1625-0073 Stat/Authority

National Transportation Safety Board

§ 801.2

PART 801—PUBLIC AVAILABILITY
OF INFORMATION

SOURCE: 72 FR 18915, Apr. 16, 2007, unless
otherwise noted.

Subpart A—Applicability and Policy

Subpart A—Applicability and
Policy

Sec.
801.1
801.2
801.3

Applicability.
Policy.
Definitions.

Subpart B—Administration
801.10
801.11
801.12

General.
Segregability of records.
Protection of records.

801.20
801.21
801.22
801.23

Processing of records.
Initial determination.
Final determination.
Extension.

Subpart C—Time Limits

Subpart D—Accident Investigation Records
801.30 Records from accident investigations.
801.31 Public hearings regarding investigations.
801.32 Accident reports.

Subpart E—Other Board Documents
801.40
801.41

The Board’s rules.
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

WReier-Aviles on DSKGBLS3C1PROD with CFR

801.60
801.61

Fee schedule.
Appeals of fee determinations.

AUTHORITY: Independent Safety Board Act
of 1974, as amended (49 U.S.C. 1101–1155); 5
U.S.C. 551(2); Freedom of Information Act (5
U.S.C. 552); 18 U.S.C. 641 and 2071; 31 U.S.C.
3717 and 9701; Federal Records Act, 44 U.S.C.
Chapters 21, 29, 31, and 33.

§ 801.1 Applicability.
(a) This part contains the rules that
the National Transportation Safety
Board (NTSB) follows in processing requests for records under the Freedom
of Information Act (FOIA), 5 U.S.C. 552.
These rules should be read together
with the FOIA, which provides additional information about public access
to records maintained by the NTSB.
(b) This part also provides for document services and the fees for such
services, pursuant to 31 U.S.C. 9701.
(c) This part applies only to records
existing when the request for the information is made. The NTSB is not required to create records for the sole
purpose of responding to a FOIA request.
(d) Sections 801.51 through 801.59 of
this chapter describe records that are
exempt from public disclosure.
§ 801.2 Policy.
(a) In implementing 5 U.S.C. 552, it is
the policy of the NTSB to make information available to the public to the
greatest extent possible, consistent
with the mission of the NTSB. Information the NTSB routinely provides to
the public as part of a regular NTSB
activity (such as press releases and information disclosed on the NTSB’s public Web site) may be provided to the
public without compliance with this
part. In addition, as a matter of policy,
the NTSB may make discretionary disclosures of records or information otherwise exempt from disclosure under
the FOIA whenever disclosure would
not foreseeably harm an interest protected by a FOIA exemption; however,
this policy does not create any right
enforceable in court.
(b) Given the NTSB’s stated policy of
providing as much information as possible regarding general NTSB operations and releasing documents involving investigations, the NTSB strongly
encourages requesters seeking information to check the NTSB’s Web site for
such information before submitting a
FOIA request. For every investigation

535

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00547

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

§ 801.3

49 CFR Ch. VIII (10–1–09 Edition)

in which the NTSB has determined the
probable cause of an accident, the
NTSB’s docket management system
will include a ‘‘public docket’’ containing documentation that the investigator-in-charge deemed pertinent to
the investigation. Requesters may obtain these public dockets without submitting a FOIA request. The NTSB encourages all requesters to review the
public docket materials before submitting a FOIA request.
§ 801.3 Definitions.
The following definitions shall apply
in this part:
(a) ‘‘Record’’ includes any writing,
drawing, map, recording, tape, film,
photo, or other documentary material
by which information is preserved. In
this part, ‘‘document’’ and ‘‘record’’
shall have the same meaning.
(b) ‘‘Redact’’ refers to the act of
making a portion of text illegible by
placing a black mark on top of the
text.
(c) ‘‘Public Docket’’ includes a collection of records from an accident investigation that the investigator who
oversaw the investigation of that accident has deemed pertinent to determining the probable cause of the accident.
(d) ‘‘Non-docket’’ items include other
records from an accident that the investigator who oversaw the investigation of that accident has deemed irrelevant or not directly pertinent to determining the probable cause of the accident.
(e) ‘‘Chairman’’ means the Chairman
of the NTSB.
(f) ‘‘Managing Director’’ means the
Managing Director of the NTSB.
(g) ‘‘Requester’’ means any person, as
defined in 5 U.S.C. 551(2), who submits
a request pursuant to the FOIA.

