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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.

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.

Subpart B-General

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.

(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 over 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

8 7.11 Administration of part.

Except as provided in subpart H of 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 Secretary for Public Affairs. 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 defined groups of records. However, each Administrator may redelegate the duties under subpart Hof 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.

8 7.13 Records containing both available

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.

8 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 perti.

at each facility may be obtained from (4) The request should be addressed the facility or the headquarters of the to the appropriate office as set forth operating element of which it is a in paragraph (c) of this section. part.

(b) If the requirements of paragraph (b) The material listed in $ 7.41(a) (a) of this section are not met, treatthat is published and offered for sale ment of the request will be at the disshall be indexed, but is not required to cretion of the agency. The ten-day be kept available for public inspection.

time limit described in $ 7.21 shall not Whenever practicable, however, it will start to run until the request has been be made available for public inspection identified, or would have been identiat any document inspection facility fied with the exercise of due diligence, maintained by the Office of the Secre- by an employee of the Department as tary or an operating element, whichev- a request pursuant to the Freedom of er is concerned.

Information Act and has been received

by the office to which it should have 8 7.47 Index of public materials.

been originally sent. The index of material subject to

(c) Each person desiring access to or public inspection and copying under

a copy of a record covered by this subthis subpart shall cover all material

part that is located in the Office of issued, adopted, or promulgated after

the Secretary shall make a written reJuly 4, 1967; however, earlier material

quest to the Assistant Secretary for may be included in the index to the

Public Affairs, U.S. Department of extent practicable. Each index shall

Transportation, 400 Seventh Street contain instructions on how to use it.

SW., Washington, DC 20590. Each

person desiring access to or a copy of a 87.49 Copies.

record covered by this subpart that is

located in an operating element shall Copies of any material covered by

make a written request to that elethis subpart that is not published and

ment at the address set forth in the offered for sale may be ordered, upon

applicable appendix to this part. It the payment of the appropriate fee, from

person making the request does not the office indicated in $ 7.53. Copies

know where in the Department the will be certified upon request and pay

record is located, he or she may make ment of the fee prescribed in $ 7.95(f).

inquiry of the Assistant Secretary for

Public Affairs as to its location.
Subpart -Availability of

(d) Each request should describe the Reasonably Described Records particular record to the fullest extent

possible. The request should describe 8 7.51 Applicability.

the subject matter of the record, and, This subpart implements section

if known, indicate the date when it 552(a)(3) of title 5, United States

was made, the place where it was Code, and prescribes the regulations

made, and the person or office that governing public inspection and copy

made it. If the description does not ing of reasonably described records.

enable the office handling the request

to identify or locate the record sought, 87.53 Public availability of records.

that office shall notify the person

making the request and, to the extent (a) Each person desiring access to or

possible, indicate the additional data a copy of a record covered by this sub

required. part shall comply with the following

(e) Each record made available provisions:

under this subpart shall be made avail(1) A written request must be made able for inspection and copying during for the record.

regular business hours at the place (2) Such request should indicate where it is located, or photocopying that it is being made under the Free

may be arranged with the copied madom of Information Act.

terials being mailed to the requester (3) The envelope in which the re- upon payment of the appropriate fee. quest is sent should be prominently Original records ordinarily will be marked: "FOIA.”

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.

(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.

8 7.55 Request for records of concern to

more than one Government organiza

tion. (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 coyered 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

8 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 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.

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.

8 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).

Subpart G-Exemptions 87.61 Applicability.

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

8 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

where, in the Department's judgment, (2) a record containing information copying would endanger the quality of that relates to an investigation of a the original or raise the reasonable possible violation of criminal law or to possibility of irreparable harm to the a law enforcement proceeding and record. In these instances, copying of that was generated or originated by the original would not be in the public another Federal agency, the Office of interest. In any event, original records the Secretary or the responsible operwill not be released from custody. ating element, whichever the case be,

(f) If a requested record is known shall refer the request, or the portion not to exist in the files of the agency, thereof that pertains to the record in or to have been destroyed or otherwise question, to the originating agency for disposed of, the requester shall be so

a releasability determination. The renotified.

quester shall be notified of the refer(g) Fees will be determined in ac

ral and informed of the name and adcordance with subpart I and the appli

dress of the agency to which the recable appendix or appendices to this

quest, or portion thereof, has been repart.

ferred, unless such notification might (h) Notwithstanding paragraphs (a)

jeopardize a law enforcement proceedthrough (g) of this section, informa

ing or have an adverse effect on national material, such as news releases,

tional security matters. pamphlets and other materials of that nature that are ordinarily made avail

$ 7.57 Request for business information able to the public as a part of any in- submitted by a private party. formation program of the Government will be available upon oral or

(a) If a request is received for inforwritten request. There will be no fee

mation which has been designated by

the submitted as confidential commerfor individual copies of that material so long as they are in supply. In addi

cial information, or which the Depart

ment has some other reason to believe tion, the Department will continue to respond, without charge, to routine

may co

rade secrets or other oral or written inquiries that do not

commercial or finanical information of involve the furnishing of records.

the type described in $ 7.69 of subpart

G, the submitter of such information 8 7.55 Request for records of concern to shall, except as is provided in para

more than one Government organiza- graphs (c) and (d) of this section, be tion.

notified expeditiously and asked to (a) If the release of a record covered

submit any written objections to reby this subpart would be of concern to

lease. At the same time, the requester both this Department and another

shall be notified that notice and an opFederal agency, the determination as

portunity to comment are being proto release will be made only after con

vided to the submitter. The submitter sultation with the other interested

shall, to the extent permitted by law,

be afforded a reasonable period of agency. (b) If the release of the record cov

time within which to provide a deered by this subpart would be of con

tailed statement of any such objeccern to both this Department and a

tions. The submitter's statement shall State or local government, a territory

specify all grounds for withholding or possession of the United States, or a any of the information. The burden foreign government, the determina- shall be on the submitter to identify tion as to release will be made by the

all information for which exempt Department only after consultation treatment is sought and to persuade with the other interested State or the agency that the information local government or foreign govern

should not be disclosed. ment.

(b) The Office of the Secretary or (c) Whenever a request is made for: the responsible operating element, (1) A record containing information whichever the case may be, shall, to that has been classified by another the extent permitted by law, consider Federal agency or that may be eligible carefully a submitter's objections and for classification by such an agency; or specific grounds for nondisclosure

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