5 U.S.C. § 552; 49 U.S.C. 5334; 49 U.S.C. 1657, 1659; Reorganization Plan No. 2 of 1968 (82 Stat. 1369); 49 CFR 1.51.
70 FR 67318, Nov. 4, 2005, unless otherwise noted.
This part describes the organization of the Federal Transit Administration (“FTA”), an operating administration within the U.S. Department of Transportation. This part also describes general responsibilities of the various offices of which FTA is comprised. In addition, this part describes the sources and locations of available FTA program information, and provides information regarding FTA's rulemaking procedures.
(a) The headquarters organization of FTA is comprised of eight principal offices which function under the overall direction of the Federal Transit Administrator (“the Administrator”) and Deputy Administrator. These offices are:
(1) Office of Administration.
(2) Office of Budget and Policy.
(3) Office of Chief Counsel.
(4) Office of Civil Rights.
(5) Office of Communications and Congressional Affairs.
(6) Office of Planning and Environment.
(7) Office of Program Management.
(8) Office of Research, Demonstration and Innovation.
(b) FTA has ten regional offices, each of which function under the overall direction of the Administrator and Deputy Administrator, and under the general direction of a Regional Administrator. In addition, FTA has established a Lower Manhattan Recovery Office, which is under the general direction of the Director for this office.
The general responsibilities of each of the offices which comprise the headquarters organization of FTA are:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
The Administrator is responsible for the planning, direction and control of
(a)
(2) Single copies of any guidance document may be obtained without charge by calling FTA's Administrative Services Help Desk, at (202) 366-4865.
(3) Single copies of any guidance document may also be obtained without charge upon written request to the Associate Administrator for Administration, Federal Transit Administration, 400 7th Street SW., Room 9107, Washington, DC, 20590, or to any FTA regional office listed in § 601.2.
(b)
(1) Advance notices of proposed rulemaking;
(2) Notices of proposed rulemaking;
(3) Comments received in response to notices;
(4) Petitions for rulemaking and reconsideration;
(5) Denials of petitions for rulemaking and reconsideration; and
(6) Final rules.
(c) Any person may examine docketed material, at any time during regular business hours after the docket is established, and may obtain a copy of such material upon payment of a fee, except material ordered withheld from the public under section 552(b) of Title 5 of the United States Code.
(d) Any person seeking documents not described above may submit a request under the Freedom of Information Act (FOIA) by following the procedures outlined in 49 CFR Part 7.
This part prescribes rulemaking procedures that apply to the issuance, amendment and revocation of rules under an Act.
Act means statutes granting the Secretary authority to regulate public transportation.
(a) Unless the Administrator, for good cause, finds a notice is impractical, unnecessary, or contrary to the public interest, and incorporates such a finding and a brief statement of the reasons for it in the rule, a notice of proposed rulemaking must be issued, and interested persons are invited to participate in the rulemaking proceedings involving rules under an Act.
(b) For rules for which the Administrator determines that notice is unnecessary because no adverse public comment is anticipated, the direct final rulemaking procedure described in § 601.36 of this subpart may be followed.
The Administrator initiates rulemaking on his/her own motion. However, in so doing, he/she may, in his/her
(a) Each notice of proposed rulemaking is published in the
(b) Each notice, whether published in the
(1) A statement of the time, place, and nature of the proposed rulemaking proceeding;
(2) A reference to the authority under which it is issued;
(3) A description of the subjects and issues involved or the substance and terms of the proposed rule;
(4) A statement of the time within which written comments must be submitted; and
(5) A statement of how and to what extent interested persons may participate in the proceeding.
(a) Any interested person may participate in rulemaking proceedings by submitting comments in writing containing information, views, or arguments.
(b) In his/her discretion, the Administrator may invite any interested person to participate in the rulemaking procedures described in § 601.29.
A petition for extension of the time to submit comments must be received not later than three (3) days before expiration of the time stated in the notice. The filing of the petition does not automatically extend the time for petitioner's comments. Such a petition is granted only if the petitioner shows good cause for the extension, and if the extension is consistent with the public interest. If an extension is granted, it is granted to all persons, and it is published in the
All written comments must be in English and submitted in five (5) legible copies, unless the number of copies is specified in the notice. Any interested person must submit as part of his/her written comments all material that he/she considers relevant to any statement of fact made by him/her. Incorporation of material by reference is to be avoided. However, if such incorporation is necessary, the incorporated material shall be identified with respect to document and page.
All timely comments are considered before final action is taken on a rulemaking proposal. Late filed comments may be considered so far as practicable.
The Administrator may initiate any further rulemaking proceedings that he/she finds necessary or desirable. For example, interested persons may be invited to make oral arguments, to participate in conferences between the Administrator or his/her representative at which minutes of the conference are kept, to appear at informal hearings presided over by officials designated by the Administrator at which a transcript or minutes are kept, or participate in any other proceeding to assure informed administrative action and to protect the public interest.
(a) Sections 556 and 557 of Title 5, United States Code, do not apply to hearings held under this part. Unless otherwise specified, hearings held under this part are informal, non-adversary, fact-finding procedures at which there are no formal pleadings or adverse parties. Any rule issued in a case in which an informal hearing is held is not necessarily based exclusively on the record of the hearing.
(b) The Administrator designates a representative to conduct any hearing held under this part. The Chief Counsel of the Federal Transit Administration designates a member of his/her staff to serve as legal officer at the hearing.
Final rules are prepared by representatives of the office concerned and the Office of Chief Counsel. The rule is then submitted to the Administrator for his/her consideration. If the Administrator adopts the rule, it is published in the
(a) Any interested person may petition the Administrator to establish, amend, or repeal a rule, or for a permanent or temporary exemption from FTA rules as allowed by law.
(b) Each petition filed under this section must:
(1) Be submitted in duplicate to the Administrator, Federal Transit Administration, 400 Seventh Street, SW., Washington, DC 20590;
(2) State the name, street and mailing addresses, and telephone number of the petitioner; if the petitioner is not an individual, state the name, street and mailing addresses and telephone number of an individual designated as an agent of the petitioner for all purposes related to the petition;
(3) Set forth the text or substance of the rule or amendment proposed, or of the rule from which the exemption is sought, or specify the rule that the petitioner seeks to have repealed, as the case may be;
(4) Explain the interest of the petitioner in the action requested, including, in the case of a petition for an exemption, the nature and extent of the relief sought and a description of the persons to be covered by the exemption;
(5) Contain any information and arguments available to the petitioner to support the action sought; and
(6) In the case of a petition for exemption, except in cases in which good cause is shown, the petition must be submitted at least 120 days before the requested effective date of the exemption.
