[Federal Register Volume 82, Number 237 (Tuesday, December 12, 2017)]
[Rules and Regulations]
[Pages 58354-58361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26316]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 801

[Docket No.: NTSB-GC-2017-0004]
RIN 3147-AA18


Public Availability of Information

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Interim final rule.

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SUMMARY: The NTSB is issuing an interim final rule that revises 49 CFR 
part 801, ``Public Availability of Information,'' to implement the 
substantive and procedural changes to the Freedom of Information Act 
(FOIA), identified in the Open Government Act of 2007, December 31, 
2007, the Open FOIA Act of 2009, October 28, 2009, and the FOIA 
Improvement Act of 2016, June 30, 2016. These revisions to the NTSB 
FOIA regulation are being issued as an interim final rule to ensure 
that an updated regulation is in place as soon as practicable to 
implement the Acts referenced above.

DATES: This interim final rule is effective on December 12, 2017. The 
NTSB will accept written comments on this interim final rule on or 
before February 12, 2018.

ADDRESSES: A copy of this interim final rule, published in the Federal 
Register (FR), is available for inspection and copying in the NTSB's 
public reading room, located at 490 L'Enfant Plaza SW, Washington, DC 
20594-003. Alternatively, a copy is available on the government-wide 
website on regulations at http://www.regulations.gov (Docket ID Number 
NTSB-GC-2017-0004).
    You may send comments identified by Docket ID Number NTSB-GC-2017-
0004 using any of the following methods:
    1. Federal eRulemaking Portal: Go to http://www.regulations.gov and 
follow the instructions for sending your comments electronically.
    2. Mail: Send comments to NTSB Office of General Counsel, 490 
L'Enfant Plaza East SW, Washington, DC 20594-003.
    3. Facsimile: Fax comments to 202-314-6090.
    4. Hand Delivery: Bring comments to 490 L'Enfant Plaza East SW, 6th 
Floor, Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except legal public holidays.
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: Kathleen Silbaugh, General Counsel, 
(202) 314-6016.

SUPPLEMENTARY INFORMATION: 

I. Background

    The FOIA provides that any person has a right, enforceable in 
federal court, to obtain access to federal agency records, except to 
the extent that any portions of such records are protected from public 
disclosure by one of nine exemptions or by one of three special law 
enforcement record exclusions. The FOIA also sets forth the process for 
obtaining federal agency records and requires agencies to promulgate 
regulations addressing the requirements for making initial requests and 
appeals, the fees an agency may charge, and the standards and 
procedures for regular and expedited processing of requests.
    Since the NTSB last revised 49 CFR part 801 on April 16, 2007, 72 
FR 18914, the FOIA was amended three times: In the Open Government Act 
of 2007, Public Law 110-175, 121 Stat. 2524, December 31, 2007 
(hereinafter ``2007 Act''), the Open FOIA Act of 2009, Public Law 111-
83, 123 Stat. 2142, October 28, 2009 (hereinafter ``2009 Act''), and 
the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538, 
June 30, 2016 (hereinafter ``2016 Act''). The 2016 Act specifically 
requires all agencies to review and update their FOIA regulations in 
accordance with its provisions. The NTSB is revising part 801 to (1) 
implement the 2007, 2009, and 2016 statutory amendments, and (2) update 
and clarify the regulation pursuant to the NTSB's plan to review and 
revise all of its regulations. NTSB Plan for Retrospective Analysis of 
Existing Rules, 77 FR 37865 (June 25, 2012); Retrospective Analysis of 
Existing Rules; Notification, 78 FR 1193, 1194 (January 8, 2013).
    The NTSB is issuing this regulation as an interim final rule to 
ensure that the agency implements the 2016 Act as soon as practicable. 
In the revised regulation, the NTSB has adopted, where appropriate, the 
template for agency FOIA regulations released by the Office of 
Information Policy at the Department of Justice.