WReier-Aviles on DSKGBLS3C1PROD with CFR

Subpart B—Administration
§ 801.10 General.
(a) The NTSB’s Chief, Records Management Division, is responsible for the
custody and control of all NTSB
records required to be preserved under
the Federal Records Act, 44 U.S.C.
Chapters 21, 29, 31, and 33.
(b) The NTSB’s FOIA Officer shall be
responsible for the initial determina-

tion of whether to release records within the 20-working-day time limit, or
the extension specified in the Freedom
of Information Act.
(c) The NTSB’s Chief, Records Management Division, shall:
(1) Maintain for public access and
commercial reproduction all accident
files containing aviation and surface
investigators’ reports, factual accident
reports or group chairman reports, documentation and accident correspondence files, transcripts of public hearings, if any, and exhibits; and
(2) Maintain a public reference room,
also known as a ‘‘Reading Room,’’ in
accordance with 5 U.S.C. 552(a)(2). The
NTSB’s public reference room is located at 490 East L’Enfant Plaza, SW.,
Washington, DC. Other records may be
available in the NTSB’s Electronic
Reading Room, which is located on the
NTSB’s Web site, found at http://
www.ntsb.gov.
(d) Requests for documents must be
made in writing to: National Transportation Safety Board, Attention: FOIA
Officer CIO–40, 490 L’Enfant Plaza, SW.,
Washington, DC 20594–2000. All requests:
(1) Must reasonably identify the
record requested. For requests regarding an investigation of a particular accident, requesters should include the
date and location of the accident, as
well as the NTSB investigation number. In response to broad requests for
records regarding a particular investigation, the FOIA Office will notify
the requester of the existence of a public docket, and state that other nondocket items may be available, or may
become available, at a later date. After
receiving this letter and reviewing the
items in the public docket, requesters
should notify the FOIA office if the
items contained in the public docket
suffice to fulfill their request.
(2) Must be accompanied by the fee or
agreement (if any) to pay the reproduction costs shown in the fee schedule at
§ 801.60 of this title, and
(3) Must contain the name, address,
and telephone number of the person
making the request. Requesters must
update their address and telephone
number in writing should this information change.

536

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00548

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

WReier-Aviles on DSKGBLS3C1PROD with CFR

National Transportation Safety Board

§ 801.20

(e) The envelope in which the requester submits the request should be
marked prominently with the letters
‘‘FOIA.’’ If a request fails to include a
citation to the FOIA, the NTSB FOIA
Office will attempt to contact the requester immediately to rectify the
omission and/or clarify the request.
However, the 20-working-day time
limit for processing shall not commence until the FOIA Office receives a
complete request.
(f) The field offices of the NTSB shall
not maintain, for public access, records
maintained by the Chief, Records Management Division. Requests mailed to
NTSB field offices will not satisfy the
NTSB’s requirements for submitting a
FOIA request.
(g) The NTSB may work with a commercial reproduction firm to accommodate requests for reproduction of accident records from the public docket.
The reproduction charges may be subject to change. The NTSB will update
its FOIA Web site to reflect any such
changes. Section 801.60 of this title
contains a current fee schedule.
(h) The NTSB will not release records
originally generated by other agencies
or entities. Instead, the NTSB will
refer such requests for other agencies’
records to the appropriate agency,
which will make a release determination upon receiving and processing the
referred request.
(i) Where a requester seeks a record
on behalf of another person, and the
record contains that person’s personal
information protected by Exemption 6
of the FOIA (see section 801.56 of this
title), the NTSB requires the requester
to submit a notarized statement of
consent from the person whose personal information is contained in the
record, before the NTSB releases the
record.
(j) In general, the NTSB will deny requests for records concerning a pending
investigation, pursuant to appropriate
exemptions under the FOIA. The FOIA
Office will notify the requester of this
denial, and will provide the requester
with information regarding how the requester may receive information on the
investigation once the investigation is
complete. The NTSB discourages requesters from submitting multiple
FOIA requests in a continuing effort to

