element concerned, or the General Counsel, as the case may be, as to the availability of the record or the appropriateness of a fee waiver or reduction constitutes final agency action for the purpose of judicial review.

(f) The decision of the head of the operating element concerned, or the General Counsel, as the case may be, not to disclose a record under this part or not to grant a request for a fee waiver or reduction is considered to be a denial by the Secretary for the purpose of section 552(a)(4)(B) of title 5, United States Code.

(g) Any final determination by the head of an operating element or his or her delegee identified in appendices B through J of this part, not to disclose a record under this part, or not to grant a request for a fee waiver or reduction, is subject to concurrence by the General Counsel or his or her designee.

(h) Upon a determination that an appeal will be denied, the requester shall be informed in writing of the reasons for the denial of the request, and the names and titles or positions of each person responsible for the determination, and that judicial review of the determination is available in the United States District Court for the judicial district in which the 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.

(a) This subpart prescribes fees for services performed for the public under subparts E and F of this part by the Department.

(b) All terms defined by the Freedom of Information Act apply to this subpart, and the term hourly rate means the actual hourly base pay for a civilian employee or, for members of the Coast Guard, the equivalent hourly pay rate computed using a 40 hour week and the member's normal basic pay and allowances.

(c) This subpart applies to all employees of the Department, including those of non-appropriated fund activi

ties of the United States Coast Guard and the Maritime Administration.

(d) This subpart does not apply to any special study, special statistical compilation, table, or other record requested under 49 U.S.C. 329(c). The fee for the performance of such a service is the actual cost of the work involved in compiling the record. All such fees received by the Department in payment of the cost of such work are deposited in a separate account administered under the direction of the Secretary, and may be used for the ordinary expenses incidental to providing the information.

(e) This subpart does not apply to requests from record subjects for records about themselves filed in Departmental systems of records. Fees for such requests are to be determined in accordance with the Privacy Act of 1974, as implemented by Department of Transportation regulations (49 CFR part 10).

§ 7.93 Payment of fees.

(a) The fees prescribed in this subpart may be paid by check, draft, or money order, payable to the Treasury of the United States. However, in the case of the Saint Lawrence Seaway Development Corporation, all fees resulting from a request to that operating element shall be made payable to the Saint Lawrence Seaway Development Corporation.

(b) Charges may be assessed by the Department for time spent searching for requested records even if the search fails to locate the records or the records located are determined to be exempt from disclosure. In addition, if records are requested for commercial use, the Department may assess a fee for time spent reviewing any responsive records located to determine whether they are exempt from disclosure.

(c) When it is estimated that the search charges, review charges, duplication fees or any combination of fees that could be charged to the requester will likely exceed $25, the requester shall be notified of the estimated amount of the fees, unless the requester has indicated in advance his or her willingness to pay fees as high as

those anticipated. The notice shall also inform the requester how to consult with appropriate Departmental officials with the object of reformulating the request to meet his or her needs at a lower cost.

(d) Payment of fees may be required by the Department prior to actual duplication of delivery of any releasable records to a requester. However, advance payment of fees, i.e., payment before work is commenced or continued on a request, may not be required unless:

(1) Allowable charges that a requester may be required to pay are likely to exceed $250; or

(2) The requester has failed to pay within 30 days of the billing date fees charged for a previous FOIA request.

(e) When paragraph (d)(1) of this section applies, the requester shall be notified of the likely cost and, where he or she has a history of prompt payment of FOIA fees, requested to furnish satisfactory assurance of full payment. Where no history of payment exists, the requester may be required to make advance payment of any amount up to the full estimated charges.

(f) When paragraph (d)(2) of this section applies, the requester shall be required to demonstrate that the fee has, in fact, been paid or to pay the full amount owed, including any applicable interest, late handling charges and penalty charges as discussed below. The requester shall also be required to make an advance payment of the full amount of the estimated fee before processing of a new request or continuation of a pending request is begun.

(g) The Department will assess interest on an unpaid bill starting on the 31st day following the day on which the notice of the amount due is first mailed to the requester. Interest will accrue from the date of the notice of amount due and will be at the rate prescribed in section 3717 of title 31, U.S.C. Receipt by the Department of a payment for the full amount of the fees owed within 30 calendar days after the date of the initial billing will stay the accrual of interest, even if the payment has not been processed.

(h) If payment of fees charged is not received within 30 calendar days after the date the initial notice of the amount due is first mailed to the requester, an administrative charge will be assessed by the Department to cover the cost of processing and handling the delinquent claim. In addition, a penalty charge will be applied with respect to any principal amount of a debt that is more than 90 days past due. Where appropriate, other steps permitted by federal debt collection statutes, including disclosure to consumer reporting agencies and use of collection agencies, will be utilized by the Department to encourage payment of amounts overdue.

