18914 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations
corrections to § 411.15(o) retroactive Security Act (42 U.S.C. 1302, 1395w–101 NATIONAL TRANSPORTATION
because failure to apply the change through 1395w–152, 1395hh, and 1395nn). SAFETY BOARD
retroactively to January 1, 2007 would
be contrary to the public interest Subpart A—General Exclusions and 49 CFR Part 801
because it would fail to preserve the Exclusion of Particular Services
public fisc. OPM v. Richmond, 496 U.S. Public Availability of Information
I 4. Section 411.15 is amended by
414 (1990). Moreover, retroactivity is revising paragraph (o) to read as follows: AGENCY: National Transportation Safety
necessary to comply with statutory Board (NTSB).
requirements in section 1862(m) of the § 411.15 [Amended]
ACTION: Final rule.
Act which did not authorize payment * * * * *
for category A devices. (o) Experimental or investigational SUMMARY: The NTSB is updating its
(Catalog of Federal Domestic Assistance devices, except for certain devices. regulations regarding the availability of
Program No. 93.774, Medicare— (1) Categorized by the FDA as a non- information. This amendment updates
Supplementary Medical Insurance Program) experimental/investigational (Category the NTSB regulations that implement
Dated: April 5, 2007. B) device defined in § 405.201(b) of this the Freedom of Information Act (FOIA)
chapter; and and Privacy Act, notifies the public of
Ann C. Agnew,
(2) Furnished in accordance with the changes in the NTSB’s Freedom of
Executive Secretary to the Department.
FDA-approved protocols governing Information Act processing procedures
I Accordingly, 42 CFR chapter IV is clinical trials. and, in general, advises the public on
corrected by making the following the availability of information from
* * * * *
correcting amendments: NTSB accident investigations.
PART 414—PAYMENT FOR PART B DATES: This final rule will become
PART 410—SUPPLEMENTARY effective May 23, 2007.
MEDICAL AND OTHER HEALTH
MEDICAL INSURANCE (SMI)
SERVICES ADDRESSES: A copy of the notice of
BENEFITS
proposed rulemaking (NPRM),
I 1. The authority citation for part 410 I 5. The authority citation for Part 414 published in the Federal Register, is
continues to read as follows: continues to read as follows: available for inspection and copying in
Authority: Secs. 1102, 1834, and 1871 of Authority: Secs. 1102, 1871, and 1881(b)(l) the Board’s public reading room, located
the Social Security Act (42 U.S.C. 1302, of the Social Security Act (42 U.S.C. 1302, at 490 L’Enfant Plaza, SW., Washington,
1395m, and 1395hh). 1395hh, and 1395rr(b)(l)). DC 20594–2000. Alternatively, a copy of
the NPRM is available on the Board’s
Subpart B—Medical and Other Health Subpart J—Submission of Web site, at http://www.ntsb.gov.
Services Manufacturer’s Average Sales Price FOR FURTHER INFORMATION CONTACT: Gary
Data L. Halbert, General Counsel, (202) 314–
I 2. Section 410.33 is amended by— 6080.
I A. Revising paragraph (a)(2). I 6. Section 414.804(a)(3)(iv) is revised
to read as follows: SUPPLEMENTARY INFORMATION:
I B. Revising paragraph (g)(6).
The revisions read as follows: § 414.804 [Amended] Regulatory History
§ 410.33 [Amended] (a) * * * On November 22, 2006, the NTSB
(3) * * * published a notice of proposed
(a) * * *
(iv) Example. After adjusting for rulemaking entitled, ‘‘Public
(2) Exceptions. The following
exempted sales, the total lagged price Availability of Information,’’ in the
diagnostic tests that are payable under
concessions (discounts, rebates, etc.) Federal Register (71 FR 67523). This
the physician fee schedule and
over the most recent 12-month period NPRM set forth amendments to the
furnished by a nonhospital testing entity
available associated with sales for Board’s regulations regarding the
are not required to be furnished in
National Drug Code 12345–6789–01 availability of information, and
accordance with the criteria set forth in
subject to the ASP reporting provided updated information regarding
paragraphs (b) through (e) and (g) and
requirement equal $200,000, and the how the public may obtain NTSB
(h) of this section.
total in dollars for the sales subject to records. The NPRM also set forth an
* * * * * updated fee schedule to apply to
(g) * * * the average sales price reporting
requirement for the same period equals requests for NTSB records.
