18914 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 

corrections to § 411.15(o) retroactive 

because failure to apply the change 

retroactively to January 1, 2007 would 

be contrary to the public interest 

because it would fail to preserve the 

public fisc. OPM v. Richmond, 496 U.S. 

414 (1990). Moreover, retroactivity is 

necessary to comply with statutory 

requirements in section 1862(m) of the 

Act which did not authorize payment 

for category A devices. 

(Catalog of Federal Domestic Assistance 

Program No. 93.774, Medicare—

Supplementary Medical Insurance Program) 

Dated: April 5, 2007. 

Ann C. Agnew, 

Executive Secretary to the Department. 

■ Accordingly, 42 CFR chapter IV is 

corrected by making the following 

correcting amendments: 

PART 410—SUPPLEMENTARY 

MEDICAL INSURANCE (SMI) 

BENEFITS 

■ 1. The authority citation for part 410 

continues to read as follows: 

Authority: Secs. 1102, 1834, and 1871 of 

the Social Security Act (42 U.S.C. 1302, 

1395m, and 1395hh). 

Subpart B—Medical and Other Health 

Services 

■ 2. Section 410.33 is amended by—

■ A. Revising paragraph (a)(2). 

■ B. Revising paragraph (g)(6). 

The revisions read as follows: 

§ 410.33 [Amended] 

(a) * * * 

(2) Exceptions. The following 

diagnostic tests that are payable under 

the physician fee schedule and 

furnished by a nonhospital testing entity 

are not required to be furnished in 

accordance with the criteria set forth in 

paragraphs (b) through (e) and (g) and 

(h) of this section. 

* * * * * 

(g) * * * 

(6) Have a comprehensive liability 

insurance policy of at least $300,000 per 

location that covers both the place of 

business and all customers and 

employees of the IDTF. The policy must 

be carried by a nonrelative-owned 

company. 

* * * * * 

PART 411—EXCLUSIONS FROM 

MEDICARE AND LIMITATIONS ON 

MEDICARE PAYMENT 

■ 3. The authority citation for part 411 

is amended to read as follows: 

Authority: Secs. 1102, 1860D–1 through 

1860D–42, 1871, and 1877 of the Social 

Security Act (42 U.S.C. 1302, 1395w–101 

through 1395w–152, 1395hh, and 1395nn). 

Subpart A—General Exclusions and 

Exclusion of Particular Services 

■ 4. Section 411.15 is amended by 

revising paragraph (o) to read as follows: 

§ 411.15 [Amended] 

* * * * * 

(o) Experimental or investigational 

devices, except for certain devices. 

(1) Categorized by the FDA as a nonexperimental/investigational (Category 

B) device defined in § 405.201(b) of this 

chapter; and 

(2) Furnished in accordance with the 

FDA-approved protocols governing 

clinical trials. 

* * * * * 

PART 414—PAYMENT FOR PART B 

MEDICAL AND OTHER HEALTH 

SERVICES 

■ 5. The authority citation for Part 414 

continues to read as follows: 

Authority: Secs. 1102, 1871, and 1881(b)(l) 

of the Social Security Act (42 U.S.C. 1302, 

1395hh, and 1395rr(b)(l)). 

Subpart J—Submission of 

Manufacturer’s Average Sales Price 

Data 

■ 6. Section 414.804(a)(3)(iv) is revised 

to read as follows: 

§ 414.804 [Amended] 

(a) * * * 

(3) * * * 

(iv) Example. After adjusting for 

exempted sales, the total lagged price 

concessions (discounts, rebates, etc.) 

over the most recent 12-month period 

available associated with sales for 

National Drug Code 12345–6789–01 

subject to the ASP reporting 

requirement equal $200,000, and the 

total in dollars for the sales subject to 

the average sales price reporting 

requirement for the same period equals 

$600,000. The lagged price concessions 

percentage for this period equals 

200,000/600,000 = 0.33333. The total in 

dollars for the sales subject to the 

average sales price reporting 

requirement for the quarter being 

reported, equals $50,000 for 10,000 

units sold. The manufacturer’s average 

sales price calculation for this National 

Drug Code for this quarter is: 

$50,000¥(0.33333 × $50,000) = $33,334 

(net total sales amount); $33,334/10,000 

= $3.33 (average sales price). 

* * * * * 

[FR Doc. E7–6989 Filed 4–13–07; 8:45 am] 

BILLING CODE 4120–01–P 

NATIONAL TRANSPORTATION 

SAFETY BOARD 

49 CFR Part 801 

Public Availability of Information 

AGENCY: National Transportation Safety 

Board (NTSB). 

ACTION: Final rule. 