obtain records before an investigation
is complete.
§ 801.11 Segregability of records.
The initial decision of the FOIA Officer will include a determination of
segregability. If it is reasonable to do
so, the exempt portions of a record will
be segregated and, where necessary, redacted, and the nonexempt portions
will be sent to the requester.
§ 801.12 Protection of records.
(a) No person may, without permission, remove from the place where it is
made available any record made available for inspection or copying under
§ 801.10(c)(2) of this part. Stealing, altering, mutilating, obliterating, or destroying, in whole or in part, such a
record shall be deemed a criminal offense.
(b) Section 641 of title 18 of the
United States Code provides, in pertinent part, as follows:
‘‘Whoever * * * steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or
disposes of any record * * * or thing of value
of the United States or of any department or
agency thereof * * * shall be fined under this
title or imprisoned not more than ten years,
or both; but if the value of such property in
the aggregate, combining amounts from all
the counts for which the defendant is convicted in a single case, does not exceed the
sum of $1,000, he shall be fined under this
title or imprisoned not more than one year,
or both.’’

(c) Section 2071(a) of title 18 of the
United States Code provides, in pertinent part, as follows:
Whoever willfully and unlawfully conceals,
removes, mutilates, obliterates, or destroys,
or attempts to do so, or, with intent to do so
takes and carries away any record, proceeding, map, book, paper, document, or
other thing, filed or deposited * * * in any
public office, or with any * * * public officer
of the United States, shall be fined under
this title or imprisoned not more than three
years, or both.

Subpart C—Time Limits
§ 801.20 Processing of requests.
(a) The NTSB processes FOIA requests upon receipt. The NTSB FOIA
Office may notify the requester that
the NTSB has received the request. The

537

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00549

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

§ 801.21

49 CFR Ch. VIII (10–1–09 Edition)

FOIA Office will then place each request on one of three tracks:
(1) Track 1: Requests for which there
are no records, requests that meet the
criteria for expedited processing, or requests that seek records that have been
produced in response to a prior request.
(2) Track 2: Requests that do not involve voluminous records or lengthy
consultations with other entities.
(3) Track 3: Requests that involve voluminous records and for which
lengthy or numerous consultations are
required, or those requests which may
involve sensitive records.
(b) Regarding expedited processing, if
a requester states that he or she has a
compelling need for the expedited
treatment of their request, then the
NTSB FOIA Office will determine
whether to expedite the request and,
where appropriate, do so.
§ 801.21

Initial determination.

The NTSB FOIA Officer will make an
initial determination as to whether to
release a record within 20 working days
(excluding Saturdays, Sundays, and
legal public holidays) after the request
is received. This time limit may be extended up to 10 additional working
days in accordance with § 801.23 of this
part. The person making the request
will be notified immediately in writing
of such determination. If a determination is made to release the requested
record(s), such record(s) will be made
available promptly. If the FOIA Officer
determines not to release the record(s),
the person making the request will,
when he or she is notified of such determination, be advised of:
(a) The reason for the determination,
(b) the right to appeal the determination, and
(c) the name and title or positions of
each person responsible for the denial
of the request.

WReier-Aviles on DSKGBLS3C1PROD with CFR

§ 801.22

Final determination.

Requesters seeking an appeal of the
FOIA Officer’s initial determination
must send a written appeal to the
NTSB’s Managing Director within 20
days. The NTSB’s Managing Director
will determine whether to grant or
deny any appeal made pursuant to
§ 801.21 within 20 working days (exclud-

ing Saturdays, Sundays, and legal public holidays) after receipt of such appeal, except that this time limit may
be extended for as many as 10 additional working days, in accordance
with § 801.23.
§ 801.23

Extension.

In unusual circumstances as specified
in this section, the time limits prescribed in either § 801.21 or § 801.22, may
be extended by written notice to the
person making a request and setting
forth the reasons for such extension
and the date on which a determination
is expected to be dispatched. Such notice will not specify a date that would
result in an extension for more than 10
working days. As used in this paragraph, ‘‘unusual circumstances,’’ as
they relate to any delay that is reasonably necessary to the proper processing
of the particular request, means—
(a) The need to search for and collect
the requested records from field facilities or other establishments;
(b) The need to search for, collect,
and appropriately examine and process
a voluminous amount of records which
are the subject of a single request; or
(c) The need to consult with another
agency that has a substantial interest
in the disposition of the request or
with two or more components of the
agency having substantial subject-matter interest therein.