(6) Have a comprehensive liability
insurance policy of at least $300,000 per $600,000. The lagged price concessions Discussion of Comments and Changes
location that covers both the place of percentage for this period equals
The NTSB did not receive any
business and all customers and 200,000/600,000 = 0.33333. The total in
comments regarding the aforementioned
employees of the IDTF. The policy must dollars for the sales subject to the
NPRM. The NTSB also did not receive
be carried by a nonrelative-owned average sales price reporting
any requests for a public meeting;
company. requirement for the quarter being
therefore, the NTSB did not hold a
reported, equals $50,000 for 10,000
* * * * * public meeting on the NPRM.
units sold. The manufacturer’s average In the interest of ensuring that all
PART 411—EXCLUSIONS FROM sales price calculation for this National provisions of 49 CFR part 801 are
MEDICARE AND LIMITATIONS ON Drug Code for this quarter is: accurate and complete, the Board’s final
$50,000¥(0.33333 × $50,000) = $33,334
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MEDICARE PAYMENT rule herein will include one minor
(net total sales amount); $33,334/10,000 revision to § 801.60(a) that the NTSB
I 3. The authority citation for part 411 = $3.33 (average sales price). did not include in the NPRM: In the
is amended to read as follows: * * * * * final sentence of § 801.60(a), the rule
Authority: Secs. 1102, 1860D–1 through [FR Doc. E7–6989 Filed 4–13–07; 8:45 am] will now advise requesters to ‘‘pay fees
1860D–42, 1871, and 1877 of the Social BILLING CODE 4120–01–P in accordance with the instructions
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Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 18915
provided on the invoice the FOIA Office Indian Tribal Governments; Executive 801.61 Appeals of fee determinations.
sends to the requester.’’ The language of Order 13211, Actions Concerning Authority: Independent Safety Board Act
§ 801.60(a) in the NPRM had directed Regulations That Significantly Affect of 1974, as amended (49 U.S.C. 1101–1155);
requesters to pay fees via check or Energy Supply, Distribution, or Use; and 5 U.S.C. 551(2); Freedom of Information Act
money order. In the interest of ensuring the National Technology Transfer and (5 U.S.C. 552); 18 U.S.C. 641 and 2071; 31
that changes in banking technology, Advancement Act, 15 U.S.C. 272 note. U.S.C. 3717 and 9701; Federal Records Act,
resources, and the like do not compel 44 U.S.C. Chapters 21, 29, 31, and 33.
The NTSB has concluded that this rule
the NTSB to continually amend does not contravene any of the Subpart A—Applicability and Policy
provisions of part 801, the final rule will requirements set forth in these
advise requesters to refer to the payment Executive Orders or statutes, nor does § 801.1 Applicability.
instructions on each invoice that they this rule prompt further consideration (a) This part contains the rules that
receive. with regard to such requirements. the National Transportation Safety
Statutory and Regulatory Evaluation Board (NTSB) follows in processing
List of Subjects in 49 CFR Part 801
requests for records under the Freedom
This rule provides current, accurate Archives and records, Freedom of of Information Act (FOIA), 5 U.S.C. 552.
information to the public regarding how information, Privacy. These rules should be read together
the public may obtain NTSB records I For the reasons discussed in the with the FOIA, which provides
and information. This rule will serve to preamble, the NTSB revises 49 CFR part additional information about public
inform and assist the public with regard 801 to read as follows: access to records maintained by the
to obtaining NTSB records and NTSB.
information. PART 801—PUBLIC AVAILABILITY OF (b) This part also provides for
This rule is not a ‘‘significant INFORMATION document services and the fees for such
regulatory action’’ under section 3(f) of services, pursuant to 31 U.S.C. 9701.
Executive Order 12866, Regulatory Subpart A—Applicability and Policy (c) This part applies only to records
Planning and Review, and does not Sec. existing when the request for the
require an assessment of the potential 801.1 Applicability. information is made. The NTSB is not
costs and benefits under section 6(a)(3) 801.2 Policy. required to create records for the sole
of that Order. The Office of Management 801.3 Definitions. purpose of responding to a FOIA
and Budget has not reviewed this rule Subpart B—Administration request.
under Executive Order 12866. Likewise, (d) Sections 801.51 through 801.59 of
801.10 General.
this rule does not require an analysis 801.11 Segregability of records. this chapter describe records that are
under the Unfunded Mandates Reform 801.12 Protection of records. exempt from public disclosure.
Act, 2 U.S.C. 1501–1571, or the National
Environmental Policy Act, 42 U.S.C. Subpart C—Time Limits § 801.2 Policy.
4321–4347. 801.20 Processing of records. (a) In implementing 5 U.S.C. 552, it is
In addition, the NTSB has considered 801.21 Initial determination. the policy of the NTSB to make
whether this rule would have a 801.22 Final determination. information available to the public to
significant economic impact on a 801.23 Extension. the greatest extent possible, consistent
substantial number of small entities, Subpart D—Accident Investigation Records with the mission of the NTSB.
under the Regulatory Flexibility Act (5 801.30 Records from accident
Information the NTSB routinely
U.S.C. 601–612). The NTSB certifies investigations. provides to the public as part of a
under 5 U.S.C. 605(b) that this rule 801.31 Public hearings regarding regular NTSB activity (such as press
would not have a significant economic investigations. releases and information disclosed on
impact on a substantial number of small 801.32 Accident reports. the NTSB’s public Web site) may be
entities. Subpart E—Other Board Documents
provided to the public without
This rule requests no new collection compliance with this part. In addition,
of information under the Paperwork 801.40 The Board’s rules. as a matter of policy, the NTSB may
801.41 Reports to Congress.
Reduction Act of 1995 (44 U.S.C. 3501– make discretionary disclosures of
3520). Furthermore, the NTSB does not Subpart F—Exemption from Public records or information otherwise
anticipate that this rule will have a Disclosure exempt from disclosure under the FOIA
substantial, direct effect on State or 801.50 Exemptions from disclosure. whenever disclosure would not
local governments; as such, this rule 801.51 National defense and foreign policy foreseeably harm an interest protected
does not have implications for secrets. by a FOIA exemption; however, this
federalism under Executive Order 801.52 Internal personnel rules and policy does not create any right
13132, Federalism. This rule meets practices of the NTSB. enforceable in court.