[[Page 58355]]

II. Guidelines for Adoption of Interim Rules

    The NTSB has concluded that good cause exists, under the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B) and (d)(3), to 
waive the APA's notice-and-comment and delayed-effective-date 
requirements and to issue this regulation as an interim final rule. The 
amendments to part 801 primarily address how the NTSB will implement 
the 2007, 2009, and 2016 Acts, and make clarifying and general updates 
to the existing regulation but do not fundamentally alter or change the 
regulation's nature or scope. Further, in light of the significant need 
for immediate guidance regarding the changes made under the 2016 Act, 
the NTSB has determined that notice-and-comment rulemaking is 
impracticable and unnecessary. The revisions are noncontroversial, and 
no opposition or significant adverse comments are expected. 
Nevertheless, the NTSB is providing the public a 60-day period 
following publication of the interim final rule to submit comments. The 
NTSB will consider comments received during the comment period, and 
will alter the issued final rule if the comments warrant alteration.

III. Summary of Changes to Part 801 Made by This Interim Final Rule

A. Proactive Disclosures

    The revisions add to Sec.  801.10, ``General,'' a list of proactive 
disclosures pursuant to 5 U.S.C. 552(a)(2), (a)(5), (e)(3), and (g). 
Pursuant to the 2016 Act, Sec.  801.10 explains that the proactive 
disclosures are available on the NTSB's Website, and specifies the 
categories of agency records that must be made available in its 
electronic reference room and its public reference room at NTSB 
headquarters. These proactively disclosed records include records that 
have been disclosed pursuant to a FOIA request and have been requested 
at least three times.

B. Electronic Availability of Information

    Throughout part 801, pursuant to the 2016 Act, the revisions 
emphasize information that is available on the NTSB's Website. Section 
801.10 also explains that the NTSB maintains a public access link for 
requesters to submit and track FOIA requests electronically.
    Pursuant to the 2007 Act, the definition of ``record'' in Sec.  
801.3 specifies that agency records include information maintained in 
an electronic format and information maintained by contractors.

C. Time Limits

    Section 801.20 provides definitions and procedures for deciding 
requests for expedited processing. Sections 801.21 and 801.23 clarify 
the circumstances in which the NTSB may extend the time to make an 
initial determination, and the procedures to follow when extending the 
time. Pursuant to the 2016 Act, section 801.22 extends the time to 
appeal an initial determination to the NTSB Managing Director from 20 
days to 90 days.

D. Requester Assistance

    Pursuant to the 2007 Act, as amended by the 2016 Act, sections 
801.21-.23 and 801.60 permit requesters to seek dispute resolution 
services from the NTSB FOIA Public Liaison, or the Office of Government 
Information Services (OGIS) in the National Archives and Records 
Administration, in connection with initial and final determinations, 
time extensions, and fee assessments. Sections 801.20 and 801.23 also 
allow a requester to modify a request to qualify for faster processing.

E. Fees

    Pursuant to the 2007 Act, as amended by the 2016 Act, section 
801.60 prohibits the NTSB from charging search fees, or for some 
requesters, duplication fees, if the NTSB fails to comply with the time 
limits, including extensions, for processing a request. If the NTSB 
fails to comply with a time limit for processing a request, it may 
assess search fees only if unusual circumstances exist, the request 
involves more than 5,000 responsive pages; and the NTSB has attempted 
in good faith to work with the requester to limit the scope of the 
request.
    Section 801.60 also prohibits the NTSB from requiring advance 
payment of fees unless the requester has previously failed to pay or 
the fee is expected to exceed $250;

F. Exemptions

    Pursuant to the 2016 Act, the NTSB will withhold records under a 
FOIA exemption only if the NTSB reasonably foresees that disclosure 
would harm an interest protected by the exemption. The NTSB will 
partially disclose a record if a releasable portion of the record is 
reasonably segregable from a portion that is being withheld.
    Also, pursuant to the 2016 Act, section 801.55, which implements 
the interagency and intra-agency exchanges exemption under 5 U.S.C. 
552(b)(5), provides that the deliberative process privilege does not 
apply to records created 25 years or more before the FOIA request.
    Pursuant to the 2009 Act, section 801.53, which implements the FOIA 
exemption at 5 U.S.C. 552(b)(3) for records exempt by statute from 
disclosure, provides that, to exempt information from disclosure under 
the FOIA, statutes enacted after the 2009 Act must specifically cite to 
section 552(b).