Subpart D—Accident Investigation
Records
§ 801.30 Records from accident investigations.
Upon completion of an accident investigation, each NTSB investigator
(or ‘‘group chairman,’’ depending on
the investigation) shall complete a factual report with supporting documentation and include these items in
the public docket for the investigation.
The Chief, Records Management Division, will then make the records available to the public for inspection or production by an order for commercial
copying.

538

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00550

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

National Transportation Safety Board

§ 801.53

§ 801.31 Public hearings regarding investigations.
Within approximately four (4) weeks
after a public hearing concerning an investigation, the Chief, Records Management Division, will make available
to the public the hearing transcript. On
or before the date of the hearing, the
Chief, Records Management Division,
will make the exhibits introduced at
the hearing available to the public for
inspection or commercial copy order.
§ 801.32 Accident reports.
(a) The NTSB will report the facts,
conditions, and circumstances, and its
determination of the probable causes of
U.S. civil transportation accidents, in
accordance with 49 U.S.C. 1131(e).
(b) These reports may be made available for public inspection in the
NTSB’s public reference room and/or
on the NTSB’s Web site, at http://
www.ntsb.gov.

Subpart E—Other Board
Documents
§ 801.40 The Board’s rules.
The NTSB’s rules are published in
the Code of Federal Regulations as
Parts 800 through 850 of Title 49.
§ 801.41 Reports to Congress.
The NTSB submits its annual report
to Congress each year, in accordance
with 49 U.S.C. 1117. The report will be
available on the NTSB’s Web site,
found at http://www.ntsb.gov. Interested
parties may purchase the report from
the Government Printing Office or review it in the NTSB’s public reference
room. All other reports or comments to
Congress will be available in the
NTSB’s public reference room for inspection or by ordering a copy after
issuance.

WReier-Aviles on DSKGBLS3C1PROD with CFR

Subpart F—Exemption From Public
Disclosure
§ 801.50 Exemptions from disclosure.
Title 5, United States Code section
552(a) and (b) exempt certain records
from public disclosure. As stated in
§ 801.2 of this title, the NTSB may
choose to make a discretionary release
of a record that is authorized to be

withheld under 5 U.S.C. 552(b), unless it
determines that the release of that
record would be inconsistent with the
purpose of the exemption concerned.
Examples of records given in §§ 801.51
through 801.58 included within a particular statutory exemption are not
necessarily illustrative of all types of
records covered by the applicable exemption.
§ 801.51 National defense and foreign
policy secrets.
Pursuant to 5 U.S.C. 552(b)(1), national defense and foreign policy secrets established by Executive Order,
as well as properly classified documents, are exempt from public disclosure. Requests to the NTSB for such
records will be transferred to the
source agency as appropriate, where
such classified records are identified.
(See, e.g., Executive Order 12,958, as
amended on March 25, 2003.)
§ 801.52 Internal personnel rules and
practices of the NTSB.
Pursuant to 5 U.S.C. 552(b)(2), the following records are exempt from disclosure under FOIA:
(a) Records relating solely to internal personnel rules and practices, including memoranda pertaining to personnel matters such as staffing policies, and procedures for the hiring,
training, promotion, demotion, or discharge of employees, and management
plans, records, or proposals relating to
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.
§ 801.53 Records exempt by statute
from disclosure.
Pursuant to 5 U.S.C. 552(b)(3), the
NTSB will not disclose records specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), provided that such statute:
(a) Requires that the matters be
withheld from the public in such manner as to leave no discretion on the
issue, or

539

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00551

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

§ 801.54

49 CFR Ch. VIII (10–1–09 Edition)

(b) Establishes particular criteria for
withholding or refers to particular
types of matters to be withheld.

