after the date the initial notice of the amount due is 
first mailed to the requester, DOT assesses an administrative charge to 
cover the cost of processing and handling the delinquent claim. In 
addition, DOT applies a penalty charge with respect to any principal 
amount of a debt that is more than 90 days past due. Where appropriate, 
DOT uses other steps permitted by Federal debt collection statutes, 
including disclosure to consumer reporting agencies and use of 
collection agencies, to encourage payment of amounts overdue.

[FR Doc. 2014-06503 Filed 3-24-14; 8:45 am]
BILLING CODE 4910-62-P
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