[Federal Register Volume 71, Number 225 (Wednesday, November 22, 2006)]
[Proposed Rules]
[Pages 67523-67530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9289]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 801


Public Availability of Information

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The NTSB is proposing to amend 49 Code of Federal Regulations 
(CFR) Part 801, ``Public Availability of Information,'' to include 
updated information regarding the availability of NTSB records. This 
amendment updates the NTSB regulations that implement the Freedom of 
Information Act (FOIA) and Privacy Act, notifies the public of changes 
in the NTSB's Freedom of Information Act processing procedures and, in 
general, advises the public on the availability of information from 
NTSB accident investigations.

DATES: Submit comments on or before December 22, 2006.

ADDRESSES: Mail comments concerning this proposed rule to Gary L. 
Halbert, General Counsel, National Transportation Safety Board, 490 
L'Enfant Plaza, SW., Washington, DC 20594-2000.

FOR FURTHER INFORMATION CONTACT: Gary L. Halbert, (202) 314-6080.

SUPPLEMENTARY INFORMATION:

Proposed Revision to Sec.  801.1, Applicability

    The NTSB seeks to amend Sec.  801.1 in order to clarify the NTSB's 
implementation of the provisions of the Freedom of Information Act, and 
update the relevant statutory citations.

Proposed Revision to Sec.  801.2, Policy

    The NTSB seeks to amend Sec.  801.2 in order to emphasize that 
persons seeking information from the NTSB need not submit a request 
under the FOIA, but instead should first search for information that is 
publicly available. Although the NTSB makes ``public dockets'' of 
investigative information available to the public at the conclusion of 
each investigation, the NTSB still receives hundreds of FOIA requests 
each year for the same or similar information. Many FOIA requesters 
find that the information they receive from the NTSB, beyond that 
already in the public docket, is not helpful to them. Section 801.2 
emphasizes this point and encourages requesters to obtain the public 
docket of investigative information before they consider submitting a 
FOIA request.

Proposed Revision to Sec.  801.3, Definitions

    The NTSB seeks to amend Sec.  801.3 in order to update existing 
definitions, and in order to include definitions for the terms, 
``public docket'' and ``non-docket,'' which are unique to the NTSB.

Proposed Revision to Sec.  801.10, General

    The NTSB seeks to amend Sec.  801.10 to replace references to 
``Director, Bureau of Administration'' with ``Chief, Records Management 
Division.'' The NTSB no longer has a Director, Bureau of 
Administration.
    In addition, the NTSB seeks to amend Sec.  801.10 in order to 
update the deadline by which the NTSB must respond to requests for 
information under the FOIA; Congress amended the FOIA in 1996 to expand 
the response deadline from 10 working days to 20 working days. 5 U.S.C. 
552(a)(6)(A)(i). The NTSB's proposed amendment to Sec.  801.10(b) 
reflects this change. In updating this provision, however, the NTSB 
notes that the FOIA does not require an agency to search for records, 
meet time deadlines, or release any records until the agency has 
received a FOIA request. A request for information under the FOIA must 
comply with published regulations before an agency is required to 
consider it a proper FOIA request.
    The NTSB also seeks to amend Sec.  801.10 to notify persons seeking 
information that the NTSB will deny requests for information related to 
an ongoing investigation, in accordance with the exemptions of the 
FOIA.
    The other proposed amendments to Sec.  801.10 clarify the general 
requirements for submitting a FOIA request to the NTSB.

Proposed Revision to Sec.  801.11, Segregability of Records

    The NTSB seeks to amend Sec.  801.11 in order to update the title 
of the NTSB employee who makes a segregability determination. The 
amendments also clarify the NTSB's practice of segregating exempt 
portions of a record from non-exempt portions via redaction, when 
possible.

Proposed Revision to Sec.  801.12, Protection of Records

    The NTSB seeks to amend Sec.  801.12 in order to provide a cross-
reference to another relevant section within this title, and to add to 
a quotation of 18 U.S.C. 641. In general, the NTSB intends to retain 
the majority of this section as the NTSB originally enacted it, in 
order to cite the specific penalties that a person will encounter if 
they attempt to steal, alter, mutilate, obliterate, or destroy an 
agency record.

Proposed Addition of Sec.  801.20, Processing of Records

    The NTSB seeks to add Sec.  801.20 to this part, in order to notify 
persons seeking information concerning the NTSB FOIA Office's 
``tracking'' system for processing requests. This system allows the 
NTSB to process requests more efficiently; rather than allowing a 
complex, broad request to inhibit the processing of simpler requests, 
the

[[Page 67524]]

NTSB places each request on an appropriate ``track'' and processes them 
on a ``first-in, first-out'' basis. This process is consistent with the 
courts' interpretations of the processing requirements of the FOIA. 
See, e.g., Open Am. v. Watergate, 547 F.2d 605, 616 (D.C. Cir. 1976).
    The addition of Sec.  801.20 also addresses expedited processing. 
This proposed text regarding the expedition of certain requests states 
that requesters must demonstrate a ``compelling need'' for the 
information, in accordance with the FOIA. 5 U.S.C. 552(a)(6)(E). 
Requesters may show a ``compelling need'' in one of two ways: By 
establishing that his or her failure to obtain the records quickly 
``could reasonably be expected to pose an imminent threat to the life 
or physical safety of an individual''; or, if the requester is a 
``person primarily engaged in disseminating information,'' by 
demonstrating that an ``urgency to inform the public concerning actual 
or alleged federal government activity'' exists. Id. Section 
552(a)(6)(E)(v).