WReier-Aviles on DSKGBLS3C1PROD with CFR

§ 801.54 Trade secrets and commercial
or financial information.
Pursuant to 5 U.S.C. 552(b)(4), trade
secrets and items containing commercial or financial information that are
obtained from a person and are privileged or confidential are exempt from
public disclosure.
§ 801.55 Interagency and intra-agency
exchanges.
(a) Pursuant to 5 U.S.C. 552(b)(5), any
record prepared by an NTSB employee
for internal Government use is exempt
from public disclosure to the extent
that it contains—
(1) Opinions made in the course of developing official action by the NTSB
but not actually made a part of that official action, or
(2) Information concerning any pending NTSB proceeding, or similar matter, including any claim or other dispute to be resolved before a court of
law, administrative board, hearing officer, or contracting officer.
(b) The purpose of this section is to
protect the full and frank exchange of
ideas, views, and opinions necessary for
the effective functioning of the NTSB.
These resources must be fully and readily available to those officials upon
whom the responsibility rests to take
official NTSB action. Its purpose is
also to protect against the premature
disclosure of material that is in the developmental stage, if premature disclosure would be detrimental to the authorized and appropriate purposes for
which the material is being used, or if,
because of its tentative nature, the material is likely to be revised or modified before it is officially presented to
the public.
(c) Examples of materials covered by
this section include, but are not limited to, staff papers containing advice,
opinions, or suggestions preliminary to
a decision or action; preliminary notes;
advance information on such things as
proposed plans to procure, lease, or
otherwise hire and dispose of materials, real estate, or facilities; documents exchanged in preparation for anticipated legal proceedings; material

intended for public release at a specified future time, if premature disclosure would be detrimental to orderly
processes of the NTSB; records of inspections, investigations, and surveys
pertaining to internal management of
the NTSB; and matters that would not
be routinely disclosed in litigation but
which are likely to be the subject of
litigation.
§ 801.56 Unwarranted invasion of personal privacy.
Pursuant to 5 U.S.C. 552(b)(6), any
personal, medical, or similar file is exempt from public disclosure if its disclosure would harm the individual concerned or would be a clearly unwarranted invasion of the person’s personal privacy.
§ 801.57 Records compiled for law enforcement purposes.
Pursuant to 5 U.S.C. 552(b)(7), any
records compiled for law or regulatory
enforcement are exempt from public
disclosure to the extent that disclosure
would interfere with enforcement,
would be an unwarranted invasion of
privacy, would disclose the identity of
a confidential source, would disclose
investigative procedures and practices,
or would endanger the life or security
of law enforcement personnel.
§ 801.58 Records for regulation of financial institutions.
Pursuant to 5 U.S.C. 552(b)(8), records
compiled for agencies regulating or supervising financial institutions are exempt from public disclosure.
§ 801.59 Geological records.
Pursuant to 5 U.S.C. 552(b)(9), records
concerning geological wells are exempt
from public disclosure.

Subpart G—Fee Schedule
§ 801.60 Fee schedule.
(a) Authority. Pursuant to 5 U.S.C.
552(a)(4)(i) and 52 FR 10,012 (Mar. 27,
1987), the NTSB may charge certain
fees for processing requests under the
FOIA in accordance with paragraph (c)
of this section, except where fees are
limited under paragraph (d) of this section, or where a waiver or reduction of
fees is granted under paragraph (e) of

540

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00552

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

WReier-Aviles on DSKGBLS3C1PROD with CFR

National Transportation Safety Board

§ 801.60

this section. The NTSB may collect all
applicable fees before sending copies of
requested records to a requester. A requester must pay fees in accordance
with the instructions provided on the
invoice the FOIA Office sends to the requester.
(b) Definitions. For purposes of this
section:
(1) Commercial use request means a request from or on behalf of a person who
seeks information for a use or purpose
that furthers his or her commercial,
trade, or profit interests. This includes
the furtherance of commercial interests through litigation. When it appears that the requester will use the
requested records for a commercial
purpose, either because of the nature of
the request or because the NTSB has
reasonable cause to doubt a requester’s
stated use, the NTSB shall provide the
requester with a reasonable opportunity to submit further clarification.
(2) Direct costs means those expenses
that an agency actually incurs in
searching for, reviewing, and duplicating records in response to a FOIA
request. This includes the salaries of
employees performing the work, as
listed below, but does not include overhead expenses such as the costs of office space.
(3) Duplication means the copying of a
record, or of the information contained
in a record, in response to a FOIA request.
(4) Educational institution means a
preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of
vocational education, that operates a
program of scholarly research. In order
for a requester to demonstrate that
their request falls within the category
of an ‘‘educational institution,’’ the requester must show that the request is
authorized by the qualifying institution and that the requester does not
seek the records for commercial use,
but only to further scholarly research.
(5) Representative of the news media or
‘‘news media requester’’ means any
person actively gathering news for an
entity that is organized and operated
to publish or broadcast news to the

