Independent Safety Board Act of 1974, as amended (49 U.S.C. 1101
49 FR 26232, June 27, 1984, unless otherwise noted.
This part describes the organization, functions, and operation of the National Transportation Safety Board (Board).
The Board consists of five Members appointed by the President with the advice and consent of the Senate. One of the Members is designated by the President as Chairman with the advice and consent of the Senate, and one was Vice Chairman. The Members exercise various functions, powers and duties set forth in Titles VI and VII of the Federal Aviation Act of 1958 (49 U.S.C. 44101-46501), and the Independent Safety Board Act of 1974 (88 Stat. 2166
(a) The Office of the Managing Director, which assists the Chairman in the discharge of his functions as executive and administrative head of the Board; coordinates and directs the activities of the staff; is responsible for the day-to-day operation of the Board; and recommends and develops plans to achieve the Board's program objectives. The Office of the Managing Director also provides executive secretariat services to the Board.
(b) The Office of Public Affairs, which supplies the public, the transportation industry and the news media, with current, accurate information concerning the work, programs, and objectives of the Board.
(c) The Office of Government Affairs, which supplies the Congress and Federal, State and local government agencies with information regarding the Safety Board's activities, programs and objectives.
(d) The Office of the General Counsel, which provides legal advice and assistance to the Board and its staff components; prepares Board rules, opinions and/or orders, and advice to all offices and bureaus on matters of legal significance; and represents the Board in court actions to which the Board is a party or in which the Board is interested.
(e) The Office of Administrative Law Judges, which conducts all formal proceedings arising under the Federal Aviation Act of 1958, as amended, including proceedings involving civil penalties and suspension or revocation
(f) The Office of Aviation Safety, which conducts investigations of all aviation accidents within the Board's jurisdiction; prepares reports for submission to the Board and release to the public setting forth the facts and circumstances of such accidents, including a recommendation as to the probable cause(s); determines the probable cause(s) of accidents when delegated authority to do so by the Board; initiates safety recommendations to prevent future aviation accidents; participates in the investigation of accidents that occur in foreign countries and involve U.S.-registered and/or U.S.-manufactured aircraft; and conducts special investigations into selected aviation accidents involving safety issues of concern to the Board.
(g) The Office of Surface Transportation Safety, which conducts investigations of highway, railroad, pipeline, marine, and hazardous materials accidents within the Board's jurisdiction; prepares reports for submission to the Board and release to the public setting forth the facts and circumstances of such accidents, including a recommendation as to the probable cause(s); determines the probable cause(s) of accidents when delegated authority to do so by the Board; initiates safety recommendations to prevent future surface transportation accidents; participates in the investigation of accidents that occur in foreign countries and involve U.S.-registered vessels; and conducts special investigations into selected surface accidents involving safety issues of concern to the Board.
(h) The Office of Safety Recommendations, which oversees the Board's safety recommendations program, including the Board's “MOST WANTED” recommendations.
(i) The Office of Research and Engineering, which provides technical advice and services; conducts research and carries out analytical studies and tests on all aspects of the Board's accident investigation, accident prevention and safety promotion activities; conducts safety studies of specific safety issues; performs statistical analyses of transportation accident and incident data; maintains archival records of the Board's accident investigation and safety promotion activities and supports public access to these records; and supports the Board's data processing, computing and information management requirements.
(j) The Office of Administration, which provides administrative support for the Board in the following areas: budget, accounting and audit; personnel, training and payroll; information management and automatic data processing; property, space, communications, facilities and transportation management; and printing, publications, mail, procurement, contracting, and accident inquiry services.
(a) The primary function of the Board is to promote safety in transportation. The Board is responsible for the investigation, determination of facts, conditions, and circumstances and the cause or probable cause or causes of: all accidents involving civil aircraft, and certain public aircraft; highway accidents, including railroad grade-crossing accidents, the investigation of which is selected in cooperation with the States; railroad accidents in which there is a fatality, substantial property damage, or which involve a passenger train; pipeline accidents in which there is a fatality, significant injury to the environment, or substantial property damage; and major marine casualties and marine accidents involving a public and a non-public vessel or involving Coast Guard functions. The Board makes transportation safety recommendations to Federal, State, and local agencies and private organizations to reduce the likelihood of recurrences of transportation accidents. It initiates and conducts safety studies and special investigations on matters pertaining to safety in transportation, assesses techniques and methods of accident investigation, evaluates the effectiveness of transportation safety consciousness and efficacy in preventing accidents of other Government agencies, and evaluates
(b) Upon application of affected parties, the Board reviews in quasijudicial proceedings, conducted pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. 551
(c) The Board, as provided in Part 801 of this chapter, issues reports and orders pursuant to its duties to determine the cause or probable cause or causes of transportation accidents and to report the facts, conditions and circumstances relating to such accidents; issues opinions and/or orders after reviewing on appeal the imposition of a civil penalty or the suspension, amendment, modification, revocation, or denial of any certificate or license issued by the Secretary of the Department of Transportation (who acts through the Administrator of the Federal Aviation Administration or the Commandant of the United States Coast Guard); and issues and makes available to the public safety recommendations, safety studies, and reports of special investigations.
In exercising its functions, duties, and responsibilities, the Board utilizes:
(a) The Board's staff, consisting of specialized offices dealing with particular areas of transportation safety and performing administrative and technical work for the Board. The staff advises the Board and performs duties for the Board that are inherent in the staff's position in the organizational structure or that the Board has delegated to it. The staff is described more fully in § 800.2.
(b) Rules published in the
(c) Procedures and policies set forth in the agency's internal directives system which govern the activities of employees and organizational components of the Board. The internal directives system is designated as the NTSB Manual and consists of instructions which are called NTSB Orders and NTSB Notices.
(d) Meetings of the Board Members conducted pursuant to the Government in the Sunshine Act.
(e) Public hearings in connection with transportation accident investigations and public hearings and oral arguments in proceedings concerned with certificates or licenses issued by the Secretary or an Administrator of the Department of Transportation. They are held at the time and place announced in the notices thereof which are served on the parties to the proceedings or published in the
The principal offices of the National Transportation Safety Board are located at 490 L'Enfant Plaza East, SW., Washington, DC 20594. The Board maintains field offices in selected cities throughout the United States.
Part 801 of this chapter provides detailed information concerning the availability of Board documents and records. That part also provides a fee schedule and information concerning inspection and copying.
The purpose of this Subpart B is to publish special delegations of authority to staff members.
(a) The Board delegates to the Managing Director the authority to:
(1) Make the final determination, on appeal, as to whether to withhold a Board record from inspection or copying, pursuant to Part 801 of this chapter.
(2) Approve for publication in the
(b) The Chairman delegates to the Managing Director the authority to exercise and carry out, subject to the direction and supervision of the Chairman, the following functions vested in the Chairman:
(1) The appointment and supervision of personnel employed by the Board;
(2) The distribution of business among such personnel and among organizational components of the Board; and
(3) The use and expenditure of funds.
The Board delegates to the administrative law judges the authority generally detailed in its procedural regulations at Part 821 of this chapter.
The Board delegates to the General Counsel the authority to:
(a) Approve, disapprove, request more information, or otherwise handle requests for testimony of Board employees with respect to their participation in the investigation of accidents, and, upon receipt of notice that an employee has been subpoenaed, to make arrangements with the court either to have the employee excused from testifying or to give the employee permission to testify in accordance with the provisions of Part 835 of this Chapter.
(b) Approve or disapprove in safety enforcement proceedings, for good cause shown, requests for extensions of time or for other changes in procedural requirements subsequent to the initial decision, grant or deny requests to file additional and/or
(c) Approve or disapprove, for good cause shown, requests to extend the time for filing comments on proposed new or amended regulations.
(d) Issue regulations for the purpose of making editorial changes or corrections in the Board's rules and regulations.
(e) Issue orders staying or declining to stay, pending judicial review, orders of the Board suspending or revoking certificates, and consent to the entry of judicial stays with respect to such orders.
(f) Compromise civil penalties in the case of violations arising under The Independent Safety Board Act of 1974, as amended, or any rule, regulation, or order issued thereunder.
(g) Issue orders dismissing appeals from initial decisions of Board administrative law judges pursuant to the request of the appellant or, where the request is consensual, at the request of any party.
(h) Correct Board orders by eliminating typographical, grammatical, and similar errors, and make editorial changes therein not involving matters of substance.
(i) Take such action as appropriate or necessary adequately to compromise, settle, or otherwise represent the Board's interest in judicial or administrative actions to which the Board is a party or in which the Board is interested.
The Board delegates to the Directors, Office of Aviation and Office of Surface Transportation, the authority to:
(a) Order an investigation into the facts, conditions, and circumstances of accidents that the Board has authority to investigate.
(b) Disclose factual information pertinent to all accidents or incidents as provided for in Part 801 of this chapter.
(c) Determine the probable cause(s) of accidents in which the determination is issued in the “Brief of Accident” format, except that the Office Director will submit the findings of the accident investigation to the Board for determination of the probable cause(s) when (1) any Board Member so requests, (2) it appears to the Office Director that, because of significant public interest, a policy issue, or a safety issue of other matter, the determination of the probable cause(s) should be made by the Board, or (3) the accident investigation will be used to support findings in a special investigation or study. Provided, that a petition for reconsideration or modification of a determination of the probable cause(s) made under § 845.41 of this Chapter shall be acted on by the Board.
(d) Consistent with Board resources, investigate accidents as provided under § 304(a) of the Independent Safety Board Act of 1974, as amended (49 U.S.C. 1131(a)) and the Appendix to this Part.
The Board delegates to the Director, Office of Administration, the authority to:
(a) Determine, initially, the withholding of a Board record from inspection or copying, pursuant to Part 801 of this Chapter.
(b) Settle claims for money damages of $2,500 or less against the United States arising under Section 2672 of 28 United States Code (the Federal Tort Claims Act) because of acts or omissions of Board employees.
The Board delegates to any officer or employee of the Board designated by the Chairman of the Safety Board the authority to sign and issue subpoenas, and administer oaths and affirmations, and to take depositions or cause them to be taken in connection with the investigation of transportation accidents or incidents.
(a) Acting pursuant to the authority vested in it by Title VII of the Federal Aviation Act of 1958 (49 U.S.C. 1441) and section 304(a)(1) of the Independent Safety Board Act of 1974, the National Transportation Safety Board (Board) hereby requests the Secretary of the Department of Transportation (Secretary) to exercise his authority subject to the terms, conditions, and limitations of Title VII and section 304(a)(1) of the Independent Safety Board Act of 1974, and as set forth below to investigate the facts, conditions, and circumstances surrounding certain fixed-wing and rotorcraft aircraft accidents and to submit a report to the Board from which the Board may make a determination of the probable cause.
(b) The authority to be exercised hereunder shall include the investigation of all civil aircraft accidents involving rotorcraft, serial application, amateur-built aircraft, restricted category aircraft, and all fixed-wing aircraft which have a certificated maximum gross takeoff weight of 12,500 pounds or less except:
(1) Accidents in which fatal injuries have occurred to an occupant of such aircraft, but shall include accidents involving fatalities incurred as a result of aerial application operations, amateur-built aircraft operations, or restricted category aircraft operations.
(2) Accidents involving aircraft operated in accordance with the provisions of Part 135 of the Federal Air Regulations entitled “Air Taxi Operators and Commercial Operators of Small Aircraft.”
(3) Accidents involving aircraft operated by an air carrier authorized by certificate of public convenience and necessity to engage in air transportation.
(4) Accidents involving midair collisions.
(c)
(d)
(e)
(f) Invoking the provisions of section 701(f) of the Federal Aviation Act of 1958, and section 304(a)(1) of the Independent Safety Board Act of 1974, is necessary inasmuch as sufficient funds have not been made available to the Board to provide adequate facilities and personnel to investigate all accidents involving civil aircraft. This request, therefore, is considered to be temporary in nature and may be modified or terminated by written notice to the Secretary.
5 U.S.C. 552; 49 U.S.C. 1101 et seq.; 18 U.S.C. 641 and 2071.
41 FR 39755, Sept. 16, 1976, unless otherwise noted.
(a) This part implements the provisions of the Freedom of Information Act (5 U.S.C. 552) as amended by Pub. L. 93-502, November 21, 1974, and the
(b) This part applies only to records existing when the request for the information is made. The National Transportation Safety Board (Board) is not required to compile or procure records for the sole purpose of making them available hereunder.
(c) Subpart F of this part describes records which are exempt from public disclosure.
In implementing 5 U.S.C. 552, it is the policy of the Board to make information available to the public to the greatest extent possible. Accordingly, all records of the Board, except those that the Board specifically determines must not be disclosed in the national interest, or for the protection of private rights, or for the efficient conduct of public business to the extent permitted by the Freedom of Information Act, are declared to be available for public inspection and copying, as provided in this part. Records are to be made available to the public promptly and to the fullest extent consistent with this policy. No record may be withheld from the public solely because its release might indicate administrative error or embarrass an officer or employee of the Board.
(a) The Director, Bureau of Administration, is responsible for the custody and control of all Board records required to be preserved under directives of the General Services Administration, issued pursuant to 44 U.S.C. 3102.
(b) The Director, Bureau of Administration, shall be solely responsible for the initial determination of whether to release records within the 10 working days’ limit, or the extension specified in the Freedom of Information Act.
(c) The Public Inquiries Section, Bureau of Administration, shall:
(1) Maintain for public access and commercial reproduction all accident files containing aviation and surface investigator's reports, factual accident reports or group chairman reports, documentation and accident correspondence files, transcripts of public hearings, if any, and exhibits.
(2) Maintain a public reference room (with self-service duplicator) and, on request, permit the public to inspect public documents during normal working hours.
(3) Maintain copies of public documents, specified in the appendix, for inspection and copying in the public reference room.
(d) Requests for documents must be addressed to the Public Inquiries Section, National Transportation Safety Board, Washington, DC 20594. All requests must reasonably identify the record requested, must be accompanied by the fee or agreement (if any) to pay the reproduction costs shown in the fee schedule (see appendix), and must contain the address and telephone number of the person making the request. The envelope in which the request is sent should be marked prominently with the letters “FOIA.” The Bureau of Administration, if there is a failure to comply fully, will attempt to contact the requester immediately to rectify the omission. However, the 10-working-day limit for processing shall not commence until the Bureau of Administration receives a totally correct request.
(e) The field offices of the Board shall not maintain, for public access, records maintained by the Bureau of Administration. If requests are made to field
(f) The Bureau of Administration shall maintain a contract with a commercial reproduction firm to accommodate requests for reproduction of accident records. The reproduction charges may be subject to change with each contract renewal.
(g) Requests for documents generated by other agencies or entities will not be processed unless they are contained in the Board's accident files.
(h) Requests for records not yet issued will be held in abeyance until issuance and then processed. The person making the request will be so notified.
(i) No charge will be made by the Board for notices, decisions, orders, etc., required by law to be served on a party to any proceeding or matter before the Board.