801.53 Records exempt by statute from (b) Given the NTSB’s stated policy of
applicable standards in sections 3(a) disclosure.
and 3(b)(2) of Executive Order 12988, 801.54 Trade secrets and commercial or
providing as much information as
Civil Justice Reform, to minimize financial information. possible regarding general NTSB
litigation, eliminate ambiguity, and 801.55 Interagency and intra-agency operations and releasing documents
reduce burden. exchanges. involving investigations, the NTSB
In addition, the NTSB has evaluated 801.56 Unwarranted invasion of personal strongly encourages requesters seeking
this rule under: Executive Order 12630, privacy. information to check the NTSB’s Web
Governmental Actions and Interference 801.57 Records compiled for law site for such information before
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with Constitutionally Protected Property enforcement purposes. submitting a FOIA request. For every
Rights; Executive Order 13045, 801.58 Records for regulation of financial investigation in which the NTSB has
institutions.
Protection of Children from 801.59 Geological records.
determined the probable cause of an
Environmental Health Risks and Safety accident, the NTSB’s docket
Risks; Executive Order 13175, Subpart G—Fee Schedule management system will include a
Consultation and Coordination with 801.60 Fee schedule. ‘‘public docket’’ containing
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18916 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations
documentation that the investigator-in- (2) Maintain a public reference room, update its FOIA Web site to reflect any
charge deemed pertinent to the also known as a ‘‘Reading Room,’’ in such changes. Section 801.60 of this
investigation. Requesters may obtain accordance with 5 U.S.C. 552(a)(2). The title contains a current fee schedule.
these public dockets without submitting NTSB’s public reference room is located (h) The NTSB will not release records
a FOIA request. The NTSB encourages at 490 East L’Enfant Plaza, SW., originally generated by other agencies or
all requesters to review the public Washington, DC. Other records may be entities. Instead, the NTSB will refer
docket materials before submitting a available in the NTSB’s Electronic such requests for other agencies’ records
FOIA request. Reading Room, which is located on the to the appropriate agency, which will
NTSB’s Web site, found at http:// make a release determination upon
§ 801.3 Definitions. www.ntsb.gov. receiving and processing the referred
The following definitions shall apply (d) Requests for documents must be request.
in this part: made in writing to: National (i) Where a requester seeks a record
(a) ‘‘Record’’ includes any writing, Transportation Safety Board, Attention: on behalf of another person, and the
drawing, map, recording, tape, film, FOIA Officer CIO–40, 490 L’Enfant record contains that person’s personal
photo, or other documentary material by Plaza, SW., Washington, DC 20594– information protected by Exemption 6
which information is preserved. In this 2000. All requests: of the FOIA (see section 801.56 of this
part, ‘‘document’’ and ‘‘record’’ shall (1) Must reasonably identify the title), the NTSB requires the requester to
have the same meaning. record requested. For requests regarding submit a notarized statement of consent
(b) ‘‘Redact’’ refers to the act of an investigation of a particular accident, from the person whose personal
making a portion of text illegible by requesters should include the date and information is contained in the record,
placing a black mark on top of the text. location of the accident, as well as the before the NTSB releases the record.
(c) ‘‘Public Docket’’ includes a NTSB investigation number. In response (j) In general, the NTSB will deny
collection of records from an accident to broad requests for records regarding requests for records concerning a
investigation that the investigator who a particular investigation, the FOIA pending investigation, pursuant to
oversaw the investigation of that Office will notify the requester of the appropriate exemptions under the
accident has deemed pertinent to existence of a public docket, and state FOIA. The FOIA Office will notify the
determining the probable cause of the that other non-docket items may be requester of this denial, and will
accident. available, or may become available, at a provide the requester with information
(d) ‘‘Non-docket’’ items include other later date. After receiving this letter and regarding how the requester may receive
records from an accident that the reviewing the items in the public information on the investigation once
investigator who oversaw the docket, requesters should notify the the investigation is complete. The NTSB
investigation of that accident has FOIA office if the items contained in the discourages requesters from submitting
deemed irrelevant or not directly public docket suffice to fulfill their multiple FOIA requests in a continuing
pertinent to determining the probable request. effort to obtain records before an
cause of the accident. (2) Must be accompanied by the fee or investigation is complete.
(e) ‘‘Chairman’’ means the Chairman agreement (if any) to pay the
of the NTSB. reproduction costs shown in the fee § 801.11 Segregability of records.
