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7.103 Alternative sources of information. APPENDIX A TO PART 7-OFFICE OF THE SEC

RETARY APPENDIX B TO PART 7-UNITED STATES

COAST GUARD APPENDIX C TO PART 7-FEDERAL AVIATION

ADMINISTRATION APPENDIX D TO PART 7-FEDERAL HIGHWAY

ADMINISTRATION APPENDIX E TO PART 7-FEDERAL RAILROAD

ADMINISTRATION APPENDIX F TO PART 7-NATIONAL HIGHWAY

TRAFFIC SAFETY ADMINISTRATION APPENDIX G TO PART 7-URBAN MASS TRANS

PORTATION ADMINISTRATION APPENDIX H TO PART 7-SAINT LAWRENCE

SEAWAY DEVELOPMENT CORPORATION APPENDIX I TO PART 7-MARITIME ADMINIS

TRATION APPENDIX J TO PART 7-RESEARCH AND SPE

CIAL PROGRAMS ADMINISTRATION AUTHORITY: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322.

SOURCE: 53 FR 30268, Aug. 11, 1988, unless otherwise noted.

in accordance with $7.53 of this part. The Department is not required to create, compile or procure a record solely for the purpose of making it available under this part.

(1) Indices are maintained to reflect all records subject to subpart E of this part, and are available for public inspection and copying as provided in ap pendices A through J to this part. (53 FR 30268, Aug. 11, 1988, as amended by Amdt. 7-1, 54 FR 10010, Mar. 9, 1989)

Subpart A-Applicability and

Policy

87.1 Applicability.

(a) This part implements section 552 of title 5, United States Code, and prescribes rules governing the availability to the public of records of the Department of Transportation.

(b) Subpart G of this part describes the records that are not required to be disclosed under this part.

(C) Appendices A through J of this part:

(1) Describe the places and the times at which records will be available for inspection and copying;

(2) Define the kinds of records located at each facility;

(3) Identify the location of the indices to such records; and

(4) Identify the officials having authority to deny requests for disclosure of records under this part.

(d) The Office of the General Counsel may amend appendix A to this part to reflect any changes in the items covered by that appendix. The head of an operating element concerned may amend the appendix applicable to that element to reflect any changes in the items covered by that appendix.

(e) This part applies only to records that exist as of the date of receipt of the request by the appropriate office,

87.3 Policy.

In implementing section 552 of title 5, United States Code, it is the policy of the Department of Transportation to make information available to the public to the greatest extent possible in keeping with the spirit of that section. Therefore, all records of the Department, except those that the Department specifically determines must not be disclosed in the interest of national defense or foreign policy, for the protection of private rights and commercial interests or for the efficient conduct of public business to the extent permitted by the Freedom of Information Act, are declared to be available for public inspection and copying as provided in this part. Each officer and employee of the Department is directed to cooperate to this end and to make records available to the public promptly and to the fullest extent consistent with this policy. A record may not be withheld from the public solely because its release might suggest administrative error or embarrass an officer or employee of the Department. 87.5 Definitions.

As used herein, unless the context requires otherwise:

Administrator means the head of each operating element of the Department and includes the Commandant of the Coast Guard.

Department or DOT means the Department of Transportation, including the Office of the Secretary and the following operating elements:

(a) The United States Coast Guard.

(b) The Federal Aviation Administration.

(c) The Federal Highway Administration.

defined groups of records. However, each Administrator may redelegate the duties under subpart H of this part to consider appeals of initial denials of requests for records only to his or her deputy or to not more then one other officer who reports directly to the Administrator and who is located at the headquarters of that operating element.

(53 FR 30268, Aug. 11, 1988, as amended at 59 FR 10061, Mar. 3, 1994)

(d) The Federal Railroad Administration.

(e) The National Highway Traffic Safety Administration.

(f) The Urban Mass Transportation Administration.

(g) The Saint Lawrence Seaway Development Corporation.

(h) The Maritime Administration.

(i) The Research and Special Programs Administration.

Record includes any writing, drawing, map, recording, tape, film, photograph or other documentary material by which information is preserved. The term also includes any such documentary material stored by computer. However, the term does not include uncirculated personal notes, papers and other documents created and retained solely for the personal convenience of Departmental personnel and which the agency exercises no control. If a request is made for a personal record of a DOT official or employee, that request is denied, since it is not within the Department's authority to disclose such records and the Freedom of Information Act does not apply to them. However, until the requester's appeal and litigation rights expire, DOT retains a copy of such records for the benefit of any reviewing court. This retention does not constitute control as that term is used here.

Secretary means the Secretary of Transportation or any person to whom the Secretary has delegated authority in the matter concerned.

87.13 Records containing both avail.

able and unavailable information. If a record contains information that the Department determines cannot be disclosed, but also contains reasonably segregable information that may not be withheld, the latter information shall be made available.

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$7.15 Protection of records.

(a) No person may, without permission, remove any record made available to him or her for inspection and copying under this part from the place where it is made available. In addition, no person may steal, alter, mutilate, obliterate or destroy, in whole or in part, such a record.

(b) Section 641 of title 18 of the United States Code provides, in pertinent part, for criminal penalties for embezzlement or theft of government records.

(c) Section 2071 of title 18 of the United States Code provides, in pertinent part, for criminal penalties for the willful and unlawful concealment, mutilation or destruction of, or the attempt to conceal, mutilate or destroy, government records.