(a) Each petition received under § 601.32 of this part is referred to the head of the office responsible for the subject matter of that petition. Unless the Administrator otherwise specifies, no public hearing, argument or other proceeding is held directly on a petition before its disposition under this section.
(b)
(c)
(d)
(a) Any interested person may petition the Administrator for reconsideration of a final rule issued under this part. The petition must be in English and submitted in duplicate to the Administrator, Federal Transit Administration, 400 Seventh Street, SW., Washington, DC, 20590, and received not later than thirty (30) days after publication of the final rule in the
(b) If the petitioner requests the consideration of additional facts, he/she must state the reason the facts were not presented to the Administrator within the prescribed comment period of the rulemaking.
(c) The Administrator does not consider repetitious petitions.
(d) Unless the Administrator otherwise provides, the filing of a petition under this section does not stay the effectiveness of the final rule.
The Administrator may grant or deny, in whole or in part, any petition for reconsideration without further proceedings. In the event he/she determines to reconsider any rule, he/she may issue a final decision on reconsideration without further proceedings, or he/she may provide such opportunity to submit comment or information and data as he/she deems appropriate. Whenever the Administrator determines that a petition should be granted or denied, he/she prepares a notice of the grant or denial of a petition for reconsideration and issues it to the petitioner. The Administrator may consolidate petitions relating to the same rule.
(a) Rules the Administrator judges to be non-controversial and unlikely to result in adverse public comment may be published as direct final rules. These include non-controversial rules that:
(1) Affect internal procedures of FTA, such as filing requirements and rules governing inspection and copying of documents;
(2) Are non-substantive clarifications or corrections to existing rules;
(3) Update existing forms;
(4) Make minor changes in the substantive rule regarding statistics and reporting requirements;
(5) Make changes to the rule implementing the Privacy Act; and
(6) Adopt technical standards set by outside organizations.
(b) The
(c) If no written adverse comment or written notice of intent to submit adverse comment is received by FTA within the specified time of publication in the
(d) If FTA receives any written adverse comment or written notice of intent to submit adverse comment within the specified time of publication in the
(e) An “adverse” comment for the purpose of this subpart means any comment that FTA determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule. A comment suggesting that the policy or requirements of the rule should or should not also be extended to other Departmental programs outside the scope of the rule is not adverse.
49 U.S.C. 5323(d); 23 U.S.C. 103(e)(4); 142(a); and 142(c); and 49 CFR 1.51.
52 FR 11933, Apr. 13, 1987, unless otherwise noted.
The purpose of this part is to implement section 3(f) and section 12(c)(6) of the FT Act.
This part applies to all applicants and recipients of Federal financial assistance under:
(a) Sections 3 (excluding section 16(b)(2)), 5, 9A, 9 or 18 of the FT Act; or
(b) Sections 103(e)(4), 142(a), or 142(c) of Title 23 United States Code which permit the use of Federal-Aid Highway funds to purchase buses.
(a) All definitions in the FT Act (at 49 U.S.C. 1608) are applicable to this part, except as may otherwise be provided in this section.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(a) Every applicant for financial assistance under sections 3 (excluding section 16(b)(2)), 5, 9A, 9 or 18 of the FT Act, or under 23 U.S.C. 103(e)(4), 142(a) or 142(c), must include two copies of a
(b) The text of the agreement must be as follows:
I, (name), (title), agree that (name of applicant) and all recipients through (name of applicant) will provide charter service that uses equipment or facilities provided under the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1601
I further agree that (name of applicant) and all recipients through (name of applicant) will comply with the provisions in 49 CFR part 604 before they provide any charter service using equipment or facilities provided under the Acts, that the requirements of 49 CFR part 604 will apply to any such charter service that is provided, and that the definitions in 49 CFR part 604 apply to this agreement.
(c) If FTA approves the grant application, the approving official shall sign the agreement when the grant application is approved. One copy of the signed agreement will be retained by FTA and the other copy will be returned to the recipient, formerly the applicant.
(d) Once the applicant and FTA enter into a charter agreement, the applicant may incorporate that agreement by reference into any subsequent grant application instead of submitting an agreement under 49 CFR 604.7(a).
(e) Each State in FTA's State administered programs must:
(1) Obtain a certification of compliance with this part from each of its current subrecipients within 60 days of May 13, 1987. The certification shall state: “(Name of subrecipient) certifies that it shall comply with 49 CFR part 604 in the provision of any charter service provided with FTA funded equipment or facilities.”;
(2) Retain this certification as long as the subrecipient is a subrecipient; and
(3) Assure in each application submitted to FTA after May 13, 1987, that all subrecipients have submitted the certification.
(f) If any recipient does not anticipate submitting a grant application to FTA during Federal fiscal year 1987, the recipient must submit two copies of the agreement set forth in § 604.7(b) of this part within 60 days of May 13, 1987, to the appropriate FTA regional office. FTA will sign the agreement, retain one copy of the agreement and return the other to the recipient.
(a) If a recipient desires to provide any charter service using FTA equipment or facilities the recipient must first determine if there are any private charter operators willing and able to provide the charter service which the recipient desires to provide. To the extent that there is at least one such private operator, the recipient is prohibited from providing charter service with FTA funded equipment or facilities unless one or more of the exceptions in § 604.9(b) applies.
(b)
(2) A recipient may enter into a contract with a private charter operator
(i) The private charter operator is requested to provide charter service that exceeds its capacity; or
(ii) The private charter operator is unable to provide equipment accessible to elderly and handicapped persons itself.
(3) A recipient in a non-urbanized area may petition FTA for an exception to provide charter service directly to the customer if the charter service provided by the willing and able private charter operator or operators would create a hardship on the customer because:
(i) The willing and able private charter operator or operators impose minimum durations pursuant to State regulation and the desired trip length is shorter than the mandatory trip length; or
(ii) The willing and able private operator or operators are located too far from the origin of the charter service.
