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to the appropriate Federal agency and his claim Shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within 6 months after it is filed Shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this Subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party Complaint, crossclaim, or Counterclaim.

(c) Section 2678 of said Title 28 provides that no attorney shall charge fees in excess of 25 percent of a judgment or Settlement, after litigation, Or Over 20 percent of administrative settlements.

(d) Section 2679 of said Title 28 provides that tort remedies against the United States by reason Of Operation by any Government employee of a motor vehicle while acting within the scope of his employment shall be exclusive of any other action against the employee.

(e) Section 2401(b) of Said Title 28 provides that:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 years after Such claim accrueS or unless action is begun within 6 months after the date of mailing, by Certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

(f) The Tort, Claims Act as annended provides that it shall apply to Claims accruing 6 months or more after date of enactment (date of enactment, July 18, 1966).

(g) Pursuant to section 2672 as amended, the Attorney General has issued regulations (herein referred to as “the Regulations”; 28 CFR Part 14) prescribing standards and procedures for Settlement of tort claims (31 FR 16616). Persons delegated authority under this part shall follow and be guided by such Regulations (28 CFR Part 14).

[32 FR 3769, Mar. 7, 1967]

$2.3 Delegation of authority.

(a) The General Counsel is hereby named as the designee of the Secretary OfCommerce with respect to tort claims filed under Section 2672 Of Title 28, U.S. Code, as described in $2.2, with authority to act on such claims as pro

Vided in Said section 2672, including denial thereof.

(b) Authority delegated under this Section may, with the approval of the General Counsel, be redelegated to Other designees.

(c) Settlement or denial of any claim under this part is final for the Department of Commerce.

[48 FR 31636, July 11, 1983]

$2.4 Procedure for filing claims.

(a) The procedure for filing and the Contents of claims shall be pursuant to §§ 14.2, 14.3, and 14.4 of the Regulations (28 CFR Part 14).

(b) Claims shall be filed with the ASSistant General Counsel for Administration, Department of Commerce, Washington, D.C. 20230.

(C) If a claim is filed elsewhere in the Department, it shall immediately be recorded and transmitted to the Assistant General Counsel for Administration.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983]

§ 2.5 Adjudication and settlement of claims.

(a) Upon receipt of a claim by the ASsistant General Counsel for Administration, the time and date of receipt shall be recorded. The Assistant General Counsel may, after recording the Claim, transmit it to the Departmental Office or primary Operating unit involved in the claim and request that an investigation be Conducted. The appropriate Departmental office or primary Operating unit shall designate an official to conduct the investigation, who shall prepare a file, obtain additional information as necessary, and prepare for the Assistant General Counsel’s signature a proposed award or denial of the claim. If the investigation capabilities of the Office Or unit are insufficient for a proper and complete investigation, the office or unit shall ConSult with the Departmental Office of Investigations and Security to: (1) Have that Office conduct the investigation or (2) request another Federal agency to Conduct the investigation as necessary, pursuant to $14.8 of the regulations (28 CFR Part 14), all on a reimbursable basis.

(b) If the amount of the proposed award exceeds $25,000 (in which case, approval by the Attorney General is required), or if consultation with the Department of Justice is desired or required pursuant to $14.6 of the regulations, the ASSistant General Counsel for Administration will prepare and compile the material required by the Department of Justice under § 14.7 of the Regulations.

(c) Denial of a claim Shall be communicated as provided by $14.9 of the regulations (28 CFR Part 14).

(d) Designees hereunder are responsible for the Control Over and expeditious handling of claims, bearing in mind the applicable statutory time limitations for adjudications of claims.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983]

$2.6 Payment of claims.

When an award is made, the file On the case shall be transmitted to the appropriate fiscal office for payment by the Department, or for transmittal for payment as prescribed by $14.10 of the Regulations (28 CFR Part 14). Prior to payment appropriate releases shall be obtained, as provided in said section.

