ten inquiries that do not involve the furnishing of records.

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

§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 informa

tion 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

Ch Daclosure of the information is Exquired by law (other than 5 U.S.C. hand)

(1) 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);

1978

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

(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, Public Law 86-660, as 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 operatingdifferential 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 carrier.

(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.

(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 competitive 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 recog

a right to a fair trial or an impartial adjudication; could reasonably be expected to constitute an unwarranted invasion of personal privacy; could reasonably be expected to disclose the identity of a confidential source and, in the case of a record compiled for a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or could reasonably be expected to endanger the life or physical safety of any individual.

(b) The purpose of this section is to protect law enforcement files from premature disclosure, including files prepared in connection with related judicial or administrative proceedings. It includes the enforcement not only of criminal statutes but all kinds of laws and regulations.

§7.77 Reports of financial institutions.

Any material contained in or related to any examination, operating, or condition report prepared by, or on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions is within the statutory exemption.

$7.79 Geological and geophysical information.

Any geological or geophysical information and data (including maps) concerning wells is within the statutory exemption.

Subpart H-Procedures for Ap

pealing Decisions Not To Disclose Records and/or Waive Fees

§7.81 General.

(a) Each officer or employee of the Department who, upon a request by a member of the public for a record under this part, makes a determination that the record is not to be disclosed,

shall give a written statement of the reasons for that determination to the person making the request; and indicate the names and titles or positions of each person responsible for the initial determination not to comply with such request, and the availability of an appeal within the Department.

(b) When a request for waiver of fees, pursuant to §7.97(c) of this part, has been denied in whole or in part, the requester may appeal the denial.

(c) Any person to whom a record has not been made available within the time limits established by subpart C and any person who has been given a determination pursuant to paragraph (a) of this section that a record he or she requested will not be disclosed may appeal to the head of the operating element concerned or, in the case of the Office of the Secretary, to the General Counsel of the Department. Any person who has not received an initial determination on his or her request within the time limits established by subpart C can seek immediate judicial review. Judicial review may be sought without the need to submit first an administrative appeal. Judicial review may be sought 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 records are located, or in the District of Columbia. A determination that a record will not be disclosed and/or that a request for a fee waiver or reduction will not be granted does not constitute final agency action for the purpose of judicial review unless:

(1) It was made by the head of the operating element concerned (or his or her designee), or the General Counsel, as the case may be; or

(2) The applicable time limit has passed without a determination on the initial request or the appeal, as the case may be, having been made.

(d) Each appeal must be made in writing within thirty days from the date of receipt of the original denial and should include all information and arguments relied upon by the person making the request. Such letter should indicate that it is an appeal from a denial of a request made under the Freedom of Information Act. The envelope