termination is not to release the record, the person making the request shall, at the same time he is notified of such determination, be notified of: (1) The reason for the determination; (2) The right of such person to appeal the determination; and (3) The names and titles or positions of each person responsible for the denial of the request. § 7.23 Final determination. A determination with respect to any appeal made pursuant to § 7.81 shall be made within twenty days (excepting Saturdays, Sundays, and legal public holidays) after receipt of such appeal except that this time limit may be extended by up to ten working days in accordance with § 7.25. The person making the request will be notified immediately of such determination, pursuant to § 7.81. § 7.25 Extension. In unusual circumstances as specified in this section, the time limits prescribed in §§ 7.21 and 7.23, may be extended by written notice to the person making a request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. Such notice shall not specify a date that would result in a cumulative extension of more than ten working days. As used in this subparagraph, "unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular request: (a) 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: (b) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (c) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. Subpart D-Publication in Federal Register § 7.31 Applicability. This subpart implements section 552 (a)(1) of Title 5, United States Code, and prescribes rules governing the publication in the FEDERAL REGISTER Of the following: (a) Descriptions of the organization of the Department, including its operating administrations and the established places at which, the officers from whom, and the methods by which, the public: (1) May secure information; and (2) make submittals or requests or obtain decisions. (b) Statements of the general course and methods by which the Department's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available. (c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports or examinations. (d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability adopted by the Department. (e) Each amendment, or repeal of any material listed in paragraphs (a) through (d) of this section. § 7.33 Publication required. (a) General. All material described in § 7.31 is published in the FEDERAL REGISTER. For the purposes of this paragraph, material that is reasonably available to the class of persons affected by it is considered to be published in the FEDERAL REGISTER if it has been incorporated by reference therein with the approval of the Director of the Federal Register. (b) Effect of nonpublication. Except to the extent that a person has actual and timely notice of the terms thereof, no person may in any manner be required to resort to, or be adversely affected by, any procedure or matter required to be published in the FEDERAL REGISTER but not so published. Subpart E-Availability of Opinions, Orders, Staff Manuals, Statements of Policy, and Interpretations: Indexes $7.41 Applicability. (a) This subpart implements section 552(a)(2) of Title 5, United States Code. It prescribes the rules governing the availability, for public inspection and copying, of the following: (1) Any final opinion (including a concurring or dissenting opinion) or order made in the adjudication of a case. (2) Any policy or interpretation that has been adopted under the authority of the Department, including any policy or interpretation concerning a particular factual situation, if that policy or interpretation can reasonably be expected to have precedential value in any case involving a member of the public in a similar situation. (3) Any administrative staff manual or instruction to staff that affects any member of the public, including the prescribing of any standard, procedure, or policy that, when implemented, requires or limits any action of any member of the public or prescribes the manner of performance of any activity by any member of the public. However this does not include staff manuals or instructions to staff concerning internal operating rules, practices, guidelines and procedures for Departmental inspectors, investigators, examiners, auditors and negotiators, the release of which would substantially impair the effective performance of their duties. Indexes of the materials listed in this paragraph are maintained, as specified in Appendices A through H to this part. (b) Any material listed in paragraph (a) of this section that is not made available for public inspection and copying, or that is not indexed as required by § 7.45, may not be cited, relied on, or used as precedent by the Department to adversely affect any member of the public unless the person against whom it is cited, relied on, or used has had actual and timely notice of that material. (c) This subpart does not apply to material that is published in the FED ERAL REGISTER or is covered by Subpart G of this part. § 7.43 Access to materials and index. (a) Except as provided in paragraph (b) of this section, material listed in § 7.41(a) is available for inspection and copying by any member of the public at document inspection facilities of the Department. The index of material available at each facility is published in the FEDERAL REGISTER quarterly and is also located at the facility. Information as to the kinds of materials available at each facility may be obtained from the facility or the headquarters of the operating administration of which it is a part. (b) The material listed in § 7.41(a) that is published and offered for sale is indexed but is not required to be kept available for public inspection. Whenever practicable, however, it will be made available for public inspection at any document inspection facility maintained by the Office of the Secretary or an operating administration, whichever is concerned. § 7.45 Indexes of public materials. The index of material