[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