IV. Regulatory Analysis

    This rule does not require an assessment of its potential costs and 
benefits under section 6(a)(3) of E.O. 12866, Regulatory Planning and 
Review, 58 FR 51735 (Sept. 30, 1993), because it is not a ``significant 
regulatory action'' under section 3(f) of that Order. Thus, the Office 
of Management and Budget has not reviewed this rule under E.O. 12866. 
Likewise, this rule does not require an analysis under the Unfunded 
Mandates Reform Act, 2 U.S.C. 1501-71, or the National Environmental 
Policy Act, 42 U.S.C. 4321-47.
    In addition, under the Regulatory Flexibility Act, 5 U.S.C. 601-12, 
the NTSB has considered whether this rule would have a significant 
economic impact on a substantial number of small entities. 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. 
Moreover, in accordance with 5 U.S.C. 605(b), the NTSB will submit this 
certification to the Chief Counsel for Advocacy at the Small Business 
Administration.
    The NTSB does not anticipate this rule will have a substantial, 
direct effect on state or local governments or will preempt state law; 
as such, this rule does not have implications for federalism under E.O. 
13132, Federalism, 64 FR 43255 (Aug. 4, 1999).
    This rule also complies with all applicable standards in sections 
3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR 4729 (Feb. 
5, 1996), to minimize litigation, eliminate ambiguity, and reduce 
burden.
    NTSB has evaluated this rule under: E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights, 53 FR 8859 (Mar. 15, 1988); E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks, 62 FR 19885 (Apr. 21, 
1997); E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments, 65 FR 67249 (Nov. 6, 2000); E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use, 66 FR 28355 (May 18, 2001); and the National Technology Transfer 
and Advancement Act, Public Law 104-113, 110 Stat. 775, Mar. 7,

[[Page 58356]]

1996. The NTSB has concluded that this interim final rule neither 
violates, nor requires further consideration under those Orders and 
statutes.
    The NTSB invites comments relating to any of the foregoing 
determinations and notes the most helpful comments reference a specific 
portion of this interim final rule, explain the reason for any 
recommended change, and include supporting data.

List of Subjects in 49 CFR Part 801

    Archives and records; Freedom of information.

    Accordingly, for the reasons stated in the Preamble, the NTSB is 
revising 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 Presumption of openness.
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 requests.
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 Agency Documents
801.40 NTSB 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: 49 U.S.C. 1113(f); 5 U.S.C. 552; 18 U.S.C. 641, 2071; 
31 U.S.C. 3717, 9701; 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, as amended (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) Subpart F of this part describes records that are exempt from 
public disclosure.


Sec.  801.2  Presumption of openness.

    (a) In implementing the FOIA, 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. The NTSB will withhold records 
under the FOIA only when the NTSB reasonably foresees that disclosure 
would harm an interest protected by a FOIA exemption or is prohibited 
by law. Whenever the NTSB determines that full disclosure of a 
requested record is not possible, the NTSB will consider whether 
partial disclosure is possible and will take reasonable steps to 
segregate and release nonexempt material. Information the NTSB 
routinely provides to the public as part of a regular NTSB activity 
(such as press releases and information disclosed on the NTSB's public 
Website) may be provided to the public without compliance with this 
part.
    (b) The NTSB will release on its website a ``public docket'' 
containing documentation that the agency deemed pertinent to the 
investigation. Requesters may access 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 apply in this part:
    Chairman means the Chairman or Acting Chairman of the NTSB.
    FOIA Public Liaison means a supervisory official, designated by the 
Chief FOIA Officer, who is responsible for assisting in reducing 
delays, increasing transparency and understanding of the status of 
requests, and assisting in resolving disputes.
    Managing Director means the Managing Director of the NTSB.
    Non-docket items include records from an accident that are not 
directly pertinent to the investigation, and are not in the public 
docket.
    Public Docket includes a collection of records from an accident 
investigation that the agency deemed pertinent to the investigation.
    Record, document, or any other term used to reference information 
includes:
    (1) Any writing, drawing, map, recording, tape, film, photo, or 
other documentary material by which information is preserved. In this 
part, ``document'' and ``record'' have the same meaning;
    (2) Any information that would be an agency record subject to the 
requirements of this section when maintained by the NTSB in any format, 
including an electronic format; and
    (3) Any information described under subparagraphs (1) or (2) that 
is maintained for the NTSB by an entity under Government contract, for 
the purposes of records management.
    Redact refers to the act of making a portion of text illegible by 
placing a black mark on top of the text.
    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 FOIA Officer provides high level oversight and 
support to NTSB's FOIA programs, and recommends adjustments to agency 
practices, personnel, and funding as may be necessary to improve FOIA 
administration. The Chief FOIA Officer is 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. The Chief FOIA Officer is also responsible for designating one or 
more FOIA Public Liaisons.
    (b) The NTSB's Chief, Records Management Division:
    (1) 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.
    (2) Maintains a public reference room and an electronic reading 
room in