subject to public inspection and copying under this subpart covers all material issued, adopted, or promulgated after July 4, 1967. However, earlier material may be included in the index to the extent practicable. Each index contains instructions on how to use it. 87.47 Copies. Copies of any material covered by this subpart that is not published and offered for sale may be ordered, upon payment of the appropriate fee, from the office indicated in § 7.53. Copies are certified upon request and payment of the prescribed fee. Subpart F-Availability of Reasonably Described Records 87.51 Applicability. This subpart implements section 552 (a)(3) of Title 5, United States Code, and prescribes the regulations governing public inspection and copying of reasonably described records. It does not apply, however, to material that is covered by Subpart D of this part, records determined under Subpart G of this part not to be available, and material that is offered for sale by the Government Printing Office. § 7.53 Public availability of records. (a) Each person desiring access to a record covered by this subpart must comply with the following provisions: (1) A written request must be made for the record. (2) Such request must indicate that it is being made under the Freedom of Information Act. (3) The envelope in which the request is sent must be prominently marked with the letters "FOIA". (4) The request must be addressed to the appropriate office as set forth in paragraph (c) of this section. (b) If the requirements of paragraph (a) of this section are not met, the ten day time limit described in § 7.21 will not begin to run until the request has been identified by an employee of the Department as a request under the Freedom of Information Act and has been received by the Office to which it should have been originally sent. (c) Each person desiring access to a record covered by this subpart that is located in the Office of the Secretary, or to obtain a copy of such a record, must make a written request to the Director of Public Affairs, 400 Seventh Street, SW., Washington, D.C. 20590. Each person desiring access to a record covered by this subpart that is located in an operating administration, or to obtain a copy of such a record, must make a written request to that administration at the address set forth in the appendix applicable to that administration. If the person making the request does not know where in the Department the record is located, he may make inquiry of the Director of Public Affairs as to its location. (d) Each request should describe the particular record to the extent possible. The request should specify the subject matter of the record, the date when it was made, the place where it was made and the person or office that made it. If the description is insufficient, the officer handling the request will notify the person making the request and, to the extent possi ble, indicate the additional data required. (e) Each record made available under this subpart is available for inspection and copying during regular working hours at the place where it is located or, upon reasonable notice, at the document inspection facilities of the Office of the Secretary or each administration as set forth in the appendix applicable to that office or administration. Original records may be copied but may not be released from custody. Upon payment of the appropriate fee, copies will be mailed to the requester. (f) Except for services performed without charge or at a reduced charge pursuant to § 7.97, each request for a search of records or for a copy of a record should be accompanied by the fee prescribed in the applicable fee schedule. When the fee is not readily ascertainable without examination of the records, the officer or employee receiving the request will furnish an estimate of the fee to the person making the request or the fee may be collected after the records are made available. If a search is necessary the fee for a search is charged, regardless of whether it is successful. (g) Notwithstanding paragraphs (a) through (f) of this section, informational material, such as press releases, pamphlets, and other material of that nature that is ordinarily made available to the public as a part of any information program of the Government is available upon oral or written request. There is no fee for individual copies of that material as long as it is in supply. In addition, the Department will continue to respond, without charge, to routine oral or written inquiries that do not involve the furnishing of records. 87.55 Request for records of concern to more than one Government organization. (a) If the release of a record covered by this subpart would be of concern to both this Department and another Federal agency, the record will be made available only after consultation with the other interested agency. (b) If the release of a record covered by this subpart would be of concern to both this Department and a State or local government, or a foreign government, the record will be made available by the Department only after consultation with the other interested State or local government or foreign government. Subpart G-Exemptions § 7.61 Applicability. This subpart implements section 552 (b) of Title 5, United States Code which exempts certain records from public inspection under section 552(a). The Department will, however, release a record authorized to be withheld under §§ 7.65 through 7.79 unless it determines that the release of that record would be inconsistent with a purpose of the section concerned. Examples given in §§ 7.65 through 7.79 of records included within a particular statutory exemption are not necessarily illustrative of all types of records covered by the exemption. § 7.63 Records relating to matters that are required by Executive Order to be kept secret. Records relating to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy include those within the scope of the following, and any further