public. For ‘‘freelance’’ journalists to
be regarded as working for a news organization, they must demonstrate a
solid basis for expecting publication
through that organization (for example, a journalist may submit a copy of
a publication contract for which the
journalist needs NTSB records).
(6) Review means the examination of
a record located in response to a request in order to determine whether
any portion of it is exempt from disclosure. ‘‘Review’’ also includes processing the record(s) for disclosure,
which includes redacting and otherwise
preparing releasable records for disclosure. The NTSB may require review
costs even if the NTSB ultimately does
not release the record(s).
(7) Search means the process of looking for and retrieving records or information within the scope of a request.
‘‘Search’’ includes page-by-page or
line-by-line identification of information within records and also includes
reasonable efforts to locate and retrieve information from records maintained in electronic form or format.
The NTSB will make an effort to conduct such searches in the least expensive manner.
(c) Fees. In responding to FOIA requests, the NTSB will charge the following fees unless a waiver or reduction of fees has been granted under
paragraph (d) of this section:
(1) Search. (i) The NTSB will charge
search fees for all requests, unless an
educational institution, a noncommercial scientific institution, or a news
media representative submits a request
containing adequate justification for
obtaining a fee waiver. These fees, however, are subject to the limitations of
paragraph (d) of this section. The
NTSB may charge for time spent
searching even if the NTSB does not locate any responsive record or if the
NTSB withholds the record(s) located
because such record(s) are exempt from
disclosure.
(ii) The NTSB will charge $4.00 for
each quarter of an hour spent by clerical personnel in searching for and retrieving a requested record. Where
clerical personnel cannot entirely perform a search and retrieval (for example, where the identification of records
within the scope of a request requires

541

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00553

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

WReier-Aviles on DSKGBLS3C1PROD with CFR

§ 801.60

49 CFR Ch. VIII (10–1–09 Edition)

the assistance of professional personnel), the applicable fee will instead
be $7.00 for each quarter hour of search
time spent by professional personnel.
Where a request requires the time of
managerial personnel, the fee will be
$10.25 for each quarter hour of time
spent by these personnel.
(2) Duplication. The NTSB will charge
duplication fees, subject to the limitations of paragraph (d) of this section.
(i) The NTSB utilizes the services of
a commercial reproduction facility for
requests for duplicates of NTSB public
dockets and publications.
(ii) Regarding the reproduction of
non-public records in response to a
FOIA request, the NTSB will charge
$0.10 per page for the duplication of a
standard-size paper record. For other
forms of duplication, the NTSB will
charge the direct costs of the duplication.
(iii) Where the NTSB certifies
records upon request, the NTSB will
charge the direct cost of certification.
(3) Review. The NTSB will charge fees
for the initial review of a record to determine whether the record falls within
the scope of a request, or whether the
record is exempt from disclosure. Such
fees will be charged to requesters who
make a request for commercial purposes. The NTSB will not charge for
subsequent review of the request and
responsive record; for example, in general, the NTSB will not charge additional fees for review at the administrative appeal level when the NTSB has
already applied an exemption. The
NTSB will charge review fees at the
same rate as those charged for a search
under paragraph (c)(1)(ii), above.
(c) Limitations on charging fees. For
purposes of this section:
(1) The NTSB will not charge a fee
for notices, decisions, orders, etc. provided to persons acting as parties in
the investigation, or where required by
law to be served on a party to any proceeding or matter before the NTSB.
Likewise, the NTSB will not charge
fees for requests made by family members of accident victims, when the
NTSB has investigated the accident
that is the subject of the FOIA request.
(2) The NTSB will not charge a
search fee for requests from edu-

