[Federal Register Volume 62, Number 98 (Wednesday, May 21, 1997)]
[Rules and Regulations]
[Pages 27702-27703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13316]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Parts 801 and 837
Production of Records in Legal Proceedings
AGENCY: National Transportation Safety Board.
ACTION: Final rules.
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SUMMARY: The Board is adopting new rules so as better to manage its
document production workload.
DATES: The new rules are effective June 20, 1997.
FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 314-6080.
SUPPLEMENTARY INFORMATION: At present, the Board has no specific rules
governing release of information demanded of it by litigants in legal
proceedings in which the NTSB is not a party. In many cases, parties
use our Freedom of Information Act rules at Part 801. Others simply
purchase documents from our contractor, or contact our Public Inquiries
Branch. But, in recent years, more and more parties in private
litigation are using subpoenas to seek documents and other physical
material from the agency. These subpoenas are often overbroad, may not
reflect the types of records and search systems the Board maintains,
and may have very short return dates. Yet, once the subpoena is issued,
and in the absence of rules such as these (which are also published by
other agencies), we often have no option but to file written objections
or to process the request in advance of others submitted earlier,
albeit not in subpoena form.
Accordingly, we have determined that administrative efficiency and
fairness require that we adopt rules to regulate the manner in which
documents are requested and document production
[[Page 27703]]
requests are processed. Because these rule changes affect only rules of
agency organization, procedures, or practice, notice and comment
procedures are not required and are not provided here. 5 U.S.C.
553(b)(B).
List of Subjects
49 CFR Part 801
Freedom of information, Information, Public availability.
49 CFR Part 837
Administrative practice and procedure, Freedom of information,
Government employees, Investigations.
The NTSB amends 49 CFR Chapter VIII as follows:
1. The authority citation for part 801 is revised to read as
follows:
Authority: 5 U.S.C. 552; 49 U.S.C. 1101 et seq.; 18 U.S.C. 641
and 2071.
Sec. 801.13 [Removed]
2. Section 801.13 is removed.
3. Part 837 is added to read as follows:
PART 837--PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS
Sec.
837.1 Purpose and scope.
837.2 Applicability.
837.3 Published reports, material contained in the public accident
investigation dockets, and accident database data.
837.4 Other material.
Authority: 49 U.S.C. 1101 et seq.; 40101 et seq.; 5 U.S.C. 301.
Sec. 837.1 Purpose and scope.
(a) This part sets forth procedures to be followed when requesting
material for use in legal proceedings (including administrative
proceedings) in which the National Transportation Safety Board (NTSB or
Board) is not a party, and procedures to be followed by the employee
upon receipt of a subpoena, order, or other demand (collectively
referred to here as a demand) by a court or other competent authority
or by a private litigant. ``Material,'' as used in this part, means any
type of physical or documentary evidence, including but not limited to
paper documents, electronic media, videotapes, audiotapes, etc.
(b) The purposes of this part are to:
(1) Conserve the time of employees for conducting official
business;
(2) Minimize the possibility of involving the NTSB in controversial
issues not related to its mission;
(3) Maintain the impartiality of the Board among private litigants;
(4) Avoid spending the time and money of the United States for
private purposes; and
(5) To protect confidential, sensitive information, and the
deliberative processes of the Board.
Sec. 837.2 Applicability.
This part applies to requests to produce material concerning
information acquired in the course of performing official duties or
because of the employee's official status. Specifically, this part
applies to requests for: material contained in NTSB files; and any
information or material acquired by an employee of the NTSB in the
performance of official duties or as a result of the employee's status.
Two sets of procedures are here established, dependent on the type of
material sought. Rules governing requests for employee testimony, as
opposed to material production, can be found at 49 CFR part 835.
Document production shall not accompany employee testimony, absent
compliance with this part and General Counsel approval.
Sec. 837.3 Published reports, material contained in the public
accident investigation dockets, and accident database data.
(a) Demands for material contained in the NTSB's official public
docket files of its accident investigations, or its computerized
accident database(s) shall be submitted, in writing, to the Public
Inquiries Branch. Demands for specific published reports and studies
should be submitted to the National Technical Information Service. The
Board does not maintain stock of these items. Demands for information
collected in particular accident investigations and made a part of the
public docket should be submitted to the Public Inquiries Branch or,
directly, to our contractor. For information regarding the types of
documents routinely issued by the Board, see 49 CFR part 801.
(b) No subpoena shall be issued to obtain materials subject to this
paragraph, and any subpoena issued shall be required to be withdrawn
prior to release of the requested information. Payment of reproduction
fees may be required in advance.
Sec. 837.4 Other material.
(a) Production prohibited unless approved. Except in the case of
the material referenced in Sec. 837.3, no employee or former employee
of NTSB shall, in response to a demand of a private litigant, court, or
other authority, produce any material contained in the files of the
NTSB (whether or not agency records under 5 U.S.C. 552) or produce any
material acquired as part of the performance of the person's official
duties or because of the person's official status, without the prior
written approval of the General Counsel.
(b) Procedures to be followed for the production of material under
this paragraph.
(1) All demands for material shall be submitted to the General
Counsel at NTSB headquarters, Washington, DC 20594. If an employee
receives a demand, he shall forward it immediately to the General
Counsel.
(2) Each demand must contain an affidavit by the party seeking the
material or his attorney setting forth the material sought and its
relevance to the proceeding, and containing a certification, with
support, that the information is not available from other sources,
including Board materials described in Secs. 837.3 and part 801 of this
chapter.
(3) In the absence of General Counsel approval of a demand, the
employee is not authorized to comply with the demand.
(4) The General Counsel shall advise the requester of approval or
denial of the demand, and may attach whatever conditions to approval
considered appropriate or necessary to promote the purposes of this
part. The General Counsel may also permit exceptions to any requirement
in this part when necessary to prevent a miscarriage of justice, or
when the exception is in the best interests of the NSTB and/or the
United States.
Issued in Washington, DC, May 16, 1997.
Jim Hall,
Chairman.
[FR Doc. 97-13316 Filed 5-20-97; 8:45 am]
BILLING CODE 7533-01-M