(4) Any recipient may petition the Administrator for an exception to provide charter service directly to the customer for special events to the extent that private charter operators are not capable of providing the service.
(5) A recipient may execute a contract with a government entity or a private, non-profit organization exempt from taxation under subsection 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code to provide charter service upon obtaining a certification from that entity or organization which states that:
(i) [the entity/organization] certifies that it is a government entity or an organization exempt from taxation under subsection 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code; there will be a significant number of handicapped persons as passengers on this charter trip; the requested charter trip is consistent with the function and purpose of [the entity/organization]; and the charter trip will be organized and operated in compliance with Title VI of the Civil Rights Act of 1964, as amended; and, section 19 of the Federal Mass Transit Act of 1964, as amended, and 49 CFR part 27; or, 45 CFR part 80; or,
(ii) [the entity/organization] certifies that it is a government entity or an organization exempt from taxation under subsection 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code; [the entity/organization] is a qualified social service agency under appendix A of 49 CFR part 604, as a recipient of funds, either directly or indirectly, under one or more of the Federal programs listed in appendix A; the requested charter trip is consistent with the function and purpose of [the entity/organization]; and the charter trip will be organized and operated in compliance with Title VI of the Civil Rights Act of 1964, as amended; and, Section 19 of the Federal Mass Transit Act of 1964, as amended, and 49 CFR part 27; or, 45 CFR part 80.
(iii) [the entity/organization] certifies that it is a government entity or organization exempt from taxation under subsection 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code; [the entity/organization] either receives or is eligible to receive directly or indirectly, from a State or local governmental body public welfare assistance funds for purposes whose implementation may require the transportation of a group of transit-advantaged or transit-dependent persons; following a petition presented by the State in which the entity or organization resides, FTA has determined in writing that an FTA recipient may contract directly with the entity or organization for charter services; the requested charter trip is consistent with the functions and purposes of the entity or organization; and the charter trip will be organized and operated in compliance with Title VI of the Civil Rights Act of 1964, as amended; and section 19 of the Federal Mass Transit Act of 1964, as amended, and 49 CFR part 27; or, 45 CFR part 80.
(6) A recipient in a non-urbanized area may execute a contract with a government entity or a private, non-profit organization exempt from taxation under subsection 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code to provide charter service upon obtaining a certification from that entity or organization which states that:
[the entity/organization] certifies that it is a government entity or an organization exempt from taxation under subsection 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the Internal Revenue Code; more than 50% of the passengers on this charter trip will be elderly; the requested charter trip is consistent with the function and purpose of [the entity/organization]; and the charter trip will be organized and operated in compliance with Title VI of the Civil Rights Act of 1964, as amended; and, Section 19 of the Federal Mass Transit Act of 1964, as amended, and 49 CFR part 27; or, 45 CFR part 80.
(7) A recipient may provide charter service directly to the customer where a formal agreement has been executed between the recipient and all private charter operators it has determined to be willing and able in accordance with this part, provided that:
(i) The agreement specifically allows the recipient to provide the particular type of charter trip;
(ii) The recipient has provided for such an agreement in its annual public charter notice published pursuant to this part before undertaking any charter service pursuant to this exception; and
(iii) If a recipient has received several responses to its annual public charter notice but ceased its review process after determining that one private operator was willing and able, it must, before concluding a formal charter agreement under this section, complete the review process to ensure that all the willing and able private operators are valid parties to the agreement.
(8) During the demonstration period described in paragraph (b)(8)(iv) of this section, recipients in the FTA-selected sites may submit applications to provide charter service to an advisory panel equally representative of public transit providers or local business organizations and local private operators, and which has either been created for such purpose by the grantee, the State Department of Transportation (State DOT), or metropolitan planning organization (MPO), or which is part of the recipient's existing private sector consultation process.
(i) The advisory panel will forward these applications to the State DOT or MPO, which will grant those recommended by unanimous vote of the advisory panel.
(ii) If the advisory panel does not unanimously endorse an application, the State DOT or MPO will make a decision to grant or deny the application based on the following criteria:
(A)
(B)
(C)
(D)
(iii) The State DOT or MPO may not grant applications to provide service that would jeopardize the economic vitality of individual private charter operators or would seriously detract from private charter business.
(iv) The service described in this subsection may be provided only during the demonstration program to be conducted through October 31, 1995, in the following sites:
(A) Monterey, California;
(B) Oklahoma City, Oklahoma;
(C) St. Louis, Missouri;
(D) Yolo County, California;
(E) Four sites within the State of Michigan.
(c) The process for requesting and granting an exception under 49 CFR 604.9(b)(3):
(1) The recipient must provide the private charter operators that it has determined are willing and able in accordance with this part with a written
(2) The recipient must send a copy of the notice, all comments received, and any further information it desires in support of its request to the Chief Counsel.
(3) The Chief Counsel shall review the materials submitted and issue a written decision denying or granting in whole or in part the request. In making this decision, the Chief Counsel may seek such additional information as the Chief Counsel determines is needed.
(4) Any exception that the Chief Counsel grants under 49 CFR 604.9(b)(3) shall be effective for not longer than 12 months from the date that the Chief Counsel grants it.
(d) The process for requesting and granting and exception under 49 CFR 604.9(b)(4):
(1) The recipient must submit its petition for an exception to the Administrator at least 90 days prior to the day or days on which it desires to provide charter service.
(2) The petition must describe the event, explain how it is special, and explain the amount of charter service which private charter operators are not capable of providing.
(3) The Administrator will review the materials and issue a written decision denying or granting in whole or in part the request. In making this decision, the Administrator may seek such additional information as the Administrator determines is needed.
(4) Any exception granted by the Administrator under 49 CFR 604.9(b)(4) shall be effective solely for the event for which the recipient requests an exception.
(e) Any charter service that a recipient provides under any of the exceptions in this part must be incidental charter service.
(a) To determine if there is at least one private charter operator willing and able to provide the charter service that the recipient desires to provide, the recipient must complete a public participation process:
(1) At least 60 days before it desires to begin to provide charter service if it is not doing so on May 13, 1987; or
(2) Not more than 90 days after May 13, 1987 if the recipient is providing charter service on May 13, 1987 and desires to continue to provide charter service.