Proposed Revision to Sec.  801.21, Initial Determination

    The NTSB seeks to amend Sec.  801.21 in order to update the title 
of the NTSB employee who makes an initial determination regarding the 
release of records within the scope of each request. The proposed 
amendments to Sec.  801.21 also update the time limit for the NTSB's 
response to requests from 10 days to 20 days, in accordance with the 
existing version of the FOIA. 5 U.S.C. 552(a)(6)(A)(i).

Proposed Revision to Sec.  801.22, Final Determination

    The NTSB seeks to amend Sec.  801.22 in order to set forth a time 
limit in which a requester may appeal the initial determination of the 
NTSB FOIA Officer. The proposed amendments to Sec.  801.22 also clarify 
that the NTSB's Managing Director will determine whether to grant or 
deny the appeal.

Proposed Revisions to Sec.  801.23, Extension

    The NTSB seeks to amend Sec.  801.23 in order to include certain 
minor technical amendments.

Proposed Revisions to Sec.  801.30, Records From Accident 
Investigations

    The NTSB seeks to amend Sec.  801.30 in order to simplify the 
process by which investigative records become publicly available. 
Section 801.30 now encompasses all types of investigations, and 
describes what types of records are available for inspection and 
duplication.

Proposed Revisions to Sec.  801.31, Public Hearings Regarding 
Investigations

    The NTSB seeks to amend Sec.  801.31 to reflect a reorganization of 
Sec. Sec.  801.30-801.33, and to encompass hearings on all types of 
investigations. The NTSB also seeks to change the approximate time 
period in which transcripts and other records from the hearing become 
available.

Proposed Revisions to Sec.  801.32, Accident Reports

    The NTSB seeks to amend Sec.  801.32 to reflect a reorganization of 
Sec. Sec.  801.30-801.33, and to include a citation to the section of 
the NTSB's enabling statute that addresses accident reports. The NTSB 
also seeks to amend these sections to include a reference to the NTSB 
public Web site, http://www.ntsb.gov.

Proposed Deletion of Sec. Sec.  801.33-801.36

    The NTSB seeks to delete Sec. Sec.  801.33-801.36, which address 
accident reports according to the mode of transportation at issue. The 
NTSB's current practice of issuing accident reports in accordance with 
49 U.S.C. 1131(e) does not significantly vary depending on the mode of 
transportation; therefore, the NTSB seeks to consolidate and simplify 
the mode-specific sections regarding accident reports and hearings.

Proposed Revision to Sec.  801.40, the Board's Rules

    The NTSB seeks to amend Sec.  801.40 to correct the citation in 
which the NTSB's rules are located in the Code of Federal Regulations.

Proposed Deletion of Sec.  801.41, Transportation Safety 
Recommendations

    The NTSB seeks to delete the text of Sec.  801.41. Previously, this 
section stated that the NTSB publishes transportation safety 
recommendations in the Federal Register. The NTSB's statute no longer 
requires the NTSB to publish safety recommendations in the Federal 
Register; as such, the NTSB does not distribute safety recommendations 
via the Federal Register.

Proposed Deletion of Sec.  801.42, Indexes to Aviation and Maritime 
Enforcement Cases

    The NTSB no longer maintains the indexes described in Sec.  801.42. 
Instead, the NTSB maintains an index of enforcement decisions on the 
NTSB Web site. Therefore, the NTSB seeks to delete Sec.  801.42.

Proposed Revision to Sec.  801.43, Administrative Staff Manuals and 
Instructions and Indexes That Affect the Public

    The NTSB no longer maintains an updated index of staff manuals in 
the NTSB FOIA Reading Room. Therefore, the NTSB seeks to delete Sec.  
801.43.

Proposed Revision to Sec.  801.44, Reports to Congress

    The NTSB seeks to amend Sec.  801.44 in order to update the 
citation to the section of the NTSB's statute that requires the NTSB to 
submit an annual report to Congress, and to include a reference to the 
NTSB's public Web site, which contains the NTSB's annual report to 
Congress.

Proposed Revision to Sec.  801.45, Other Records

    The NTSB seeks to delete the text of Sec.  801.45, because the NTSB 
makes records regarding each investigation available to the public in 
the form of ``public dockets,'' as described in Sec.  801.10.

Proposed Revision to Sec.  801.46, Special Document Services

    The NTSB seeks to amend Sec.  801.46 to include minor technical 
amendments.

Proposed Revision to Sec.  801.50, General

    The NTSB seeks to amend Sec.  801.50 to include minor technical 
amendments, and to clarify that the NTSB may choose to make a 
discretionary release of a record that may be exempt under the FOIA. 
Such discretionary releases do not create any right enforceable in 
court, and depend upon the circumstances surrounding the record at 
issue.

Proposed Revision to Sec.  801.51, National Defense and Foreign Policy 
Secrets

    The NTSB seeks to amend Sec.  801.51 to include minor technical 
amendments, and to update the relevant citations regarding the release 
of classified records.

Proposed Revision to Sec.  801.52, Internal Personnel Rules and 
Practices of the NTSB

    The NTSB seeks to amend Sec.  801.52 to clarify which records are 
exempt from disclosure pursuant to Exemption 2.

Proposed Revision to Sec.  801.53, Records Exempt by Statute From 
Disclosure

    The NTSB seeks to amend Sec.  801.53 to include minor technical 
amendments. The NTSB also notes that the NTSB's enabling statute 
prohibits the NTSB from releasing certain records; therefore, the NTSB 
encourages requesters to review the NTSB's statute before

[[Page 67525]]

submitting a request under the FOIA. See 49 U.S.C. 1114 and 1136(d)(2).

Proposed Revision to Sec.  801.54, Trade Secrets and Commercial or 
Financial Information

    The NTSB seeks to amend Sec.  801.54, which implements Exemption 4 
of the FOIA, in order to correlate with the enumerated exemptions of 
the FOIA. Previously, the text of this section existed as Sec.  801.59.