(j) Upon approval of the Director, Bureau of Administration, subscriptions to Board publications may be entered without charge for States, organizations, or other entities specified in the fee schedule set forth in the appendix.
The initial decision of the Director, Bureau of Administration shall include a determination of segregability. If it is reasonable to do so, the exempt portions will be deleted and the nonexempt portions will be sent to the requester.
(a) No person may, without permission, remove from the place where it is made available any record made available to him for inspection or copying. Stealing, altering, multilating, obliterating, or destroying, in whole or in part, such a record shall be deemed a crime.
(b) Section 641 of title 18 of the U.S.C. provides, in pertinent part, as follows:
“Whoever * * * steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record * * * or thing of value of the United States or of any department or agency thereof * * * Shall be fined not more than $10,000 or imprisoned not more than ten years or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. * * *”
(c) Section 2071(a) of title 18 of the U.S.C. provides, in pertinent part, as follows:
“(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other things, filed or deposited * * * in any public office, or with any * * * public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than three years, or both.”
An initial determination as to whether to release a record shall be made by the Director, Bureau of Administration within 10 working days (excluding Saturdays, Sundays, and legal public holidays) after the request is received, except that this time limit may be extended up to 10 additional working days in accordance with § 801.22, of this part. The person making the request will be notified immediately in writing of such determination. If such determination is to release the requested record, such record shall be made available promptly. If such determination is made not to release the record, the person making the request shall, when he is notified of such determination, be advised of (a) the reason for the determination, (b) the right to appeal the determination, and (c) the name and title or positions of each person responsible for the denial of the request.
A determination with respect to any appeal made pursuant to § 801.20, shall be made by the Managing Director within 10 working days (excluding Saturdays, Sundays, and legal public holidays) after receipt of such appeal, except that this time limit may be extended for as many as 10 additional working days, in accordance with § 801.22.
In unusual circumstances as specified in this section, the time limits prescribed in either, but not both, § 801.20 or § 801.21, may be extended by written notice to the person making a request and setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. Such notice shall not specify a date that would result in an extension for more than 10 working days. As used in this paragraph, “unusual circumstances,” to the extent reasonably necessary to the proper processing of the particular request, means—
(a) The need to search for and collect the requested records from field facilities or other establishments that are separate from the Bureau of Administration;
(b) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(c) The need to consult with another agency which 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.
Upon completion of the field investigation (normally 60 days after the accident), the Board's investigator-in-charge shall complete a factual report (with documentation) and send it to the Director, Bureau of Administration, who shall then make the record available to the public for inspection or commercial copy order (see appendix).
Upon completion of the investigation by a team of Board investigators (normally 60 days after the accident), the report of each investigator (group chairman), with documentation, shall be sent to the Director, Bureau of Administration, who shall make these records available to the public for inspection and commercial copy order (see appendix).
Within approximately 2 weeks after a public hearing concerning an aviation accident, the Director, Bureau of Administration, shall make available to the public for inspection or commercial copy order, the hearing transcript and the exhibits introduced at the hearing (see appendix).
Upon completion of the Board's investigation of these accidents (normally 60 days after the accident), the investigators shall send to the Director, Bureau of Administration, a file of the documentation obtained. This file shall then be made available by the Bureau of Administration, for public access or commercial copy order (see appendix).
Within approximately 2 weeks after a surface accident public hearing, the Bureau of Administration shall make available for public inspection and commercial copy order, the hearing transcript and exhibits introduced at the hearing.
(a) The Board shall report the facts, conditions, and circumstances, and its determination of the cause or probable cause of all U.S. civil aviation accidents approximately 6 months after each accident occurs. All such reports shall be provided by computer printout, published periodically as “Briefs of Accidents.”
(b) All major or catastropic air carrier accidents and noncatastrophic accidents, involving both air carriers and general aviation, which provide unusually significant safety issues shall be reported by the Board in detailed, narrative format. The formal, narrative report shall provide the facts, conditions, and circumstances, and the Board's determination of the cause or
(c) After notice of issuance appears in the
Any surface transportation accident investigated by the Board, and certain marine accidents investigated by the U.S. Coast Guard, shall result in a formal Board report. Such report shall provide the facts, conditions, circumstances, and the Board's determination of cause or probable cause of the accident. Reports of accidents investigated by the Board shall be issued approximately 6 months after the date of accident. After notice of issuance appears in the
The Board's rules are published in the Code of Federal Regulations as parts 800 through 899 of this title 49. Reprints of each part are maintained by the Bureau of Administration and are available on request without cost.
All transportation safety recommendations issued by the Board, and responses thereto, shall be noticed in the
(a) Pursuant to the Freedom of Information Act, as amended, a quarterly index to the initial decisions of the Board's administrative law judges shall be made available for inspection or copying in the Board's public reference room. (See appendix for subscription to initial decisions.)
(b) Pursuant to the Freedom of Information Act, as amended, a quarterly index to the Board's opinions and orders in aviation and maritime safety enforcement cases shall be made available for inspection or copying in the Board's public reference room. (See appendix for subscription to opinions and orders and availability of bound National Transportation Safety Board Decisions.)
The index to staff manuals which are not exempt from public disclosure, as set forth in Subpart F, shall be available in the Board's public reference room (see appendix).
The Board's annual report to Congress, which is required under section 305 of the Independent Safety Board Act of 1974, shall be submitted on July 1 of each year. It may be purchased from the Government Printing Office or inspected in the Board's public reference room. All other reports or comments to Congress shall be available in the Board's public reference room for inspection or by ordering a copy after issuance.
The working files of the Board contain a limited number of records which may not be exempt, in whole or in part, from public disclosure as set forth in Subpart F of this part. Such records shall be made available upon request. Requests for such documents should be made directly to the head of the unit concerned, as set forth in § 801.10(j), and should contain a reasonable description of the specific record desired.
(a) Although not required by the Freedom of Information Act, the Board provides document services at charges required by 31 U.S.C. 483a, as described in the appendix.
This subpart implements section 552 (b) of title 5, United States Code. Section 552 (a) and (b) exempt certain records from public inspection. The Board will, however, release a record authorized to be withheld under section 552(b) unless it determines that the release of that record would be inconsistent with the purpose of the exemption concerned. Examples of records given in §§ 801.51 through 801.58 included within a particular statutory exemption are not necessarily illustrative of all types of records covered by the exemption.
National defense and foreign policy secrets established by Executive Order, and properly classified, are exempt from public disclosure. Requests to the Board for such records will be transferred to the source agency as appropriate. (Executive Orders 11652, March 8, 1972; 10865, February 20, 1960; and 10104, February 1, 1950.)
(a) Records relating solely to internal personnel rules and practices that are within the statutory exemptions include memoranda pertaining to personnel matters such as staffing policies, and procedures for the hiring, training, promotion, demotion, or discharge of employees, and management plans, records, or proposals relating to labor-management relations.
(b) The purpose of this section is to protect any records relating to internal personnel rules and practices dealing with the relations between Board management and employees.
This exemption applies to records specifically exempted from disclosure by statute (other than 5 U.S.C. 552b):
(a) Any record prepared by a Board employee for internal Government use is within the statutory exemption to the extent that it contains—
(1) Opinions made in the course of developing official action by the Board but not actually made a part of that official action, or
(2) Information concerning any pending Board 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 Government. These resources must be fully and readily available to those officials upon whom the responsibility rests to take official Board 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 staff papers containing advice, opinions, or suggestions preliminary to a decision or action; advance information on such things as proposed plans to procure, lease, or
Any personal, medical, or similar file is within the statutory exemption if its disclosure would harm the individual concerned or would be a clearly unwarranted invasion of his personal privacy. This also applies to financial statements furnished by Board Members and employees and to commercial or financial information customarily subjected to an attorney-client or similar privilege.
This exemption from public disclosure applies to records compiled for law enforcement, but only 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.
Records compiled for agencies regulating or supervising financial institutions are exempt from public disclosure.
Records concerning geological wells are exempt from public disclosure.
Trade secrets and commercial or financial information obtained from a person and privileged or confidential are exempt from public disclosure.
1. Fees (pursuant to 31 U.S.C. 483a). Upon request, services relating to public documents are available at the following fees:
(1) The response to public requests for the following NTSB publications are handled by the National Technical Information Service (NTIS). The following publications are available through single copies or annual subscriptions and may be purchased in paper copy or 98 page per film microfiche (fees are subject to change by NTIS):
(2) Send publication orders for the above documents to the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, identifying each subscription by the NTSB Report Number or the NTIS accession number. Telephone (703) 487-4630 (annual subscriptions) or (703) 487-4650 (single copies or microfiche). The NTSB
B. Access to transportation accident files (all modes). All files dated prior to January 1, 1978, are in hard copy form and are maintained in the Federal Records Center. Files dated January 1, 1978, to present are maintained in microfiche at the NTSB headquarters. All documents in the Board's public files may be examined, without charge, in the Board's public reference room, located in the Public Inquiries Section, Room 805F, 800 Independence Avenue, SW., Washington, DC, telephone (202) 382-6735. A self-service duplicator in the reference room is available for use by the public at a nominal cost. Usually, two weeks’ time is required to service a request for reproduction. Filling any request for reproduction of a file that must be retrieved from the Federal Records Center will require two additional weeks.
(1) Availability of accident files. All transportation mode accident files are retained in accordance with the following schedule:
a. Air carrier accident files and all public hearing files are retained for a period of fifteen (15) years and then destroyed.
b. All other transportation accident files are retained for a period of seven (7) years and then destroyed.
(2) Reproduction of accident files. Reproduction of accident files (statements, photographs, hearing transcripts, and other material contained in the Board's accident investigation files) is provided by commercial contractor. Reproduction of printed matter and photographs are made from the best copy available. Requests must be forwarded to the Public Inquiries Section, National Transportation Safety Board, Washington, DC 20594. The contractor may bill and/or require full payment before duplicating the requested documents. Fees are subject to change depending upon the terms of the Board's annual contract.
Current fees are:
C. Request for other Board information. Requests for any other Board information such as files on safety recommendations, safety studies, Board orders, Board opinions and orders, and initial decisions are available at a cost of 14 cents per page(s) ($1.00 minimum charge). These services are provided by a public contractor who may pre-bill or require full payment before duplicating the requested documents. Requests must be forwarded to the Public Inquiries Section, National Transportation Safety Board, Washington, DC 20594.
D. Reproduction services through the commercial contractor are handled as follows:
Step 1: Requestor places written or telephone order with the Board's Public Inquiries Section for desired documents.
Step 2: The Public Inquiries Section identifies the documents and forwards the request to the contractor.
Step 3: The contractor provides the requestor with an invoice showing the actual costs for the service requested plus postage.
Step 4: Requestor returns a copy of the contractor's invoice with full payment enclosed. Requestor has the option of opening a charge account with the contractor, and contractor will accept major credit cards. (Contractor must respond to request within five working days after receipt of payment.)
Step 5: Contractor reproduces documents and mails them directly to the requestor.
E. Expedited service. A $2.25 surcharge will be made for expedited service which will be provided within 2 working days commencing when the contractor receives advance payment or other arrangements have been made with the contractor.
F. A fee of $4.00 will be charged for certification of documents under the Board's seal.
G. Computer tapes and services for aviation accidents. The duplication of computer tapes (or a portion thereof) will be made on requestor supplied magnetic tape for a fee of $40.00. The requestor must provide a 2,400-foot magnetic tape certified to at least 1,600 bits per inch. Computer tape requests should be addressed to the Public Inquiries Section, National Transportation Safety Board, Washington, DC 20594.
H. The basic fees set forth provide for ordinary first-class postage prepaid. If registered, certified, air, or special delivery mail is requested, postal fees therefor will be added to the basic fee. Also, if special handling or packaging is required, the cost will be added to the basic fee.
2. Services available free of charge.
A. The following documents are available without commercial reproduction cost until limited supplies are exhausted:
B. NTSB News Digest. The News Digest describes NTSB activities and summarizes certain publications. The News Digest is free, and anyone who is interested in being added to this mailing list should contact the Public Inquiries Section, National Transportation Safety Board, Washington, DC 20594.
3. Documents search fee—The Board has determined that it is in the public interest to eliminate fees for the first hour of search time. For all time expended in locating documents beyond the initial hour, the fee is $5.00 per hour.
4. Publication, reproduction, and search fees are waived for qualifying foreign countries, international organizations, nonprofit public safety entities, State and Federal transportation agencies, and colleges and universities, after approval by the Director, Bureau of Administration. In addition, fees may be waived or reduced for other requestors not in any of the foregoing categories, when it is determined by the Director, Bureau of Administration that a waiver is appropriate and would contribute to the Board's programs.
Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a); Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.); and Freedom of Information Act, Pub. L. 93-502, November 21, 1974, amending 5 U.S.C. 552.
41 FR 22358, June 3, 1976, unless otherwise noted.
The purpose of this part is to implement the provisions of 5 U.S.C. 552a with respect to the availability to an individual of records of the National Transportation Safety Board (NTSB) maintained on individuals. NTSB policy encompasses the safeguarding of individual privacy from any misuse of Federal records and the provision of access to individuals to NTSB records concerning them, except where such access is in conflict with the Freedom of Information Act, or other statute.
In this part:
The NTSB may not disclose any record to any person or other agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, provided the record under the control of the NTSB is maintained in a system of records from which information is retrieved by the name of the individual or by some identifying number, symbol, or other particular assigned to such individual. Written consent is not required if the disclosure is:
(a) To officers or employees of the NTSB who require the information in the official performance of their duties;
(b) Required under 5 U.S.C. 552, Freedom of Information Act;
(c) For a routine use compatible with the purpose for which it was collected;
(d) To the Bureau of the Census for uses pursuant to title 13, U.S.C.;
(e) To a recipient who has provided the NTSB with advance adequate assurance that the record will be used solely as a statistical research or reporting record and that it is to be transferred in a form not individually identifiable; or
(f) Pursuant to the order of a court of competent jurisdiction.
(a)
(1) Whether information concerning himself is contained in any system of records.
(2) Access to a record concerning himself. Such request may include a request to review the record and/or obtain a copy of all or any portion thereof.
(3) Correction or amendment of a record concerning himself.
(4) Accounting of disclosure to any other person or Government agency of any record concerning himself contained in any system of records controlled by NTSB, except: (i) Disclosures made pursuant to the FOIA; (ii) disclosures made within the NTSB; (iii) disclosures made to another Government agency or instrumentality for an authorized law enforcement activity pursuant to subsection (b)(7) of the Act; and (iv) disclosures expressly exempted by NTSB from the requirements of subsection (c)(3) of the Act, pursuant to subsection (k) thereof.
(b)
(c)
(a)
(b)
(c)
(d)
(2) For requests in person, the requester's identity may be established by a single document bearing a photograph (such as a passport or identification badge) or by two items of identification containing name, address, and signature (such as a driver's license or credit card).
(3) Where a request is made for reproduced records which are to be delivered by mail, the request must include a notarized statement verifying the requester's identity.