(f) ‘‘Managing Director’’ means the schedule at § 801.60 of this title, and The initial decision of the FOIA
Managing Director of the NTSB. (3) Must contain the name, address, Officer will include a determination of
(g) ‘‘Requester’’ means any person, as and telephone number of the person segregability. If it is reasonable to do so,
defined in 5 U.S.C. 551(2), who submits making the request. Requesters must the exempt portions of a record will be
a request pursuant to the FOIA. update their address and telephone segregated and, where necessary,
number in writing should this redacted, and the nonexempt portions
Subpart B—Administration information change. will be sent to the requester.
(e) The envelope in which the
§ 801.10 General. requester submits the request should be § 801.12 Protection of records.
(a) The NTSB’s Chief, Records marked prominently with the letters (a) No person may, without
Management Division, is responsible for ‘‘FOIA.’’ If a request fails to include a permission, remove from the place
the custody and control of all NTSB citation to the FOIA, the NTSB FOIA where it is made available any record
records required to be preserved under Office will attempt to contact the made available for inspection or
the Federal Records Act, 44 U.S.C. requester immediately to rectify the copying under § 801.10(c)(2) of this part.
Chapters 21, 29, 31, and 33. omission and/or clarify the request. Stealing, altering, mutilating,
(b) The NTSB’s FOIA Officer shall be However, the 20-working-day time limit obliterating, or destroying, in whole or
responsible for the initial determination for processing shall not commence until in part, such a record shall be deemed
of whether to release records within the the FOIA Office receives a complete a criminal offense.
20-working-day time limit, or the request. (b) Section 641 of title 18 of the
extension specified in the Freedom of (f) The field offices of the NTSB shall United States Code provides, in
Information Act. not maintain, for public access, records pertinent part, as follows: ‘‘Whoever
(c) The NTSB’s Chief, Records maintained by the Chief, Records * * * steals, purloins, or knowingly
Management Division, shall: Management Division. Requests mailed converts to his use or the use of another,
(1) Maintain for public access and to NTSB field offices will not satisfy the or without authority, sells, conveys or
commercial reproduction all accident NTSB’s requirements for submitting a disposes of any record * * * or thing of
files containing aviation and surface FOIA request. value of the United States or of any
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investigators’ reports, factual accident (g) The NTSB may work with a department or agency thereof * * *
reports or group chairman reports, commercial reproduction firm to shall be fined under this title or
documentation and accident accommodate requests for reproduction imprisoned not more than ten years, or
correspondence files, transcripts of of accident records from the public both; but if the value of such property
public hearings, if any, and exhibits; docket. The reproduction charges may in the aggregate, combining amounts
and be subject to change. The NTSB will from all the counts for which the
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Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 18917
defendant is convicted in a single case, (b) the right to appeal the § 801.31 Public hearings regarding
does not exceed the sum of $1,000, he determination, and investigations.
shall be fined under this title or (c) the name and title or positions of Within approximately four (4) weeks
imprisoned not more than one year, or each person responsible for the denial of after a public hearing concerning an
both.’’ the request. investigation, the Chief, Records
(c) Section 2071(a) of title 18 of the Management Division, will make
United States Code provides, in § 801.22 Final determination.
available to the public the hearing
pertinent part, as follows: Requesters seeking an appeal of the
transcript. On or before the date of the
Whoever willfully and unlawfully FOIA Officer’s initial determination
hearing, the Chief, Records Management
conceals, removes, mutilates, obliterates, or must send a written appeal to the
Division, will make the exhibits
destroys, or attempts to do so, or, with intent NTSB’s Managing Director within 20
introduced at the hearing available to
to do so takes and carries away any record, days. The NTSB’s Managing Director
the public for inspection or commercial
proceeding, map, book, paper, document, or will determine whether to grant or deny
other thing, filed or deposited * * * in any
copy order.
any appeal made pursuant to § 801.21
public office, or with any * * * public within 20 working days (excluding § 801.32 Accident reports.
officer of the United States, shall be fined Saturdays, Sundays, and legal public
under this title or imprisoned not more than (a) The NTSB will report the facts,
holidays) after receipt of such appeal,
three years, or both. conditions, and circumstances, and its
except that this time limit may be
extended for as many as 10 additional determination of the probable causes of
Subpart C—Time Limits U.S. civil transportation accidents, in
working days, in accordance with
§ 801.20 Processing of requests. § 801.23. accordance with 49 U.S.C. 1131(e).
(a) The NTSB processes FOIA (b) These reports may be made
requests upon receipt. The NTSB FOIA § 801.23 Extension. available for public inspection in the
Office may notify the requester that the In unusual circumstances as specified NTSB’s public reference room and/or on
NTSB has received the request. The in this section, the time limits the NTSB’s Web site, at http://
FOIA Office will then place each prescribed in either § 801.21 or § 801.22, www.ntsb.gov.
request on one of three tracks: may be extended by written notice to
(1) Track 1: Requests for which there the person making a request and setting Subpart E—Other Board Documents
are no records, requests that meet the forth the reasons for such extension and
criteria for expedited processing, or the date on which a determination is § 801.40 The Board’s rules.
requests that seek records that have expected to be dispatched. Such notice The NTSB’s rules are published in the
been produced in response to a prior will not specify a date that would result Code of Federal Regulations as Parts 800
request. in an extension for more than 10 through 850 of Title 49.