cational institutions or representatives
of the news media.
(3) The NTSB will not charge a
search fee or review fee for a quarterhour period unless more than half of
that period is required for search or review.
(4) Except for requesters seeking
records for commercial use, the NTSB
will provide the following items without charge:
(i) The first 100 pages of duplication
(or the cost equivalent) of a record; and
(ii) The first two hours of search (or
the cost equivalent) for a record.
(5) Whenever the total fee calculated
under paragraph (c) of this section is
$14.00 or less for any request, the NTSB
will not charge a fee.
(6) When the NTSB’s FOIA Office determines or estimates that fees to be
charged under this section will amount
to more than $25.00, the Office will notify the requester of the actual or estimated amount of the fees, unless the
requester has indicated a willingness to
pay fees as high as those anticipated. If
the FOIA Office is able to estimate
only a portion of the expected fee, the
FOIA Office will advise the requester
that the estimated fee may be only a
portion of the total fee. Where the
FOIA Office notifies a requester that
the actual or estimated fees will exceed
$25.00, the NTSB will not expend additional agency resources on the request
until the requester agrees in writing to
pay the anticipated total fee. In circumstances involving a total fee that
will exceed $250.00, the NTSB may require the requester to make an advance
payment or deposit of a specific
amount before beginning to process the
request.
(7) The NTSB may charge interest on
any unpaid bill starting on the 31st day
following the date of billing the requester. Interest charges will be assessed at the rate provided at 31 U.S.C.
3717 and will accrue from the date of
the billing until the NTSB receives
payment. The NTSB shall follow the
provisions of the Debt Collection Act of
1982 (Pub. L. 97–365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of consumer
reporting agencies, collection agencies,
and offset.

542

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00554

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

WReier-Aviles on DSKGBLS3C1PROD with CFR

National Transportation Safety Board

§ 801.60

(8) Where a requester has previously
failed to pay a properly charged FOIA
fee to the NTSB within 30 days of the
date of billing, the NTSB may require
the requester to pay the full amount
due, plus any applicable interest, and
to make an advance payment of the
full amount of any anticipated fee, before the NTSB begins to process a new
request or continues to process a pending request from that requester.
(9) Where the NTSB reasonably believes that a requester or group of requesters acting together is attempting
to divide a request into multiple series
of requests for the purpose of avoiding
fees, the NTSB may aggregate those requests and charge accordingly.
(d) Requirements for waiver or reduction of fees. For fee purposes, the NTSB
will determine, whenever reasonably
possible, the use to which a requester
will put the requested records.
(1) The NTSB will furnish records responsive to a request without charge,
or at a reduced charge, where the
NTSB determines, based on all available information, that the requester
has shown that:
(i) Disclosure of the requested information is in the public interest because
it is likely to contribute significantly
to public understanding of the operations of activities of the government,
and
(ii) Disclosure of the requested information is not primarily in the commercial interest or for the commercial use
of the requester.
(2) In determining whether disclosure
of the requested information is in the
public interest, the NTSB will consider
the following factors:
(i) Whether the subject of the requested records concerns identifiable
operations or activities of the federal
government, with a connection that is
direct and clear, and not remote or attenuated. In this regard, the NTSB will
consider whether a requester’s use of
the documents would enhance transportation safety or contribute to the
NTSB’s programs.
(ii) Whether the portions of a record
subject to disclosure are meaningfully
informative about government operations or activities. The disclosure of
information already in the public domain, in either a duplicative or sub-

stantially identical form, would not be
as likely to contribute to such understanding where nothing new would be
added to the public’s understanding.
(iii) Whether disclosure of the requested information would contribute
to the understanding of a reasonably
broad audience of persons interested in
the subject, as opposed to the individual understanding of the requester.
The NTSB will consider a requester’s
expertise in the subject area and ability to effectively convey information
to the public.
(iv) Whether the disclosure is likely
to enhance the public’s understanding
of government operations or activities.
(3) In determining whether the requester is primarily in the commercial
interest of the requester, the NTSB
will consider the following factors:
(i) The existence and magnitude of
any commercial interest the requester
may have, or of any person on whose
behalf the requester may be acting.
The NTSB will provide requesters with
an opportunity in the administrative
process to submit explanatory information regarding this consideration.
(ii) Whether the commercial interest
is greater in magnitude than any public interest in disclosure.
(4) Additionally, the NTSB may, at
its discretion, waive publication, reproduction, and search fees for qualifying
foreign countries, international organizations, nonprofit public safety entities, State and Federal transportation
agencies, and colleges and universities,
after approval by the Chief, Records
Management Division.
(5) Where only some of the records to
be released satisfy the requirements for
a waiver of fees, the NTSB will grant a
waiver for those particular records.
(6) Requests for the waiver or reduction of fees should address the factors
listed in paragraphs (e)(2) and (e)(3) of
this section, insofar as they apply to
each request. The NTSB will exercise
its discretion to consider the cost-effectiveness of its use of administrative
resources in determining whether to
grant waivers or reductions of fees.
(e) Services available free of charge.
(1) The following documents are
available without commercial reproduction cost until limited supplies are
exhausted:

543

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00555

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218

§ 801.61

49 CFR Ch. VIII (10–1–09 Edition)

(i) Press releases;
(ii) Safety Board regulations (Chapter VIII of Title 49, Code of Federal
Regulations);
(iii) Indexes to initial decisions,
Board orders, opinion and orders, and
staff manuals and instructions;
(iv) Safety recommendations; and
(v) NTSB Annual Reports.
(2) The NTSB public Web site, located
at http://www.ntsb.gov, also includes an
e-mail subscription service for press releases, safety recommendations, and
other announcements.
§ 801.61

PART 802—RULES IMPLEMENTING
THE PRIVACY ACT OF 1974
Subpart A—Applicability and Policy
Purpose and scope.
Definitions.

Subpart B—Initial Procedures and
Requirements
802.5 Procedures for requests pertaining to
individual records in a record system.
802.6 Types of requests and specification of
records.
802.7 Requests: How, where, and when presented; verification of identity of individuals making requests; accompanying
persons; and procedures for acknowledgement of requests.

Subpart C—Initial Determinations
WReier-Aviles on DSKGBLS3C1PROD with CFR

802.8

Subpart E—Review of Initial Adverse
Determination
802.14

Disclosure of requested information.

Subpart D—Correction or Amending the
Record
802.10 Request for correction or amendment
to record.

Review procedure and judicial review.

Subpart F—Fees
802.15

Fees.

802.18

Penalties.

Subpart G—Penalties

Appeals of fee determinations.

Requesters seeking an appeal of the
FOIA Officer’s fee or fee waiver determination must send a written appeal to
the NTSB’s Managing Director within
20 days. The NTSB’s Managing Director will determine whether to grant or
deny any appeal made pursuant to
§ 801.21 within 20 working days (excluding Saturdays, Sundays, and legal public holidays) after receipt of such appeal, except that this time limit may
be extended for as many as 10 additional working days, in accordance
with § 801.23.

Sec.
802.1
802.2

802.11 Agency review of requests for correction or amendment of record.
802.12 Initial adverse agency determination
on correction or amendment.

Subpart H—Specific Exemptions
802.20

Security records.

AUTHORITY: Privacy Act of 1974, Pub. L. 93–
579, 88 Stat. 1896 (5 U.S.C. 552a); Independent
Safety Board Act of 1974, Pub. L. 93–633, 88
Stat. 2166 (49 U.S.C. 1901 et seq.); and Freedom of Information Act, Pub. L. 93–502, November 21, 1974, amending 5 U.S.C. 552.
SOURCE: 41 FR 22358, June 3, 1976, unless
otherwise noted.

Subpart A—Applicability and
Policy
§ 802.1 Purpose and scope.
The purpose of this part is to implement the provisions of 5 U.S.C. 552a
with respect to the availability to an
individual of records of the National
Transportation Safety Board (NTSB)
maintained on individuals. NTSB policy encompasses the safeguarding of individual privacy from any misuse of
Federal records and the provision of access to individuals to NTSB records
concerning them, except where such
access is in conflict with the Freedom
of Information Act, or other statute.
[41 FR 39758, Sept. 16, 1976]

§ 802.2 Definitions.
In this part:
Board means the five Members of the
National Transportation Safety Board,
or a quorum thereof;
Individual means a citizen of the
United States or an alien lawfully admitted for permanent residence;
National Transportation Safety Board
(NTSB) means the agency set up under
the Independent Safety Board Act of
1974;

544

VerDate Nov<24>2008

08:58 Dec 14, 2009

Jkt 217218

PO 00000

Frm 00556

Fmt 8010

Sfmt 8010

Y:\SGML\217218.XXX

217218