(e)
(f)
(g)
(a) The System Manager may initially determine that the request be granted. If so, the individual making the request shall be notified orally, or in writing, and the notice shall include:
(1) A brief description of the information to be made available;
(2) The time and place where the record may be inspected, or alternatively, the procedure for delivery by mail to the requesting party;
(3) The estimated cost for furnishing copies of the record;
(4) The requirements for verification of identity;
(5) The requirements for authorizing discussion of the record in the presence of an accompanying person; and
(6) Any additional requirements needed to grant access to a specific system of records or record.
(b) Within 10 working days after actual receipt of the request by the Director, Bureau of Administration, or his designee, in appropriate cases, the requester will be informed:
(1) That the request does not reasonably describe the system of records or record sought to permit its identification, and shall set forth the additional information needed to clarify the request; or
(2) That the system of records identified does not include a record retrievable by the requester's name or other identifying particulars.
(c) The System Manager shall advise the requester within 10 working days after actual receipt of the request by the Director, Bureau of Administration, or his designee, that the request for access has been denied, and the reason for the denial, or that the determination has been made to grant the request, either in whole or in part, in which case the relevant information will be provided.
All requests for correcting or amending records shall be made in writing to the Director, Bureau of Administration, National Transportation Safety Board, 800 Independence Avenue., SW., Washington, DC 20594, and shall be deemed received upon actual receipt by the Director, Bureau of Administration. The request shall clearly be marked on the envelope and in the letter with the legend that it is a “Privacy Act Correction Request.” The request must reasonably set forth the portion of the record which the individual contends is not accurate, relevant, timely, or complete.
Within 10 working days after actual receipt of the request by the Director, Bureau of Administration, or his designee, to correct or amend the record, the System Manager shall either make the correction in whole or in part, or inform the individual of the refusal to
If the System Manager determines that the record should not be corrected or amended in whole or in part, he will forthwith make such finding in writing, after consulting with the General Counsel, or his designee. The requester shall be notified of the refusal to correct or amend the record. The notification shall be in writing, signed by the System Manager, and shall include—
(a) The reason for the denial;
(b) The name and title or position of each person responsible for the denial of the request;
(c) The appeal procedures for the individual for a review of the denial; and
(d) Notice that the denial from the System Manager is appealable within 30 days from the receipt thereof by the requester to the Board.
(a) A requester may appeal from any adverse determination within 30 days after actual receipt of a denial from the System Manager. The appeal must be in writing addressed to the Chairman, National Transportation Safety Board, 800 Independence Avenue, SW., Washington, DC 20594, and shall contain a statement on the envelope and in the appeal: “Appeal from Privacy Act Adverse Determination.”
(b) The Board shall make a determination with respect to the appeal within 30 working days after the actual receipt of the appeal by the Chairman, except as provided for in “unusual circumstances” infra.
(c)(1)
(2)
(d) If the denial is reversed on appeal, the Board shall notify the requester in writing of the reversal. The notice shall include a brief statement outlining those portions of the individual's record which were not accurate, relevant, timely, or complete, and corrections of the record which were made, and shall provide the individual with a courtesy copy of the corrected record.
(e) Copies of all appeals and written determinations will be furnished by the System Manager to the Board.
(f) In unusual circumstances, time limits may be extended by not more than 10 working days by written notice to the individual making the request. The notice shall include the reasons for the extension and the date on which a determination is expected to be forthcoming. “Unusual circumstances” as used in this section shall include circumstances where a search and collection of the requested records from field offices or other establishments are required, cases where a voluminous amount of data is involved, and cases where consultations are required with other agencies or with others having a
(g)
(2) The Director, Bureau of Administration, or his designee, shall be responsible for ensuring that:
(i) The Statement of Disagreement is included in the system of records in which the disputed item of information is maintained; and
(ii) The original record is marked to indicate the information disputed, the existence of the Statement of Disagreement, and its location within the relevant system of records.
(3) The Director, Bureau of Administration, or his designee, may, if he deems it appropriate, prepare a concise Statement of Explanation indicating why the requested amendments or corrections were not made. Such Statement of Explanation shall be included in the system of records in the same manner as the Statement of Disagreement. Courtesy copies of the NTSB Statement of Explanation and the notation of dispute, as marked on the original record, shall be furnished to the individual who requested correction or amendment of the record.
(h)
(i)
(1) To the Board and NTSB personnel who have a need for the record in the performance of their duties;
(2) Required under the FOIA;
(3) For a routine use published in the
(4) To the Bureau of the Census for purposes of planning or carrying out a census or survey, or related activity pursuant to the provisions of title 13 of the U.S.C.;
(5) To a recipient who has provided NTSB with adequate advance written assurance that the record will be used solely as a statistical research or reporting record and that the record is transferred in a form that is not identifiable with respect to individuals;
(6) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or to the Administrator of the General Services Administration, or his designee, for evaluation to determine whether the record has such value;
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of
(8) To any person upon a showing of compelling circumstances affecting the health or safety of any individual;
(9) To either House of Congress or, to the extent of matter within its jurisdiction, to any committee, or subcommittee thereof, or to any joint committee of the Congress, or to any subcommittee of such joint committee;
(10) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(j)
(k)
No fees shall be charged for providing the first copy of a record, or any portion thereof, to individuals to whom the record pertains. The fee schedule for other records is the same as that appearing in the appendix to part 801 of this chapter, implementing the FOIA, as amended from time to time, except that the cost of any search for and review of the record shall not be included in any fee under this Act, pursuant to subsection (f)(5) of the Act.
(a) An individual may bring a civil action against the NTSB to correct or amend the record, or where there is a refusal to comply with an individual request or failure to maintain any record with accuracy, relevance, timeliness and completeness, so as to guarantee fairness, or failure to comply with any other provision of 5 U.S.C. 552a. The court may order the correction or amendment. It may assess against the United States reasonable attorney fees and other costs, or may enjoin the NTSB from withholding the records and order the production to the complainant, and it may assess attorney fees and costs.
(b) Where it is determined that the action was willful or intentional with respect to 5 U.S.C. 552(g)(1) (c) or (d), the United States shall be liable for the actual damages sustained, but in no case less than the sum of $1,000 and the costs of the action with attorney fees.
(c) Criminal penalties may be imposed against an officer or employee of the NTSB who fully discloses material which he knows is prohibited from disclosure, or who willfully maintains a
Pursuant to, and limited by, 5 U.S.C. 552a(k)(5), the NTSB's system of records, which contains the Security Records of NTSB employees, prospective employees, and potential contractors, shall be exempt from disclosure of the material and the NTSB's handling thereof under subsections (d), (e)(1) and (e)(4) (H) and (I) of 5 U.S.C. 552a.
Sec. 303(c)(2), Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2168 (49 U.S.C. 1902(c)(2)).
The official seal of the National Transportation Safety Board is described as follows: An American bald eagle with wings displayed, holding in his dexter (right) talon an olive branch and in his sinister (left) talon, a bundle of 13 arrows; above his head is a scroll inscribed “E Pluribus Unum,” bearing a shield with vertical stripes of alternating white and red, crowned by a field of blue, all within an encircling inscription “National Transportation Safety Board.” When illustrated in color, the background is white. The wings, the body, and the upper portion of the legs of the eagle are shades of brown; the head, neck, and tail are white; the beak, feet, and lower portion of the legs are gold. The inscription on the scroll is black. The encircling inscription is the same shade of gold as the eagle's beak. The arrows and the olive branch are a lighter shade of gold. The red and blue of the shield are national flag red and blue. The official seal of the Board, in black and white, appears below:
(a) The Seal shall be in the custody and control of the Director, Bureau of Administration of the Board.
(b) The Director, Bureau of Administration may delegate and authorize redelegations of this authority.
(a) The Seal is the official emblem of the Board and its use is therefore permitted only as provided in this part.
(b) Use by any person or organization outside of the Board may be made only with the Board's prior written approval.
(c) Requests by any person or organization outside of the Board for permission to use the Seal must be made in writing to Director, Bureau of Administration, National Transportation Safety Board, 800 Independence Avenue, SW., Washington, DC 20594. The request must specify in detail the exact use to be made. Any permission granted shall apply only to the specific use for which it was granted.
(d) Use of the Seal shall be essentially for informational purposes. The Seal may not be used on any article or in any manner which may discredit the Seal or reflect unfavorably upon the Board, or which implies Board endorsement of commercial products or services, or of the user's or users’ policies or activities. Specifically, permission
(1) On souvenir or novelty items of an expendable nature;
(2) On toys, gifts, or premiums;
(3) As a letterhead design;
(4) On menus, matchbook covers, calendars, or similar items;
(5) To adorn civilian clothing; or
(6) On athletic clothing or equipment.
(e) Where necessary to avoid any prohibited implication or confusion as to the Board's association with the user or users, an appropriate legend will be prescribed by the Board for prominent display in connection with the permitted use.
(f) Falsely making, forging, counterfeiting, mutilating, or altering the Seal, or knowingly using or possessing with fraudulent intent any altered Seal is punishable under section 506 of Title 18, U.S.C.
Government in the Sunshine Act, Pub. L. 94-409, 90 Stat. 1241 (5 U.S.C. 552b); Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.).
42 FR 13284, Mar. 10, 1977, unless otherwise noted.
(a) This part implements the provisions of the Government in the Sunshine Act (5 U.S.C. 552b). These procedures apply to meetings, as defined herein, of the Members of the National Transportation Safety Board (NTSB).
(b) Requests for all documents other than the transcripts, recordings, and minutes described in § 804.9 shall continue to be governed by part 801 of the NTSB regulations (49 CFR part 801).
It is the policy of the NTSB to provide the public with the fullest practicable information regarding the decisionmaking processes of the Board, while protecting the rights of individuals and the ability of the Board to discharge its statutory functions and responsibilities. The public is invited to attend but not to participate in open meetings.
As used in this part:
(a) Notation voting or similar consideration of business, whether by circulation of material to the Members individually in writing or by a polling of the Members individually by telephone.
(b) Deliberations by three or more Members (1) to open or to close a meeting or to release or to withhold information pursuant to § 804.6, (2) to call a meeting on less than seven days’ notice as permitted by § 804.7(b), or (3) to change the subject matter or the determination to open or to close a publicly announced meeting under § 804.8(b).
(c) An internal session attended by three or more Members for which the sole purpose is to have the staff brief the Board concerning an accident, incident, or safety problem.
Members shall not jointly conduct or dispose of agency business other than in accordance with this part. Except as provided in § 804.5, every portion of every meeting of the Board shall be open to public observation.
Except in a case where the Board finds that the public interest requires otherwise, a meeting may be closed and information pertinent to such meeting otherwise required by §§ 804.6, 804.7, and 804.8 to be disclosed to the public may be withheld if the Board properly determines that such meeting or portion thereof or the disclosure of such information is likely to:
(a) Disclose matters that are (1) specifically authorized under criteria established by an Executive Order to be kept secret in the interests of national defense or foreign policy, and (2) are in fact properly classified pursuant to such Executive Order;
(b) Relate solely to the internal personnel rules and practices of the NTSB;
(c) Disclose matters specifically exempted from disclosure by statute (other than 5 U.S.C. 552):
(d) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(e) Involve accusing any person of a crime, or formally censuring any person;
(f) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(g) Disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement personnel;
(h) Disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;
(i) Disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed action of the NTSB:
(j) Specifically concern the Board's issuance of a subpoena, or the NTSB's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the NTSB of a particular case of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing.
(a) A meeting shall not be closed, or information pertaining thereto withheld, unless a majority of all Members votes to take such action. A separate vote shall be taken with respect to any action under § 804.5. A single vote is permitted with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular subject matters and is scheduled to be held no more than thirty days after the initial meeting in such series. Each Member's vote under this paragraph shall be recorded and proxies are not permitted.
(b) Any person whose interest may be directly affected if a portion of a meeting is open may request the Board to close that portion on any of the grounds referred to in § 804.5 (e), (f), or (g). Requests, with reasons in support thereof, should be submitted to the General Counsel, National Transportation Safety Board, 800 Independence Avenue, SW., Washington, DC 20594. On motion of any Member, the Board shall determine by recorded vote whether to grant the request.
(c) Within one working day of any vote taken pursuant to this section, the NTSB shall make available a written copy of such vote reflecting the vote of each Member on the question and, if a portion of a meeting is to be closed to the public a full written explanation of its action closing the meeting and a list of all persons expected to attend and their affiliation.
(d) Before every closed meeting, the General Counsel of the NTSB shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement of the presiding officer setting forth the time and place of the meeting and the persons present, shall be retained by the NTSB as part of the transcript, recording, or minutes required by § 804.9.
(a) For each meeting, the NTSB shall make public announcement, at least one week before the meeting, of the:
(1) Time of the meeting;
(2) Place of the meeting;
(3) Subject matter of the meeting;
(4) Whether the meeting is to be open or closed; and
(5) The name and business telephone number of the official designated by the NTSB to respond to requests for information about the meeting.
(b) The one week advance notice required by paragraph (a) of this section may be reduced only if:
(1) A majority of all Members determines by recorded vote that NTSB business requires that such meeting be scheduled in less than seven days; and
(2) The public announcement required by paragraph (a) of this section be made at the earliest practicable time.
(c) Immediately following each public announcement required by this section, or by § 804.8, the NTSB shall submit a notice of public announcement for publication in the
(a) The time or place of a meeting may be changed following the public announcement only if the NTSB publicly announces such change at the earliest practicable time. Members need not approve such change.
(b) The subject matter of a meeting or the determination of the Board to open or to close a meeting, or a portion thereof, to the public may be changed following public announcement only if:
(1) A majority of all Members determines by recorded vote that NTSB business so requires and that no earlier announcement of the change was possible; and
(2) The NTSB publicly announces such change and the vote of each Member thereon at the earliest practicable time.
Along with the General Counsel's certification and presiding officer's
The NTSB shall make promptly available to the public the transcript, electronic recording, or minutes of the discussion of any item on the agenda or of any testimony received at the meeting, except for such item, or items, of discussion or testimony as determined by the NTSB to contain matters which may be withheld under the exemptive provisions of § 804.5. Copies of the nonexempt portions of the transcript or minutes, or transcription of such recordings disclosing the identity of each speaker, shall be furnished to any person at the actual cost of transcription or duplication. the NTSB shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or a portion thereof, closed to the public for at least two years after such meeting, or until one year after the conclusion of any NTSB proceeding with respect to which the meeting, or a portion thereof, was held, whichever occurs later.
E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR 1965 Supp.; 5 CFR 735.101
40 FR 30239, July 17, 1975, unless otherwise noted.
This part sets forth the standards of ethical and other conduct required of all Board Members and employees, in implementation of Executive Order 11222, May 8, 1965 (30 FR 6469), and part 735 of the Civil Service Commission Regulations adopted pursuant thereto (5 CFR part 735). It also contains references to the several applicable statutes governing employee conduct, particularly Pub. L. 87-849, 76 Stat. 119 (18 U.S.C. 201
As used in this part.