Proposed Revision to Sec.  801.55, Interagency and Intra-Agency 
Exchanges

    The NTSB seeks to amend Sec.  801.55 to include minor technical 
amendments.

Proposed Revision to Sec.  801.56, Unwarranted Invasion of Personal 
Privacy

    The NTSB seeks to amend Sec.  801.56 to include minor technical 
amendments.

Proposed Revision to Sec.  801.57, Records Compiled for Law Enforcement 
Purposes

    The NTSB seeks to amend Sec.  801.57 to include minor technical 
amendments. The NTSB also notes that courts have recently broadened the 
application of Exemption 7 to include records regarding the enforcement 
of regulations of a civil nature. As such, Exemption 7(A) applies to 
withhold records related to a pending civil investigation.

Proposed Revision to Sec.  801.58, Records for Regulation of Financial 
Institutions

    The NTSB seeks to amend Sec.  801.58 to include minor technical 
amendments.

Proposed Revision to Sec.  801.59, Geological Records

    The NTSB seeks to amend Sec.  801.59 to include minor technical 
amendments.

Proposed Addition of Subpart G, Fee Schedule

    The NTSB seeks to add Sec. Sec.  801.60 and 801.61 within a new 
subpart, entitled ``Fee Schedule.''

Proposed Addition of Sec.  801.60, Fee Schedule

    The NTSB seeks to delete the Appendix containing the NTSB Fee 
Schedule for FOIA requests that accompanies these regulations, and 
instead place the fee schedule in a new section, Sec.  801.60. The NTSB 
proposes significant changes to the fee schedule in accordance with 
case law developments and guidance from the Department of Justice and 
Office of Management and Budget regarding such fees. Although the NTSB 
had previously not charged fees for the fulfillment of most requests 
for records, the NTSB will begin requiring that requesters pay fees for 
the search, review, and duplication of records, as provided in Sec.  
801.60. The NTSB will not consider a request to be ``received'' 
pursuant Sec.  801.10 of this title until the requester agrees to pay 
the amount that the NTSB FOIA Office specifies.

Proposed Addition of Sec.  801.61, Appeals of Fee Determinations

    The NTSB seeks to add Sec.  801.61, Appeals of Fee Determinations, 
to provide that a requester may appeal the FOIA Office's decision 
regarding fees.

List of Subjects in 49 CFR part 801

    Archives and records, Freedom of information, Privacy.
    For the reasons set forth in the preamble, the NTSB proposes to 
amend 49 CFR part 801 as follows:

PART 801--PUBLIC AVAILABILITY OF INFORMATION

    1. The authority citation for part 801 is revised to read as 
follows:

    Authority: Independent Safety Board Act of 1974, as amended (49 
U.S.C. 1101-1155); 5 U.S.C. 551(2); Freedom of Information Act (5 
U.S.C. 552); 18 U.S.C. 641 and 2071; 31 U.S.C. 3717 and 9701; 
Federal Records Act, 44 U.S.C. Chapters 21, 29, 31, and 33.

    2. Section 801.1 is revised to read as follows:


Sec.  801.1  Applicability.

    (a) This part contains the rules that the National Transportation 
Safety Board (NTSB) follows in processing requests for records under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should 
be read together with the FOIA, which provides additional information 
about public access to records maintained by the NTSB.
    (b) This part also provides for document services and the fees for 
such services, pursuant to 31 U.S.C. 9701.
    (c) This part applies only to records existing when the request for 
the information is made. The NTSB is not required to create records for 
the sole purpose of responding to a FOIA request.
    (d) Sections 801.51 through 801.59 of this title describe records 
that are exempt from public disclosure.
    3. Section 801.2 is revised to read as follows:


Sec.  801.2  Policy.

    (a) In implementing 5 U.S.C. 552, it is the policy of the NTSB to 
make information available to the public to the greatest extent 
possible, consistent with the mission of the NTSB. Information the NTSB 
routinely provides to the public as part of a regular NTSB activity 
(such as press releases and information disclosed on the NTSB's public 
website) may be provided to the public without compliance with this 
part. In addition, as a matter of policy, the NTSB may make 
discretionary disclosures of records or information otherwise exempt 
from disclosure under the FOIA whenever disclosure would not 
foreseeably harm an interest protected by a FOIA exemption; however, 
this policy does not create any right enforceable in court.
    (b) Given the NTSB's stated policy of providing as much information 
as possible regarding general NTSB operations and releasing documents 
involving investigations, the NTSB strongly encourages requesters 
seeking information to check the NTSB's website for such information 
before submitting a FOIA request. For every investigation in which the 
NTSB has determined the probable cause of an accident, the NTSB's 
docket management system will include a ``public docket'' containing 
documentation that the investigator-in-charge deemed pertinent to the 
investigation. Requesters may obtain these public dockets without 
submitting a FOIA request. The NTSB encourages all requesters to review 
the public docket materials before submitting a FOIA request.
    4. Section 801.3 is revised to read as follows:


Sec.  801.3  Definitions.

    The following definitions shall apply in this subpart:
    (a) ``Record'' includes any writing, drawing, map, recording, tape, 
film, photo, or other documentary material by which information is 
preserved. In this part, ``document'' and ``record'' shall have the 
same meaning.
    (b) ``Redact'' refers to the act of making a portion of text 
illegible by placing a black mark on top of the text.
    (c) ``Public Docket'' includes a collection of records from an 
accident investigation that the investigator who oversaw the 
investigation of that accident has deemed pertinent to determining the 
probable cause of the accident.
    (d) ``Non-docket'' items include other records from an accident 
that the investigator who oversaw the investigation of that accident 
has deemed irrelevant or not directly pertinent to determining the 
probable cause of the accident.
    (e) ``Chairman'' means the Chairman of the NTSB.