(i) In any instance where the Department reasonably believes that a requester or a group of requesters acting in concert is attempting to break down a single FOIA request into a series of requests for the sole purpose of evading the payment of otherwise applicable fees, the Department will aggregate the requests and determine the applicable fees on the basis of the aggregation.

(j) Notwithstanding any other provision of this subpart, when the total amount of fees that could be charged for a particular request (or aggregation of requests) under subpart F, after taking into account all services which must be provided at no charge or at a reduced charge, is less than $10.00 the Department will not make any charge for fees.

§ 7.95 Fee schedule.

(a) The standard fee for a manual search to locate a record requested under subpart F of this part, including making it available for inspection, will be determined by multiplying each searcher's hourly rate plus 16 percent by the time spent conducting the search.

(b) The standard fee for a computer search for a record requested under subpart F of this part is the actual cost. This includes the cost of operating the central processing unit (CPU) for the time directly attributable to searching for records responsive to a FOIA request and the operator/programmer salary (hourly rate plus 16

percent) costs apportionable to the search.

(c) The standard fee for review of records requested under subpart F of this part is the reviewer's hourly rate plus 16 percent multiplied by the time he or she spent determining whether the requested records are exempt from mandatory disclosure.

(d) The standard fee for duplication of a record requested under subpart F of this part is determined as follows:

(1) Per copy of each page (not larger than 82x14 inches) reproduced by photocopy or similar methods (includes costs of personnel and equipment), $0.10.

(2) Per copy prepared by computer, such as tapes or printout, Actual costs, including operator time.

(3) Per copy prepared by any other method of duplication, Actual direct cost of production.

(e) Depending upon the category of requester, and the use for which the records are requested, in some cases the fees computed in accordance with the above standard fee schedule must either be reduced or not charged, as prescribed by other provisions of this subpart.

(f) The following special services not required by the FOIA may be made available upon request, at the stated fees:

Certified copies of documents, with Department of Transportation or operating element seal (where authorized), $4.00, or true copy, without seal, $2.00.

§ 7.97 Services performed without charge or at a reduced charge.

(a) No fee is to be charged to any requester making a request under subpart F for the first two hours of search time unless the records are requested for commercial use. For purposes of this subpart, when a computer search is required two hours of search time will be considered spent when the hourly costs of operating the central processing unit used to perform the search added to the computer operator's salary cost (hourly rate plus 16 per cent) equals two hours of the computer operator's salary costs (hourly rate plus 16 percent).

(b) No fee is to be charged for any time spent searching for a record requested under subpart F if the records are not for commercial use and the requester is a representative of the news media, an educational institution whose purpose is scholarly research, or a non-commercial scientific institution whose purpose is scientific research.

(c) No fee is to be charged for duplication of the first 100 pages (standard paper, not larger than 81⁄2x14 inches) of records provided to any requester in response to a request under subpart F unless the records are requested for commercial use.

(d) No fee is to be charged to any requester for review of a record requested under subpart F to determine whether it is exempt from disclosure unless the records are requested for commercial use. A review charge may not be charged except with respect to an initial review to determine the applicability of a particular exemption to a particular record or portion of a record. A review charge may not be assessed for review at the administrative appeal level. When records or portions of records withheld in full under an exemption which is subsequently determined not to apply are reviewed again to determine the applicability of other exemptions not previously considered, this is considered an initial review for purposes of assessing a review charge.

(e) Documents will be furnished without charge or at a reduced charge if the Assistant Secretary for Public Affairs, or his or her designee, or official(s) having initial denial authority, as the case may be, determine that disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

(f) Factors to be considered by offcials of the Department authorized to determined whether a waiver or reduc tion of fees will be granted include:

(1) Whether the subject matter of the requested records concerns the operations or activities of the Federal government;

(2) Whether the disclosure is likely to contribute to an understanding of Federal government operations or activities;

a

(3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or narrow segment of interested persons; (4) Whether the contribution to public understanding of Federal government operations or activities will be significant;

(5) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and

(6) Whether the magnitude of any identified commercial interest of the requester is sufficiently large in comparison with the public interest in disclosure that disclosure is primarily in the commercial interest of the requester.

§ 7.99 Transcripts.

Transcripts of hearings or oral arguments are available for inspection. Where transcripts are prepared by a nongovernmental contractor, and the contract permits the Department to handle the reproduction of further copies, subpart I applies. Where the contract for trans ription services reserves the sales pr. lege to the reporting service, any duplicate copies must be purchased directly from the reporting service.

$7.101 Copyrighted material.

Unless approval is secured from the copyright holder, the Department will not reproduce or otherwise disseminate a copy of a copyrighted work to a requester under the FOIA. However, the Department will make arrangements to enable a requester to review the copyrighted work at a Departmental facility.

