at each facility may be obtained from the facility or the headquarters of the operating element of which it is a part.

(b) The material listed in § 7.41(a) that is published and offered for sale shall be 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 element, whichever is concerned.

§ 7.47 Index of public materials.

The index of material subject to public inspection and copying under this subpart shall cover 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 shall contain instructions on how to use it.

§ 7.49 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 will be certified upon request and payment of the fee prescribed in § 7.95(f).

Subpart F-Availability of Reasonably Described Records

§ 7.51 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.

§ 7.53 Public availability of records.

(a) Each person desiring access to or a copy of a record covered by this subpart shall comply with the following provisions:

(1) A written request must be made for the record.

(2) Such request should indicate that it is being made under the Freedom of Information Act.

(3) The envelope in which the request is sent should be prominently marked: "FOIA."

(4) The request should 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, treatment of the request will be at the discretion of the agency. The ten-day time limit described in § 7.21 shall not start to run until the request has been identified, or would have been identified with the exercise of due diligence, by an employee of the Department as a request pursuant to 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 or a copy of a record covered by this subpart that is located in the Office of the Secretary shall make a written request to the Assistant Secretary for Public Affairs, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590. Each person desiring access to or a copy of a record covered by this subpart that is located in an operating element shall make a written request to that element at the address set forth in the applicable appendix to this part. It the person making the request does not know where in the Department the record is located, he or she may make inquiry of the Assistant Secretary for Public Affairs as to its location.

(d) Each request should describe the particular record to the fullest extent possible. 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 person 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 shall notify the person making the request and, to the extent possible, indicate the additional data required.

(e) Each record made available under this subpart shall be made available for inspection and copying during regular business hours at the place where it is located, or photocopying may be arranged with the copied materials being mailed to the requester upon payment of the appropriate fee. Original records ordinarily will be copied except in those instances

where, in the Department's judgment, copying would endanger the quality of the original or raise the reasonable possibility of irreparable harm to the record. In these instances, copying of the original would not be in the public interest. In any event, original records will not be released from custody.

(f) If a requested record is known not to exist in the files of the agency, or to have been destroyed or otherwise disposed of, the requester shall be so notified.

(g) Fees will be determined in accordance with subpart I and the applicable appendix or appendices to this part.

(h) Notwithstanding paragraphs (a) through (g) of this section, informational material, such as news releases, pamphlets and other materials of that nature that are ordinarily made available to the public as a part of any information program of the Government will be available upon oral or written request. There will be no fee for individual copies of that material so long as they are 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.

§ 7.55 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 determination as to release will be made only after consultation with the other interested agency.

(b) If the release of the record covered by this subpart would be of concern to both this Department and a State or local government, a territory or possession of the United States, or a foreign government, the determination as to release will be made by the Department only after consultation with the other interested State or local government or foreign government.

(c) Whenever a request is made for: (1) A record containing information that has been classified by another Federal agency or that may be eligible for classification by such an agency; or

(2) a record containing information that relates to an investigation of a possible violation of criminal law or to a law enforcement proceeding and that was generated or originated by another Federal agency, the Office of the Secretary or the responsible operating element, whichever the case be, shall refer the request, or the portion thereof that pertains to the record in question, to the originating agency for a releasability determination. The requester shall be notified of the referral and informed of the name and address of the agency to which the request, or portion thereof, has been referred, unless such notification might jeopardize a law enforcement proceeding or have an adverse effect on national security matters.

§ 7.57 Request for business information submitted by a private party.

(a) If a request is received for information which has been designated by the submitted as confidential commercial information, or which the Department has some other reason to believe may contain trade secrets or other commercial or finanical information of the type described in § 7.69 of subpart G, the submitter of such information shall, except as is provided in paragraphs (c) and (d) of this section, be notified expeditiously and asked to submit any written objections to release. At the same time, the requester shall be notified that notice and an opportunity to comment are being provided to the submitter. The submitter shall, to the extent permitted by law, be afforded a reasonable period of time within which to provide a detailed statement of any such objections. The submitter's statement shall specify all grounds for withholding any of the information. The burden shall be on the submitter to identify all information for which exempt treatment is sought and to persuade the agency that the information should not be disclosed.