[[Page 67526]]

    (f) ``Managing Director'' means the Managing Director of the NTSB.
    (g) ``Requester'' means any person, as defined in 5 U.S.C. 551(2), 
who submits a request pursuant to the FOIA.
    5. Section 801.10 is revised to read as follows:


Sec.  801.10  General.

    (a) The NTSB's Chief, Records Management Division, is responsible 
for the custody and control of all NTSB records required to be 
preserved under the Federal Records Act, 44 U.S.C. Chapters 21, 29, 31, 
and 33.
    (b) The NTSB's FOIA Officer shall be responsible for the initial 
determination of whether to release records within the 20-working-day 
time limit, or the extension specified in the Freedom of Information 
Act.
    (c) The NTSB's Chief, Records Management Division, shall:
    (1) Maintain for public access and commercial reproduction all 
accident files containing aviation and surface investigators' reports, 
factual accident reports or group chairman reports, documentation and 
accident correspondence files, transcripts of public hearings, if any, 
and exhibits; and
    (2) Maintain a public reference room, also known as a ``Reading 
Room,'' in accordance with 5 U.S.C. 552(a)(2). The NTSB's public 
reference room is located at 490 East L'Enfant Plaza, SW., Washington, 
DC. Other records may be available in the NTSB's Electronic Reading 
Room, which is located on the NTSB's website, found at http://www.ntsb.gov.
    (d) Requests for documents must be made in writing to: National 
Transportation Safety Board, Attention: FOIA Officer CIO-40, 490 
L'Enfant Plaza, SW., Washington, DC 20594-2000. All requests:
    (1) Must reasonably identify the record requested. For requests 
regarding an investigation of a particular accident, requesters should 
include the date and location of the accident, as well as the NTSB 
investigation number. In response to broad requests for records 
regarding a particular investigation, the FOIA Office will notify the 
requester of the existence of a public docket, and state that other 
non-docket items may be available, or may become available, at a later 
date. After receiving this letter and reviewing the items in the public 
docket, requesters should notify the FOIA office if the items contained 
in the public docket suffice to fulfill their request.
    (2) Must be accompanied by the fee or agreement (if any) to pay the 
reproduction costs shown in the fee schedule at Sec.  801.60 of this 
title, and
    (3) Must contain the name, address, and telephone number of the 
person making the request. Requesters must update their address and 
telephone number in writing should this information change.
    (e) The envelope in which the requester submits the request should 
be marked prominently with the letters ``FOIA.'' If a request fails to 
include a citation to the FOIA, the NTSB FOIA Office will attempt to 
contact the requester immediately to rectify the omission and/or 
clarify the request. However, the 20-working-day time limit for 
processing shall not commence until the FOIA Office receives a complete 
request.
    (f) The field offices of the NTSB shall not maintain, for public 
access, records maintained by the Chief, Records Management Division. 
Requests mailed to NTSB field offices will not satisfy the NTSB's 
requirements for submitting a FOIA request.
    (g) The NTSB may work with a commercial reproduction firm to 
accommodate requests for reproduction of accident records from the 
public docket. The reproduction charges may be subject to change. The 
NTSB will update its FOIA website to reflect any such changes. Section 
801.60 of this title contains a current fee schedule.
    (h) The NTSB will not release records originally generated by other 
agencies or entities. Instead, the NTSB will refer such requests for 
other agencies' records to the appropriate agency, which will make a 
release determination upon receiving and processing the referred 
request.
    (i) Where a requester seeks a record on behalf of another person, 
and the record contains that person's personal information protected by 
Exemption 6 of the FOIA (see section 801.56 of this title), the NTSB 
requires the requester to submit a notarized statement of consent from 
the person whose personal information is contained in the record, 
before the NTSB releases the record.
    (j) In general, the NTSB will deny requests for records concerning 
a pending investigation, pursuant to appropriate exemptions under the 
FOIA. The FOIA Office will notify the requester of this denial, and 
will provide the requester with information regarding how the requester 
may receive information on the investigation once the investigation is 
complete. The NTSB discourages requesters from submitting multiple FOIA 
requests in a continuing effort to obtain records before an 
investigation is complete.
    6. Section 801.11 is revised to read as follows:


Sec.  801.11  Segregability of records.

    The initial decision of the FOIA Officer will include a 
determination of segregability. If it is reasonable to do so, the 
exempt portions of a record will be segregated and, where necessary, 
redacted, and the nonexempt portions will be sent to the requester.
    7. Section 801.12 is revised to read as follows:


Sec.  801.12  Protection of records.

    (a) No person may, without permission, remove from the place where 
it is made available any record made available for inspection or 
copying under Sec.  801.10(c)(2) of this part. Stealing, altering, 
mutilating, obliterating, or destroying, in whole or in part, such a 
record shall be deemed a criminal offense.
    (b) Section 641 of title 18 of the United States Code provides, in 
pertinent part, as follows:
    ``Whoever * * * steals, purloins, or knowingly converts to his use 
or the use of another, or without authority, sells, conveys or disposes 
of any record * * * or thing of value of the United States or of any 
department or agency thereof * * * shall be fined under this title or 
imprisoned not more than ten years, or both; but if the value of such 
property in the aggregate, combining amounts from all the counts for 
which the defendant is convicted in a single case, does not exceed the 
sum of $1,000, he shall be fined under this title or imprisoned not 
more than one year, or both.''
    (c) Section 2071(a) of title 18 of the United States Code provides, 
in pertinent part, as follows:
     ``Whoever willfully and unlawfully conceals, removes, mutilates, 
obliterates, or destroys, or attempts to do so, or, with intent to do 
so takes and carries away any record, proceeding, map, book, paper, 
document, or other thing, filed or deposited * * * in any public 
office, or with any * * * public officer of the United States, shall be 
fined under this title or imprisoned not more than three years, or 
both.''
    8. Section 801.20 is revised to read as follows:


Sec.  801.20  Processing of requests.

