[Federal Register Volume 72, Number 72 (Monday, April 16, 2007)]
[Rules and Regulations]
[Pages 18914-18920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7103]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 801


Public Availability of Information

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Final rule.

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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 Sec.  801.60(a) that the NTSB did not include in 
the NPRM: In the final sentence of Sec.  801.60(a), the rule will now 
advise requesters to ``pay fees in accordance with the instructions

[[Page 18915]]

provided on the invoice the FOIA Office sends to the requester.'' The 
language of Sec.  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.

0
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


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 chapter describe records 
that are exempt from public disclosure.


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 
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

[[Page 18916]]

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.


Sec.  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


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 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 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 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.


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.


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

[[Page 18917]]

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


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 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.


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.


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.


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.

Subpart D--Accident Investigation Records


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.


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.


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.

Subpart E--Other Board Documents


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.  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


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 records covered by the 
applicable exemption.

[[Page 18918]]

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.)


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.


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. 
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.


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.


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.


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.


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.


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.


Sec.  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


Sec.  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

[[Page 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.

[[Page 18920]]

    (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.


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: 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