[32 FR 3769, Mar. 7, 1967]

$2.7 Annual report.

The ASSistant General Counsel for Administration shall Compile an annual report covering the preceding fiscal year, describing actions, including denials, taken under this part, name of claimant, annount claimed, amount of any award, and a brief decription of the claim. The report shall be prepared by November 15 of each year.

[48 FR 31636, July 11, 1983]

$2.8 Supplementary regulations.

(a) The Assistant General Counsel for Administration may from time to time issue such supplementary regulations or instructions as he deems appropriate to carry out the purpose of this part.

(b) Any designee mentioned in paragraph (a) of $2.3 may issue regulations or instructions covering his area of responsibility hereunder which are Consistent with this part and with those issued under paragraph (a) of this Section, such regulations and instructions

to be approved by the Assistant General Counsel for Administration.

[32 FR 3769, Mar. 7, 1967, as amended at 48 F.R. 31636, July 11, 1983]



4.1 Scope and purpose.

4.2 Policies.

4.3 Definitions.

4.4 Availability of materials for inspection and copying; indexes.

4.5 Requests for records.

4.6 Initial determinations of availability of records.

4.7 Predisclosure notification procedures for Confidential commercial information.

4.8 Appeals from initial determinations or untimely delays.

4.9 Fees.




AUTHORITY: 5 U.S.C. 301, 5 U.S.C. 552, 5 U.S.C. 553, Reorganization Plan No. 5 of 1950; 31 U.S.C. 37.17.

SOURCE: 53 FR 6972, Mar. 4, 1988, unless otherwise noted.

$4.1 Scope and purpose.

(a) This part sets forth the rules of the Department of Commerce whereby the Department and its Organizational units are to make publicly available the materials and indexes Specified in 5 U.S.C. 552(a)(2) and the records requested under 5 U.S.C. 552(a)(3).

(b) These rules conform to requirements of the Freedom of Information Act, 5 U.S.C. 552; as amended, and Supplement Department Administrative Order 205–12, which contains policies, delegations of authority, and other Criteria, implementing 5 U.S.C. 552. DAO 205–12 is attached as Appendix A to this part.

(C) Certain units of the Department Other than those identified in §4.4(d) have, pursuant to delegated authority

and for appropriate reasons, established their own facilities for the public inspection and copying of records. The units have provided for separate locations to which requests for records are to be made. These facilities and locations are identified in Appendix B to this part. The units may publish in the FEDERAL REGISTER Supplementary rules in addition to but not inconsistent with this part, DAO 205–12, and the rules and regulations contained in their respective chapters of the Code of Federal Regulations or otherwise in the FEDERAL REGISTER. These supplementary rules shall be maintained in the Central public reference facility identified in § 4.4(c), where information about them may be obtained.

$4.2 Policies.

(a) Department Administrative Order 205–12 contains the basic policies and Other Criteria, to be considered in issuing and administering these rules.

(b) Requests for records made under 5 U.S.C. 552(a)(3) apply Only to existing records. The Department is not required, in response to a request, to Create records by Combining Or Compiling information contained in existing records, to program or reprogram Computers, or otherwise to prepare new records. Departmental officials may, upon request, provide Or Create new information in record form pursuant to user Charge Statutes, such as 15 U.S.C. 1525–27, Or in accord with authority Otherwise provided by law.

§ 4.3 Definitions.

(a) All terms used in this part which are defined in 5 U.S.C. 551 Shall have the same meaning herein. (b) As used in this part, Act means the “Freedom of Information Act,” as amended, 5 U.S.C. 552. (c) The terms Office of the Secretary and Operating unit, as explained in Department Organization Order 1–1, “MisSiOn and Organization Of the Department of Commerce” (35 FR 19704, DeCenber 27, 1970), are defined as follows: (1) The “Office of the Secretary” is the general management arm of the Department and provides the principal Support to the Secretary in formulating policy and in providing advice to the President. It provides program

leadership for the Department's functions and exercises general supervision Over the operating units. It also directly carries out program functions as may be assigned by the Secretary from time to time, and provides, as determined to be more economical or effiCient, administrative and other support Services for designated operating units.