(b) The public participation process must at a minimum include:
(1) Placing a notice in a newspaper, or newspapers, of general circulation within the proposed geographic charter service area;
(2) Sending a copy of the notice to all private charter service operators in the proposed geographic charter service area and to any private charter service operator that requests notice;
(3) Sending a copy of the notice to the United Bus Owners of America , 1300 L Street, NW., suite 1050, Washington, DC 20005, and the American Bus Association, 1100 New York Avenue, NW, Suite 1050, Washington, DC 20005-3934.
(c) The notice must:
(1) State the recipient's name;
(2) Describe the charter service that the recipient proposes to provide limited to the days, times of day, geographic area, and categories of revenue vehicle, but not the capacity or the duration of the charter service.
(3) Include a statement providing any private charter operator desiring to be considered willing and able with at least 30 days from the date of the notice to submit written evidence to prove that it is willing and able;
(4) State the address to which the evidence must be sent.
(5) Include a statement that the evidence necessary for the recipient to determine if a private charter operator is willing and able includes only the following:
(i) A statement that the private operator has the desire and the physical capability to actually provide the categories of revenue vehicle specified; and
(ii) A copy of the documents to show that the private charter operator has the requisite legal authority to provide the proposed charter service and that it meets all necessary safety certification, licensing and other legal requirements to provide the proposed charter service.
(6) Include a statement that the recipient shall review only that evidence submitted by the deadline, shall complete its review within 30 days of the deadline, and within 60 days of the deadline shall inform each private operator that submitted evidence what the results of the review are.
(7) Include a statement that the recipient shall not provide any charter service using equipment or facilities funded under the Acts to the extent that there is at least one willing and able private charter operator unless the recipient qualifies for one or more of the exceptions in 49 CFR 604.9(b).
(d) Any recipient that desires to continue to provide charter service using FTA funded equipment or facilities shall follow the procedures in 49 CFR 604.11 (b) and (c) annually during the month in which it published its first newspaper notice to redetermine the extent to which there is at least one willing and able private charter operator.
(e) Any recipient, including the State in State administered programs, may elect to comply with this procedure for all of its subrecipients, or delegate this responsibility to the subrecipients, or delegate this responsibility to only some of its subrecipients.
(a) The recipient shall review the evidence submitted in response to the notice given under 49 CFR 604.11 within 30 days of the deadline for the submission of evidence.
(b) Within 60 days of the deadline for the submission of evidence, the recipient shall notify each private charter operator that submitted evidence of the recipient's decision.
(c) The recipient must review the evidence submitted to determine if the evidence proves that the private charter operator has:
(1) The desire and the physical capability to actually provide charter service using the categories of revenue vehicles; and
(2) The required legal authority and the necessary safety certifications, licenses and other legal requirements to provide charter service.
(d) The recipient must determine that a private charter operator which meets the requirements in 49 CFR 604.13(c) is willing and able.
(e) A recipient may look behind the evidence submitted by a private charter operator only if the recipient has reasonable cause to believe that some or all of the evidence has been falsified.
(f) A recipient may, within its discretion, stop reviewing the evidence submitted by private charter operators when the recipient has determined that there is one or more private charter operators willing and able to provide all of the charter service that the recipient proposed to provide in its notice. A recipient may, however, review the evidence submitted by all private charter operators and create a roster of willing and able private charter operators.
(g) The entity that complies with the public participation process under 49 CFR 604.11(e) shall be responsible for complying with the requirements in 49 CFR 604.13.
(a) An interested party (“complainant”) who believes that a recipient is in violation of the requirements of this part may submit a written complaint to the FTA Regional Administrator. The complainant shall also send a copy of the complaint to the recipient (“respondent”).
(b) If the Regional Administrator determines that the complaint is not
(c) If the parties are unable to conciliate the dispute, either party may so notify the Regional Administrator in writing. The Regional Administrator shall send a copy of the complaint to the respondent and provide it with 30 days from the receipt of the notice to provide written evidence to show that no violation has occurred. The respondent shall provide a copy of this information to the complainant.
(d) After the Regional Administrator receives that respondent's evidence, the Regional Administrator shall inform the complainant that it has 30 days from the receipt of the notice to rebut the respondent's evidence. The complainant shall provide a copy of its rebuttal to the respondent.
(e) The Regional Administrator shall review the evidence submitted and prepare a written decision. The Regional Administrator shall attempt to transmit the written decision to the parties within 30 days of receiving all of the evidence.
(f) If the Regional Administrator determines that further investigation is necessary, including the submission of additional information or the holding of an informal evidentiary hearing, the Regional Administrator shall so inform the parties in writing.
(g) Either party may request an informal evidentiary hearing prior to the transmission of the Regional Administrator's decision. The Regional Administrator may grant or deny the request.
(h) If an informal evidentiary hearing is held, the date and location shall be arranged by the Regional Administrator in consultation with the parties. Any new evidence introduced by the parties at the informal evidentiary hearing shall be submitted to the Regional Administrator within 10 days after the hearing.
(i) The Regional Administrator may extend the deadlines imposed in this part for administrative convenience by notifying all parties in writing of the extensions.
(a) If the Regional Administrator determines that a violation of this part has occurred, the Regional Administrator may order such remedies as the Regional Administrator determines are appropriate.
(b) If the Regional Administrator determines that there has been a continuing pattern of violation of this part, the Regional Administrator may bar the respondent from the receipt of further financial assistance for mass transportation facilities and equipment.
(a) The losing party may appeal the Regional Administrator's decision to the Administrator within 10 days of receipt of the decision. The losing party (”appellant”) shall include in its appeal the basis for the appeal and evidence to support the position. The appellant shall send a copy of the appeal to the prevailing party (”appellee”).
(b) The Administrator will only take action on an appeal if the appellant presents evidence that there are new matters of fact or points of law that were not available or not known during the investigation of the complaint.
(c) If the Administrator takes action on an appeal, the Administrator shall provide the appellee with 10 days from the receipt of the notice to respond to the evidence contained in the appeal.
(d) The Administrator shall send a copy of the appellee's response to the appellant and provide it with 10 days from the receipt of the notice to rebut the appellee's response.
(e) The Administrator shall endeavor to make a final determination on the appeal within 10 days of the receipt of the appellant's rebuttal.
The Regional Administrator's decision, or the Administrator's decision on appeal, shall be final and conclusive on all parties, but it is subject to judicial review pursuant to sections 701-706 of Title 5 of the United States Code.