(2) Track 2: Requests that do not working days. As used in this
involve voluminous records or lengthy paragraph, ‘‘unusual circumstances,’’ as § 801.41 Reports to Congress.
consultations with other entities. they relate to any delay that is
The NTSB submits its annual report
(3) Track 3: Requests that involve reasonably necessary to the proper
to Congress each year, in accordance
voluminous records and for which processing of the particular request,
with 49 U.S.C. 1117. The report will be
lengthy or numerous consultations are means—
available on the NTSB’s Web site, found
required, or those requests which may (a) The need to search for and collect
at http://www.ntsb.gov. Interested
involve sensitive records. the requested records from field
(b) Regarding expedited processing, if parties may purchase the report from
facilities or other establishments;
a requester states that he or she has a the Government Printing Office or
(b) The need to search for, collect, and review it in the NTSB’s public reference
compelling need for the expedited appropriately examine and process a
treatment of their request, then the room. All other reports or comments to
voluminous amount of records which Congress will be available in the NTSB’s
NTSB FOIA Office will determine are the subject of a single request; or
whether to expedite the request and, public reference room for inspection or
(c) The need to consult with another by ordering a copy after issuance.
where appropriate, do so. agency that has a substantial interest in
the disposition of the request or with Subpart F—Exemption From Public
§ 801.21 Initial determination.
two or more components of the agency Disclosure
The NTSB FOIA Officer will make an having substantial subject-matter
initial determination as to whether to interest therein. § 801.50 Exemptions from disclosure.
release a record within 20 working days
(excluding Saturdays, Sundays, and Subpart D—Accident Investigation Title 5, United States Code section
legal public holidays) after the request Records 552(a) and (b) exempt certain records
is received. This time limit may be from public disclosure. As stated in
extended up to 10 additional working § 801.30 Records from accident § 801.2 of this title, the NTSB may
days in accordance with § 801.23 of this investigations. choose to make a discretionary release
part. The person making the request will Upon completion of an accident of a record that is authorized to be
be notified immediately in writing of investigation, each NTSB investigator withheld under 5 U.S.C. 552(b), unless
such determination. If a determination (or ‘‘group chairman,’’ depending on the it determines that the release of that
is made to release the requested investigation) shall complete a factual record would be inconsistent with the
record(s), such record(s) will be made report with supporting documentation purpose of the exemption concerned.
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available promptly. If the FOIA Officer and include these items in the public Examples of records given in §§ 801.51
determines not to release the record(s), docket for the investigation. The Chief, through 801.58 included within a
the person making the request will, Records Management Division, will particular statutory exemption are not
when he or she is notified of such then make the records available to the necessarily illustrative of all types of
determination, be advised of: public for inspection or production by records covered by the applicable
(a) The reason for the determination, an order for commercial copying. exemption.
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18918 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations
§ 801.51 National defense and foreign but not actually made a part of that or would endanger the life or security of
policy secrets. official action, or law enforcement personnel.
Pursuant to 5 U.S.C. 552(b)(1), (2) Information concerning any
national defense and foreign policy pending NTSB proceeding, or similar § 801.58 Records for regulation of
financial institutions.
secrets established by Executive Order, matter, including any claim or other
as well as properly classified dispute to be resolved before a court of Pursuant to 5 U.S.C. 552(b)(8), records
documents, are exempt from public law, administrative board, hearing compiled for agencies regulating or
disclosure. Requests to the NTSB for officer, or contracting officer. supervising financial institutions are
such records will be transferred to the (b) The purpose of this section is to exempt from public disclosure.
source agency as appropriate, where protect the full and frank exchange of § 801.59 Geological records.
such classified records are identified. ideas, views, and opinions necessary for Pursuant to 5 U.S.C. 552(b)(9), records
(See, e.g., Executive Order 12,958, as the effective functioning of the NTSB. concerning geological wells are exempt
amended on March 25, 2003.) These resources must be fully and from public disclosure.
readily available to those officials upon
§ 801.52 Internal personnel rules and whom the responsibility rests to take
practices of the NTSB.
Subpart G—Fee Schedule
official NTSB action. Its purpose is also
Pursuant to 5 U.S.C. 552(b)(2), the to protect against the premature § 801.60 Fee schedule.
following records are exempt from disclosure of material that is in the (a) Authority. Pursuant to 5 U.S.C.
disclosure under FOIA: developmental stage, if premature 552(a)(4)(i) and 52 FR 10,012 (Mar. 27,
(a) Records relating solely to internal disclosure would be detrimental to the 1987), the NTSB may charge certain fees
personnel rules and practices, including authorized and appropriate purposes for for processing requests under the FOIA
memoranda pertaining to personnel which the material is being used, or if, in accordance with paragraph (c) of this
matters such as staffing policies, and because of its tentative nature, the section, except where fees are limited
procedures for the hiring, training, material is likely to be revised or under paragraph (d) of this section, or
promotion, demotion, or discharge of modified before it is officially presented where a waiver or reduction of fees is
employees, and management plans, to the public. granted under paragraph (e) of this
records, or proposals relating to labor- (c) Examples of materials covered by section. The NTSB may collect all
management relations. this section include, but are not limited applicable fees before sending copies of
(b) Records regarding: to, staff papers containing advice, requested records to a requester. A
(1) Internal matters of a relatively opinions, or suggestions preliminary to requester must pay fees in accordance
trivial nature that have no significant a decision or action; preliminary notes; with the instructions provided on the
public interest, and advance information on such things as invoice the FOIA Office sends to the
(2) Predominantly internal matters, requester.