Subpart B-General

Subpart C-Time Limits

87.11 Administration of part.

Except as provided in subpart Hof this part, authority to administer this part in connection with the records of the Office of the Secretary (including the Office of the Inspector General) and to issue determinations with respect to initial requests for such records under this part is delegated to the Assistant General Counsel for Environmental, Civil Rights and General Law. Authority to administer this part in connection with records of each operating element is delegated to each Administrator, who may redelegate to officers of that element the authority to administer this part in connection with

87.21 Initial determination.

An initial determination whether to release a record requested pursuant to subpart F shall be made within ten working days after the request is received by the appropriate office in accordance with section 7.53, 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. If the determination is to grant the request, the desired record shall be made available as promptly as possible. If the determination is to deny the request the person making the request shall be notified in writing, at the same time he or she is notified of such determination, of the reason for the determination; the right of such person to appeal the determination; and the name and title of each person responsible for the initial determination to deny the request. 87.23 Final determination.

A determination with respect to any appeal made pursuant to $7.81 shall be made within twenty working days 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 of this part.

Subpart D-Publication in Federal

Register 87.31 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 elements and the established places at which, the officers from whom, and the methods by which, the public may secure information and 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 ap plicability adopted as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by the Department; and

(e) Each amendment, revision, or repeal of any material listed in paragraphs (a) through (d) of this section.

87.25 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 the request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. Such notice may 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 any other agency or DOT operating element 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.

87.33 Publication required.

(a) General. The material described in $7.31 shall be published in the FEDERAL REGISTER. For the purposes of this paragraph, material that will reasonably be available to the class of persons affected by it will be 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.

(c) This subpart does not apply to material that is published in the FEDERAL REGISTER or is covered by subpart G of this part.

87.43 Deletion of identifying detail.

Whenever it is determined to be necessary to prevent a clearly unwarranted invasion of personal privacy, identifying details shall be deleted from any record covered by subpart E of this part that is published or made available for inspection. A full explanation of the justification for the deletion shall accompany the record published or made available for inspection.

Subpart E-Availability of Opin

ions, Orders, Staff Manuals, Statements of Policy and In

terpretations: Indices $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, law enforcement officers, examiners, auditors, and negotiators and other information developed predominantly for internal use, the release of which could significantly risk circumvention of agency regulations or statutes. Indices of materials listed in this paragraph shall be maintained as specified in appendices A-J of 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 to whose detriment it is relied on, used, or cited has had actual timely notice of that material.

$7.45 Access to materials and indices.

(a) Except as provided in paragraph (b) of this section, material listed in $7.41(a) shall be made available for inspection and copying by any member of the public at document inspection facilities of the Department. The index of materials available at each facility shall be published in the FEDERAL REGISTER quarterly and shall also be 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 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.

87.47 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.

87.49 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 he or she may make inquiry of the Asof the fee prescribed in 7.95(1).

sistant General Counsel for Environ

mental, Civil Rights, and General Law Subpart F-Availability of to its location. Reasonably Described Records (d) Each request should describe the

particular record to the fullest extent $7.51 Applicability.

possible. The request should describe This subpart implements section the subject matter of the record, and, if 552(a)(3) of title 5, United States Code, known, indicate the date when it was and prescribes the regulations govern- made, the place where it was made, and ing public inspection and copying of

the person or office that made it. If the reasonably described records.

description does not enable the office 87.53 Public availability of records.

handling the request to identify or lo

cate the record sought, that office shall (a) Each person desiring access to or

notify the person making the request a copy of a record covered by this sub

and, to the extent possible, indicate part shall comply with the following

the additional data required. provisions:

(e) Each record made available under (1) A written request must be made for the record.

this subpart shall be made available for (2) Such request should indicate that

inspection and copying during regular it is being made under the Freedom of

business hours at the place where it is Information Act.

located, or photocopying may be ar(3) The envelope in which the request

ranged with the copied materials being is sent should be prominently marked: mailed to the requester upon payment "FOLA."

of the appropriate fee. Original records (4) The request should be addressed ordinarily will be copied except in to the appropriate office as set forth in those instances where, in the Departparagraph (c) of this section.

ment's judgment, copying would en(b) If the requirements of paragraph danger the quality of the original or (a) of this section are not met, treat

raise the reasonable possibility of irment of the request will be at the dis

reparable harm to the record. In these cretion of the agency. The ten-day

instances, copying of the original time limit described in $7.21 shall not

would not be in the public interest. In start to run until the request has been identified, or would have been identi

any event, original records will not be

released from custody. fied with the exercise of due diligence, by an employee of the Department as a

(f) If a requested record is known not request pursuant to the Freedom of In

to exist in the files of the agency, or to formation Act and has been received by

have been destroyed or otherwise disthe office to which it should have been posed of, the requester shall be so notioriginally sent.

fied. (C) Each person desiring access to or (g) Fees will be determined in accorda copy of a record covered by this sub- ance with subpart I and the applicable part that is located in the Office of the appendix or appendices to this part. Secretary shall make a written request (h) Notwithstanding paragraphs (a) to the Assistant General Counsel for through (g) of this section, informaEnvironmental, Civil Rights, and Gen- tional material, such as news releases, eral Law, U.S. Department of Trans- pamphlets and other materials of that portation, 400 Seventh Street SW.,

nature that are ordinarily made availWashington, DC 20590. Each person de- able to the public as a part of any insiring access to or a copy of a record

formation program of the Government covered by this subpart that is located

will be available upon oral or written in an operating element shall make a

request. There will be no fee for indiwritten request to that element at the

vidual copies of that material so long address set forth in the applicable ap

as they are in supply. In addition, the pendix to this part. If the person mak

Department will continue to respond, ing the request does not know where in

without charge, to routine oral or writthe Department the record is located,

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