The following is a list of Federal assistance programs administered under the United States Department of Health and Human Services (HHS). The financial assistance under each of these HHS programs includes funding for the transportation needs of the program beneficiaries.
Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1601
41 FR 14128, Apr. 1, 1976, unless otherwise noted.
(a) The purpose of this part is to prescribe policies and procedures to implement section 109(a) of the National Mass Transportation Assistance Act of 1974 (Pub. L. 93-503; November 26, 1974; 88 Stat. 1565). Section 109(a) adds a new section 3(g) to the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(g)) and differs from section 164(b) of the Federal-Aid Highway Act of 1973 (49 U.S.C. 1602a(b)) in that section 3(g) applies to all grants for the construction or operation of mass transportation facilities and equipment under the Federal Mass Transit Act, and is not limited to grants for the purchase of buses as is section 164(b).
(b) By the terms of section 3(g) no Federal financial assistance may be provided for the construction or operation of facilities and equipment for use in providing public mass transportation service to an applicant unless the applicant and the Administrator enter into an agreement that the applicant will not engage in school bus operations exclusively for the transportation of students and school personnel, in competition with private school bus operators.
These regulations apply to all recipients of financial assistance for the construction or operation of facilities and equipment for use in providing mass transportation under: (a) The Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1601
(a) Except as otherwise provided, terms defined in the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1604, 1608) are used in this part as so defined.
(b) For purposes of this part—
Each applicant who engages or wishes to engage in school bus operations shall afford an adequate opportunity for the public to consider such operations at the time the applicant conducts public hearings to consider the economic, social or environmental effects of its requested Federal financial assistance under section 3(d) of the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(d)).
The purpose of this subpart is to formulate procedures for the development of an agreement concerning school bus operations.
A grantee or applicant may not engage in school bus operations in competition with private school bus operators unless it demonstrates to the satisfaction of the Administrator as follows:
(a) That it operates a school system in its urban area and also operates a separate and exclusive school bus program for that school system; or
(b) That private school bus operators in the urban area are unable to provide adequate transportation, at a reasonable rate, and in conformance with applicable safety standards; or
(c) That it is a state or local public body or agency thereof (or a direct predecessor in interest which has acquired the function of so transporting schoolchildren and personnel along with facilities to be used therefor) who was so engaged in school bus operations:
(1) In the case of a grant involving the purchase of buses—anytime during the 12-month period immediately prior to August 13, 1973.
(2) In the case of a grant for construction or operating of facilities and equipment made pursuant to the FT Act as amended (49 U.S.C. 1601
No grantee or operator of project equipment shall engage in school bus operations using buses, facilities or equipment funded under the Acts. A grantee or operator may, however, use such buses, facilities and equipment for the transportation of school students, personnel and equipment in incidental charter bus operations. Such use of project equipment is subject to part 604 of Federal Mass Transit Regulations.
The prohibition against the use of buses, facilities and equipment funded under the Acts shall not apply to tripper service.
Except as provided in § 605.11 no assistance shall be provided under the Acts unless the applicant and the Administrator shall have first entered into a written agreement that the applicant will not engage in school bus operations exclusively for the transportation of students and school personnel in competition with private school bus operators.
(a) Every grantee who is not authorized by the Administrator under § 605.11 of this part to engage in school bus operations shall, as a condition of assistance, enter into a written agreement required by § 605.14 which shall contain the following provisions:
(1) The grantee and any operator of project equipment agrees that it will not engage in school bus operations in competition with private school bus operators.
(2) The grantee agrees that it will not engage in any practice which constitutes a means of avoiding the requirements of this agreement, part 605 of the Federal Mass Transit Regulations, or section 164(b) of the Federal-Aid Highway Act of 1973 (49 U.S.C. 1602a(b)).
(b) Every grantee who obtains authorization from the Administrator to engage in school bus operations under § 605.11 of this part shall, as a condition of assistance, enter into a written agreement required by § 605.14 of this part which contains the following provisions:
(1) The grantee agrees that neither it nor any operator of project equipment will engage in school bus operations in competition with private school bus operators except as provided herein.
(2) The grantee, or any operator of project equipment, agrees to promptly notify the Administrator of any changes in its operations which might jeopardize the continuation of an exemption under § 605.11.
(3) The grantee agrees that it will not engage in any practice which constitutes a means of avoiding the requirements of this agreement, part 605 of the Federal Transit Administration regulations or section 164(b) of the Federal-Aid Highway Act of 1973 (49 U.S.C. 1602a(b)).
(4) The grantee agrees that the project facilities and equipment shall be used for the provision of mass transportation services within its urban area and that any other use of project facilities and equipment will be incidental to and shall not interfere with the use of such facilities and equipment in mass transportation service to the public.
(a) Each applicant who engages or wishes to engage in school bus operations shall include the following in its application:
(1) A statement that it has provided written notice to all private school bus operators operating in the urban area of its application for assistance and its proposed or existing school bus operations;
(2) A statement that it has published in a newspaper of general circulation in its urban area a notice of its application and its proposed or existing school bus operations;
(b) The notice required by paragraphs (a) (1) and (2) of this section shall include the following information:
(1) A description of the area to be served by the applicant.
(2) An estimation of the number of each type of bus which will be employed on the proposed school bus operations, and the number of weekdays
(3) A statement of the time, date, and place of public hearings required under section 3(d) of the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(d)), to be held on the application for assistance.
(4) A statement setting forth reasons the applicant feels it should be allowed to engage in school bus operations under § 605.11 of this part.
(c) Copies of the application for assistance and notice required by paragraph (a) of this shall be available for inspection during the regular business hours at the office of the applicant.
If there are no private school bus operators operating in the applicant's urban area, the applicant may so certify in its application in lieu of meeting the requirements of § 605.16. This certification shall be accompanied by a statement that the applicant has published, in a newspaper of general circulation in its urban area, a notice stating that it has applied for assistance as provided under § 605.16(b) and that it has certified that there are no private school bus operators operating in its urban area. A copy of the notice as published shall be included.
Private school bus operators may file written comments on an applicant's proposed or existing school bus operations at the time of the public hearing held pursuant to section 3(d) of the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(d)). The comments of private school bus operators must be submitted by the applicant to the Administrator together with the transcript of this public hearing.