(b) The Office of the Secretary or the responsible operating element, whichever the case may be, shall, to the extent permitted by law, consider carefully a submitter's objections and specific grounds for nondisclosure

prior to determining whether to disclose business information. Whenever a decision is made to disclose the business information over the objection of a submitter, the office responsible for the decision shall forward to the submitter a written notice which shall include:

(1) A statement of the reasons for which the submitter's disclosure objections were not substained;

(2) A description of the business information to be disclosed; and

(3) A specific disclosures date. Such notice of intent to disclose shall, to the extent permitted by law, be forwarded to the submitter a reasonable number of days prior to the specified date upon which disclosure is intended. At the same time the submitter is notified, the requester shall be notified of the decision to disclose information.

(c) The notice requirements of this section shall not apply if:

(1) The office responsible for the decision 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 shall not apply in the case of:

(1) Business information submitted to the National Highway Traffic Safety Administration.

(2) Information contained in a document to be filed or in oral testimony that is sought to be withheld pursuant to Rule 39 of the Rules of Practice (14 CFR 302.39), and in Aviation Economic Proceedings.

(e) Whenever a requester brings suit seeking to compel disclosure of confidential commercial information, the Office of the Secretary or the responsible operating element, whichever the case may be, shall promptly notify the submitter.

Subpart G-Exemptions

§7.61 Applicability.

This subpart implements section 552(b) of title 5, United States Code,

which exempts certain records from the public disclosure requirements of 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 §§ 7.63 through 7.79 of records included within a particular statutory exemption are only illustrative and do not define 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 to be kept secret in the interest of national defense or foreign policy shall be exempt from public disclosure. Records exempt under this provision include but are not limited to 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. These records shall not be made available for public inspection.

(a) Executive Order 12356 of April 2, 1982 (3 CFR, 1982 Comp., p. 166);

(b) Executive Order 12065 of June 28, 1978, as as amended, (3 CFR, 1978 Comp., p. 190);

(c) Executive Order 11652 of March 8, 1972 (3 CFR, 1971-1975 Comp., p. 678);

(d) Executive Order 10865 of February 20, 1960 (3 CFR, 1959-1963 Comp., p. 398);

(e) Executive Order 10501 of November 5, 1953 (3 CFR, 1949-1953 Comp., p. 979); and

(f) Executive Order 10104 of February 1, 1950 (3 CFR, 1949-1953 Comp., p. 298).

§ 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 involving labor-management relationships. Also included within the statutory exemption are staff manuals or instructions concerning predominantly internal operating rules, practices, guidelines, procedures, and administrative data and handling instructions for Departmental personnel such as inspectors, investigators, examiners, auditors, and negotiators.

(b) The purpose of this section is to authorize the protection of those records in which there is slight public interest or which, if released, would substantially impair the performance of duties of Departmental employees or significantly risk circumvention of agency regulations or statutes.

§ 7.67 Records exempted from disclosure by statute.

(a) Records relating to matters that are specifically exempted from disclosure by statute (other than section 552(b) of title 5, United States Code) include, but are not limited to, those covered by the following:

(1) Section 3771 of title 18, United States Code, in conjunction with Rule 6(e) of the Federal Rules of Criminal Procedure, protecting grand jury material.

(2) Section 106 of the Highway Safety Act of 1966 (Pub. L. 89-564, 80 Stat. 731), protecting information identifying individuals who are the subject of highway traffic accident investigations.

as

(3) Section 206(c)(1) of the National Driver Register Act of 1982 (23 U.S.C. 401 (note)) and the National Driver Register Act, Pub. L. 86-660, amended (23 U.S.C. 313 (note)), protecting information concerning individuals included in reports of State driver licensing officials to the Department.