(2) An “operating unit” is an organizational entity outside the Office of the Secretary charged with carrying out Specified substantive functions (i.e. programs) of the Department. The operating units constitute the components of the Department through which most of its substantive functions are Carried Out.

(d) The term unit as used in this part means (1) an operating unit of the Department, and (2) each Secretarial offiCer and the persons and the Departmental Officers reporting to a Secretarial Officer.

[53 FR. 6972, Mar. 4, 1988; 53 FR 16211, May 5, 1988]

$4.4 Availability of materials for inspection and copying; indexes.

(a) The Assistant Secretary for Administration has established and maintains a central public reference facility available to units of the Department, at which place the following materials of those units utilizing the facility shall be made available for public inSpection and Copying:

(1) Final Opinions and Orders, including Concurring and dissenting opinions, made in the adjudication of Cases;

(2) Those statements of policy and interpretations which have been adopted by the participating Organizations and are not published in the FEDERAL REGISTER:

(3) Administrative Staff manuals and instructions to Staff that affect a member of the public;

(4) Current indexes providing identifying information for the public as to any matter which was issued, adopted, or promulgated after July 4, 1967, and is required by 5 U.S.C. 552(a)(2) to be made available or published;

(5) Records of the final votes of each member in every proceeding of an agency comprised of more than One member.

(6) Rules and decisions denying requests for records which otherwise implement or relate to the Act; and (7) Materials published in the FEDERAL REGISTER pursuant to 5 U.S.C. 552 (a)(1) and Such other materials which each unit may consider desirable and practical to make available for the Convenience of the public. (b) The Secretary of Commerce has determined (DAO 205–12, subparagraph 5.02a.5), that it is unnecessary and impracticable to publish quarterly or more frequently and distribute (by sale or otherwise) Copies of each index and supplements thereto, as provided in 5 U.S.C. 552(a)(2). Upon request, copies of Such indexes shall be provided at a cost not to exceed the direct Cost of duplication and mailing, if required. (c) The central facility established by the Assistant Secretary for Administration is the Central Reference and Records Inspection Facility, Room H6628, Department of Commerce Building, 14th Street between Constitution and Pennsylvania Avenue NW., Washington, DC 20230. The facility is open to the public Monday through Friday of each week, except on official holidays Of the Federal Government, between the hours of 9 a.m. and 4:30 p.m. There are no fees or formal requirements for inspection Of materials. Equipment for making copies of these materials is available for use by the public. Copies Of various Commerce Department ma— terials regularly available for sale by the Department may be purchased at the facility. Information about these materials can also be obtained at this facility. Correspondence concerning materials available at the facility or information about the rules inplementing the Act may be sent to the above address. The telephone number of the facility is (202) 377–3271. (d) The following units of the Department are participating in the use of this central facility: All Components of the Office of the Secretary of ComIsler'Ce. (e) Other units Of the Department which have established separate public reference facilities, listed in Appendix B to this part, may publish rules applicable to the services provided therein for public inspection and copying of

materials, provided such rules are not inconsistent with the part.

$4.5 Requests for records.

(a) A request for a record (or information contained therein) of the Department which is not customarily made available to the public as part of the Department's regular informational services or which is not available in a public reference facility described in § 4.4(c) or Appendix B to this part, shall be made in writing, with the envelope and the letter Clearly marked “Freedom of Information Request” to distinguish it from other mail to the Department. Each such request, so marked, shall be addressed to the unit of the Department identified in Appendix B to this part which the requester knows or has reason to believe is reSponsible for the records requested. If the requester is not sure which is the responsible addressee unit, it shall address the request to the Central facility identified in § 4.4(c), or obtain advance information from that facility as to which is the responsible addressee unit.