(a) The maintenance of unusually high standards of honesty, integrity, impartiality, and conduct by its Members and employees and special Government employees is essential to assure the proper performance of the Board's business and the maintenance of confidence by citizens in their Government. Therefore, the Board requires that its Members and employees and special Government employees adhere strictly to the highest standard of ethical conduct in all of their social, business, political and other off-the-job activities, relationships, and interests, as well as in their official actions.
(b) All Members and employees and special Government employees shall avoid situations which might result in actual or apparent misconduct or conflicts of interest.
(c) Members and employees shall avoid any action, whether or not specifically prohibited by the regulations in this part which might result in, or create the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing complete independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the integrity of the Government.
(a) A Member or employee shall not:
(1) Have direct or indirect financial interests which conflict, or appear to conflict, with his assigned duties and responsibilities within the Board; or
(2) Engage in, directly or indirectly, a financial transaction as a result of, or primarily relying on, information obtained through his employment by the Board.
(b) This section does not preclude a Member or an employee from having a financial interest or engaging in financial transactions to the same extent as a private citizen not employed by the Government, so long as it is not prohibited by law, the Executive Order, 5 CFR part 735, or the regulations in this part.
(a) Except as provided in paragraphs (b) and (g) of this section, a Member or employee shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, or any other thing of monetary value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or financial relations with the Board;
(2) Conducts operations or activities that are subject to Board jurisdiction; or
(3) Has interests that may be substantially affected by the performance or nonperformance of his official duty.
(b) The prohibitions of paragraph (a) of this section do not apply to:
(1) Obvious family or personal relationships such as those between the employee and his parents, children, or spouse, when the circumstances make it clear that those relationships rather
(2) Acceptance of food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon or dinner meeting, other meetings, or inspection tours where a Member or employee may properly be in attendance;
(3) Acceptance of unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars, and other items of nominal intrinsic value;
(4) Acceptance of loans from banks or other financial institutions on customary terms to finance proper and usual activities of employees, such as home mortgage loans;
(5) Utilization by Members or employees of the services offered to the public by any of the persons specified in paragraph (a) of this section:
(6) Carriage without charge by a carrier, of Members or employees engaged in official duties, for safety purposes, as provided for in the Civil Aeronautics Board's regulations;
(7) Acceptance of invitations, when approved by the Chairman or the Managing Director, with respect to meals and accommodations when on official business outside the continental United States; where commercial accommodations are unavailable or inappropriate; or where refusal of the offer would be otherwise inappropriate in light of all circumstances involved; and
(8) Acceptance of an invitation addressed to the Board, when approved by the Chairman or the Managing Director, by an employee (including, where applicable, his wife or a member of his immediate family), to participate in an inaugural flight or similar ceremonial event related to transportation, and accept food, lodging, and entertainment incident thereto.
(c) Members and employees shall not solicit contributions from another Member or employee for a gift, or make a donation as a gift, to a Member or employee in a superior official position.
(d) A Member or an employee in a superior official position shall not accept a gift from an employee or employees receiving less salary than himself. However, paragraph (c) of this section and this paragraph (d) do not prohibit a voluntary gift of nominal value or a donation in a nominal amount made on a special occasion, such as marriage, illness, retirement, or transfer.
(e) Members and employees shall not accept a gift, present, decoration, or other thing from a foreign government unless authorized by Congress as provided by the Constitution and in 5 U.S.C. 7342.
(f) Members and employees may not be directly reimbursed by a person for travel on official business under agency orders. However, reimbursement in the form of a donation may be made to the Board. The Member or employee involved will be paid by the Board in accordance with applicable laws and regulations relating to reimbursement for official travel. If the Member or employee is furnished accommodations, goods, or services in kind they may be treated as a donation to the Board, and either no per diem and other travel expenses will be paid or an appropriate reduction will be made in the per diem or other travel expenses payable, depending upon the extent of the donation. No Member or employee may be reimbursed, or payment made on his behalf, for excessive personal living expenses, gifts, entertainment, or other personal benefits.
(g) Members and employees are not precluded from receiving bona fide reimbursement, unless prohibited by law, for expenses of nonofficial travel and such other necessary subsistence as is compatible with this part for private personal interests for which no Government payment or reimbursement is authorized.
For the purpose of furthering private interest, Members and employees shall not, except as provided in § 805.735-7(c), directly or indirectly, use, or allow the use of, official information obtained through or in connection with his employment within the Board which has not been made available to the general public.
(a) A Member or employee shall not engage in outside employment or other outside activity not compatible with the full and proper discharge of his duties and responsibilities as an officer or employee of the Board. Before an employee can engage in outside employment or activity for profit, he shall obtain the approval of the Board's Managing Director by requesting written authorization from the Managing Director prior to engaging in such activity. Board Members desiring to engage in outside employment or activity for profit may request prior written authorization from the Chairman. Should such authorization be granted, the Member or employee has a continuing responsibility to confine himself to the scope of the authorization. If the circumstances change so as to involve a possible incompatible activity, the Member or employee must seek further authorization in order to continue in his outside employment or activity for profit. Authorization granted in specific cases may be deemed subsequently to involve an incompatible activity, and in such cases the Member or employee concerned shall be notified in writing of the cancellation of the authorization with instructions to modify or terminate the outside activity at the earliest practicable time.
(b) Incompatible activities by Members or employees include, but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or any other thing of monetary value in circumstances in which acceptance may result in, or create the appearance of, a conflict of interest; or
(2) Outside employment or activity which tends to impair his mental or physical capacity to perform in an acceptable manner his duties and responsibilities within the Board.
(c) Employees are encouraged to engage in teaching, lecturing, and writing that is not prohibited by law, the Executive order, 5 CFR part 735, or the regulations in this part. However, an employee shall not, either for or without compensation, engage in teaching, lecturing, or writing, including teaching, lecturing, or writing for the purpose of the special preparation of a person or class of persons for an examination of the Civil Service Commission or Board of Examiners for the Foreign Service, that is dependent on information obtained as a result of his employment by the Board, except when that information has been made available to the general public or will be made available on request, or when the Chairman gives written authorization for the use of nonpublic information on the basis that the use is in the public interest.
(d) Board Members, as Presidential appointees covered by section 401(a) of the Executive order, are specifically precluded by 5 CFR 735.203(c) from receiving compensation or anything of monetary value for any consultation, lecture, discussion, writing, or appearance, the subject matter of which is devoted substantially to the responsibilities, programs, or operations of their agency, or which draws substantially on official data or ideas which have not become part of the body of public information.
(e) If an activity covered by paragraphs (c) and (d) of this section is to be undertaken as official duty, expenses will be borne by the Board, and the Member or employee may not accept compensation or allow his expenses to be paid for by the person or group under whose auspices the activity is being performed. If it is determined that the activity is to be undertaken in a private capacity, the Member or employee may not use duty hours or Government facilities, but he may accept compensation, and he may use his official title if he makes it clear that he does not represent the Board.
(f) Members and employees shall not receive any salary or anything of monetary value from a private source as compensation for his services to the Board (18 U.S.C. 209).
(g) This section does not preclude a Member or employee from:
(1) Participating in the activities of national or State political parties not prohibited by law;
(2) Participating in the affairs of or acceptance of an award for a meritorious public contribution or achievement
(a) No individual will be employed or retained in employment by the Board if a member of his immediate family (blood relations who are residents of the employee's household) is employed by a carrier, a person or firm representing a carrier, or a transportation trade association.
(b) Members and employees may request a waiver, modification, or postponement of the implementation of this prohibition from the Chairman and Managing Director, respectively, on the grounds of undue hardship to himself or the family member involved. The request must contain an agreement to forego any privilege to which the Board Member or employee would be entitled as a relative of the family member.
Members and employees shall not, directly or indirectly, use, or allow the use of, Board property of any kind, including property leased to the Board, for other than officially approved activities. A Member or employee has a positive duty to protect and conserve Board property, including equipment, supplies, and other property entrusted to or issued to him.
Members and employees shall pay each just financial obligation in a proper and timely manner, especially one imposed by law, such as Federal, State, or local taxes. For the purpose of this section, a “just financial obligation” means one acknowledged by the employee or one reduced to judgment by a court, and “in a proper and timely manner” means in a manner which the Board determines does not, under the circumstances, reflect adversely on the Board as his employer.
Members and employees shall not participate, while on Board-owned or leased property or while on duty for the Board, in any gambling activity, including the operation of a gambling device, conducting a lottery or pool, a game for money or property, or in selling or purchasing a numbers slip or ticket. However, this section does not preclude activities regarding solicitations conducted by an employee recreation and welfare organization among its members, for organizational support, or for benefit or welfare funds for its members, these activities having been approved under section 3 of Executive Order 10927, dated March 18, 1961.
Members and employees shall not use their employment by the Board to coerce, or give the appearance of coercing, a person to provide financial benefit to themselves or another person, particularly one with whom they have family, business, or financial ties.
Members and employees shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Board or to the Government.
(a)
(b)
(2) Special Government employees may teach, lecture, or write in a manner not inconsistent with § 805.735-7(c) for employees.
(c)
(2) The exception as set forth in § 805.735-5(b) for employees will apply with equivalent force and effect to special Government employees with regard to the prohibitions of paragraph (a) of this section.
(d)
Each Member and employee shall acquaint himself with the statutory provisions in appendix I, attached hereto and made a part thereof, which relate to his ethical and other conduct as a Member and employee of the Board and the Government.
(a) All employees in the positions specified in appendix II, attached hereto and made a part thereof, shall submit a statement of employment and financial interests under the regulations in this part in triplicate to the Personnel Officer not later than:
(1) Ninety days after the effective date of the regulations in this part if he is employed on or before that effective date; or
(2) Thirty days after he becomes subject to the reporting requirements by occupying a position covered under paragraph (a) of this section, if he occupies the position after that effective date.
(b) An employee required to submit a statement of employment and financial interests shall submit that statement in the format prescribed by the Managing Director.
(c) Board Members are subject to separate reporting requests under section 401 of the Executive order, and are not required to file statements pursuant to this section.
Changes in, or additions to, the information contained in an employee's statement of employment and financial interests shall be reported in supplementary statements, in the format prescribed by the Managing Director, as of June 30th of each year. If there are not changes or additions, a negative report is not required. Notwithstanding the filing of the annual report required by this section, each employee shall at all times avoid acquiring a financial interest that could result, or taking an action that would result, in a violation of the conflict-of-interest provisions, 18 U.S.C. 208, or the provisions of this part.
The interest of a spouse, minor child, or other members of an employee's immediate household is considered to be an interest of the employee. For the purpose of this section, “member of an employee's household” means those blood relations who are residents of the employee's household.
If any information required to be included on a statement of employment and financial interests or supplementary statement, including holdings placed in trust, is not known to the employee but is known to another person, the employee shall require that other person to submit information in his behalf.
An employee is not required to submit on a statement of employment and financial interests or supplementary statement, any information relating to the employee's connection with, or interest in, a professional society or a charitable, religious, social, fraternal, recreational, public service, civic, or political organization, or a similar organization not conducted as a business enterprise. For the purpose of this section, educational and other institutions doing research and development or related work, involving grants of money from or contracts with the Government, are deemed “business enterprises” and are required to be included in an employee's statement of employment and financial interests.
Subject to the provisions of § 805.735-24 concerning review of employee statements, each statement of employment and financial interests, and each supplementary statement, shall be held in confidence. The Personnel Officer is personally responsible for the retention of employee statements in confidence and may not disclose information from a statement or allow access to a statement, except to carry out the purpose of this part, or as the Civil Service Commission or the Chairman may determine for good cause shown.
The statements of employment and financial interests and supplementary statements required of employees are in addition to, and not in substitution for, or in derogation of, any similar requirement imposed by law, order, or regulation. The submission of a statement or supplementary statement by an employee does not permit him or any other person to participate in a matter in which his or the other person's participation is prohibited by law, order, or regulation.
(a) A special Government employee shall submit a statement of employment and financial interests which reports:
(1) All other employment; and
(2) The financial interests of the special Government employee which the Chairman determines are relevant in the light of the duties he is to perform.
(b) A special Government employee who is a consultant or expert shall submit a statement of employment and financial interests to the Personnel Officer, in the format prescribed by the Managing Director, at the time of his employment, and shall keep his statement current throughout his period of employment by submission of supplementary statements.
(c) The Chairman may waive the requirement in paragraph (a) of this section for the submission of a statement of employment and financial interests in the case of a special Government employee who is not a consultant or an expert when it has been determined that the duties of the position held by the special Government employee are of a nature, and at such a level of responsibility, that the submission of the statement by the incumbent is not necessary to protect the integrity of the Board. For the purpose of paragraphs (b) and (c) of this section, the following are examples of special Government employees who are not consultants and experts;
(1) A physician, dentist, or allied medical specialist whose services are procured to provide care and service to patients; or
(2) A veterinarian whose services are procured to provide care and service to animals.
(a) The Personnel Officer shall review each statement of employment and financial interests submitted under the regulations in this part (other than his own, which is reviewed by the Managing Director) to determine whether conflicts of interest or apparent conflicts of interest exist. If the review, or other information from other sources, indicates a conflict between the interests of an employee or special Government employee and the performance of his services for the Board, the Personnel Officer shall forward the statement, together with a position description of the employee involved, to the General Counsel of the Board.
(b) The employee or special Government employee whose statement has been referred under the provisions of paragraph (a) of this section will receive, from the General Counsel, advice and guidance regarding the matters questioned by the Personnel Officer. He will be afforded an opportunity to explain the conflict or appearance of conflict. It is expected that most problems will be settled at this informal stage. However, if an agreement cannot be reached after consultation, the matter shall be reported by the General Counsel, after consulting with the Managing Director, to the Chairman for resolution.
(c) The Chairman may provide the employee or special Government employee concerned with an additional opportunity to explain the conflict or appearance of conflict. If the matter cannot be resolved, the Chairman may invoke the disciplinary provisions of § 805.735-27, or may decide that remedial steps shall be taken with regard to such employee or special Government employee. When the questions of conflict of interest are resolved at one of the stages of review, the reviewing official shall sign and date a copy of the employee's statement to evidence his clearance, and this statement shall thereafter be kept as provided in § 805.735-21.
(a) The Personnel Officer of the Board shall be responsible for making the regulations in this part and all revisions thereof, and the formats for statements of employment and financial interests available to:
(1) Each Member, employee, and special Government employee at the time of issuance and at least annually thereafter;
(2) Each new Member, employee, and special Government employee of the Board at the time of his entrance on duty; and
(3) Each Member, employee, and special Government employee of the Board at such other times as circumstances warrant.
(b) The Personnel Officer shall have available for review by Members, employees, and special Government employees of the Board, copies of such laws, Executive orders, Civil Service Commission regulations and instructions, and Board regulations as may currently appertain to their standards of ethical and other conduct.