§7.103 Alternative sources of information. In the interest of making documents of general interest publicly available at as low a cost as possible, alternative sources shall be arranged whenever possible. In appropriate instances, material that is published and offered for sale may be obtained from the Super

intendent of Documents, U.S. Government Printing Office, Washington, DC 20402; the U.S. Department of Commerce's National Technical Information Service (NTIS), Springfield, Virginia 22151; or the National AudioVisual Center, National Archiyes and Records Administration, Capital Heights, MD 20743-3701.

APPENDIX A TO PART 7-OFFICE OF THE SECRETARY

1. General. This appendix describes the location and hours of operation of the document inspection facility of the Office of the Secretary (OST); the kinds of records that are available for public inspection and copying at the facility; and the procedures by which members of the public may make requests for records.

2. Document Inspection Facilities. The document inspection facility for records of the Office of the Secretary other than those required to be filed in connection with docketed aviation economic matters is maintained by the Office of the General Counsel, suite 9421 of the Headquarters Building, located at 400 Seventh Street, SW., Washington, DC 20590. This facility is open to the public from 9 a.m. to 5 p.m. ET, Monday through Friday, except legal public holidays and other special closings. The document inspection facility for documents required to be filed in connection with docketed aviation economic matters is maintained by the Documentary Services Division, Office of the General Counsel, suite 4107 of the Headquarters Building. This facility is open to the public from 9 a.m. to 5 p.m. ET, Monday through Friday, except legal public holidays and other special closings.

3. Records available through the document inspection facilities. The following records are available through the document inspection facilities:

(a) Any material issued by the Office of the Secretary and published in the FEDERAL REGISTER, including regulations.

(b) Final opinions (including concurring or dissenting opinions) and orders

made in the adjudication of cases and issued by the Office of the Secretary.

(c) Any policy or interpretation issued by the Office of the Secretary, including any policy or interpretation concerning a particular factual situation, if that policy or interpretation can reasonably be expected to have precedential value in any case involving a member of the public in a similar situation.

(d) Any administrative staff manual or instruction to staff, issued by the Office of the Secretary, that affects any member of the public, including the prescribing of any standard, procedure, or policy that, when implemented, requires or limits any action of any member of the public or prescribes the manner of performance of any activity by any member of the public.

(e) Formal pleadings filed in connection with docketed aviation economic proceedings, including applications, complaints, motions, petitions, answers, comments and replies.

(f) DOT Orders. DOT orders that are issued by the Department and used primarily to promulgate internal DOT policy, instructions, and general guid

ance.

(g) DOT Notices. DOT notices that are issued by the Department and contain short-term instructions or information that is scheduled to remain in effect for fewer than 90 days or for a predetermined period of time normally not to exceed one year.

(h) OST Orders. OST orders that are issued by the Office of the Secretary (OST) and used primarily to promulgate internal OST policy, instructions, and general guidance.

(i) OST Notices. OST notices that are issued by the Office of the Secretary and contain short-term instructions or information which is expected to remain in effect for fewer than 90 days or for a predetermined period of time normally not to excees one year.

4. Requests for records under subpart F of this part. Each person desiring to inspect an OST record, or to obtain a copy thereof, should submit a written request to the Associate General Counsel, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. If it is unknown where in DOT the record(s)

sought may be found, the request may be submitted to the Associate General Counsel, who will ensure the appropriate processing.

5. The official having authority to make determinations on requests, pursuant to the Freedom of Information Act, is limited to the Associate General Counsel or his or her designee.

6. Reconsideration of determinations not to disclose records and to deny fee waivers. Any person who has been notified that a record or part of a record that has been requested will not be disclosed or that a request for a fee waiver or reduction will not be granted, either in whole or in part, may appeal, in writing, to the General Counsel, U.S. Department of Transportation, for reconsideration of that determination. The decision of the General Counsel is administratively final.

[53 FR 30268, Aug. 11, 1988, as amended by Amdt. 7-1, 54 FR 10010, Mar. 9, 1989]

APPENDIX B TO PART 7—UNITED STATES COAST GUARD

1. General.

This appendix describes the document inspection facilities of the U.S. Coast Guard, the kinds of records that are available for public inspection and copying at those facilities, and the procedures by which members of the public may make requests for identifiable records.

2. Document Inspection Facilities

The document inspection facilities are located at the offices of the Commandant and District Commanders. The address for each of these facilities is set forth below. They are open to the public Monday through Friday during the hours specified, except for legal public holidays and other special closings. The States or regions within the jurisdiction of each District are also provided.

Commandant (G-TIS), U.S. Coast Guard, Washington, DC 20593. The facility is located at Coast Guard Headquarters, Management Analysis Division, 2100 Second Street SW., Washington, DC 20593. 7:00 a.m.-3:30 p.m. ET.