amendment of any of them, but only to the extent that the records are in fact properly classified pursuant to such Executive Order: (a) Executive Order 11652 of March 8, 1972 (37 FR 5209, March 10, 1972). (b) Executive Order 10865 of February 20, 1960 (3 CFR 1959-1963 Comp., p. 398); and (c) Executive Order 10104 of February 1, 1950 (3 CFR 1949-1953 Comp., p. 298). These records may not be made available for public inspection. [40 FR 7915, Feb. 24, 1975; 40 FR 10471, Mar. 6, 1975] § 7.65 Records related solely to internal personnel rules and practices. (a) Records related solely to internal personnel rules and practices that are within the statutory exemption include memoranda pertaining to personnel matters such as staffing policies and policies and procedures for the hiring, training, promotion, demotion, and discharge of employees, and management plans, records, or proposals related to labor-management relationships. (b) The purpose of this section is to authorize the protection of any record related to internal personnel rules and practices dealing with the relations between the Department and its employ ees. § 7.67 Records exempted from disclosure by statute. (a) Records relating to matters that are specifically exempted by statute from disclosure include those covered by the following: (1) Section 1905 of Title 18, United States Code, protecting trade secrets, processes, and certain economic and other data obtained by examination or investigation, or from reports. (2) Revised Statutes section 4448, as amended (46 U.S.C. 234) protecting the source of reports of defects and imperfections of vessels. (3) Revised Statutes section 4551, as amended (46 U.S.C. 643) protecting the names, address, and next of kin of merchant seamen and entries made in records pertaining to merchant seamen. (4) Pub. L. 86-660, as amended (23 U.S.C. 313 (note), protecting information in the register of persons whose license to operate a motor vehicle has been denied, terminated, or suspended. (5) Section 106 of Pub. L. 89-564 (23 U.S.C. 313 (note)) so far as it relates to identification of individuals in reports on highway traffic accidents. (6) Section 902(f) of the Federal Aviation Act of 1958 (49 U.S.C. 1472(f)) relating to information obtained by examining the accounts, records, or memoranda of an air carri er. (7) Section 1001 of the Federal Aviation Act of 1958 (49 U.S.C. 1481) so far § 7.69 Trade secrets and commercial or financial information that is privileged or confidential. (a) Trade secrets and commercial or financial information that is privileged and for which confidentiality is requested by the person possessing such privilege are within the statutory exemption. This includes the following: (1) Commercial or financial information not customarily released to the public, furnished and accepted in confidence. (2) Commercial, technical, and financial information furnished by any person in connection with an application for a loan or a loan guarantee. (3) Commercial or financial information customarily subjected to an attorney-client or similar evidentiary privilege. (4) Materials in which the Department has a property right such as designs, drawings, and other data and reports acquired in connection with any research project, inside or outside of the Department, or any grant or contract. (5) Business records of the Alaska Railroad of the kind which are ordinarily treated by railroads as confidential. (b) The purpose of this section is to authorize the protection of trade secrets and commercial or financial records that are customarily privileged or are appropriately given to the Department in confidence. It assures the confidentiality of trade secrets and commercial or financial information obtained by the Department through questionnaires and required reports to the extent that the information would not customarily be made public by the person from whom it was obtained. In any case in which the Department has obligated itself not to disclose trade secrets and commercial or financial information it receives, this section indicates the Department's intention to honor that obligation to the extent permitted by law. In addition, this section recognizes that certain materials, such as research data and materials, formulae, designs, and architectural drawings, have significance not as records but as items of property acquired, in many cases, at public expense. In any case in which similar proprietary material in private hands would be held in confidence, material covered by this section may be held in confidence. § 7.71 Intragovernmental exchanges. (a) Any record prepared by a Government officer or employee (including those prepared by a consultant) for internal Government use is within the statutory exemption to the extent that it contains: or (1) Opinions, advice, deliberations, recommendations made in the course of developing official action by the Government, but not actually made a part of that official action, or (2) Information concerning any pending proceeding or similar matter including any claim or other dispute to be resolved before a court of law, administrative board, hearing officer, or contracting officer. (b) This section has two distinct purposes. One is to protect the full and frank exchange of ideas, views, and opinions necessary for the effective functioning of the Government and to afford this protection both before and after any action is taken. This judicially recognized privilege of protection against disclosure in litigation or elsewhere is intended to assure that these resources will be fully and readily available to those officials upon whom the responsibility rests to take official and final Departmental action. However, the action itself, any memoranda made part of that action, and the facts on which it is based are not within this protection. The other purpose is to protect against the premature disclosure of material that is in the development stage if premature disclosure |