(c) The General Counsel of the Board is designated to provide counseling and assistance to interpret the regulations in this part and matters relating to ethical conduct, particularly matters subject to the provisions of the conflict-of-interest laws and other matters covered by the Executive order. These counseling services are available to all Members, employees, and special Government employees at the General Counsel's office, by appointment for consultation or by written communication.
An employee who believes that his position has been improperly included under the regulations in this part, as one requiring the submission of a statement of employment and financial interests, may request review through the Board's grievance procedure.
(a) A violation of the regulations in this part by an employee or special Government employee may be cause
(b) Any employee or special Government employee who is charged with a violation of the regulations in this part shall be provided an opportunity to explain the violation, or appearance of violation, to the charging authority. The charging authority shall be the Managing Director of the Board.
(c) When, after consideration of the explanation, the charging authority decides that disciplinary action is not required, he may take appropriate remedial action. Remedial action may include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Government employee of any financial interest that conflicts, or appears to conflict, with the performance of his official duties; or
(3) Disqualification for a particular assignment.
(d) Remedial or disciplinary action shall be effected in accordance with any applicable laws, Executive orders, and regulations.
Each Member and employee and each special Government employee has a positive duty to acquaint himself with each statute which relates to his ethical and other conduct as an officer or employee of the National Transportation Safety Board and of the Government. Therefore, each Member and employee and each special Government employee shall acquaint himself with the following statutory and nonstatutory provisions which relate to his ethical and other conduct:
(a) House Concurrent Resolution 175, 85th Congress, 2d Session (72 Stat. B12), the “Code of Ethics for Government Service.”
(b) Chapter 11 of Title 18, United States Code, relating to bribery, graft, and conflicts of interest (18 U.S.C. 201 through 209).
(c) The prohibition against lobbying with appropriate funds (18 U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 18 U.S.C. 1918).
(e) The prohibition against the employment of a member of a Communist organization (50 U.S.C. 784).
(f) The prohibition against:
(1) The disclosure of classified information (18 U.S.C. 798, 50 U.S.C. 783); and
(2) The disclosure of confidential information (18 U.S.C. 1905, 49 U.S.C. 1472(f)).
(g) The provision relating to the habitual use of intoxicants to excess (5 U.S.C. 8352).
(h) The prohibition against the misuse of a Government vehicle (31 U.S.C. 638a(c)).
(i) The prohibition against the misuse of the franking privilege (18 U.S.C. 1719).
(j) The prohibition against the use of deceit in an examination or personnel action in connection with Government employment (18 U.S.C. 1917).
(k) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).
(l) The prohibition against mutilating or destroying a public record (18 U.S.C. 2071).
(m) The prohibition against counterfeiting and forging transportation requests (18 U.S.C. 508).
(n) The prohibition against:
(1) Embezzlement of Government money or property (18 U.S.C. 641);
(2) Failing to account for public money (18 U.S.C. 643); and
(3) Embezzlement of the money or property of another person in the possession of an employee by reason of his employment (18 U.S.C. 654).
(o) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).
(p) The prohibition against political activities in subchapter III of chapter 73 of title 5, U.S.C., and 18 U.S.C. 602, 603, 607, and 608.
(q) The prohibition against an employee's acting as the agent of a foreign principal registered under the Foreign Agents Registration Act (18 U.S.C. 219).
Statements of employment and financial interests are required of the following:
(a) Employees in grades GS-16 or above, or in positions not subject to the Classification Act paid at a rate at or above the entrance rate for GS-16.
(b) Special assistants to the members.
(c) Office of the managing director:
(d) Attorneys in grade GS-15.
(e) Office of public affairs:
(f) Bureau of administration:
(g) Division and branch chiefs within the bureaus of accident investigation, technology, and plans and programs.
(h) Chief or senior investigators, field offices.
The above regulation and its appendices were approved by the Civil Service Commission (OPM) on July 16, 1968, and September 13, 1972, respectively, prior to submission to the Office of the Federal Register.
Sec. 304, Independent Safety Board Act of 1974, 88 Stat. 2168 (49 U.S.C. 1903). E.O. 12065, 43 FR 28949, July 3, 1978.
45 FR 20104, Mar. 27, 1980, unless otherwise noted.
(a) The interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act and in the current public information policies of the executive branch.
(b) Within the Federal Government there is some official information and material which, because it bears directly on the effectiveness of our national defense and the conduct of our foreign relations, must be subject to some constraints for the security of our Nation and the safety of our people and our allies. To protect against actions hostile to the United States, of both an overt and covert nature, it is essential that such official information and material be given only limited dissemination.
This rule supplements Executive Order 12065 within the Board with regard to national security information. It establishes general policies and certain procedures for the classification and declassification of information which is generated, processed, and/or stored by the Board. In this connection, the Board does not have any original classification authority but infrequently does receive classified information from other agencies.
(a) Classified information. Information or material, herein collectively termed information, that is owned by, produced for or by, or under the control of, the United States Government and that has been determined pursuant to Executive Order 12065, or prior orders, to require protection against unauthorized disclosure and that is so designated. One of the following classifications will be shown:
(1)
(2)
(3)
(b)
(c)
(d)
(a) Requests for mandatory review for declassification under section 3-501 of E.O. 12065 must be in writing and should be addressed to: National Security Oversight Officer, National Transportation Safety Board, Washington, DC 20594.
(b) The requester shall be informed of the date of receipt of the request at the Board. This date will be the basis for the time limits specified by section 3-501 of E.O. 12065. If the request does not reasonably describe the information sought, the requester shall be notified that, unless additional information is provided or the request is made more specific, no further action will be taken.
(c) When the Board receives a request for information in a document which is in its custody but which was classified by another agency, it shall refer the request to the appropriate agency for review, together with a copy of the document containing the information requested, where practicable. The Board shall also notify the requester of the referral, unless the association of the reviewing agency with the information requires protection. The reviewing agency shall review the document in coordination with any other agency involved or which had a direct interest in the classification of the subject matter. The reviewing agency shall respond directly to the requester in accordance with the pertinent procedures described above and, if requested, shall notify the Board of its determination.
29 U.S.C. 794.
51 FR 4578, Feb. 5, 1986, unless otherwise noted.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the agency.
For purposes of this part, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one of more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment.
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(3)
(a) The agency shall, by April 9, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspections:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 807.150, no qualified handicapped person shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 807.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens
(b)
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 807.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) Director, Bureau of Administration shall be responsible for coordinating implementation of this section. Complaints may be sent to Director, Bureau of Administration, 800 Independence Ave., SW., Room 802, Washington, DC 20594.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found;
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 807.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
Title VI, Federal Aviation Act of 1958, as amended (49 U.S.C. 40101
40 FR 30243, July 17, 1975, unless otherwise noted.
As used in this part:
Terms defined in the Act are used as so defined.
The provisions of this part govern all air safety proceedings, including proceedings involving airman medical certification, before a law judge on petition for review of the denial of any airman certificate or on appeal from any
In addition to sequential numbering of cases as received, each case formally handled by the Board receives a letter prefix. These letter prefixes reflect the case type: “SE” for the safety enforcement (suspension/revocation) docket; “SM” (safety medical) for an enforcement case involving a medical application; “SR” for a case involving safety registration issues under 49 U.S.C. 44101
(a) Any party to a proceeding may appear and be heard in person or by attorney or other representative designated by him. No register of persons who may practice before the Board is maintained, and no application for admission to practice is required. Upon hearing, and for good cause shown, the Board may suspend or bar any person from practicing before it.
(b) Any person appearing in person in any proceeding governed by this part, may be accompanied, represented, and advised by counsel and may be examined by his own counsel or representative.
(c) Any person who submits data or evidence in a proceeding governed by this part, may by timely request procure a copy of any document submitted by him, or a copy of any transcript made of his testimony on payment of reasonable costs. Original documents or data or evidence may be retained by a party upon permission of the law judge or the Board, upon substitution of a copy therefor.
(d) Any party to a proceeding who is represented by an attorney or party representative shall notify the Board of the name and address of that attorney or representative. In the event of a change in attorney or representative of record, a party shall notify the Board, in the manner provided in § 821.7(a), and the other parties to the proceeding, prior to the attorney or representative participating in any way, including the filing of documents, in any proceeding.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
I hereby certify that I have this day served the foregoing document(s) on the following parties’ counsel or designated representatives [or on the party, if without counsel or representative] at the address indicated by [specify the method of service: first class mail, personal service, etc.] [indicate names and addresses here]
Dated at
(2) Service shall be made on the person designated in accordance with § 821.7(f) to receive service. If no such person has been designated, service shall be made on the party.
(b)
(c)
(d)
(1) When acknowledgement of receipt is by a person who customarily or in the ordinary course of business receives mail at the residence or principal place of business of the party or of the person designated under § 821.7(f); or
(2) When a properly addressed envelope, sent to the most current address
(e)
(a)
(b)
In computing any period of time prescribed or allowed by this part, by notice or order of the Board or a law judge, or by any applicable statute, the date of the act, event, or default after which the designated period of time begins to run is not to be included in the computation. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or legal holiday for the Board, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a legal holiday. Saturdays, Sundays, and legal holidays for the Board shall be computed in the calculation of time in all emergency cases under subpart I of this part and shall be counted in the computation of time in all nonemergency cases where the period of time involves 7 days or more.
(a) Upon written request filed with the Board and served on all parties, or by oral request with any extension granted confirmed in writing and served on all parties, and for good cause shown, the chief judge, the law judge, or the Board may grant an extension of time to file any document except a petition for reconsideration.
(b) The Board's General Counsel is authorized to grant unopposed extensions on timely oral request without a showing of good cause in cases appealed to the Board from a decision of a law judge. Written confirmation of such a grant must promptly be sent by the requesting party to the Board and served on other parties.
(c) Extensions of time to file petitions for reconsideration will be granted only in extraordinary circumstances.
(a)
(b)
Waivers of any rights provided by statute or regulation shall either be in writing, or by stipulation made at a hearing and entered into the record, and shall set forth their precise terms and conditions.
(a)
(b)
(c)
(d)
(e)
(f)
A motion requesting a Board Member to disqualify himself shall be filed with the Board, supported by an affidavit setting forth grounds for disqualification. In nonemergency proceedings, where an appeal from an initial decision is filed, such motion shall be filed on or before the date on which the reply brief is due, pursuant to § 821.48(d). In emergency proceedings, where a notice of appeal has been filed, such motion shall be filed on or before the date the reply brief is due, pursuant to § 821.57(b). Failure to file a timely motion shall be deemed a waiver of any claim of disqualification. Application for leave to file an untimely motion may be made, accompanied by an affidavit setting forth in detail why the facts relied upon as grounds for disqualification were not known and could
Rulings of law judges on motions may not be appealed to the Board prior to its consideration of the entire proceeding, except in extraordinary circumstances and with the consent of the law judge who made the ruling. An appeal shall be disallowed unless the law judge finds, either on the record or in writing, that to allow such an appeal is necessary to prevent substantial detriment to the public interest or undue prejudice to any party. If an appeal is allowed, any party may file a brief with the Board within such time as the law judge directs. No oral argument will be heard unless the Board directs otherwise. The rulings of the law judge on motion may be reviewed by the Board in connection with its appellate action in the proceeding, irrespective of the filing of an appeal from the motion or any action taken thereon.
(a)
(b)
(c)
(d)
(a) A party, in lieu of an answer, may file a motion requesting that the allegations in the complaint or the petition be made more definite and certain. The motion shall point out the defects complained of and the details desired. If the motion is granted and the law judge's order is not complied with within 15 days after notice, the law judge shall strike the allegation or allegations in any complaint or petition to which the motion is directed. If the motion is denied, the moving party shall file an answer within 10 days after the denial.
(b) A party may file a motion to clarify an answer in the event that it fails to respond clearly either to the complaint or to the petition for review. Such a motion may be granted at the discretion of the law judge.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
Where the law judge or the Board intends to take official notice of a material fact not appearing in the evidence in the record, notice shall be given to all parties, who may within 10 days file a petition challenging such fact. Upon the filing of such petition, the party or parties shall be given reasonable opportunity to controvert the fact.
(a)
(b)
(c)
(d)
(e)
In proceedings under section 602(b) of the Act, the burden of proof shall be upon the petitioner.
Upon motion by the Administrator within the time limitation for filing an answer, a petition for review shall be dismissed for lack of standing in either of the following instances:
(a) If the petitioner's certificate at the time of the denial or renewal thereof was under an order of suspension; or
(b) If the petitioner's certificate had been revoked within one year of the date of the denial or renewal thereof, unless the order revoking such certificate provided otherwise.
(a)
(b)
(c)
(a)
(b)
(c)
In proceedings under section 609 of the Act, the burden of proof shall be upon the Administrator.
Where the complaint states allegations of offenses which occurred more than 6 months prior to the Administrator's advising respondent as to reasons for proposed action under section 609 of the Act, respondent may move to dismiss such allegations pursuant to the following provisions:
(a) In those cases where a complaint does not allege lack of qualification of the certificate holder:
(1) The Administrator shall be required to show by answer filed within 15 days of service of the motion that good cause existed for the delay, or that the imposition of a sanction is warranted in the public interest, notwithstanding the delay or the reasons therefor.
(2) If the Administrator does not establish good cause for the delay or for imposition of a sanction notwithstanding the delay, the law judge shall dismiss the stale allegations and proceed to adjudicate only the remaining portion, if any, of the complaint.
(3) If the law judge wishes some clarification as to the Administrator's factual assertions of good cause, he shall obtain this from the Administrator in writing, with due service made upon the respondent, and proceed to an informal determination of the good cause issue without a hearing. A hearing to develop facts as to good cause shall be held only where the respondent raises an issue of fact in respect of the Administrator's good cause issue allegations.
(b) In those cases where the complaint alleges lack of qualification of the certificate holder:
(1) The law judge shall first determine whether an issue of lack of qualification would be presented if any or all of the allegations, stale and timely, are assumed to be true. If not, the law judge shall proceed as in paragraph (a) of this section.
(2) If the law judge deems that an issue of lack of qualification would be presented by any or all of the allegations, if true, he shall proceed to a hearing on the lack of qualification issue only, and he shall so inform the parties. The respondent shall be put on notice that he is to defend against lack of qualification and not merely against a proposed remedial sanction.
(a)
(b)
(1) To give notice of and to hold prehearing conferences and hearings and to consolidate proceedings which involve a common question of law or fact;
(2) To administer oaths and affirmations;
(3) To examine witnesses;
(4) To issue subpoenas and to take or cause depositions to be taken;
(5) To receive evidence and rule upon objections and offers of proof;
(6) To rule upon motions in assigned cases;
(7) To regulate the conduct of the hearing;
(8) To hold conferences, before or during the hearing for the settlement or simplification of issues;
(9) To dispose of procedural requests or similar matters; and
(10) To make initial decisions, and, if so directed by the Board, to certify records with or without recommended decisions.