    (a) The NTSB processes FOIA requests upon receipt. The NTSB FOIA 
Office may notify the requester that the NTSB has received the request. 
The FOIA Office will then place each request on one of three tracks:
    (1) Track 1: Requests for which there are no records, requests that 
meet the

[[Page 67527]]

criteria for expedited processing, or requests that seek records that 
have been produced in response to a prior request.
    (2) Track 2: Requests that do not involve voluminous records or 
lengthy consultations with other entities.
    (3) Track 3: Requests that involve voluminous records and for which 
lengthy or numerous consultations are required, or those requests which 
may involve sensitive records.
    (b) Regarding expedited processing, if a requester states that he 
or she has a compelling need for the expedited treatment of their 
request, then the NTSB FOIA Office will determine whether to expedite 
the request and, where appropriate, do so.
    9. Section 801.21 is revised to read as follows:


Sec.  801.21  Initial determination.

    The NTSB FOIA Officer will make an initial determination as to 
whether to release a record within 20 working days (excluding 
Saturdays, Sundays, and legal public holidays) after the request is 
received. This time limit may be extended up to 10 additional working 
days in accordance with Sec.  801.23 of this part. The person making 
the request will be notified immediately in writing of such 
determination. If a determination is made to release the requested 
record(s), such record(s) will be made available promptly. If the FOIA 
Officer determines not to release the record(s), the person making the 
request will, when he or she is notified of such determination, be 
advised of:
    (a) The reason for the determination;
    (b) The right to appeal the determination; and
    (c) The name and title or positions of each person responsible for 
the denial of the request.
    10. Section 801.22 is revised to read as follows:


Sec.  801.22  Final determination.

    Requesters seeking an appeal of the FOIA Officer's initial 
determination must send a written appeal to the NTSB's Managing 
Director within 20 days. The NTSB's Managing Director will determine 
whether to grant or deny any appeal made pursuant to Sec.  801.21 
within 20 working days (excluding Saturdays, Sundays, and legal public 
holidays) after receipt of such appeal, except that this time limit may 
be extended for as many as 10 additional working days, in accordance 
with Sec.  801.23.
    11. Section 801.23 is added to read as follows:


Sec.  801.23  Extension.

    In unusual circumstances as specified in this section, the time 
limits prescribed in either Sec.  801.21 or Sec.  801.22, may be 
extended by written notice to the person making a request and setting 
forth the reasons for such extension and the date on which a 
determination is expected to be dispatched. Such notice will not 
specify a date that would result in an extension for more than 10 
working days. As used in this paragraph, ``unusual circumstances,'' as 
they relate to any delay that is reasonably necessary to the proper 
processing of the particular request, means--
    (a) The need to search for and collect the requested records from 
field facilities or other establishments;
    (b) The need to search for, collect, and appropriately examine and 
process a voluminous amount of records which are the subject of a 
single request; or
    (c) The need to consult with another agency that has a substantial 
interest in the disposition of the request or with two or more 
components of the agency having substantial subject-matter interest 
therein.
    12. Section 801.30 is revised to read as follows:


Sec.  801.30  Records from accident investigations.

    Upon completion of an accident investigation, each NTSB 
investigator (or ``group chairman,'' depending on the investigation) 
shall complete a factual report with supporting documentation and 
include these items in the public docket for the investigation. The 
Chief, Records Management Division, will then make the records 
available to the public for inspection or production by an order for 
commercial copying.
    13. Section 801.31 is revised to read as follows:


Sec.  801.31  Public hearings regarding investigations.

    Within approximately four (4) weeks after a public hearing 
concerning an investigation, the Chief, Records Management Division, 
will make available to the public the hearing transcript. On or before 
the date of the hearing, the Chief, Records Management Division, will 
make the exhibits introduced at the hearing available to the public for 
inspection or commercial copy order.
    14. Section 801.32 is revised to read as follows:


Sec.  801.32  Accident reports.

    (a) The NTSB will report the facts, conditions, and circumstances, 
and its determination of the probable causes of U.S. civil 
transportation accidents, in accordance with 49 U.S.C. 1131(e).
    (b) These reports may be made available for public inspection in 
the NTSB's public reference room and/or on the NTSB's Web site, at 
http://www.ntsb.gov.


Sec.  801.33  [Removed]

    15. Section 801.33 is removed.


Sec.  801.34  [Removed]

    16. Section 801.34 is removed.


Sec.  801.35  [Removed]

    17. Section 801.35 is removed.


Sec.  801.36  [Removed]

    18. Section 801.36 is removed.
    19. Section 801.40 is revised to read as follows:


Sec.  801.40  The Board's rules.

    The NTSB's rules are published in the Code of Federal Regulations 
as Parts 800 through 850 of Title 49.


Sec. Sec.  801.41, 801.42, 801.43  [Removed]

    20. Sections 801.41, 801.42, and 801.43 are removed.
    21. Section 801.41 is revised to read as follows:


Sec.  801.41  Reports to Congress.

    The NTSB submits its annual report to Congress each year, in 
accordance with 49 U.S.C. 1117. The report will be available on the 
NTSB's Web site, found at http://www.ntsb.gov. Interested parties may 
purchase the report from the Government Printing Office or review it in 
the NTSB's public reference room. All other reports or comments to 
Congress will be available in the NTSB's public reference room for 
inspection or by ordering a copy after issuance.