[[Page 58357]]

accordance with 5 U.S.C. 552(a)(2). The NTSB's public reference room is 
located at 490 L'Enfant Plaza SW, Washington, DC. The NTSB's electronic 
reading room is located on the NTSB's FOIA website, found at http://www.ntsb.gov/.
    (3) Maintains a public access link on the NTSB's FOIA Website for 
requesters to electronically submit a FOIA request and track the status 
of the request.
    (c) The NTSB maintains in its electronic reading room and makes 
available for public inspection in its public reference room:
    (1) Records that have been provided pursuant to a FOIA request, and
    (i) Have been requested at least three times or
    (ii) Are likely to be the subject of repeat requests.
    (2) A general index of the records in paragraph (c)(1) of this 
section;
    (3) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of appeals under parts 821 
and 825 of this chapter.
    (4) Statements of policy and interpretations which have been 
adopted by the agency and are not published in the Federal Register;
    (5) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (6)(i) The annual report submitted to the Attorney General and the 
Office of Government Information Services in the National Archives and 
Records Administration (OGIS), under 5 U.S.C. 552(e)(1); and
    (ii) The raw statistical data used in the annual report in an 
aggregate, searchable, and downloadable format, provided without 
charge, license, or registration requirement;
    (7) A guide for requesting records or information from the NTSB 
that includes an index of the agency's major information systems, major 
information and record locator systems, concise descriptions of FOIA 
exemptions, and general categories of NTSB records to which the 
exemptions apply; and
    (8) A record of the votes of each Member in NTSB proceedings.
    (d) FOIA requests for records or information not publicly available 
on the NTSB Website may be submitted electronically by email or through 
the public access link, or in writing to: National Transportation 
Safety Board, Attention: FOIA Requester Service Center, CIO-40, 490 
L'Enfant Plaza SW, Washington, DC 20594-003. All requests must 
reasonably identify the record requested and contain the name, address, 
email address, and telephone number of the person making the request. A 
requester must inform the NTSB of changes to the requester's contact 
information. Requests mailed to the NTSB must prominently display the 
letters ``FOIA'' to distinguish the FOIA request from other types of 
document requests. 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.
    (e) In response to broad requests for records regarding a 
particular investigation, the FOIA Office will notify the requester 
that a public docket has been or will be opened for the investigation, 
and attempt to clarify whether the information in the docket satisfies 
the request.
    (f) 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.
    (g) Where a requester seeks a record on behalf of another person, 
and the record contains that person's personal information protected by 
5 U.S.C. 552(b)(6) and Sec.  801.56, the personal information will not 
be provided to the requester unless the requester submits a notarized 
statement of consent from the person whose personal information is 
contained in the record.
    (h) 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 in 
accordance with Sec.  801.21(b), and provide the requester additional 
information regarding how the requester may receive information on the 
investigation once the 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.