(c)
(a)
(b)
(a) Every party shall have the right to present a case-in-chief or defense by oral or documentary evidence, to submit evidence in rebuttal, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Hearsay evidence (including hearsay within hearsay where there are acceptable circumstantial indicia of trustworthiness) is admissible.
(b) All material and relevant evidence should be admitted, but a law judge may exclude unduly repetitious evidence pursuant to § 556(d) of the Administrative Procedure Act. Any evidence that is offered and excluded may be described (via an “offer of proof”), and that description should be made a part of the record.
At the hearing, the law judge shall give the parties adequate opportunity for the presentation of arguments in support of, or in opposition to, motions, objections, and rulings. Prior to the initial decision, the parties shall be afforded a reasonable opportunity to submit for consideration proposed findings and conclusions and supporting reasons therefor.
The transcript of testimony and exhibits, together with all papers, requests, and rulings filed in the proceeding shall constitute the exclusive record of the proceeding. The record shall also include any proceeding upon an affidavit of personal bias or disqualification of a law judge. Copies of the transcript may be obtained by any party upon payment of the reasonable cost thereof. A copy may be examined at the National Transportation Safety Board Public Reference Room No. 806D, at 800 Independence Avenue, SW., Washington, DC 20594.
At any time prior to the close of the hearing, the Board may direct the law judge to certify any question or the entire record in the proceeding to the Board for decision, except an interlocutory ruling. In cases where the record is certified to the Board, the law judge shall not render an initial decision but shall only recommend to the Board a decision as provided in 5 U.S.C. 557 (Administrative Procedure).
(a)
(b)
(c)
If an appeal from the initial decision is not timely filed with the Board by a party, the initial decision shall become final but shall not be precedent binding on the Board. The filing of a timely appeal shall stay the initial decision.
(a) A party may appeal from a law judge's order or from the initial decision by filing with the Board and serving on the other parties (pursuant to § 821.8) a notice of appeal within 10 days after an oral initial decision has been rendered or a written decision or a final or appealable (see § 821.16) order has been served. At any time before the date for filing an appeal from an initial decision or order has passed, the law judge or the Board may, for good cause shown, extend the time within which to file an appeal, and the law judge may also reopen the case for good cause on notice to the parties.
(b) A law judge may not reconsider his initial decision once the time for appealing to the Board from the initial decision has expired or once an appeal with the Board has been filed. However, a timely request for reconsideration by the law judge of his decision, filed before an appeal to the Board has been taken, will stay the deadline for appealing to the Board until 10 days after the date the law judge serves his decision on the request. For the purpose of
(a)
(b)
(c)
(d)
(e)
(f)
(a) On appeal, the Board will consider only the following issues:
(1) Are the findings of fact each supported by a preponderance of reliable, probative, and substantial evidence?
(2) Are conclusions made in accordance with law, precedent, and policy?
(3) Are the questions on appeal substantial?
(4) Have any prejudicial errors occurred?
(b) If the Board determines that the law judge erred in any respect or that his order in his initial decision should be changed, the Board may make any necessary findings and may issue an order in lieu of the law judge's order or may remand the case for such purposes as the Board may deem necessary. The Board on its own initiative may raise any issue, the resolution of which it deems important to a proper disposition of the proceedings. If necessary or appropriate, a reasonable opportunity shall be afforded the parties to comment.
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(1) The new matter;
(2) Affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and
(3) A statement that such new matter could not have been discovered by the exercise of due diligence prior to the date the case was submitted to the Board.
Sec. 4, Government in the Sunshine Act, Pub. L. 94-409, amending 5 U.S.C. 556(d) and 5 U.S.C. 557; Title VI, Federal Aviation Act of 1958, as amended, 49 U.S.C. 1421 et seq.; Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901
42 FR 21613, Apr. 28, 1977, unless otherwise noted.
As used in this subpart:
(a) The prohibitions of this section shall apply from the time a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply at the time of the acquisition of such knowledge.
(b) Except to the extent required for the disposition of ex parte matters as authorized by law:
(1) No interested person outside the Board shall make or knowingly cause to be made to any Board employee an ex parte communication relevant to the merits of the proceeding;
(2) No Board employee shall make or knowingly cause to be made to any interested person outside the Board an ex parte communication relevant to the merits of the proceeding.
A Board employee who receives or who makes or knowingly causes to be made a communication prohibited by § 821.61 shall place on the public record of the proceeding:
(a) All such written communications;
(b) Memoranda stating the substance of all such oral communications; and
(c) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (a) and (b) of this section.
(a) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of § 821.61, the Board, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his or her claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
(b) The Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes it administers, consider a violation of this subpart sufficient grounds for a decision adverse to a party who has knowingly committed or knowingly caused a violation to occur. Alternatively, the Board may impose sanction, including suspension of the privilege of practice before the Board, on the party's attorney or representative, where an infraction has been committed by that attorney or representative
(a)
(b)
Sec. 304(a)(9)(B), Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2169 (49 U.S.C. 1903(a)(9)(B)).
40 FR 30248, July 17, 1975, unless otherwise noted.
The provisions of this part govern all proceedings before the National Transportation Safety Board (Board) on appeals taken from decisions, on or after April 1, 1975, of the Commandant, U.S. Coast Guard, sustaining orders of an administrative law judge, revoking, suspending, or denying a license, certificate, document, or register in proceedings under:
(a) R.S. 4450, as amended (46 U.S.C. 239);
(b) Act of July 15, 1954 (46 U.S.C. 239a-b); or
(c) Section 4, Great Lakes Pilotage Act (46 U.S.C. 216(b)).
(a) A party may appeal from the Commandant's decision sustaining an order of revocation, suspension, or denial of a license, certificate, document, or register in proceedings described in § 825.1, by filing a notice of appeal with the Board within 10 days after service of the Commandant's decision upon the party or his designated attorney. Upon good cause shown, the time for filing may be extended.
(b) Notice of appeal shall be addressed to the Docket Clerk, National Transportation Safety Board, Washington, DC 20594. At the same time, a copy shall be served on the Commandant (GL), U.S. Coast Guard, Washington, DC 20590.
(c) The notice of appeal shall state the name of the party, the number of the Commandant's decision, and, in brief, the grounds for the appeal.
Upon receipt of a notice of appeal, the Commandant shall immediately transmit to the Board the complete record of the hearing upon which his decision was based. This includes the charges, the transcript of testimony, and hearing proceedings (including exhibits), briefs filed by the party, the decision of the administrative law judge, and the Commandant's decision on appeal. It does not include intra-agency staff memoranda provided as advice to the Commandant to aid in his decision.
The only issues that may be considered on appeal are:
(a) A finding of a material fact is erroneous;
(b) A necessary legal conclusion is without governing precedent or is a departure from or contrary to law or precedent;
(c) A substantial and important question of law, policy, or discretion is involved; or
(d) A prejudicial procedural error has occurred.
(a) Within 20 days after the filing of a notice of appeal, the appellant must file, in the same manner as prescribed for the notice in § 825.5, a brief in support of the appeal.
(b) This document shall set forth:
(1) The name and address of the appellant;
(2) The number and a description of the license, certificate, document, or register involved;
(3) A summary of the charges affirmed by the Commandant as proved;
(4) Fact findings by the Commandant disputed by the appellant;
(5) Specific statements of errors of laws asserted;
(6) Specific statements of any abuse of discretion asserted; and
(7) The relief requested.
(c) Objection based upon evidence of record need not be considered unless the appeal contains specific record citation to the pertinent evidence.
(d) When a brief has been filed by appellant under this section, the Coast Guard may, within 15 days of service of the brief on the Commandant, submit to the Board a reply brief.
(e) If a party who has filed a notice of appeal does not perfect the appeal by the timely filing of an appeal brief, the Board may dismiss the appeal on its own initiative or on motion of the Coast Guard.
(a) If any party desires to argue a case orally before the Board, he should request leave to make such argument in his brief filed pursuant to § 825.20.
(b) Oral argument before the Board will normally not be granted unless the Board finds good cause for such argument. If granted, the parties will be advised of the date.
(a) On review by the Board, if no reversible error is found in the Commandant's decision on appeal, that decision will be affirmed.
(b) On review by the Board, if reversible error is found in the Commandant's decision on appeal, the Board may:
(1) Set aside the entire decision and dismiss the charges if it finds the error incurable; or
(2) Set aside the order, or conclusions, or findings of the Commandant and remand the case to him for further consideration if it finds the error curable.
(c) When a matter has been remanded to the Commandant under paragraph (b) of this section, the Commandant may act in accordance with the terms of the order of remand, or he may, as appropriate, further remand the matter to the administrative law judge of the Coast Guard who heard the case, or to another administrative law judge of the Coast Guard, with appropriate directions.
When a case has been remanded under § 825.30, a party shall retain all rights of review under 46 CFR part 5 and this part, as applicable.
(a) As used in this section:
(b) The prohibition of paragraph (c) of this section shall apply from the time a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the
(c) Except to the extent required for the disposition of ex parte matters as authorized by law:
(1) No interested person outside the Board shall make or knowingly cause to be made to any Board employee an ex parte communication relevant to the merits of the proceeding;
(2) No Board employee shall make or knowingly cause to be made to any interested person outside the Board an ex parte communication relevant to the merits of the proceeding.
(d) A Board employee who receives or who makes or knowingly causes to be made a communication prohibited by paragraph (c) of this section, shall place on the public record of the proceeding:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communication; and
(3) All written responses, and memoranda stating the substance of all oral responses, to materials described in paragraphs (d) (1) and (2) of this section.
(e) Upon receipt of a communication knowingly made or caused to be made in violation of paragraph (c) of this section, the Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his or her interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
(f) The Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the Board, consider a violation of this section sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.
Section 203(a)(1) Pub. L. 99-80, 99 Stat. 186 (5 U.S.C. 504).
46 FR 48209, Oct. 1, 1981, unless otherwise noted.
The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board (Board). An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the Government agency's position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe
The Act applies to any adversary adjudication identified in § 826.3 as covered under the Act.
(a) The Act applies to certain adversary adjudications conducted by the Board. These are adjudications under 5 U.S.C. 554 in which the position of the FAA is presented by an attorney or other representative who enters an appearance and participates in the proceedings. Proceedings to grant or renew certificates or documents, hereafter referred to as “licenses,” are excluded, but proceedings to modify, suspend, or revoke licenses or to impose a civil penalty on a flight engineer, mechanic, pilot, or repairman (or person acting in that capacity) are covered if they are otherwise “adversary adjudications.” For the Board, the type of proceeding covered includes (but may not be limited to) aviation enforcement cases appealed to the Board under sections 501, 609, 611 and 901 of the Federal Aviation Act (49 U.S.C. 44101
(b) The Board may also designate a proceeding not listed in paragraph (a) as an adversary adjudication for purposes of the Act by so stating in an order initiating the proceeding or designating the matter for hearing. The Board's failure to designate a proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the procedure is covered will then be an issue for resolution in proceedings on the application.
(c) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.
(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this subpart and in subpart B.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 employees; and
(5) Any other partnership, corporation, association, or public or private organization with a net worth of not more than $7 million and not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated.
(d) An applicant who owns an unincorporated business will be considered an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.
(e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of its
(g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.
(a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceeding, unless the position of the agency over which the applicant has prevailed was substantially justified. The burden of proof that an award should not be made to an eligible prevailing applicant is on the agency counsel, who may avoid an award by showing that the agency's position was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.
(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents, and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant.
(b)(1) No award for the fee of an attorney or agent under these rules may exceed $75 indexed as follows:
(2) No award to compensate an expert witness may exceed the highest rate at which the agency pays expert witnesses. However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the administrative law judge shall consider the following:
(1) If the attorney, agent, or witness is in private practice, his or her customary fee for similar services, or if an employee of the applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services provided.
(d) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case.
(a) In addition to increases based on cost of living (
(b) Any person may file with the Board a petition for rulemaking to increase the maximum rate for attorney fees by demonstrating that a special factor(s) justifies a higher fee. The petition shall identify the rate the petitioner believes the Board should establish and the proceeding(s) or types of proceedings in which the rate should be used. It should also explain fully the reasons why the higher rate is warranted. The Board will respond to the petition within 60 days after it is filed, by initiating a rulemaking proceeding, denying the petition, or taking other appropriate action.
When an applicant is entitled to an award because it prevails over an agency of the United States that participates in a proceeding before the Board and takes a position that is not substantially justified, the award shall be made against that agency.
(a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the agency in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business.
(b) The application shall also include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)), or in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section; or
(2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for which an award is sought.
(d) The application may also include any other matters that the applicant wishes this agency to consider in determining whether and in what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized officer or attorney for the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct.
(a) Each applicant except a qualified tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 826.4(f) of this part) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates’ assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The administrative law judge may require an applicant to file additional information to determine the eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the administrative law judge in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b) (1) through (9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on counsel representing the agency against which the applicant seeks an award, but need not be served on any other party to the proceeding. If the administrative law judge finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Board's established procedures under the Freedom of Information Act as inplemented by Part 801 of the Board's rules.
The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spend in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The administrative law judge may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.
(a) An application may be filed whenever the applicant has prevailed in the proceeding, but in no case no later than the 30 days after the Board's final disposition of the proceeding. This 30-day deadline is statutory and the Board has no authority to extend it.
(b) If review or reconsideration is sought or taken of a decision to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy.
(c) For purposes of this rule, final disposition means the later of (1) the date on which an unappealed initial decision by an administrative law judge
The rules contained in 49 CFR part 821 apply to proceedings under the Act, unless they are superseded by or are inconsistent with a provision of this part.
(a) Within 30 days after service of an application, counsel representing the agency against which an award is sought may file an answer to the application. Unless agency counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested.
(b) If agency counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the administrative law judge upon request by agency counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of agency counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, agency counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 826.36.
Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 826.36.
Any party to a proceeding other than the applicant and agency counsel may file comments on an application within 30 days after it is served or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application unless the administrative law judge determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments.
The applicant and agency counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded. If a prevailing party and agency counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement.
(a) Ordinarily the determination of an award will be made on the basis of the written record; however, on request of either the applicant or agency counsel, or on his or her own initiative, the administrative law judge assigned to the matter may order further proceedings, such as an informal conference, oral argument, additional written submissions, or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application and shall be conducted as promptly as possible.
(b) A request that the administrative law judge order further proceedings
The administrative law judge shall issue an initial decision on the application within 60 days after completion of proceedings on the application. The decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the agency's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust.
Either the applicant or agency counsel may seek review of the initial decision on the fee application, or the Board may decide to review the decision on its own initiative, in accordance with subpart H of part 821 for FAA safety enforcement matters appealed under section 609 of the Federal Aviation Act. If neither the applicant nor agency counsel seeks review and the Board does not take review on its own initiative, the initial decision on the application shall become a final decision of the Board 30 days after it is issued. Whether to review a decision is a matter within the discretion of the Board. If review is taken, the Board will issue a final decision on the application or remand the application to the administrative law judge who issued the initial fee award determination for further proceedings.