SUMMARY: The NTSB is updating its 

regulations regarding the availability of 

information. 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: This final rule will become 

effective May 23, 2007. 

ADDRESSES: A copy of the notice of 

proposed rulemaking (NPRM), 

published in the Federal Register, is 

available for inspection and copying in 

the Board’s public reading room, located 

at 490 L’Enfant Plaza, SW., Washington, 

DC 20594–2000. Alternatively, a copy of 

the NPRM is available on the Board’s 

Web site, at http://www.ntsb.gov. 

FOR FURTHER INFORMATION CONTACT: Gary 

L. Halbert, General Counsel, (202) 314–

6080. 

SUPPLEMENTARY INFORMATION: 

Regulatory History 

On November 22, 2006, the NTSB 

published a notice of proposed 

rulemaking entitled, ‘‘Public 

Availability of Information,’’ in the 

Federal Register (71 FR 67523). This 

NPRM set forth amendments to the 

Board’s regulations regarding the 

availability of information, and 

provided updated information regarding 

how the public may obtain NTSB 

records. The NPRM also set forth an 

updated fee schedule to apply to 

requests for NTSB records. 

Discussion of Comments and Changes 

The NTSB did not receive any 

comments regarding the aforementioned 

NPRM. The NTSB also did not receive 

any requests for a public meeting; 

therefore, the NTSB did not hold a 

public meeting on the NPRM. 

In the interest of ensuring that all 

provisions of 49 CFR part 801 are 

accurate and complete, the Board’s final 

rule herein will include one minor 

revision to § 801.60(a) that the NTSB 

did not include in the NPRM: In the 

final sentence of § 801.60(a), the rule 

will now advise requesters to ‘‘pay fees 

in accordance with the instructions 


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Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 18915 

provided on the invoice the FOIA Office 

sends to the requester.’’ The language of 

§ 801.60(a) in the NPRM had directed 

requesters to pay fees via check or 

money order. In the interest of ensuring 

that changes in banking technology, 

resources, and the like do not compel 

the NTSB to continually amend 

provisions of part 801, the final rule will 

advise requesters to refer to the payment 

instructions on each invoice that they 

receive. 

Statutory and Regulatory Evaluation 

This rule provides current, accurate 

information to the public regarding how 

the public may obtain NTSB records 

and information. This rule will serve to 

inform and assist the public with regard 

to obtaining NTSB records and 

information. 

This rule is not a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of the potential 

costs and benefits under section 6(a)(3) 

of that Order. The Office of Management 

and Budget has not reviewed this rule 

under Executive Order 12866. Likewise, 

this rule does not require an analysis 

under the Unfunded Mandates Reform 

Act, 2 U.S.C. 1501–1571, or the National 

Environmental Policy Act, 42 U.S.C. 

4321–4347. 

In addition, the NTSB has considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities, 

under the Regulatory Flexibility Act (5 

U.S.C. 601–612). The NTSB certifies 

under 5 U.S.C. 605(b) that this rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

This rule requests no new collection 

of information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501–

3520). Furthermore, the NTSB does not 

anticipate that this rule will have a 

substantial, direct effect on State or 

local governments; as such, this rule 

does not have implications for 

federalism under Executive Order 

13132, Federalism. This rule meets 

applicable standards in sections 3(a) 

and 3(b)(2) of Executive Order 12988, 

Civil Justice Reform, to minimize 

litigation, eliminate ambiguity, and 

reduce burden. 

In addition, the NTSB has evaluated 

this rule under: Executive Order 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights; Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks; Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments; Executive 

Order 13211, Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use; and 

the National Technology Transfer and 

Advancement Act, 15 U.S.C. 272 note. 

The NTSB has concluded that this rule 

does not contravene any of the 

requirements set forth in these 

Executive Orders or statutes, nor does 

this rule prompt further consideration 

with regard to such requirements. 

List of Subjects in 49 CFR Part 801 

Archives and records, Freedom of 

information, Privacy. 

■ For the reasons discussed in the 

preamble, the NTSB revises 49 CFR part 

801 to read as follows: 

PART 801—PUBLIC AVAILABILITY OF 

INFORMATION 

Subpart A—Applicability and Policy 

Sec. 

801.1 Applicability. 

801.2 Policy. 

801.3 Definitions. 

Subpart B—Administration 

801.10 General. 

801.11 Segregability of records. 

801.12 Protection of records. 

Subpart C—Time Limits 

801.20 Processing of records. 

801.21 Initial determination. 

801.22 Final determination. 

801.23 Extension. 

Subpart D—Accident Investigation Records 

801.30 Records from accident 

investigations. 

801.31 Public hearings regarding 

investigations. 

