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e-CFR data is current as of March 4, 2021

Title 49Subtitle BChapter VIIIPart 801 → Subpart G

Title 49: Transportation

Subpart G—Fee Schedule

§801.60   Fee schedule.
§801.61   Appeals of fee determinations.

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§801.60   Fee schedule.

(a) Authority. Pursuant to 5 U.S.C. 552(a)(4)(i) and the Office of Management and Budget's Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012, Mar. 27, 1987, the NTSB may charge certain fees for processing requests under the FOIA in accordance with paragraph (c) of this section, except where fees are limited under paragraph (d) of this section, or where a waiver or reduction of fees is granted under paragraph (e) of this section. The NTSB does not require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the NTSB determines that the fee will exceed $250.00. A requester must pay fees in accordance with the instructions provided on the invoice the FOIA Office sends to the requester.

(b) Definitions. For purposes of this section:

Commercial use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests. This includes the furtherance of commercial interests through litigation. When it appears that the requester will use the requested records for a commercial purpose, either because of the nature of the request or because the NTSB has reasonable cause to doubt a requester's stated use, the NTSB will provide the requester with a reasonable opportunity to submit further clarification.

Direct costs mean those expenses that an agency incurs in searching for, reviewing, and duplicating records in response to a FOIA request. This includes the salaries of NTSB employees performing the work, as listed below, but does not include overhead expenses such as the costs of office space.

Duplication means the copying of a record, or of the information contained in a record, in response to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.

Educational institution means any school, or institution of vocational education that operates a program of scholarly research. In order for a requester to demonstrate that their request falls within the category of an “educational institution,” the requester must show that the request is authorized by the qualifying institution and that the requester does not seek the records for commercial use, but only to further scholarly research.

Representative of the news media or news media requester means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization (for example, a journalist may submit a copy of a publication contract for which the journalist needs NTSB records).

Review means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review also includes processing the record(s) for disclosure, which includes redacting and otherwise preparing releasable records for disclosure. Review does not include time spent resolving legal or policy issues regarding the application of exemptions nor will the NTSB charge for review during the administrative appeal stage, if applicable. The NTSB may recover review costs even if the NTSB ultimately does not release the record(s).

Search means the process of looking for and retrieving records or information within the scope of a request. Search includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve electronic records. The NTSB will make an effort to conduct such searches in the least expensive manner.

(c) Fees. In responding to FOIA requests, the NTSB will charge the following fees, subject to the limitations in paragraph (d) of this section, unless a waiver or reduction of fees has been granted under paragraph (e) of this section:

(1) Search. (i) The NTSB will charge search fees except for a request from an educational institution, a noncommercial scientific institution, or a news media representative. The NTSB may charge for time spent searching even if the NTSB does not locate any responsive record or if the NTSB withholds the record(s) located because such record(s) are exempt from disclosure.

(ii) In searching for and retrieving records, the NTSB will charge $4.00 for each quarter of an hour spent by administrative personnel, $7.00 for each quarter of an hour spent by professional personnel, and $10.25 for each quarter of an hour spent by management personnel.

(2) Duplication. (i) The NTSB will charge duplication fees. The NTSB will honor a requester's preference for receiving a record in a particular format when the FOIA Office can readily reproduce it in the format requested.

(ii) The NTSB will charge $0.10 per page for the duplication of a standard-size paper record. For other forms of duplication, the NTSB will charge the direct costs of the duplication.

(iii) Where the NTSB certifies records upon request, the NTSB will charge the direct cost of certification.

(3) Review. For a commercial use request, the NTSB will charge fees for the initial review of a record to determine whether the record falls within the scope of a request and whether the record is exempt from disclosure. The NTSB will not charge for subsequent review of the request and responsive record. For example, in general, the NTSB will not charge additional fees for review at the administrative appeal level when the NTSB has already applied an exemption. The NTSB will charge review fees at the same rate as those charged for a search under paragraph (c)(1)(ii).

(d) Limitations on charging fees. (1) The NTSB will not charge fees if it fails to comply with the time limits in §§801.21 or 801.22, including an extension of time pursuant to §801.23(a), except:

(i) If the NTSB determines there are unusual circumstances, as defined by 5 U.S.C. 552(a)(6)(B)(iii) and §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. (1) For fee purposes, the NTSB will determine, whenever reasonably possible, the use to which a requester will put the requested records. The NTSB will furnish records responsive to a request without charge, or at a reduced charge, where the NTSB determines, based on all available information, that the requester has shown that:

(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations of activities of the government; and

(ii) Disclosure of the requested information is not primarily in the commercial interest or for the commercial use of the requester.

(2) In determining whether disclosure of the requested information is in the public interest, the NTSB will consider the following factors:

(i) Whether the subject of the requested records concerns identifiable operations or activities of the Federal Government, with a connection that is direct and clear, and not remote or attenuated. In this regard, the NTSB will consider whether a requester's use of the documents would enhance transportation safety or contribute to the NTSB's programs.

(ii) Whether the portions of a record subject to disclosure are meaningfully informative about government operations or activities. The disclosure of information already in the public domain, in either a duplicative or substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.

(iii) Whether disclosure of the requested information would contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. The NTSB will consider a requester's expertise in the subject area and ability to effectively convey information to the public.

(iv) Whether the disclosure is likely to enhance the public's understanding of government operations or activities.

(3) The NTSB's decision to designate the FOIA request as commercial will be made on a case-by-case basis based on the NTSB's review of the requester's intended use of the information. The NTSB will provide the requester with a reasonable opportunity to submit further clarification. In determining whether the request is primarily in the commercial interest of the requester, the NTSB will consider the following factors:

(i) The existence and magnitude of any commercial interest the requester may have, or of any person on whose behalf the requester may be acting. The NTSB will provide requesters with an opportunity in the administrative process to submit explanatory information regarding this consideration.

(ii) Whether the commercial interest is greater in magnitude than any public interest in disclosure.

(4) Additionally, the NTSB may, at its discretion, waive search, duplication, and review fees for qualifying foreign countries, international organizations, nonprofit public safety entities, state and federal transportation agencies, and colleges and universities, after approval by the Chief, Records Management Division.

(5) Where only some of the records to be released satisfy the requirements for a waiver of fees, the NTSB will grant a waiver for those particular records.

(6) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (e)(2) and (3) of this section, insofar as they apply to each request. The NTSB will exercise its discretion to consider the cost-effectiveness of its use of administrative resources in determining whether to grant waivers or reductions of fees.

(f) Services available free of charge. (1) The following documents are available without commercial reproduction cost until limited supplies are exhausted:

(i) Press releases;

(ii) NTSB regulations (Chapter VIII of Title 49, Code of Federal Regulations);

(iii) Indexes to initial decisions, Board orders, opinion and orders, and staff manuals and instructions;

(iv) Safety recommendations; and

(v) NTSB Annual Reports.

(2) The NTSB public Website, http://www.ntsb.gov, also includes an email subscription service for press releases, safety recommendations, and other announcements.

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§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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