proposed plans to procure, lease, or
the release of which would risk (b) Definitions. For purposes of this
otherwise hire and dispose of materials,
circumvention of a statute or agency section:
real estate, or facilities; documents
regulation. (1) Commercial use request means a
exchanged in preparation for
anticipated legal proceedings; material request from or on behalf of a person
§ 801.53 Records exempt by statute from
intended for public release at a specified who seeks information for a use or
disclosure.
future time, if premature disclosure purpose that furthers his or her
Pursuant to 5 U.S.C. 552(b)(3), the commercial, trade, or profit interests.
NTSB will not disclose records would be detrimental to orderly
processes of the NTSB; records of This includes the furtherance of
specifically exempted from disclosure commercial interests through litigation.
by statute (other than 5 U.S.C. 552(b)), inspections, investigations, and surveys
pertaining to internal management of When it appears that the requester will
provided that such statute: use the requested records for a
(a) Requires that the matters be the NTSB; and matters that would not
be routinely disclosed in litigation but commercial purpose, either because of
withheld from the public in such the nature of the request or because the
manner as to leave no discretion on the which are likely to be the subject of
litigation. NTSB has reasonable cause to doubt a
issue, or requester’s stated use, the NTSB shall
(b) Establishes particular criteria for
§ 801.56 Unwarranted invasion of personal provide the requester with a reasonable
withholding or refers to particular types privacy. opportunity to submit further
of matters to be withheld.
Pursuant to 5 U.S.C. 552(b)(6), any clarification.
§ 801.54 Trade secrets and commercial or personal, medical, or similar file is (2) Direct costs means those expenses
financial information. exempt from public disclosure if its that an agency actually incurs in
Pursuant to 5 U.S.C. 552(b)(4), trade disclosure would harm the individual searching for, reviewing, and
secrets and items containing concerned or would be a clearly duplicating records in response to a
commercial or financial information unwarranted invasion of the person’s FOIA request. This includes the salaries
that are obtained from a person and are personal privacy. of employees performing the work, as
privileged or confidential are exempt listed below, but does not include
§ 801.57 Records compiled for law overhead expenses such as the costs of
from public disclosure. enforcement purposes. office space.
§ 801.55 Interagency and intra-agency Pursuant to 5 U.S.C. 552(b)(7), any (3) Duplication means the copying of
exchanges. records compiled for law or regulatory a record, or of the information contained
(a) Pursuant to 5 U.S.C. 552(b)(5), any enforcement are exempt from public in a record, in response to a FOIA
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record prepared by an NTSB employee disclosure to the extent that disclosure request.
for internal Government use is exempt would interfere with enforcement, (4) Educational institution means a
from public disclosure to the extent that would be an unwarranted invasion of preschool, a public or private
it contains— privacy, would disclose the identity of elementary or secondary school, an
(1) Opinions made in the course of a confidential source, would disclose institution of undergraduate higher
developing official action by the NTSB investigative procedures and practices, education, an institution of graduate
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Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations 18919
higher education, an institution of (ii) The NTSB will charge $4.00 for institutions or representatives of the
professional education, or an institution each quarter of an hour spent by clerical news media.
of vocational education, that operates a personnel in searching for and (3) The NTSB will not charge a search
program of scholarly research. In order retrieving a requested record. Where fee or review fee for a quarter-hour
for a requester to demonstrate that their clerical personnel cannot entirely period unless more than half of that
request falls within the category of an perform a search and retrieval (for period is required for search or review.
‘‘educational institution,’’ the requester example, where the identification of (4) Except for requesters seeking
must show that the request is authorized records within the scope of a request records for commercial use, the NTSB
by the qualifying institution and that the requires the assistance of professional will provide the following items without
requester does not seek the records for personnel), the applicable fee will charge:
commercial use, but only to further instead be $7.00 for each quarter hour (i) The first 100 pages of duplication
scholarly research. of search time spent by professional (or the cost equivalent) of a record; and
(5) Representative of the news media personnel. Where a request requires the (ii) The first two hours of search (or
or ‘‘news media requester’’ means any time of managerial personnel, the fee the cost equivalent) for a record.
person actively gathering news for an will be $10.25 for each quarter hour of (5) Whenever the total fee calculated
entity that is organized and operated to time spent by these personnel. under paragraph (c) of this section is
publish or broadcast news to the public. (2) Duplication. The NTSB will charge $14.00 or less for any request, the NTSB
For ‘‘freelance’’ journalists to be duplication fees, subject to the will not charge a fee.