Judicial review of final Board decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).
An applicant seeking payment of an award shall submit to the disbursing official of the FAA a copy of the Board's final decision granting the award, accompanied by a statement that the applicant will not seek review of the decision in the United States courts. Applications for award grants in cases involving the FAA shall be sent to: The Office of Accounting and Audit, AAA-1, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. The agency will pay the amount awarded to the applicant within 60 days, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding.
Federal Aviation Act of 1958, as amended (49 U.S.C. 40101
53 FR 36982, Sept. 23, 1988, unless otherwise noted.
This part contains rules pertaining to:
(a) Initial notification and later reporting of aircraft incidents and accidents and certain other occurrences in the operation of aircraft, wherever they occur, when they involve civil aircraft of the United States; when they involve certain public aircraft, as specified in this part, wherever they occur; and when they involve foreign civil aircraft where the events occur in the United States, its territories, or its possessions.
(b) Preservation of aircraft wreckage, mail, cargo, and records involving all civil and certain public aircraft accidents, as specified in this part, in the United States and its territories or possessions.
As used in this part the following words or phrases are defined as follows:
The operator of any civil aircraft, or any public aircraft not operated by the Armed Forces or an intelligence agency of the United States, or any foreign aircraft shall immediately, and by the most expeditious means available, notify the nearest National Transportation Safety Board (Board) field office
(a) An aircraft accident or any of the following listed incidents occur:
(1) Flight control system malfunction or failure;
(2) Inability of any required flight crewmember to perform normal flight duties as a result of injury or illness;
(3) Failure of structural components of a turbine engine excluding compressor and turbine blades and vanes;
(4) In-flight fire; or
(5) Aircraft collide in flight.
(6) Damage to property, other than the aircraft, estimated to exceed $25,000 for repair (including materials and labor) or fair market value in the event of total loss, whichever is less.
(7) For large multiengine aircraft (more than 12,500 pounds maximum certificated takeoff weight):
(i) In-flight failure of electrical systems which requires the sustained use of an emergency bus powered by a back-up source such as a battery, auxiliary power unit, or air-driven generator to retain flight control or essential instruments;
(ii) In-flight failure of hydraulic systems that results in sustained reliance on the sole remaining hydraulic or mechanical system for movement of flight control surfaces;
(iii) Sustained loss of the power or thrust produced by two or more engines; and
(iv) An evacuation of an aircraft in which an emergency egress system is utilized.
(b) An aircraft is overdue and is believed to have been involved in an accident.
The notification required in § 830.5 shall contain the following information, if available:
(a) Type, nationality, and registration marks of the aircraft;
(b) Name of owner, and operator of the aircraft;
(c) Name of the pilot-in-command;
(d) Date and time of the accident;
(e) Last point of departure and point of intended landing of the aircraft;
(f) Position of the aircraft with reference to some easily defined geographical point;
(g) Number of persons aboard, number killed, and number seriously injured;
(h) Nature of the accident, the weather and the extent of damage to the aircraft, so far as is known; and
(i) A description of any explosives, radioactive materials, or other dangerous articles carried.
(a) The operator of an aircraft involved in an accident or incident for which notification must be given is responsible for preserving to the extent possible any aircraft wreckage, cargo, and mail aboard the aircraft, and all records, including all recording mediums of flight, maintenance, and voice recorders, pertaining to the operation and maintenance of the aircraft and to
(b) Prior to the time the Board or its authorized representative takes custody of aircraft wreckage, mail, or cargo, such wreckage, mail, or cargo may not be disturbed or moved except to the extent necessary:
(1) To remove persons injured or trapped;
(2) To protect the wreckage from further damage; or
(3) To protect the public from injury.
(c) Where it is necessary to move aircraft wreckage, mail or cargo, sketches, descriptive notes, and photographs shall be made, if possible, of the original positions and condition of the wreckage and any significant impact marks.
(d) The operator of an aircraft involved in an accident or incident shall retain all records, reports, internal documents, and memoranda dealing with the accident or incident, until authorized by the Board to the contrary.
(a)
(b)
(c)
Independent Safety Board Act of 1974, as amended (49 U.S.C. 1101
53 FR 15847, May 4, 1988, unless otherwise noted.
Unless otherwise specifically ordered by the National Transportation Safety Board (Board), the provisions of this part shall govern all accident or incident investigations, conducted under the authority of title VII of the Federal Aviation Act of 1958, as amended, and the Independent Safety Board Act of 1974. Rules applicable to accident hearings and reports are set forth in part 845.
(a)
(2) Certain aviation investigations may be conducted by the Federal Aviation Administration (FAA), pursuant to a “Request to the Secretary of the Department of Transportation to Investigate Certain Aircraft Accidents,” effective February 10, 1977 (the text of the request is contained in the appendix to part 800 of this chapter), but the Board determines the probable cause of such accidents or incidents.
(3) The Board is the agency charged with fulfilling the obligations of the United States under Annex 13 to the Chicago Convention on International Civil Aviation (Eighth Edition, July 1994), and does so consistent with State Department requirements and in coordination with that department. Annex 13 contains specific requirements for the notification, investigation, and reporting of certain incidents and accidents involving international civil aviation. In the case of an accident or incident in a foreign state involving civil aircraft of U.S. registry or manufacture, where the foreign state is a signatory to Annex 13 to the Chicago Convention of the International Civil Aviation Organization, the state of occurrence is responsible for the investigation. If the accident or incident occurs in a foreign state not bound by the provisions of Annex 13 to the Chicago Convention, or if the accident or incident involves a public aircraft (Annex 13 applies only to civil aircraft), the conduct of the investigation shall be in consonance with any agreement entered into between the United States and the foreign state.
(b)
(c)
The Director, Office of Aviation Safety, or the Director, Office of Surface Transportation Safety, subject to the provisions of § 831.2 and part 800 of this chapter, may order an investigation into any accident or incident.
Accident and incident investigations are conducted by the Board to determine the facts, conditions, and circumstances relating to an accident or incident and the probable cause(s) thereof. These results are then used to ascertain measures that would best tend to prevent similar accidents or incidents in the future. The investigation includes the field investigation (on-scene at the accident, testing, teardown, etc.), report preparation, and, where ordered, a public hearing. The investigation results in Board conclusions issued in the form of a report or “brief” of the incident or accident. Accident/incident investigations are fact-finding proceedings with no formal issues and no adverse parties. They are not subject to the provisions of the Administrative Procedure Act (5 U.S.C. 504
Any investigation of an accident or incident conducted by the Safety Board directly or pursuant to the appendix to part 800 of this chapter (except major marine investigations conducted under 49 U.S.C. 1131(a)(1)(E)) has priority over all other investigations of such accident or incident conducted by other Federal agencies. The Safety Board shall provide for the appropriate participation by other Federal agencies in any such investigation, except that such agencies may not participate in the Safety Board's determination of the probable cause of the accident or incident. Nothing in this section impairs the authority of other Federal agencies to conduct investigations of an accident or incident under applicable provisions of law or to obtain information directly from parties involved in, and witnesses to, the transportation accident or incident, provided they do so without interfering with the Safety Board's investigation. The Safety Board and other Federal agencies shall assure that appropriate information obtained or developed in the course of their investigations is exchanged in a timely manner.
(a)
(1)
(2)
(3)
(b)
Any person interviewed by an authorized representative of the Board during the investigation, regardless of the form of the interview (sworn, unsworn, transcribed, not transcribed, etc.), has the right to be accompanied, represented, or advised by an attorney or non-attorney representative.
The designated investigator-in-charge (IIC) organizes, conducts, controls, and manages the field phase of the investigation, regardless of whether a Board Member is also on-scene at the accident or incident site. (The role of the Board member at the scene of an accident investigation is as the official spokesperson for the Safety Board.) The IIC has the responsibility and authority to supervise and coordinate all resources and activities of all personnel, both Board and non-Board, involved in the on-site investigation. The IIC continues to have considerable organizational and management responsibilities throughout later phases of the investigation, up to and including Board consideration and adoption of a report or brief of probable cause(s).
(a)
(b)
(c)
(2) Any examination or testing shall be conducted in such a manner so as not to interfere with or obstruct unnecessarily the transportation services provided by the owner or operator of such vehicle, vessel, rolling stock, track, or pipeline component, and shall be conducted in such a manner so as to preserve, to the maximum extent feasible, any evidence relating to the transportation accident, consistent with the needs of the investigation and with the cooperation of such owner or operator.
The Board is authorized to obtain, with or without reimbursement, a copy of the report of autopsy performed by State or local officials on any person who dies as a result of having been involved in a transportation accident within the jurisdiction of the Board. The investigator-in-charge, on behalf of the Board, may order an autopsy or seek other tests of such persons as may be necessary to the investigation, provided that to the extent consistent with the needs of the accident investigation, provisions of local law protecting religious beliefs with respect to autopsies shall be observed.
(a)
(2) Participants in the investigation (
(3) No party to the investigation shall be represented in any aspect of the NTSB investigation by any person who also represents claimants or insurers. No party representative may occupy a legal position (see § 845.13 of this chapter). Failure to comply with these provisions may result in sanctions, including loss of status as a party.
(4) Title 49, United States Code § 1132 provides for the appropriate participation of the FAA in Board investigations, and § 1131(a)(2) provides for such participation by other departments, agencies, or instrumentalities. The FAA and those other entities that meet the requirements of paragraph (a)(1) of this section will be parties to the investigation with the same rights and privileges and subject to the same limitations as other parties, provided however that representatives of the FAA need not sign the “Statement of Party Representatives to NTSB Investigation” (see paragraph (b) of this section).
(b)
(a) Only the Board's accident investigation personnel, and persons authorized by the investigator-in-charge to participate in any particular investigation, examination or testing shall be permitted access to wreckage, records, mail, or cargo in the Board's custody.
(b) Wreckage, records, mail, and cargo in the Board's custody shall be released by an authorized representative of the Board when it is determined that the Board has no further need of such wreckage, mail, cargo, or records. When such material is released, Form 6120.15, “
(a) Release of information during the field investigation, particularly at the accident scene, shall be limited to factual developments, and shall be made only through the Board Member present at the accident scene, the representative of the Board's Office of Public Affairs, or the investigator-in-charge.
(b) All information concerning the accident or incident obtained by any person or organization participating in the investigation shall be passed to the IIC through appropriate channels before being provided to any individual outside the investigation. Parties to the investigation may relay to their respective organizations information necessary for purposes of prevention or remedial action. However, no information concerning the accident or incident may be released to any person not a party representative to the investigation (including non-party representative employees of the party organization) before initial release by the Safety Board without prior consultation and approval of the IIC.
(a)
(b)
(c)
5 U.S.C. 301; 49 U.S.C. 1441; and 49 U.S.C. 1901
55 FR 41541, Oct. 12, 1990, unless otherwise noted.
This part prescribes the policies and procedures regarding the testimony of employees of the National Transportation Safety Board (Board) in suits or actions for damages and criminal proceedings arising out of transportation accidents. The purpose of this part is to ensure that the time of Board employees is used only for official purposes, to avoid embroiling the Board in controversial issues that are not related to its duties, to avoid spending public funds for non-Board purposes, to preserve the impartiality of the Board, and to prohibit the discovery of opinion testimony.
(a) Section 701(e) of the FA Act and section 304(c) of the Safety Act preclude the use or admission into evidence of Board accident reports in any suit or action for damages arising from accidents. These sections reflect Congress’ “strong * * * desire to keep the Board free of the entanglement of such suits.” Rep. No. 93-1192, 93d Cong., 2d Sess., 44 (1974), and serve to ensure that the Board does not exert an undue influence on litigation. The purposes of these sections would be defeated if expert opinion testimony of Board employees, which may be reflected in the views of the Board expressed in its reports, were admitted in evidence or used in litigation arising out of an accident. The Board relies heavily upon its investigators’ opinions in its deliberations. Furthermore, the use of Board employees as experts to give opinion testimony would impose a significant administrative burden on the Board's investigative staff. Litigants must obtain their expert witnesses from other sources.
(b) For the reasons stated in paragraph (a) of this section and § 835.1, Board employees may only testify as to the factual information they obtained during the course of an investigation, including factual evaluations embodied in their factual accident reports. However, they shall decline to testify regarding matters beyond the scope of their investigation, and they shall not give any expert or opinion testimony.
(a) A Board employee may use a copy of his factual accident report as a testimonial aid, and may refer to that report during his testimony or use it to refresh his memory.
(b) Consistent with section 701(e) of the FA Act and section 304(c) of the Safety Act, a Board employee may not use the Board's accident report for any purpose during his testimony.
(a) Testimony of Board employees may be made available for use in actions or suits for damages arising out of accidents through depositions or written interrogatories. Board employees are not permitted to appear and testify in court in such actions.
(b) Normally, depositions will be taken and interrogatories answered at the Board's office to which the employee is assigned, and at a time arranged with the employee reasonably fixed to avoid substantial interference with the performance of his duties.
(c) Board employees are authorized to testify only once in connection with any investigation they have made of an accident. Consequently, when more than one lawsuit arises as a result of an accident, it shall be the duty of counsel seeking the employee's deposition to ascertain the identity of all parties to the multiple lawsuits and their counsel, and to advise them of the fact that a deposition has been granted, so that all interested parties may be afforded the opportunity to participate therein.
(d) Upon completion of the deposition of a Board employee, a copy of the transcript of the testimony will be furnished, at the expense of the party requesting the desposition, to the Board's Counsel for the Board files.
(a) A request for testimony of a Board employee relating to an accident by deposition or interrogatories shall be addressed to the General Counsel, who may approve or deny the request. Such request shall set forth the title of the case, the court, the type of accident (aviation, railroad, etc.), the date and place of the accident, the reasons
(b) The General Counsel shall attach to his approval such reasonable conditions as he may deem appropriate in order that the testimony will be limited to the matters delineated in § 835.3, will not interfere with the performance of the duties of the employees as set forth in § 835.5, and will otherwise conform to the policies of this part.
(c) A subpoena shall not be served upon a Board employee in connection with the taking of his deposition.
It is not necessary to request Board approval for testimony of a former Board employee. However, the scope of testimony of former Board employees is limited to the matters delineated in § 835.3, and use of reports as prescribed by § 835.4.
(a) If a Board employee has received a subpoena to appear and testify, a request for his deposition shall not be approved until the subpoena has been withdrawn.
(b) Upon receipt of a subpoena, the employee shall immediately notify the General Counsel and provide the data identifying the accident; the title of the case, the name of the judge, if available, and the title and address of the court; the type of accident (aviation, railroad, etc.); the date on which the employee is directed to appear; the name, address, and telephone number, if available, of the attorney representing the party who caused the issuance of the subpoena; the scope of the testimony, if known; and a statement as to whether a prior deposition on the same accident has been given.
(c) The General Counsel shall determine the course of action to be taken and will so advise the employee.
Board employees may testify at a coroner's inquest, grand jury, or criminal proceeding conducted by a State of local government. Testimony shall be limited to the matters delineated in § 835.3.
