[Federal Register Volume 62, Number 98 (Wednesday, May 21, 1997)]
[Rules and Regulations]
[Pages 27702-27703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13316]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Parts 801 and 837


Production of Records in Legal Proceedings

AGENCY: National Transportation Safety Board.

ACTION: Final rules.

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SUMMARY: The Board is adopting new rules so as better to manage its 
document production workload.

DATES: The new rules are effective June 20, 1997.

FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 314-6080.

SUPPLEMENTARY INFORMATION:  At present, the Board has no specific rules 
governing release of information demanded of it by litigants in legal 
proceedings in which the NTSB is not a party. In many cases, parties 
use our Freedom of Information Act rules at Part 801. Others simply 
purchase documents from our contractor, or contact our Public Inquiries 
Branch. But, in recent years, more and more parties in private 
litigation are using subpoenas to seek documents and other physical 
material from the agency. These subpoenas are often overbroad, may not 
reflect the types of records and search systems the Board maintains, 
and may have very short return dates. Yet, once the subpoena is issued, 
and in the absence of rules such as these (which are also published by 
other agencies), we often have no option but to file written objections 
or to process the request in advance of others submitted earlier, 
albeit not in subpoena form.
    Accordingly, we have determined that administrative efficiency and 
fairness require that we adopt rules to regulate the manner in which 
documents are requested and document production

[[Page 27703]]

requests are processed. Because these rule changes affect only rules of 
agency organization, procedures, or practice, notice and comment 
procedures are not required and are not provided here. 5 U.S.C. 
553(b)(B).

List of Subjects

49 CFR Part 801

    Freedom of information, Information, Public availability.

49 CFR Part 837

    Administrative practice and procedure, Freedom of information, 
Government employees, Investigations.

    The NTSB amends 49 CFR Chapter VIII as follows:
    1. The authority citation for part 801 is revised to read as 
follows:

    Authority: 5 U.S.C. 552; 49 U.S.C. 1101 et seq.; 18 U.S.C. 641 
and 2071.


Sec. 801.13  [Removed]

    2. Section 801.13 is removed.
    3. Part 837 is added to read as follows:

PART 837--PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS

Sec.
837.1  Purpose and scope.
837.2  Applicability.
837.3  Published reports, material contained in the public accident 
investigation dockets, and accident database data.
837.4  Other material.

    Authority: 49 U.S.C. 1101 et seq.; 40101 et seq.; 5 U.S.C. 301.


Sec. 837.1  Purpose and scope.

    (a) This part sets forth procedures to be followed when requesting 
material for use in legal proceedings (including administrative 
proceedings) in which the National Transportation Safety Board (NTSB or 
Board) is not a party, and procedures to be followed by the employee 
upon receipt of a subpoena, order, or other demand (collectively 
referred to here as a demand) by a court or other competent authority 
or by a private litigant. ``Material,'' as used in this part, means any 
type of physical or documentary evidence, including but not limited to 
paper documents, electronic media, videotapes, audiotapes, etc.
    (b) The purposes of this part are to:
    (1) Conserve the time of employees for conducting official 
business;
    (2) Minimize the possibility of involving the NTSB in controversial 
issues not related to its mission;
    (3) Maintain the impartiality of the Board among private litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information, and the 
deliberative processes of the Board.


Sec. 837.2  Applicability.

    This part applies to requests to produce material concerning 
information acquired in the course of performing official duties or 
because of the employee's official status. Specifically, this part 
applies to requests for: material contained in NTSB files; and any 
information or material acquired by an employee of the NTSB in the 
performance of official duties or as a result of the employee's status. 
Two sets of procedures are here established, dependent on the type of 
material sought. Rules governing requests for employee testimony, as 
opposed to material production, can be found at 49 CFR part 835. 
Document production shall not accompany employee testimony, absent 
compliance with this part and General Counsel approval.


Sec. 837.3  Published reports, material contained in the public 
accident investigation dockets, and accident database data.

    (a) Demands for material contained in the NTSB's official public 
docket files of its accident investigations, or its computerized 
accident database(s) shall be submitted, in writing, to the Public 
Inquiries Branch. Demands for specific published reports and studies 
should be submitted to the National Technical Information Service. The 
Board does not maintain stock of these items. Demands for information 
collected in particular accident investigations and made a part of the 
public docket should be submitted to the Public Inquiries Branch or, 
directly, to our contractor. For information regarding the types of 
documents routinely issued by the Board, see 49 CFR part 801.
    (b) No subpoena shall be issued to obtain materials subject to this 
paragraph, and any subpoena issued shall be required to be withdrawn 
prior to release of the requested information. Payment of reproduction 
fees may be required in advance.


Sec. 837.4  Other material.

    (a) Production prohibited unless approved. Except in the case of 
the material referenced in Sec. 837.3, no employee or former employee 
of NTSB shall, in response to a demand of a private litigant, court, or 
other authority, produce any material contained in the files of the 
NTSB (whether or not agency records under 5 U.S.C. 552) or produce any 
material acquired as part of the performance of the person's official 
duties or because of the person's official status, without the prior 
written approval of the General Counsel.
    (b) Procedures to be followed for the production of material under 
this paragraph.
    (1) All demands for material shall be submitted to the General 
Counsel at NTSB headquarters, Washington, DC 20594. If an employee 
receives a demand, he shall forward it immediately to the General 
Counsel.
    (2) Each demand must contain an affidavit by the party seeking the 
material or his attorney setting forth the material sought and its 
relevance to the proceeding, and containing a certification, with 
support, that the information is not available from other sources, 
including Board materials described in Secs. 837.3 and part 801 of this 
chapter.
    (3) In the absence of General Counsel approval of a demand, the 
employee is not authorized to comply with the demand.
    (4) The General Counsel shall advise the requester of approval or 
denial of the demand, and may attach whatever conditions to approval 
considered appropriate or necessary to promote the purposes of this 
part. The General Counsel may also permit exceptions to any requirement 
in this part when necessary to prevent a miscarriage of justice, or 
when the exception is in the best interests of the NSTB and/or the 
United States.

    Issued in Washington, DC, May 16, 1997.
Jim Hall,
Chairman.
[FR Doc. 97-13316 Filed 5-20-97; 8:45 am]
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