    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). Removing, concealing, altering, mutilating, 
obliterating, or destroying, in whole or in part, such a record is 
deemed a criminal offense pursuant to 18 U.S.C. 641, 2071(a).

Subpart C--Time Limits


Sec.  801.20  Processing of requests.

    (a) Multi-track processing. The FOIA Office processes FOIA requests 
in one of three tracks:
    (1) Track 1: 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) Expedited processing. (1) A requester may submit a statement 
demonstrating with reasonable particularity that the requester has a 
compelling need for expedited processing in Track 1. The requester must 
certify that the statement is true and correct to the best of the 
requester's knowledge. Within 10 calendar days after receipt of the 
statement, the FOIA Office will inform the requester whether the 
request qualifies for expedited processing, and if not, provide the 
requester with the information in Sec.  801.21(b).
    (2) In this section, ``compelling need'' means:
    (i) That a failure to expedite the request could reasonably be 
expected to pose an imminent threat to the life or physical safety of 
an individual; or
    (ii) With respect to a request made by a person primarily engaged 
in disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity.
    (3) The requester may appeal the FOIA Office's decision regarding 
expedited processing to the Managing Director within 90 calendar days. 
The Managing Director will decide the appeal on an expedited basis, and 
no later than 20 days (excluding Saturdays, Sundays, and legal public 
holidays) after receipt of the appeal. The final determination will 
notify the requester of the statutory right to seek judicial review of 
the determination pursuant to 5 U.S.C. 552(a)(6)(E)(iii), and will 
inform the requester of the dispute resolution services offered by 
OGIS.


Sec.  801.21  Initial determination.

    (a) The NTSB FOIA Officer will make an initial determination as to 
whether to comply with the request within 20 days (excluding Saturdays, 
Sundays, and legal public holidays) after the request is received.

[[Page 58358]]

    (b) Upon the FOIA Office's receipt of a FOIA request, the time 
limit is tolled while the FOIA Office seeks reasonable information from 
the requester:
    (1) About the scope of the request, such as whether docket items 
and other publicly available information on the NTSB website satisfy 
the request; and
    (2) Necessary to resolve fee assessment issues.
    (c) If unusual circumstances exist, this time limit may be extended 
up to 10 additional days (excluding Saturdays, Sundays, and legal 
public holidays) in accordance with Sec.  801.23. The requester will be 
notified immediately of an extension in accordance with Sec.  801.23. 
If a determination is made to release the requested record(s), such 
record(s) will be made available promptly.
    (d) If the FOIA Officer determines not to release the record(s), 
the FOIA Office will notify the requester of:
    (1) The reason for the determination;
    (2) The right to appeal the determination to the Managing Director 
within 90 calendar days;
    (3) The name and title or positions of each person responsible for 
the denial of the request;
    (4) The right to seek dispute resolution services from the NTSB's 
FOIA Public Liaison or OGIS.


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 90 calendar days. The NTSB's Managing Director will 
determine whether to grant or deny any appeal within 20 days (excluding 
Saturdays, Sundays, and legal public holidays) after receipt of such 
appeal, except that this time limit may be extended by as many as 10 
additional days (excluding Saturdays, Sundays, and legal public 
holidays), in accordance with Sec.  801.23. The final determination 
will notify the requester of the statutory right to seek judicial 
review of the determination pursuant to 5 U.S.C. 552(a)(4)(B), and will 
inform the requester of the dispute resolution services offered by 
OGIS.


Sec.  801.23  Extension.

    (a) 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 no more than 10 days (excluding Saturdays, Sunday, and 
legal public holidays) by providing written notice to the requester 
setting forth the reasons for the extension and the date on which a 
determination is expected to be dispatched.
    (b) If the request cannot be processed within the extended time 
limit specified in paragraph (a) of this section, the requester will 
be:
    (1) Notified in writing;
    (2) Given an opportunity to limit the scope of the request so that 
it may be processed within that time limit, or an opportunity to 
arrange with the agency an alternative time frame for processing the 
request or a modified request; and
    (3) Advised of the requester's right to seek assistance from the 
NTSB's FOIA Public Liaison and seek dispute resolution services from 
OGIS.
    (c) As used in this paragraph (c), ``unusual circumstances,'' as 
they relate to any delay that is reasonably necessary to the proper 
processing of the particular request, means:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine and 
process a voluminous amount of separate and distinct records which are 
the subject of a single request; or
    (3) 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, the NTSB will compile 
a public docket containing investigators' factual reports, and 
documents and exhibits that the agency deemed pertinent to the 
investigation. The Chief, Records Management Division, will then make 
the docket available on the NTSB Website and available for public 
inspection and copying in the NTSB's public reference room.