regarded as working for a news limitations of paragraph (d) of this (6) When the NTSB’s FOIA Office
organization, they must demonstrate a section. determines or estimates that fees to be
solid basis for expecting publication (i) The NTSB utilizes the services of charged under this section will amount
through that organization (for example, a commercial reproduction facility for to more than $25.00, the Office will
a journalist may submit a copy of a requests for duplicates of NTSB public notify the requester of the actual or
publication contract for which the dockets and publications. estimated amount of the fees, unless the
journalist needs NTSB records). (ii) Regarding the reproduction of requester has indicated a willingness to
(6) Review means the examination of
non-public records in response to a pay fees as high as those anticipated. If
a record located in response to a request
FOIA request, the NTSB will charge the FOIA Office is able to estimate only
in order to determine whether any
$0.10 per page for the duplication of a a portion of the expected fee, the FOIA
portion of it is exempt from disclosure.
standard-size paper record. For other Office will advise the requester that the
‘‘Review’’ also includes processing the
forms of duplication, the NTSB will estimated fee may be only a portion of
record(s) for disclosure, which includes
charge the direct costs of the the total fee. Where the FOIA Office
redacting and otherwise preparing
duplication. notifies a requester that the actual or
releasable records for disclosure. The
NTSB may require review costs even if (iii) Where the NTSB certifies records estimated fees will exceed $25.00, the
the NTSB ultimately does not release upon request, the NTSB will charge the NTSB will not expend additional
the record(s). direct cost of certification. agency resources on the request until
(7) Search means the process of (3) Review. The NTSB will charge fees the requester agrees in writing to pay
looking for and retrieving records or for the initial review of a record to the anticipated total fee. In
information within the scope of a determine whether the record falls circumstances involving a total fee that
request. ‘‘Search’’ includes page-by-page within the scope of a request, or will exceed $250.00, the NTSB may
or line-by-line identification of whether the record is exempt from require the requester to make an
information within records and also disclosure. Such fees will be charged to advance payment or deposit of a
includes reasonable efforts to locate and requesters who make a request for specific amount before beginning to
retrieve information from records commercial purposes. The NTSB will process the request.
maintained in electronic form or format. not charge for subsequent review of the (7) The NTSB may charge interest on
The NTSB will make an effort to request and responsive record; for any unpaid bill starting on the 31st day
conduct such searches in the least example, in general, the NTSB will not following the date of billing the
expensive manner. charge additional fees for review at the requester. Interest charges will be
(c) Fees. In responding to FOIA administrative appeal level when the assessed at the rate provided at 31
requests, the NTSB will charge the NTSB has already applied an U.S.C. 3717 and will accrue from the
following fees unless a waiver or exemption. The NTSB will charge date of the billing until the NTSB
reduction of fees has been granted under review fees at the same rate as those receives payment. The NTSB shall
paragraph (d) of this section: charged for a search under paragraph follow the provisions of the Debt
(1) Search. (c)(1)(ii), above. Collection Act of 1982 (Pub. L. 97–365,
(i) The NTSB will charge search fees (c) Limitations on charging fees. For 96 Stat. 1749), as amended, and its
for all requests, unless an educational purposes of this section: administrative procedures, including
institution, a noncommercial scientific (1) The NTSB will not charge a fee for the use of consumer reporting agencies,
institution, or a news media notices, decisions, orders, etc. provided collection agencies, and offset.
representative submits a request to persons acting as parties in the (8) Where a requester has previously
containing adequate justification for investigation, or where required by law failed to pay a properly charged FOIA
obtaining a fee waiver. These fees, to be served on a party to any fee to the NTSB within 30 days of the
however, are subject to the limitations proceeding or matter before the NTSB. date of billing, the NTSB may require
of paragraph (d) of this section. The Likewise, the NTSB will not charge fees the requester to pay the full amount
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NTSB may charge for time spent for requests made by family members of due, plus any applicable interest, and to
searching even if the NTSB does not accident victims, when the NTSB has make an advance payment of the full
locate any responsive record or if the investigated the accident that is the amount of any anticipated fee, before
NTSB withholds the record(s) located subject of the FOIA request. the NTSB begins to process a new
because such record(s) are exempt from (2) The NTSB will not charge a search request or continues to process a
disclosure. fee for requests from educational pending request from that requester.
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18920 Federal Register / Vol. 72, No. 72 / Monday, April 16, 2007 / Rules and Regulations
(9) Where the NTSB reasonably interest of the requester, the NTSB will may be extended for as many as 10
believes that a requester or group of consider the following factors: additional working days, in accordance
requesters acting together is attempting (i) The existence and magnitude of with § 801.23.
to divide a request into multiple series any commercial interest the requester Dated: April 10, 2007.
of requests for the purpose of avoiding may have, or of any person on whose
Vicky D’Onofrio,
fees, the NTSB may aggregate those behalf the requester may be acting. The
Federal Register Liaison Officer.
requests and charge accordingly. NTSB will provide requesters with an
opportunity in the administrative [FR Doc. E7–7103 Filed 4–13–07; 8:45 am]
(d) Requirements for waiver or
process to submit explanatory BILLING CODE 7533–01–P
reduction of fees. For fee purposes, the
NTSB will determine, whenever information regarding this
reasonably possible, the use to which a consideration.
requester will put the requested records. (ii) Whether the commercial interest DEPARTMENT OF COMMERCE
(1) The NTSB will furnish records is greater in magnitude than any public
responsive to a request without charge, interest in disclosure. National Oceanic and Atmospheric
or at a reduced charge, where the NTSB (4) Additionally, the NTSB may, at its Administration
determines, based on all available discretion, waive publication,
information, that the requester has reproduction, and search fees for 50 CFR Part 679
shown that: qualifying foreign countries,
international organizations, nonprofit [Docket No. 070213033–7033–01; I.D.