Sec.  801.45  [Removed]

    22. Section 801.45 is removed.


Sec.  801.46  [Removed]

    23. Section 801.46 is removed.
    24. Section 801.50 is revised to read as follows:


Sec.  801.50  Exemptions from disclosure.

    Title 5, United States Code section 552(a) and (b) exempt certain 
records from public disclosure. As stated in Sec.  801.2 of this title, 
the NTSB may choose to make a discretionary release of a record that is 
authorized to be withheld under 5 U.S.C. 552(b), unless it determines 
that the release of that record would be inconsistent with the purpose 
of the exemption concerned. Examples of records given in Sec. Sec.  
801.51 through 801.58 included within a particular statutory exemption 
are not necessarily illustrative of all types of

[[Page 67528]]

records covered by the applicable exemption.
    25. Section 801.51 is revised to read as follows:


Sec.  801.51  National defense and foreign policy secrets.

    Pursuant to 5 U.S.C. 552(b)(1), national defense and foreign policy 
secrets established by Executive Order, as well as properly classified 
documents, are exempt from public disclosure. Requests to the NTSB for 
such records will be transferred to the source agency as appropriate, 
where such classified records are identified. (See, e.g., Executive 
Order 12,958, as amended on March 25, 2003.)
    26. Section 801.52 is revised to read as follows:


Sec.  801.52  Internal personnel rules and practices of the NTSB.

    Pursuant to 5 U.S.C. 552(b)(2), the following records are exempt 
from disclosure under FOIA:
    (a) Records relating solely to internal personnel rules and 
practices, including memoranda pertaining to personnel matters such as 
staffing policies, and procedures for the hiring, training, promotion, 
demotion, or discharge of employees, and management plans, records, or 
proposals relating to labor-management relations.
    (b) Records regarding:
    (1) Internal matters of a relatively trivial nature that have no 
significant public interest; and
    (2) Predominantly internal matters, the release of which would risk 
circumvention of a statute or agency regulation.
    27. Section 801.53 is revised to read as follows:


Sec.  801.53  Records exempt by statute from disclosure.

    Pursuant to 5 U.S.C. 552(b)(3), the NTSB will not disclose records 
specifically exempted from disclosure by statute (other than 5 U.S.C. 
552b), provided that such statute:
    (a) Requires that the matters be withheld from the public in such 
manner as to leave no discretion on the issue; or
    (b) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    28. Section 801.54 is revised to read as follows:


Sec.  801.54  Trade secrets and commercial or financial information.

    Pursuant to 5 U.S.C. 552(b)(4), trade secrets and items containing 
commercial or financial information that are obtained from a person and 
are privileged or confidential are exempt from public disclosure.
    29. Section 801.55 is revised to read as follows:


Sec.  801.55  Interagency and intra-agency exchanges.

    (a) Pursuant to 5 U.S.C. 552(b)(5), any record prepared by an NTSB 
employee for internal Government use is exempt from public disclosure 
to the extent that it contains--
    (1) Opinions made in the course of developing official action by 
the NTSB but not actually made a part of that official action, or
    (2) Information concerning any pending NTSB 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) The purpose of this section is to protect the full and frank 
exchange of ideas, views, and opinions necessary for the effective 
functioning of the NTSB. These resources must be fully and readily 
available to those officials upon whom the responsibility rests to take 
official NTSB action. Its purpose is also to protect against the 
premature disclosure of material that is in the developmental stage, if 
premature disclosure would be detrimental to the authorized and 
appropriate purposes for which the material is being used, or if, 
because of its tentative nature, the material is likely to be revised 
or modified before it is officially presented to the public.
    (c) Examples of materials covered by this section include, but are 
not limited to, staff papers containing advice, opinions, or 
suggestions preliminary to a decision or action; preliminary notes; 
advance information on such things as proposed plans to procure, lease, 
or otherwise hire and dispose of materials, real estate, or facilities; 
documents exchanged in preparation for anticipated legal proceedings; 
material intended for public release at a specified future time, if 
premature disclosure would be detrimental to orderly processes of the 
NTSB; records of inspections, investigations, and surveys pertaining to 
internal management of the NTSB; and matters that would not be 
routinely disclosed in litigation but which are likely to be the 
subject of litigation.
    30. Section 801.56 is revised to read as follows:


Sec.  801.56  Unwarranted invasion of personal privacy.

    Pursuant to 5 U.S.C. 552(b)(6), any personal, medical, or similar 
file is exempt from public disclosure if its disclosure would harm the 
individual concerned or would be a clearly unwarranted invasion of the 
person's personal privacy.
    31. Section 801.57 is revised to read as follows:


Sec.  801.57  Records compiled for law enforcement purposes.

    Pursuant to 5 U.S.C. 552(b)(7), any records compiled for law or 
regulatory enforcement are exempt from public disclosure to the extent 
that disclosure would interfere with enforcement, would be an 
unwarranted invasion of privacy, would disclose the identity of a 
confidential source, would disclose investigative procedures and 
practices, or would endanger the life or security of law enforcement 
personnel.
    32. Section 801.58 is revised to read as follows:


Sec.  801.58  Records for regulation of financial institutions.

    Pursuant to 5 U.S.C. 552(b)(8), records compiled for agencies 
regulating or supervising financial institutions are exempt from public 
disclosure.
    33. Section 801.59 is revised to read as follows:


Sec.  801.59  Geological records.

    Pursuant to 5 U.S.C. 552(b)(9), records concerning geological wells 
are exempt from public disclosure.
    34. Section 801.60 is added as follows:


Sec.  801.60  Fee Schedule.