Sec.  801.31  Public hearings regarding investigations.

    Within approximately four (4) weeks after a public investigative 
hearing conducted in accordance with part 845, subpart A, of this 
chapter, the Chief, Records Management Division, will make the hearing 
transcript available in the electronic reading room and the public 
reference room. On or before the date of the hearing, the Chief, 
Records Management Division, will make the exhibits introduced at the 
hearing available on the NTSB Website and available for public 
inspection and copying in the NTSB's public reference room.


Sec.  801.32  Accident reports.

    (a) The NTSB will report the facts, conditions, 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 will be made available on the NTSB Website and 
available for public inspection and copying in the NTSB's public 
reference room.

Subpart E--Other Agency Documents


Sec.  801.40  NTSB rules.

    The NTSB's rules are published in the Code of Federal Regulations, 
Title 49, Chapter VIII.


Sec.  801.41  Reports to Congress.

    The NTSB submits its annual report to Congress, in accordance with 
49 U.S.C. 1117. The report will be available on the NTSB's website, 
found at http://www.ntsb.gov. Interested parties may purchase the 
report from the U.S. Government Publishing 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 electronic reading room and in its 
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 U.S.C. 552(a) and (b) exempt certain records from public 
disclosure. Examples of records given in this subpart included within a 
particular statutory exemption are not necessarily illustrative of all 
types of records covered by the applicable exemption.


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,

[[Page 58359]]

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)(1) Requires that the matters be withheld from the public in 
such manner as to leave no discretion on the issue, or
    (2) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld; and
    (b) If enacted after the date of enactment of the Open FOIA Act of 
2009, Public Law 111-83, Title V, section 564, 123 Stat. 2142, Oct. 28, 
2009, specifically cites to 5 U.S.C. 552(b)(3).


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.
    (d) The deliberative process privilege does not apply to records 
created 25 years or more before the date on which the records were 
requested.


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 the Office of 
Management and Budget's Uniform Freedom of Information Act Fee Schedule 
and Guidelines, 52 FR 10012, 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 does not 
require advance payment of any fee unless the requester has previously 
failed to pay fees in a timely fashion, or the NTSB determines that the 
fee will exceed $250.00. 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:
    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 
will provide the requester with a reasonable opportunity to submit 
further clarification.
    Direct costs mean those expenses that an agency incurs in searching 
for, reviewing, and duplicating records in response to a FOIA request. 
This includes the salaries of NTSB employees performing the work, as 
listed below, but does not include overhead expenses such as the costs 
of office space.
    Duplication means the copying of a record, or of the information 
contained in a record, in response to a FOIA request. Copies can take 
the form of paper, audiovisual materials, or electronic records, among 
others.
    Educational institution means any school, or 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.

[[Page 58360]]