(a) The Administrator will consider the comments filed by private school bus operators prior to making any findings regarding the applicant's proposed or existing school bus operations.
(b) After a showing by the applicant that it has complied with the requirements of 49 U.S.C. 1602(d) and this subpart, the Administrator may approve its school bus operations.
(c) If the Administrator finds that the applicant has not complied with the notice requirement of this part or otherwise finds that the applicant's proposed or existing school bus operations are unacceptable, he will so notify the applicant in writing, stating the reasons for his findings.
(d) Within 20 days after receiving notice of adverse findings from the Administrator, an applicant may file written objections to the Administrator's findings or submit a revised proposal for its school bus operations. If an applicant revises its proposed or existing school bus operations, it shall mail a copy of these revisions along with the findings of the administrator to private school bus operators required to be notified under § 605.16.
(e) Private school bus operators who receive notice under paragraph (d) of this section may within 20 days after receipt of notice file written comments on the proposed revisions with the Administrator. The Administrator will consider these comments prior to his approval of a proposed revision by the applicant.
(f) Upon receipt of notice of approval of its school bus operations, the applicant may enter into an agreement with the Administrator under § 605.14.
(a) Any grantee which, prior to the adoption of this part, entered into an agreement required by section 164(b) of the Federal-Aid Highway Act of 1973 (49 U.S.C. 1602(a)(b)), or section 3(g) of the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(g)), who engages or wishes to engage in school bus operations in competition with private school bus operators, shall seek modification of that agreement in accordance with paragraphs (b) through (d) of this section.
(b) The grantee shall develop a statement setting forth in detail the reasons it feels it should be allowed to engage in school bus operations under § 605.11
(c) The grantee shall allow 30 days for persons receiving notice under this section to respond with written comments concerning its proposed or existing school bus operations.
(d) After receiving written comments, the grantee shall send his proposal with written comments thereon to the Administrator for his review under § 605.17.
Pending applications for assistance upon which public hearings have been held pursuant to section 3(d) of the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(d)), and applications which have been approved by the Administrator but for which no grant contract has been executed, shall be amended by the applicant to conform to this part by following the procedures of § 605.20(b) through (d).
Any interested party may file a complaint with the Administrator alleging a violation or violations of terms of an agreement entered into pursuant to § 605.14. A complaint must be in writing, must specify in detail the action claimed to violate the agreement, and must be accompanied by evidence sufficient to enable the Administrator to make a preliminary determination as to whether probable cause exists to believe that a violation of the agreement has taken place.
On receipt of any complaint under § 605.30, or on his own motion if at any time he shall have reason to believe that a violation may have occurred, the Administrator will provide written notification to the grantee concerned (hereinafter called “the respondent”) that a violation has probably occurred. The Administrator will inform the respondent of the conduct which constitutes a probable violation of the agreement.
The Administrator will allow the respondent not more than 30 days to show cause, by submission of evidence, why no violation should be deemed to have occurred. A like period shall be allowed to the complainant, if any, during which he may submit evidence to rebut the evidence offered by the respondent. The Administrator may undertake such further investigation, as he may deem necessary, including, in his discretion, the holding of an evidentiary hearing or hearings.
(a) After reviewing the results of such investigation, including hearing transcripts, if any, and all evidence submitted by the parties, the Administrator will make a written determination as to whether the respondent has engaged in school bus operations in violation of the terms of the agreement.
(b) If the Administrator determines that there has been a violation of the agreement, he will order such remedial measures as he may deem appropriate.
(c) The determination by the Administrator will include an analysis and explanation of his findings.
If the Administrator determines, pursuant to this subpart, that there has been a violation of the terms of the agreement, he may bar a grantee or operator from the receipt of further financial assistance for mass transportation facilities and equipment.
The determination of the Administrator pursuant to this subpart shall be final and conclusive on all parties, but shall be subject to judicial review pursuant to title 5 U.S.C. 701-706.
The Administrator may order any grantee or operator for the grantee, to
It appears from the enclosure with your letter that the City originally included in its grant application a request for funds to purchase 8 buses designed for charter service. Subsequently the City amended its application by deleting a request for a portion of the funds attributable to the charter bus coaches. However, in addition to the 8 specially designed charter buses initially applied for, the City allegedly uses about 40 of its transit type buses to a substantial extent for charter-type services. In light of these factors surrounding the application by the City, the enclosure requests our opinion with regard to the legality of grants under the Act as it applies to certain matters (in effect questions), which are numbered and quoted below and answered in the order presented.
Number one:
“The grant of funds to a City to purchase buses and equipment which are intended for substantial use in the general charter bus business as well as in the Mass Transportation type business.”
The Federal Mass Transit Act of 1964 does not authorize grants to assist in the purchase of buses or other equipment for any service other than urban mass transportation service. Section 3(a) of the Act limits the range of eligible facilities and equipment to “* * * buses and other rolling stock, and other real or personal property needed for an efficient and coordinated mass transportation system.” In turn, “mass transportation” is defined, in section 9(d)(5) of the Act, specifically to exclude charter service. We are advised by the Department of Housing and Urban Development (HUD) that under these provisions, the Department has limited its grants to the purchase of buses of types suitable to meet the needs of the particular kind of urban mass transportation proposed to be furnished by the applicant.”
HUD further advises that:
“One of the basic facts of urban mass transportation operations is that the need for rolling stock is far greater during the morning and evening rush hours on weekdays than at any other time. For that reason, any system which has sufficient rolling stock to meet the weekday rush-hour needs of its customers must have a substantial amount of equipment standing idle at other times, as well as drivers and other personnel being paid when there is little for them to do. To relieve this inefficient and uneconomical situation, quite a number of cities have offered incidental charter service using this idle equipment and personnel during the hours when the same are not needed for regularly scheduled runs. Among the cities so doing are Cleveland, Pittsburgh, Alameda, Tacoma, Detroit and Dallas.
“Such service contributes to the success of urban mass transportation operations by bringing in additional revenues and providing full employment to drivers and other employees. It may in some cases even reduce the need for Federal capital grant assistance.
“We do not consider that there is any violation of either the letter or the spirit of the Act as a result of such incidental use f buses in charter service. To guard against abuses, every capital facilities grant contract made by this Department contains the following provisions:
“ ‘Sec. 4.