    (a) Pursuant to 5 U.S.C. 552(a)(4)(i) and 52 Fed. Reg. 10,012 (Mar. 
27, 1987), the NTSB may charge certain fees for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
where fees are limited under paragraph (d) of this section, or where a 
waiver or reduction of fees is granted under paragraph (e) of this 
section. The NTSB may collect all applicable fees before sending copies 
of requested records to a requester. Requesters must pay fees by check 
or money order made payable to the Treasury of the United States, and 
must send fee payments to the NTSB's FOIA Office (see mailing address 
at Sec.  801.10(d)).
    (b) Definitions. For purposes of this section:
    (1) ``Commercial use request'' means a request from or on behalf of 
a person who seeks information for a use or purpose that furthers his 
or her commercial, trade, or profit interests. This includes the 
furtherance of commercial interests through litigation. When it appears 
that the requester will use the requested records for a commercial 
purpose, either because of the nature of the request or because the 
NTSB has reasonable cause to doubt a

[[Page 67529]]

requester's stated use, the NTSB shall provide the requester with a 
reasonable opportunity to submit further clarification.
    (2) ``Direct costs'' means those expenses that an agency actually 
incurs in searching for, reviewing, and duplicating records in response 
to a FOIA request. This includes the salaries of employees performing 
the work, as listed below, but does not include overhead expenses such 
as the costs of office space.
    (3) ``Duplication'' means the copying of a record, or of the 
information contained in a record, in response to a FOIA request.
    (4) ``Educational institution'' means a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education, that operates a program of scholarly research. In order for 
a requester to demonstrate that their request falls within the category 
of an ``educational institution,'' the requester must show that the 
request is authorized by the qualifying institution and that the 
requester does not seek the records for commercial use, but only to 
further scholarly research.
    (5) ``Representative of the news media'' or ``news media 
requester'' means any person actively gathering news for an entity that 
is organized and operated to publish or broadcast news to the public. 
For ``freelance'' journalists to be regarded as working for a news 
organization, they must demonstrate a solid basis for expecting 
publication through that organization (for example, a journalist may 
submit a copy of a publication contract for which the journalist needs 
NTSB records).
    (6) ``Review'' means the examination of a record located in 
response to a request in order to determine whether any portion of it 
is exempt from disclosure. ``Review'' also includes processing the 
record(s) for disclosure, which includes redacting and otherwise 
preparing releasable records for disclosure. The NTSB may require 
review costs even if the NTSB ultimately does not release the 
record(s).
    (7) ``Search'' means the process of looking for and retrieving 
records or information within the scope of a request. ``Search'' 
includes page-by-page or line-by-line identification of information 
within records and also includes reasonable efforts to locate and 
retrieve information from records maintained in electronic form or 
format. The NTSB will make an effort to conduct such searches in the 
least expensive manner.
    (c) In responding to FOIA requests, the NTSB will charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (d) of this section:
    (1) Search.
    (i) The NTSB will charge search fees for all requests, unless an 
educational institution, a noncommercial scientific institution, or a 
news media representative submits a request containing adequate 
justification for obtaining a fee waiver. These fees, however, are 
subject to the limitations of paragraph (d) of this section. The NTSB 
may charge for time spent searching even if the NTSB does not locate 
any responsive record or if the NTSB withholds the record(s) located 
because such record(s) are exempt from disclosure.
    (ii) The NTSB will charge $4.00 for each quarter of an hour spent 
by clerical personnel in searching for and retrieving a requested 
record. Where clerical personnel cannot entirely perform a search and 
retrieval (for example, where the identification of records within the 
scope of a request requires the assistance of professional personnel), 
the applicable fee will instead be $7.00 for each quarter hour of 
search time spent by professional personnel. Where a request requires 
the time of managerial personnel, the fee will be $10.25 for each 
quarter hour of time spent by these personnel.
    (2) Duplication. The NTSB will charge duplication fees, subject to 
the limitations of paragraph (d) of this section.
    (i) The NTSB utilizes the services of a commercial reproduction 
facility for requests for duplicates of NTSB public dockets and 
publications.
    (ii) Regarding the reproduction of non-public records in response 
to a FOIA request, the NTSB will charge $0.10 per page for the 
duplication of a standard-size paper record. For other forms of 
duplication, the NTSB will charge the direct costs of the duplication.
    (iii) Where the NTSB certifies records upon request, the NTSB will 
charge the direct cost of certification.
    (3) Review. The NTSB will charge fees for the initial review of a 
record to determine whether the record falls within the scope of a 
request, or whether the record is exempt from disclosure. Such fees 
will be charged to requesters who make a request for commercial 
purposes. The NTSB will not charge for subsequent review of the request 
and responsive record; for example, in general, the NTSB will not 
charge additional fees for review at the administrative appeal level 
when the NTSB has already applied an exemption. The NTSB will charge 
review fees at the same rate as those charged for a search under 
paragraph (c)(1)(ii) of this section.
    (d) Limitations on charging fees.
    (1) The NTSB will not charge a fee for notices, decisions, orders, 
etc. provided to persons acting as parties in the investigation, or 
where required by law to be served on a party to any proceeding or 
matter before the NTSB. Likewise, the NTSB will not charge fees for 
requests made by family members of accident victims, when the NTSB has 
investigated the accident that is the subject of the FOIA request.
    (2) The NTSB will not charge a search fee for requests from 
educational institutions or representatives of the news media.
    (3) The NTSB will not charge a search fee or review fee for a 
quarter-hour period unless more than half of that period is required 
for search or review.
    (4) Except for requesters seeking records for commercial use, the 
NTSB will provide the following items without charge:
    (i) The first 100 pages of duplication (or the cost equivalent) of 
a record; and
    (ii) The first two hours of search (or the cost equivalent) for a 
record.
    (5) Whenever the total fee calculated under paragraph (c) of this 
section is $14.00 or less for any request, the NTSB will not charge a 
fee.
    (6) When the NTSB's FOIA Office determines or estimates that fees 
to be charged under this section will amount to more than $25.00, the 
Office will notify the requester of the actual or estimated amount of 
the fees, unless the requester has indicated a willingness to pay fees 
as high as those anticipated. If the FOIA Office is able to estimate 
only a portion of the expected fee, the FOIA Office will advise the 
requester that the estimated fee may be only a portion of the total 
fee. Where the FOIA Office notifies a requester that the actual or 
estimated fees will exceed $25.00, the NTSB will not expend additional 
agency resources on the request until the requester agrees in writing 
to pay the anticipated total fee. In circumstances involving a total 
fee that will exceed $250.00, the NTSB may require the requester to 
make an advance payment or deposit of a specific amount before 
beginning to process the request.
    (7) The NTSB may charge interest on any unpaid bill starting on the 
31st day following the date of billing the requester. Interest charges 
will be assessed at the rate provided at 31