    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).
    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. Review does not include time spent resolving 
legal or policy issues regarding the application of exemptions nor will 
the NTSB charge for review during the administrative appeal stage, if 
applicable. The NTSB may recover review costs even if the NTSB 
ultimately does not release the record(s).
    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 electronic records. 
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, subject to the limitations in paragraph (d) of this 
section, unless a waiver or reduction of fees has been granted under 
paragraph (e) of this section:
    (1) Search. (i) The NTSB will charge search fees except for a 
request from an educational institution, a noncommercial scientific 
institution, or a news media representative. 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) In searching for and retrieving records, the NTSB will charge 
$4.00 for each quarter of an hour spent by administrative personnel, 
$7.00 for each quarter of an hour spent by professional personnel, and 
$10.25 for each quarter of an hour spent by management personnel.
    (2) Duplication. (i) The NTSB will charge duplication fees. The 
NTSB will honor a requester's preference for receiving a record in a 
particular format when the FOIA Office can readily reproduce it in the 
format requested.
    (ii) 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. For a commercial use request, the NTSB will charge fees 
for the initial review of a record to determine whether the record 
falls within the scope of a request and whether the record is exempt 
from disclosure. 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).
    (d) Limitations on charging fees. (1) The NTSB will not charge fees 
if it fails to comply with the time limits in Sec. Sec.  801.21 or 
801.22, including an extension of time pursuant to Sec.  801.23(a), 
except:
    (i) If the NTSB determines there are unusual circumstances, as 
defined by 5 U.S.C. 552(a)(6)(B)(iii) and Sec.  801.23(c), and more 
than 5,000 pages are responsive to the request, the FOIA Office may 
charge fees if timely written notice of the unusual circumstances has 
been provided to the requester and the FOIA Office has discussed with 
the requestor (or made not less than three good-faith attempts to do 
so) how the requester could limit the scope of the request.
    (ii) If a court determines there are exceptional circumstances, as 
defined by 5 U.S.C. 552(a)(6)(C), a failure to comply with the time 
limits will be excused for the length of time provided by the court 
order.
    (2) The NTSB will not charge a fee for notices, decisions, orders, 
etc. provided to persons acting as parties in the investigation under 
the procedures set forth in part 831 of this chapter, 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.
    (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) The NTSB will not charge fees for ordinary packaging and 
mailing costs.
    (7) When the 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, including a breakdown of the fees for the search, review or 
duplication, 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. The NTSB does not accept 
payments in installments.
    (8) In circumstances involving a total fee that will exceed 
$250.00, or if the requester has previously failed to pay fees in a 
timely fashion, the NTSB may require the requester to make an advance 
payment or deposit of a specific amount before beginning to process the 
request. If the requester does not pay the advance payment within 30 
calendar dates after the date of the FOIA Office's fee determination, 
the request will be closed.
    (9) 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 
will follow the provisions of the Debt Collection Act of 1982, Public 
Law 97-365, 96 Stat. 1749, as amended, and its administrative 
procedures, including the use of consumer reporting agencies, 
collection agencies, and offset.
    (10) Where the NTSB reasonably believes that a requester or group 
of requesters acting together is attempting to divide a request into a 
series of requests for the purpose of avoiding fees, the NTSB may 
aggregate those requests and charge accordingly.

[[Page 58361]]

    (11) The NTSB will make the FOIA Public Liaison available to assist 
the requester in reformulating a request to meet the requester's needs 
at a lower cost.
    (e) Requirements for waiver or reduction of fees. (1) For fee 
purposes, the NTSB will determine, whenever reasonably possible, the 
use to which a requester will put the requested records. 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) The NTSB's decision to designate the FOIA request as commercial 
will be made on a case-by-case basis based on the NTSB's review of the 
requester's intended use of the information. The NTSB will provide the 
requester with a reasonable opportunity to submit further 
clarification. In determining whether the request 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 search, 
duplication, and review 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 (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.
    (f) Services available free of charge. (1) The following documents 
are available without commercial reproduction cost until limited 
supplies are exhausted:
    (i) Press releases;
    (ii) NTSB 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 Website, http://www.ntsb.gov, also includes an 
email subscription service for press releases, safety recommendations, 
and other announcements.


Sec.  801.61  Appeals of fee determinations.

    Requesters seeking an appeal of the FOIA Office's fee or fee waiver 
determination must send a written appeal to the Managing Director 
within 90 calendar days. The Managing Director will determine whether 
to grant or deny any appeal made pursuant to Sec.  801.21 within 20 
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 days (excluding Saturdays, Sundays, and legal 
public holidays), in accordance with Sec.  801.23.

Robert L. Sumwalt III,
Chairman.
[FR Doc. 2017-26316 Filed 12-11-17; 8:45 am]
 BILLING CODE 7533-01-P