(i) Disclosure of the requested 040907D]
information is in the public interest public safety entities, State and Federal
because it is likely to contribute transportation agencies, and colleges Fisheries of the Economic Exclusive
significantly to public understanding of and universities, after approval by the Zone Off Alaska; Pacific Cod in the
the operations of activities of the Chief, Records Management Division. Bering Sea and Aleutian Islands
government, and (5) Where only some of the records to
(ii) Disclosure of the requested be released satisfy the requirements for AGENCY: National Marine Fisheries
information is not primarily in the a waiver of fees, the NTSB will grant a Service (NMFS), National Oceanic and
commercial interest or for the waiver for those particular records. Atmospheric Administration (NOAA),
commercial use of the requester. (6) Requests for the waiver or Commerce.
(2) In determining whether disclosure reduction of fees should address the ACTION: Temporary rule; modification of
of the requested information is in the factors listed in paragraphs (e)(2) and a closure.
public interest, the NTSB will consider (e)(3) of this section, insofar as they
the following factors: apply to each request. The NTSB will SUMMARY: NMFS is opening directed
(i) Whether the subject of the exercise its discretion to consider the fishing for Pacific cod by catcher vessels
requested records concerns identifiable cost-effectiveness of its use of less than 60 feet (18.3 meters (m)) length
operations or activities of the federal administrative resources in determining overall (LOA) using pot or hook-and-
government, with a connection that is whether to grant waivers or reductions line gear in the Bering Sea and Aleutian
direct and clear, and not remote or of fees. Islands management area (BSAI). This
attenuated. In this regard, the NTSB will (e) Services available free of charge. action is necessary to fully use the 2007
consider whether a requester’s use of (1) The following documents are total allowable catch (TAC) of Pacific
the documents would enhance available without commercial cod specified for catcher vessels less
transportation safety or contribute to the reproduction cost until limited supplies than 60 feet (18.3 m) LOA using pot or
NTSB’s programs. are exhausted: hook-and-line gear in the BSAI.
(i) Press releases; DATES: Effective 1200 hrs, Alaska local
(ii) Whether the portions of a record
(ii) Safety Board regulations (Chapter time (A.l.t.), April 30, 2007, through
subject to disclosure are meaningfully
VIII of Title 49, Code of Federal 2400 hrs, A.l.t., December 31, 2007.
informative about government
Regulations); Comments must be received at the
operations or activities. The disclosure (iii) Indexes to initial decisions, Board
of information already in the public following address no later than 4:30
orders, opinion and orders, and staff p.m., A.l.t., April 30, 2007.
domain, in either a duplicative or manuals and instructions;
substantially identical form, would not (iv) Safety recommendations; and ADDRESSES: Send comments to Sue
be as likely to contribute to such (v) NTSB Annual Reports. Salveson, Assistant Regional
understanding where nothing new (2) The NTSB public Web site, located Administrator, Sustainable Fisheries
would be added to the public’s at http://www.ntsb.gov, also includes an Division, Alaska Region, NMFS, Attn:
understanding. e-mail subscription service for press Ellen Sebastian. Comments may be
(iii) Whether disclosure of the releases, safety recommendations, and submitted by:
requested information would contribute other announcements. • Mail to: P.O. Box 21668, Juneau, AK
to the understanding of a reasonably 99802;
broad audience of persons interested in § 801.61 Appeals of fee determinations. • Hand delivery to the Federal
the subject, as opposed to the individual Requesters seeking an appeal of the Building, 709 West 9th Street, Room
understanding of the requester. The FOIA Officer’s fee or fee waiver 420A, Juneau, Alaska;
NTSB will consider a requester’s determination must send a written • FAX to 907–586–7557;
expertise in the subject area and ability appeal to the NTSB’s Managing Director • E-mail to inseason-akr@noaa.gov
to effectively convey information to the within 20 days. The NTSB’s Managing and include in the subject line and body
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public. Director will determine whether to grant of the e-mail the document identifier:
(iv) Whether the disclosure is likely to or deny any appeal made pursuant to bspclt60re.fo.wpd (E-mail comments,
enhance the public’s understanding of § 801.21 within 20 working days with or without attachments, are limited
government operations or activities. (excluding Saturdays, Sundays, and to 5 megabytes); or
(3) In determining whether the legal public holidays) after receipt of • Webform at the Federal eRulemaking
requester is primarily in the commercial such appeal, except that this time limit Portal: http://www.regulations.gov.
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