801.32 Accident reports. 

Subpart E—Other Board Documents 

801.40 The Board’s rules. 

801.41 Reports to Congress. 

Subpart F—Exemption from Public 

Disclosure 

801.50 Exemptions from disclosure. 

801.51 National defense and foreign policy 

secrets. 

801.52 Internal personnel rules and 

practices of the NTSB. 

801.53 Records exempt by statute from 

disclosure. 

801.54 Trade secrets and commercial or 

financial information. 

801.55 Interagency and intra-agency 

exchanges. 

801.56 Unwarranted invasion of personal 

privacy. 

801.57 Records compiled for law 

enforcement purposes. 

801.58 Records for regulation of financial 

institutions. 

801.59 Geological records. 

Subpart G—Fee Schedule 

801.60 Fee schedule. 

801.61 Appeals of fee determinations. 

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. 

Subpart A—Applicability and Policy 

§ 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 chapter describe records that are 

exempt from public disclosure. 

§ 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 Web site) 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 Web 

site 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 


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18916 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 

documentation that the investigator-incharge 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. 

§ 801.3 Definitions. 

The following definitions shall apply 

in this part: 

(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. 

(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. 

Subpart B—Administration 

§ 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 Web site, 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 § 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 Web site 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. 

§ 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. 

§ 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 § 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 


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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. 

Subpart C—Time Limits 

§ 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 

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. 

§ 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 § 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. 

§ 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 § 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 

§ 801.23. 

§ 801.23 Extension. 

In unusual circumstances as specified 

in this section, the time limits 

prescribed in either § 801.21 or § 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. 

Subpart D—Accident Investigation 

Records 

§ 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. 

§ 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. 

§ 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. 

Subpart E—Other Board Documents 

§ 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. 

§ 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. 

Subpart F—Exemption From Public 

Disclosure 

§ 801.50 Exemptions from disclosure. 

Title 5, United States Code section 

552(a) and (b) exempt certain records 

from public disclosure. As stated in 

§ 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 §§ 801.51 

through 801.58 included within a 

particular statutory exemption are not 

necessarily illustrative of all types of 

records covered by the applicable 

exemption. 


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18918 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 

§ 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.) 

§ 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 labormanagement 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. 

§ 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. 552(b)), 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 801.59 Geological records. 

Pursuant to 5 U.S.C. 552(b)(9), records 

concerning geological wells are exempt 

from public disclosure. 

Subpart G—Fee Schedule 

§ 801.60 Fee schedule. 

(a) Authority. Pursuant to 5 U.S.C. 

552(a)(4)(i) and 52 FR 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. A 

requester must pay fees in accordance 

with the instructions provided on the 

invoice the FOIA Office sends to the 

requester. 

(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 

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 


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Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 18919 

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) Fees. 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), above. 

(c) Limitations on charging fees. For 

purposes of this section: 

(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 

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. 


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18920 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 

(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. 

(d) 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 (e)(2) and 

(e)(3) of this section, 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. 

(e) 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. 

§ 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 

§ 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 § 801.23. 

Dated: April 10, 2007. 

Vicky D’Onofrio, 

Federal Register Liaison Officer. 

[FR Doc. E7–7103 Filed 4–13–07; 8:45 am] 

BILLING CODE 7533–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 070213033–7033–01; I.D. 

040907D] 

Fisheries of the Economic Exclusive 

Zone Off Alaska; Pacific Cod in the 

Bering Sea and Aleutian Islands 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; modification of 

a closure. 

SUMMARY: NMFS is opening directed 

fishing for Pacific cod by catcher vessels 

less than 60 feet (18.3 meters (m)) length 

overall (LOA) using pot or hook-andline gear in the Bering Sea and Aleutian 

Islands management area (BSAI). This 

action is necessary to fully use the 2007 

total allowable catch (TAC) of Pacific 

cod specified for catcher vessels less 

than 60 feet (18.3 m) LOA using pot or 

hook-and-line gear in the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), April 30, 2007, through 

2400 hrs, A.l.t., December 31, 2007. 

Comments must be received at the 

following address no later than 4:30 

p.m., A.l.t., April 30, 2007. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. Comments may be 

submitted by: 

• Mail to: P.O. Box 21668, Juneau, AK 

99802; 

• Hand delivery to the Federal 

Building, 709 West 9th Street, Room 

420A, Juneau, Alaska; 

• FAX to 907–586–7557; 

• E-mail to inseason-akr@noaa.gov 

and include in the subject line and body 

of the e-mail the document identifier: 

bspclt60re.fo.wpd (E-mail comments, 

with or without attachments, are limited 

to 5 megabytes); or 

• Webform at the Federal eRulemaking 

Portal: http://www.regulations.gov. 


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