49 CFR Part 801 — Public Availability of Information

PART 801—PUBLIC AVAILABILITY OF INFORMATION 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. Source: 82 FR 58356, Dec. 12, 2017, unless otherwise noted. Editorial Note: Nomenclature changes to part 801 appear at 86 FR 54641, Oct. 4, 2021. Subpart A—Applicability and Policy § 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. § 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. § 801.3 Definitions. The following definitions apply in this part: Chairman FOIA Public Liaison Managing Director Non-docket items Public Docket Record, document, (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 Requester Subpart B—Administration § 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 an electronic reading room in accordance with 5 U.S.C. 552(a)(2). The NTSB's electronic reading room is accessible on the NTSB's FOIA website at https://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, making the following available: (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 § 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 § 801.21(b), and provide the requester additional information regarding how the requester may receive information on the investigation once the investigation is complete. [82 FR 58356, Dec. 12, 2017, as amended at 86 FR 74377, Dec. 30, 2021] § 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. 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). 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 § 801.20 Processing of requests. (a) Multi-track processing. (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. (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. § 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. (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 § 801.23. The requester will be notified immediately of an extension in accordance with § 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. § 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 § 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. § 801.23 Extension. (a) In unusual circumstances as specified in this section, the time limits prescribed in either § 801.21 or § 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 § 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. [86 FR 74378, Dec. 30, 2021] § 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. 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. [86 FR 74378, Dec. 30, 2021] § 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 electronic reading room. [82 FR 58356, Dec. 12, 2017, as amended at 86 FR 74378, Dec. 30, 2021] Subpart E—Other Agency Documents § 801.40 NTSB rules. The NTSB's rules are published in the Code of Federal Regulations, Title 49, Chapter VIII. § 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 at https://www.ntsb.gov. [86 FR 74378, Dec. 30, 2021] Subpart F—Exemption From Public Disclosure § 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. § 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: 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. [86 FR 54641, Oct. 4, 2021] § 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). § 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. (d) The deliberative process privilege does not apply to records created 25 years or more before the date on which the records were requested. § 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. (b) Definitions. Commercial use request Direct costs Duplication Educational institution Representative of the news media news media requester Review Search (c) Fees. (1) Search. (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. (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. (d) Limitations on charging fees. (i) If the NTSB determines there are unusual circumstances, as defined by 5 U.S.C. 552(a)(6)(B)(iii) and § 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. (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. (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. (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, § 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 § 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 § 801.23.

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