(4) Section 3315(b) of title 46, United States Code, protecting the source of reports of defects and imperfections of vessels.

(5) Section 7319 of title 46, United States Code, protecting the names, addresses, and next of kin of merchant seamen and entries made in records pertaining to merchant seamen.

(6) Section 10311(d) of title 46, United States Code, protecting records of the discharge of merchant seamen.

(7) Section 1173(c)(1)(D)(3) of title 46, United States Code, protecting wage and benefit cost data for employees covered by collective-bargaining agreements for vessels receiving operating-differential subsidy payments.

(8) Section 1173(d) of title 46, United States Code, protecting certain foreign wage cost computations associated with the operation of foreign vessels.

(9) Section 6102 of title 46, United States Code, protecting information derived from boating safety accident reports compiled by a State.

(10) Section 316(d)(2) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1357(d)(2)), protecting information obtained or generated in the conduct of research and development of systems and procedures to protect persons and property aboard aircraft.

(11) Section 902(f) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1472(f)), relating to information obtained by examining the accounts, records, or memoranda of an air carri

er.

(12) Section 1001 of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1481), so far as it relates to the secrecy of acts and proceedings when requested on grounds of national defense.

(13) Section 1104 of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1504), protecting information, which, if disclosed, would prejudice the formulation and presentation of positions of the United States in international aviation negotiations or adversely affect the competitive position of any United States air carrier in foreign air transportation.

§ 7.69 Trade secrets and commercial or financial information obtained from a person and privileged or confidential. (a) Trade secrets and commercial or financial information obtained from a person and privileged or confidential are within this statutory exemption. This includes:

(1) Commercial or financial information which, if disclosed, is likely to cause substantial harm to the competi

tive position of the submitter of the requested information;

(2) Commercial or financial information which if disclosed, is likely to impair the Government's ability to obtain necessary information in the future through purely voluntary cooperation;

(3) Commercial or financial information customarily subjected to an attorney-client or similar evidentiary privilege; or

(4) Information that constitutes a trade secret.

(5) Commercial or financial information which, if disclosed, would impair any other identifiable government interest or hinder agency officials in carrying out their mandate.

(b) The purpose of this section is to exempt from mandatory disclosure trade secrets and commercial or financial information obtained from a person and privileged or confidential. This section 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 as items of property acquired, in many cases, at public expense. Such material may be treated as exempt from mandatory disclosure in any case in which similar proprietary material in private hands would be held in confidence. To the extent feasible, any person submitting information to the Department which may qualify for this exemption should request that the information not be disclosed.

§ 7.71 Intragovernmental exchanges.

(a) Any record prepared by a Government officer or employee (including those prepared by a consultant or

advisory body) for internal Government use is within the statutory exemption to the extent 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.

(2) Confidential communications between a Government attorney or an attorney acting on behalf of the Government and his or her client relating to a legal matter for which the client has sought professional advice.

(3) Information prepared by a Government attorney or an attorney acting on behalf of the Government in anticipation of litigation.

(4) Confidential commercial information generated by the Government where disclosure of such information would prejudice the Government's bargaining position in commercial transactions.

Examples of records covered by this section include staff memoranda containing advice, opinions, recommendations, suggestions, or exchanges of views, preliminary to final agency decision or action, with the exception of factual information, unless such information is inextricably intertwined with deliberative material; draft documents such as draft versions of audit reports prepared by the Office of Inspector General; appraisals of property to be condemned by the Government; legal opinions and/or advice rendered by a Government attorney or an attorney acting on behalf of the Government and based on information communicated in confidence by the client; memoranda and other documents prepared by a Government attorney or an attorney acting on behalf of the Government setting forth strategy with regard to pending or probable future litigation and not otherwise made a matter of public record in a particular legal proceeding; and material intended for public release at a specified future time, if premature disclosure would be detrimental to orderly decisionmaking by the Department.

(b) The purpose of this section is to protect internal records that are not routinely available by law to another party in litigation with the Government.