[[Page 67530]]

U.S.C. 3717 and will accrue from the date of the billing until the NTSB 
receives payment. The NTSB shall follow the provisions of the Debt 
Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and 
its administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (8) Where a requester has previously failed to pay a properly 
charged FOIA fee to the NTSB within 30 days of the date of billing, the 
NTSB may require the requester to pay the full amount due, plus any 
applicable interest, and to make an advance payment of the full amount 
of any anticipated fee, before the NTSB begins to process a new request 
or continues to process a pending request from that requester.
    (9) Where the NTSB reasonably believes that a requester or group of 
requesters acting together is attempting to divide a request into 
multiple series of requests for the purpose of avoiding fees, the NTSB 
may aggregate those requests and charge accordingly.
    (e) Requirements for waiver or reduction of fees. For fee purposes, 
the NTSB will determine, whenever reasonably possible, the use to which 
a requester will put the requested records.
    (1) The NTSB will furnish records responsive to a request without 
charge, or at a reduced charge, where the NTSB determines, based on all 
available information, that the requester has shown that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations of activities of the government, and
    (ii) Disclosure of the requested information is not primarily in 
the commercial interest or for the commercial use of the requester.
    (2) In determining whether disclosure of the requested information 
is in the public interest, the NTSB will consider the following 
factors:
    (i) Whether the subject of the requested records concerns 
identifiable operations or activities of the federal government, with a 
connection that is direct and clear, and not remote or attenuated. In 
this regard, the NTSB will consider whether a requester's use of the 
documents would enhance transportation safety or contribute to the 
NTSB's programs.
    (ii) Whether the portions of a record subject to disclosure are 
meaningfully informative about government operations or activities. The 
disclosure of information already in the public domain, in either a 
duplicative or substantially identical form, would not be as likely to 
contribute to such understanding where nothing new would be added to 
the public's understanding.
    (iii) Whether disclosure of the requested information would 
contribute to the understanding of a reasonably broad audience of 
persons interested in the subject, as opposed to the individual 
understanding of the requester. The NTSB will consider a requester's 
expertise in the subject area and ability to effectively convey 
information to the public.
    (iv) Whether the disclosure is likely to enhance the public's 
understanding of government operations or activities.
    (3) In determining whether the requester is primarily in the 
commercial interest of the requester, the NTSB will consider the 
following factors:
    (i) The existence and magnitude of any commercial interest the 
requester may have, or of any person on whose behalf the requester may 
be acting. The NTSB will provide requesters with an opportunity in the 
administrative process to submit explanatory information regarding this 
consideration.
    (ii) Whether the commercial interest is greater in magnitude than 
any public interest in disclosure.
    (4) Additionally, the NTSB may, at its discretion, waive 
publication, reproduction, and search fees for qualifying foreign 
countries, international organizations, nonprofit public safety 
entities, State and Federal transportation agencies, and colleges and 
universities, after approval by the Chief, Records Management Division.
    (5) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, the NTSB will grant a waiver for 
those particular records.
    (6) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (2) and (3) of this subsection, insofar as 
they apply to each request. The NTSB will exercise its discretion to 
consider the cost-effectiveness of its use of administrative resources 
in determining whether to grant waivers or reductions of fees.
    (f) Services available free of charge.
    (1) The following documents are available without commercial 
reproduction cost until limited supplies are exhausted:
    (i) Press releases;
    (ii) Safety Board regulations (Chapter VIII of Title 49, Code of 
Federal Regulations);
    (iii) Indexes to initial decisions, Board orders, opinion and 
orders, and staff manuals and instructions;
    (iv) Safety recommendations; and
    (v) NTSB Annual Reports.
    (2) The NTSB public Web site, located at http://www.ntsb.gov, also 
includes an e-mail subscription service for press releases, safety 
recommendations, and other announcements.
    35. Section 801.61 is added as follows:


Sec.  801.61  Appeals of Fee Determinations.

    Requesters seeking an appeal of the FOIA Officer's fee or fee 
waiver determination must send a written appeal to the NTSB's Managing 
Director within 20 days. The NTSB's Managing Director will determine 
whether to grant or deny any appeal made pursuant to Sec.  801.21 
within 20 working days (excluding Saturdays, Sundays, and legal public 
holidays) after receipt of such appeal, except that this time limit may 
be extended for as many as 10 additional working days, in accordance 
with Sec.  801.23.

    Dated: November 15, 2006.
Vicky D'Onofrio,
Federal Register Liaison Officer.
[FR Doc. 06-9289 Filed 11-21-06; 8:45 am]
BILLING CODE 7533-01-P