It is our view that grants may be made to a city under section 3(a) of the Act to purchase buses needed by the city for an efficient and coordinated mass transportation system, even though the city may intend to use such buses for charter use when the buses are not needed on regularly scheduled runs (i.e. for mass transportation purposes) and would otherwise be idle.
Number two:
“Whether a grant of such funds is proper if charter bus use is incidental to mass public transportation operations. If so, what is the definition of
We are advised by HUD that under its legislative authority, it cannot and does not take charter service requirements into consideration in any way in evaluating the needs of a local mass transportation system for buses or other equipment.
HUD further advises that:
“However, as indicated above, we are of the opinion that any lawful use of project
In view of what we stated above in answer to the first question, the first part of question two is answered in the affirmative.
As to the second part of the question, in
Number three:
“The grant of funds for mass public transportation purposes to a City which has expressed an intent to engage in the general charter bus business when such funds would in effect constitute a subsidy to the City of its intended charter bus operations; i.e. freeing Municipal funds with which to purchase charter bus equipment.”
Section 4(a) of the 1954 Act (49 U.S.C. 1603(a)) provides, in part, as follows:
“* * * The Administrator (now Secretary), on the basis of engineering studies, studies of economic feasibility, and data showing the nature and extent of expected utilization of the facilities and equipment, shall estimate what portion of the cost of a project to be assisted under section 1602 of this title cannot be reasonably financed from revenues—which portion shall hereinafter be called ‘net project cost’. The Federal grant for such a project shall not exceed two-thirds of the net project cost. The remainder of the net project cost shall be provided, in cash, from sources other than Federal funds * * *.”
It is clear from the legislative history of the Act involved that the “revenues” to be considered are mass transportation system revenues including any revenues from incidental charter operations. There is nothing in the language of the Act which requires HUD to take into account the status of the general funds of an applicant city in determining how much capital grant assistance to extend to that city.
It should be noted that in a sense nearly every capital grant to a city constitutes a partial subsidy of every activity of the city which is supported by tax revenues, since it frees tax revenues for such other uses.
Number four:
“With specific reference to the application of the City of San Diego for funds under its application to the Department of Housing and Urban Development dated June 2, 1966, whether the Act permits a grant to purchase equipment wherein 25 percent of such equipment will be used either exclusively or substantially in the operation of charter bus services.”
As to the City of San Diego's grant application, we have been advised by HUD as follows:
“As explained above, the Act authorizes assistance only for facilities to be used in mass transportation service. We could not, therefore, assist San Diego in purchasing any equipment to be used ‘exclusively’ in the operation of charter bus service. Furthermore, as also explained above, assisted mass transportation equipment can be used only incidentally for such charter services.
“Whether equipment used ‘substantially’ in such service qualifies under this rule can be answered only in the light of the specifics of the San Diego situation. * * * we have already, during our preliminary review of the City's application, disallowed about $150,000 of the proposed project cost which was allocated to the purchase of eight charter-type buses.
“The final application of the City of San Diego is presently under active consideration by this Department. In particular, we have requested the City to furnish additional information as to the nature and extent of the proposed use, if any, of project facilities and equipment in charter service, so that we can further evaluate the application under the criteria above set forth. We have also requested similar information from Mr. Fredrick J. Ruane, who has filed a taxpayers' suit (Superior Court for San Diego County Civil #297329) against the City, contesting its authority to engage in charter bus operations.”
As indicated above, it is clear that under the Act in question grants may not legally be made to purchase buses to be used “exclusively” in the operation of charter bus service. However, in view of the purposes of the Act involved it is our opinion that a city which has purchased with grant funds buses needed for an efficient mass transportation system, is not precluded by the act from using such buses for charter service during idle or off-peak periods when the buses are not needed for regularly scheduled runs. As indicated above, such a use would appear to be an incidental use.
The fourth question is answered accordingly.
As requested, the correspondence enclosed with your letter is returned herewith.
Sincerely yours,
Enclosures:
The Honorable Bob Wilson, House of Representatives.
I certify that, in accordance with Executive Order 11821, dated November 27, 1974, and Departmental implementing instructions, an Inflationary Impact Statement is not required for final regulations on School Bus Operations.
49 U.S.C. 5307(d) and 5308(b); 23 U.S.C. 134, 135 and 142; 29 U.S.C. 794; 49 CFR 1.51.
41 FR 18239, Apr. 30, 1976, unless otherwise noted.
The purpose of this part is to establish formally the requirements of the Federal Transit Administration (FTA) on transportation for elderly and handicapped persons.
As used herein:
This part, which applies to projects approved by the Federal Transit Administrator on or after May 31, 1976, applies to all planning, capital, and operating assistance projects receiving Federal financial assistance under sections 5307 or 5308 of the Federal transit laws (49 U.S.C. Chapter 53), and nonhighway public mass transportation projects receiving Federal financial assistance under: (1) Subsection (a) or (c) of section 142 of title 23, United States Code; and (2) paragraph (4) of subsection (e) of section 103, title 23, United States Code. However, under certain circumstances evident in §§ 609.13 through 609.21, the latter sections apply to fixed facilities and vehicles included in projects approved before May 31, 1976. Sections in this part on capital assistance applications, fixed facilities, and vehicles apply expressly to capital assistance projects receiving Federal financial assistance under any of the above statutes.
Applicants for financial assistance under section 5307 of the Federal transit laws (49 U.S.C. Chapter 53), must, as a condition to receiving such assistance, give satisfactory assurances, in such manner and form as may be required by the Federal Transit Administrator and in accordance with such terms and conditions as the Federal Transit Administrator may prescribe, that the rates charged elderly and handicapped persons during non-peak hours for transportation utilizing or involving the facilities and equipment of the project financed with assistance under this section will not exceed one-half of the rates generally applicable to other persons at peak hours, whether the operation of such facilities and equipment is by the applicant or is by
The definitions of the term
Accordingly, for the purposes of this part, the definition of
Similarly, the definition of
To assist in understanding how the definitions might be applied to administration of the charter rule, the following questions and answers previously published by FTA for the half-fare program in FTA C 9060.1, April 20, 1978, are reproduced:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
49 U.S.C. 5309; 49 CFR 1.51
65 FR 76880, Dec. 7, 2000, unless otherwise noted.
(a) This part prescribes the process that applicants must follow to be considered eligible for capital investment grants and loans for new fixed guideway systems or extensions to existing systems (“new starts”). Also, this part prescribes the procedures used by FTA to evaluate proposed new starts projects as required by 49 U.S.C. 5309(e), and the scheduling of project reviews required by 49 U.S.C. 5328(a).