49 U.S.C. 1101
62 FR 27703, May 21, 1997, unless otherwise noted.
(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.
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,
(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.
(a)
(b)
(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 §§ 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.
Sec. 304(a)(1)(c), Independent Safety Board Act of 1974, as amended (49 U.S.C. 1903).
This part contains the Safety Board's accident notification requirements,
As used in this part, the following words or phrases are defined as follows:
(a)
(b)
(c)
(d)
The operator of a railroad shall notify the Board by telephoning the National Response Center at telephone 800-424-0201 at the earliest practicable time after the occurrence of any one of the following railroad accidents:
(a) No later than 2 hours after an accident which results in:
(1) A passenger or employee fatality or serious injury to two or more crewmembers or passengers requiring admission to a hospital;
(2) The evacuation of a passenger train;
(3) Damage to a tank car or container resulting in release of hazardous materials or involving evacuation of the general public; or
(4) A fatality at a grade crossing.
(b) No later than 4 hours after an accident which does not involve any of the circumstances enumerated in paragraph (a) of this section but which results in:
(1) Damage (based on a preliminary gross estimate) of $150,000 or more for repairs, or the current replacement cost, to railroad and nonrailroad property; or
(2) Damage of $25,000 or more to a passenger train and railroad and nonrailroad property.
(c) Accidents involving joint operations must be reported by the railroad that controls the track and directs the movement of trains where the accident has occurred.
(d) Where an accident for which notification is required by paragraph (a) or (b) of this section occurs in a remote area, the time limits set forth in that paragraph shall commence from the time the first railroad employee who was not at the accident site at the time of its occurrence has received notice thereof.
The notice required by § 840.3 shall include the following information:
(a) Name and title of person reporting.
(b) Name of railroad.
(c) Location of accident (relate to nearest city).
(d) Time and date of accident.
(e) Description of accident.
(f) Casualties:
(1) Fatalities.
(2) Injuries.
(g) Property damage (estimate).
(h) Name and telephone number of person from whom additional information may be obtained.
(a) Any employee of the Safety Board, upon presenting appropriate credentials is authorized to enter any
(b) Any examination or testing shall be conducted in such a manner so as not to interfere with or obstruct unnecessarily the transportation services provided by the owner or operator of such vehicle, rolling stock, or track, and shall be conducted in such a manner so as to preserve, to the maximum extent feasible, any evidence relating to the transportation accident, consistent with the needs of the investigation and with the cooperation of such owner or operator. The employee may inspect, at reasonable times, records, files, papers, processes, controls, and facilities relevant to the investigation of such accident. Each inspection shall be commenced and completed promptly and the results of such inspection, examination, or test made available to the parties.
Any investigation of an accident conducted by the Safety Board shall have priority over all other investigations of such accident conducted by other Federal agencies. The Safety Board shall provide for the appropriate participation by other Federal agencies in any such investigation, except that such agencies may not participate in the Safety Board's determination of the probable cause of the accident. Nothing in this section impairs the authority of other Federal agencies to conduct investigations of an accident under applicable provisions of law or to obtain information directly from parties involved in, and witnesses to, the transportation accident. The Safety Board and other Federal agencies shall assure that appropriate information obtained or developed in the course of their investigations is exchanged in a timely manner.
Title VII, Federal Aviation Act of 1958, as amended (49 U.S.C. 1441
44 FR 34419, June 14, 1979, unless otherwise noted.
Unless otherwise specifically ordered by the National Transportation Safety Board (Board), the provisions of this part shall govern all transportation accident investigation hearings conducted under the authority of section 304(b) of the Independent Safety Board Act of 1974 (49 U.S.C. 1903(b)) and accident reports issued by the Board.
Transportation accident hearings are convened to assist the Board in determining cause or probable cause of an accident, in reporting the facts, conditions, and circumstances of the accident, and in ascertaining measures which will tend to prevent accidents and promote transportation safety. Such hearings are factfinding proceedings with no formal issues and no adverse parties and are not subject to the provisions of the Administrative Procedure Act (Pub. L. 89-554, 80 Stat. 384 (5 U.S.C. 554)).
(a) All hearings shall normally be open to the public (subject to the provision that any person present shall not be allowed at any time to interfere with the proper and orderly functioning of the board of inquiry).
(b) Sessions shall not be open to the public when evidence of a classified nature or which affects national security is to be received.
The Board may order a public hearing as part of an accident investigation whenever such hearing is deemed necessary in the public interest:
The board of inquiry shall consist of a Member of the Board who shall be chairman of the board of inquiry, and such other employees as may be designated by the chairman of the board of inquiry. Assignment of a Member to serve as the chairman of each board of inquiry shall be determined by the Board. The board of inquiry shall examine witnesses and secure, in the form of a public record, all known facts pertaining to the accident or incident and surrounding circumstances and conditions from which cause or probable cause may be determined and recommendations for corrective action may be formulated.
The chairman of the board of inquiry shall designate a time and place for the hearing which meets the needs of the Board. Notice to all known interested persons shall be given.
(a) The chairman of the board of inquiry shall designate as parties to the hearing those persons, agencies, companies, and associations whose participation in the hearing is deemed necessary in the public interest and whose special knowledge will contribute to the development of pertinent evidence. Parties shall be represented by suitable qualified technical employees or members who do not occupy legal positions.
(b) No party shall be represented by any person who also represents claimants or insurers. Failure to comply with this provision shall result in loss of status as a party.
The chairman of the board of inquiry, or his designee, shall have the following powers:
(a) To designate parties to the hearing and revoke such designations;
(b) To open, continue, or adjourn the hearing;
(c) To determine the admissibility of and to receive evidence and to regulate the course of the hearing;
(d) To dispose of procedural requests or similar matters; and
(e) To take any other action necessary or incident to the orderly conduct of the hearing.
The hearing officer, upon designation by the Chairman of the Board, shall have the following powers:
(a) To give notice concerning the time and place of hearing;
(b) To administer oaths and affirmations to witnesses; and
(c) To issue subpenas requiring the attendance and testimony of witnesses and production of documents.
The Director, Bureau of Accident Investigation, or the Director, Bureau of Field Operations, shall designate members of the Board's technical staff to participate in the hearing and initially develop the testimony of witnesses.
(a) Except as provided in paragraph (d) of this section for expedited hearings, the chairman of the board of inquiry shall hold a prehearing conference with the parties to the hearing at a convenient time and place prior to the hearing. At such prehearing conference, the parties shall be advised of the witnesses to be called at the hearing, the areas in which they will be examined, and the exhibits which will be offered in evidence.
(b) Parties shall submit at the prehearing conference copies of any additional documentary exhibits they desire to offer. (Copies of all exhibits proposed for admission by the board of inquiry and the parties shall be furnished to the board of inquiry and to all parties, insofar as available at that time.)
(c) A party who, at the time of the prehearing conference, fails to advise the chairman of the board of inquiry of additional exhibits he intends to submit, or additional witnesses he desires to examine, shall be precluded from introducing such evidence unless the chairman of the board of inquiry determines for good cause shown that such evidence should be admitted.
(d)
Any person who appears to testify at a public hearing shall be accorded the right to be accompanied, represented, or advised by counsel or by any other duly qualified representative.
(a) Witnesses shall be initially examined by the board of inquiry or its technical panel. Following such examination, parties to the hearing shall be given the opportunity to examine such witnesses.
(b) Materiality, relevancy, and competency of witness testimony, exhibits, or physical evidence shall not be the subject of objections in the legal sense by a party to the hearing or any other person. Such matters shall be controlled by rulings of the chairman of the board of inquiry on his own motion. If the examination of a witness by a party is interrupted by a ruling of the chairman of the board of inquiry, opportunity shall be given to show materiality, relevancy, or competency of the testimony or evidence sought to be elicited from the witness.
The chairman of the board of inquiry shall receive all testimony and evidence which may be of aid in determining the cause of accident. He may exclude any testimony or exhibits which are not pertinent to the investigation or are merely cumulative.
Any party may submit proposed findings to be drawn from the testimony and exhibits, a proposed probable cause, and proposed safety recommendations designed to prevent future accidents. The proposals shall be submitted within the time specified by the presiding officer at the close of the hearing, and shall be made a part of the public docket. Parties to the hearing shall serve copies of their proposals on all other parties to the hearing.
A verbatim report of the hearing shall be taken. Copies of the transcript may be obtained by any interested person from the Board or from the court reporting firm preparing the transcript upon payment of the fees fixed therefor. (See part 801, Appendix—Fee Schedule.)
Any witness subpenaed to attend the hearing under this part shall be paid such fees for his travel and attendance as shall be certified by the hearing officer.
(a) The Board will issue a detailed narrative accident report in connection with the investigation into those accidents which the Board determines to warrant such a report. The report will set forth the facts, conditions and circumstances relating to the accident and the probable cause thereof, along with any appropriate recommendations formulated on the basis of the investigation.
(b) The probable cause and facts, conditions, and circumstances of all other accidents will be reported in a manner and form prescribed by the Board.
(a) Petitions for reconsideration or modification of the Board's findings and determination of probable cause filed by a party to an investigation or hearing or other person having a direct interest in the accident investigation will be entertained only if based on the discovery of new evidence or on a showing that the Board's findings are erroneous. The petitions shall be in writing. Petitions which are repetitious of proposed findings submitted pursuant to § 845.27, or of positions previously advanced, and petitions filed by a party to the hearing who failed to submit proposed findings pursuant to § 845.27 will not be entertained. Petitions based on the discovery of new matter shall: identify the new matter; contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and state why the new matter was not available prior to Board's adoption of its findings. Petitions based on a claim of erroneous findings shall set forth in detail the grounds relied upon.
(b) When a petition for reconsideration or modification is filed with the Board, copies of the petition and any supporting documentation shall be served on all other parties to the investigation or hearing and proof of service shall be attached to the petition. The other parties may file comments no later than 90 days after service of the petition.
(c) Oral presentation before the Board normally will not form a part of proceedings under this part. However, the Board may permit oral presentation where a party or interested person makes an affirmative showing that the written petition for reconsideration or modification is an insufficient means to present the party's or person's position to the Board. Where oral presentation is allowed, the Board will specify the issues to be addressed and all parties to the investigation or hearing will be given notice and the opportunity to participate.
(a) The public docket shall include all factual information concerning the accident. Proposed findings submitted pursuant to § 831.12 or § 845.27 and petitions for reconsideration and modification submitted pursuant to § 845.41, comments thereon by other parties, and the Board's rulings, shall also be placed in the public docket.
(b) The docket shall be established as soon as practicable following the accident, and material shall be added thereto as it becomes available. Where a hearing is held, the exhibits will be introduced into the record at the hearing.
(c) A copy of the docket shall be made available to any person for review at the Washington office of the Board. Copies of the material in the
Accident investigations are never officially closed but are kept open for the submission of new and pertinent evidence by any interested person. If the Board finds that such evidence is relevant and probative, it shall be made a part of the docket and, where appropriate, parties will be given an opportunity to examine such evidence and to comment thereon.
Sec. 304(a)(1)(E), Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2168 (49 U.S.C. 1903).
42 FR 61204, Dec. 1, 1977, unless otherwise noted.
This part prescribes the joint regulations of the National Transportation Safety Board and the Coast Guard for the investigation of marine casualties.
(a) The Coast Guard's responsibility to investigate marine casualties is not eliminated nor diminished by the regulations in this part.
(b) In those instances where the Board conducts an investigation in which the Coast Guard also has responsibility under R.S. 4450 (46 U.S.C. 239), the proceedings are conducted independently, but so as to avoid duplication as much as possible.
As used in this part:
(a)
(b)
(c)
(d)
(e)
(1) The loss of six or more lives;
(2) The loss of a mechanically propelled vessel of 100 or more gross tons;
(3) Property damage initially estimated as $500,000 or more; or
(4) Serious threat, as determined by the Commandant and concurred in by the Chairman, to life, property, or the environment by hazardous materials.
(f)
(g)
(1) Documented, or required to be documented, under the laws of the United States;
(2) Owned in the United States; or
(3) Owned by a citizen or resident of the United States and not registered under a foreign flag.
(a) The Coast Guard conducts the preliminary investigation of marine casualties.
(b) The Commandant determines from the preliminary investigation whether:
(1) The casualty is a major marine casualty; or
(2) The casualty involves a public and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(3) The casualty involves a Coast Guard and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(4) The casualty is a major marine casualty which involves significant safety issues relating to Coast Guard safety functions, e.g., search and rescue, aids to navigation, vessel traffic systems, commercial vessel safety, etc.
(c) The Commandant notifies the Board of a casualty described in paragraph (b) of this section.
(a) The Board may conduct an investigation under the Act of any major marine casualty or any casualty involving public and nonpublic vessels. Where the Board determines it will convene a hearing in connection with such an investigation, the Board's rules of practice for transportation accident hearings in 49 CFR part 845 shall apply.
(b) The Board shall conduct an investigation under the Act when:
(1) The casualty involves a Coast Guard and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(2) The Commandant and the Board agree that the Board shall conduct the investigation, and the casualty involves a public and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(3) The Commandant and the Board agree that the Board shall conduct the investigation, and the casualty is a major marine casualty which involves significant safety issues relating to Coast Guard safety functions.
After an investigation conducted by the Board under § 850.15, the Board determines cause or probable cause and issues a report of that determination.
(a) If the Board does not conduct an investigation under § 850.15(a), (b)(2) or (3), the Coast Guard, at the request of the Board, may conduct an investigation under the Act unless there is an allegation of Federal Government misfeasance or nonfeasance.
(b) The Board will request the Coast Guard to conduct an investigation under paragraph (a) of this section within 48 hours of receiving notice under § 850.10(c).
(c) The Coast Guard will advise the Board within 24 hours of receipt of a request under paragraph (b) of this section whether the Coast Guard will conduct an investigation under the Act.
(a) The Coast Guard conducts an investigation under § 850.25 using the procedures in 46 CFR 4.01-1 through 4.23-1.
(b) The Board may designate a person or persons to participate in every phase of an investigation, including on-scene investigation, that is conducted under the provisions of § 850.25.
(c) Consistent with Coast Guard responsibility to direct the course of the investigation, the person or persons designated by the Board under paragraph (b) of this section may:
(1) Make recommendations about the scope of the investigation.
(2) Call and examine witnesses.
(3) Submit or request additional evidence.
(d) The Commandant provides a record of the proceedings to the Board of an investigation of a major marine casualty under paragraph (a) of this section.
(e) The Board, under the Act, makes its determination of the facts, conditions, and circumstances, and the cause or probable cause of a major marine casualty, using the record of the
(f) An investigation by the Coast Guard under this section is both an investigation under the Act and under R.S. 4450 (46 U.S.C. 239).
(a) Records of the Coast Guard made under § 850.30 are available to the public under 49 CFR part 7.
(b) Records of the Board made under §§ 850.20 and 850.30 are available to the public under 49 CFR part 801.