(b) Any request for records which is not marked and addressed as specified in paragraph (a) Of this Section will be So marked and addressed by Department personnel and forwarded inmediately to the responsible unit having possession Or control of the records requested or having primary concern with Such records. A request which is improperly addressed by the requester will not be deemed to have been “reCeived” for purposes Of the time period set forth in 5 U.S.C. 552(a)(6), until the earlier of the time that (1) forwarding Of the request to the responsible unit has been effected, Or (2) Such forwarding would have been effected with the exercise of due diligence by Department personnel. In each instance when a request is forwarded, the responsible unit receiving it shall notify the requester that the request was in properly addressed and of the date the request was received by the unit.

(C) Requesters must reasonably deScribe the records sought. A request for records shall identify the records sufficiently to enable Department personnel familiar with the subject matter to locate them with a reasonable amount of effort. The requester Shall, to the extent possible, furnish Specific descriptive information regarding date and place the records were made, the file descriptions, subject matter, persons involved, and other pertinent details that will help identify the records. If the request relates to a matter in pending litigation, the Court, location, and Case shall be identified. When more than one record is requested, the request shall clearly describe each Specific record, and the Specific information requested which is contained in the record, so that its availability may be separately determined. When appropriate, the requester shall describe the intended use of the requested records. Employees at a facility or at a Specific address listed in Appendix B will assist the public to a reasonable extent in framing a request.

[53 FR. 6972, Mar. 4, 1988; 53 FR 16211, May 5, 1988]

$4.6 Initial determinations of availability of records.

(a) The responsible unit, which receives a request for records shall promptly log the receipt of the request, and within ten days Of its receipt (excluding Saturdays, Sundays, and legal public holidays) shall initially determine: (1) Whether the request is for records under the Act, is for materials available otherwise than under the Act, Or is for information not contained in existing records and, therefore, not under the Act. The requester shall be promptly notified in writing how the request is being handled when it does not come within the Act. (2) Whether the records requested are reasonably described and can be located On the basis of the information Supplied by the requester. If any of the records requested cannot be identified and located from the information furnished, the unit shall promptly so inform the requester in writing, Specifying what additional identification is needed to assist the unit in locating the record, and offering to assist the requester to reformulate the request. (3) Whether the records no longer exist, or are not in the unit’s possesSion. The unit should, if it knows which unit. Of the Department or other

agency may have the records, forward the request to it. In each instance, the unit shall promptly notify the requester in writing. (4) Whether the requested records are the exclusive or primary concern of anOther executive agency. If so, the unit Shall refer the request and the responSive records to that other agency for further action under its rules, and promptly notify the requester in writing of this referral. When the subject matter of a classified record originated by another agency indicates that disClosure of the identity of the Orginating agency might, itself Compromise national Security, that agency Shall be consulted prior to any referral Of the responsive records. (5) Whether the request is a categorical One. A Categorical request, i.e., one for all records falling within a reasonably Specific but broad category, shall be regarded as conforming to the statutory requirement that records be reaSOnably described, if the particular records Can be identified, Searched for, Collected and produced without unduly burdening or disrupting the unit's operations. If the Categorical request does not reasonably describe the records requested, the unit shall promptly notify the requester in writing Specifying what additional identification is needed, and extend to the reQuester an Opportunity to COnfer with Department personnel to attempt to reformulate the request SO as to reaSonably describe the records. (6) In determining records responsive to a request a unit Ordinarily shall include only those records within a unit’s possession and control as of the date of its receipt of the request. (7) In each of the situations set forth in paragraphs (a) and (b) of this section, the procedures relating to fees deScribed in § 4.9 Shall be applied and COOrdinated as appropriate. (b) An authorized official in the reSponsible unit shall review the request to determine the availability of the records requested. (1) The determination shall be made within ten days (excluding Saturdays, Sundays and legal public holidays) of the receipt of the request (as defined in $4.5(b) of this part), unless the time is

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