(b) This part defines how the results of the evaluation described in paragraph (a) of this section will be used to:
(1) Approve entry into preliminary engineering and final design, as required by 49 U.S.C. 309(e)(6);
(2) Rate projects as “highly recommended,” “recommended,” or “not recommended,” as required by 49 U.S.C. 5309(e)(6);
(3) Assign individual ratings for each of the project justification criteria specified in 49 U.S.C. 5309(e)(1)(B) and (C);
(4) Determine project eligibility for Federal funding commitments, in the form of Full Funding Grant Agreements;
(5) Support funding recommendations for this program for the Administration's annual budget request; and
(6) Fulfill the reporting requirements under 49 U.S.C. 5309(o)(1), Funding Levels and Allocations of Funds, Annual Report, and 5309(o)(2), Supplemental Report on New Starts.
(c) The information collected and ratings developed under this part will form the basis for the annual reports to Congress, required by 49 U.S.C. 5309(o)(1) and (2).
(a) This part applies to all proposals for Federal capital investment funds under 49 U.S.C. 5309 for new transit fixed guideway systems and extensions to existing systems.
(b) Projects described in paragraph (a) of this section are not subject to evaluation under this part if the total amount of funding from 49 U.S.C. 5309 will be less than $25 million, or if such projects are otherwise exempt from evaluation by statute.
(1) Exempt projects must still be rated by FTA for purposes of entering into a Federal funding commitment as required by 49 U.S.C. 5309(e)(7). Sponsors who believe their projects to be exempt are nonetheless strongly encouraged to submit data for project evaluation as described in this part.
(2) Such projects are still subject to the requirements of 23 CFR part 450 and 23 CFR part 771.
(3) This part does not apply to projects for which a Full Funding
(c) Consistent with 49 U.S.C. 5309(e)(8)(B), FTA will make project approval decisions on proposed projects using expedited procedures as appropriate, for proposed projects that are:
(1) Located in a nonattainment area;
(2) Transportation control measures as defined by the Clean Air Act (42 U.S.C. 7401
(3) Required to carry out a State Implementation Plan.
The definitions established by Titles 12 and 49 of the United States Code, the Council on Environmental Quality's regulation at 40 CFR parts 1500-1508, and FHWA-FTA regulations at 23 CFR parts 450 and 771 are applicable. In addition, the following definitions apply:
All new start projects proposed for funding assistance under 49 USC 5309 must emerge from the metropolitan and Statewide planning process, consistent with 23 CFR part 450. To be eligible for FTA capital investment funding, a proposed project must be based on the results of alternatives analysis and preliminary engineering.
(a)
(2) The alternatives analysis develops information on the benefits, costs, and impacts of alternative strategies to address a transportation problem in a given corridor, leading to the adoption of a locally preferred alternative.
(3) The alternative strategies evaluated in an alternatives analysis must include a no-build alternative, a baseline alternative, and an appropriate number of build alternatives. Where project sponsors believe the no-build alternative fulfills the requirements for a baseline alternative, FTA will determine whether to require a separate baseline alternative on a case-by-case basis.
(4) The locally preferred alternative must be selected from among the evaluated alternative strategies and formally adopted and included in the metropolitan planning organization's financially-constrained long-range regional transportation plan.
(b)
(1) A proposed project can be considered for advancement into preliminary engineering only if:
(i) Alternatives analysis has been completed
(ii) The proposed project is adopted as the locally preferred alternative by the Metropolitan Planning Organization into its financially constrained metropolitan transportation plan;
(iii) Project sponsors have demonstrated adequate technical capability to carry out preliminary engineering for the proposed project; and
(iv) All other applicable Federal and FTA program requirements have been met.
(2) FTA's approval will be based on the results of its evaluation as described in §§ 611.9-611.13.
(3) At a minimum, a proposed project must receive an overall rating of “recommended” to be approved for entry into preliminary engineering.
(4) This part does not in any way revoke prior FTA approvals to enter preliminary engineering made prior to February 5, 2001.
(5) Projects approved to advance into preliminary engineering receive blanket pre-award authority to incur project costs for preliminary engineering activities prior to grant approval.
(i) This pre-award authority does not constitute a commitment by FTA that future Federal funds will be approved for this project.
(ii) All Federal requirements must be met prior to incurring costs in order to retain eligibility of the costs for future FTA grant assistance.
(c)
(1) A proposed project can be considered for advancement into final design only if:
(i) The NEPA process has been completed;
(ii) Project sponsors have demonstrated adequate technical capability to carry out final design for the proposed project; and
(iii) All other applicable Federal and FTA program requirements have been met.
(2) FTA's approval will be based on the results of its evaluation as described in Parts §§ 611.9-611.13 of this Rule.
(3) At a minimum, a proposed project must receive an overall rating of “recommended” to be approved for entry into final design.
(4) Consistent with the Government Performance and Results Act of 1993, project sponsors seeking FFGAs shall submit a complete plan for collection and analysis of information to identify the impacts of the new start project and the accuracy of the forecasts prepared during development of the project.
(i) The plan shall provide for: Collection of “before” data on the current transit system; documentation of the “predicted” scope, service levels, capital costs, operating costs, and ridership of the project; collection of “after” data on the transit system two years after opening of the new start project; and analysis of the consistency of “predicted” project characteristics with the “after” data.
(ii) The “before” data collection shall obtain information on transit service levels and ridership patterns, including origins and destinations, access modes, trip purposes, and rider characteristics. The “after” data collection shall obtain analogous information on transit service levels and ridership patterns, plus information on the as-built scope and capital costs of the new start project.
(iii) The analysis of this information shall describe the impacts of the new start project on transit services and transit ridership, evaluate the consistency of “predicted” and actual project characteristics and performance, and identify sources of differences between “predicted” and actual outcomes.
(iv) For funding purposes, preparation of the plan for collection and analysis of data is an eligible part of the proposed project.
(5) Project sponsors shall collect data on the current system, according to the plan required under § 611.7(c)(4) as approved by FTA, prior to the beginning of construction of the proposed new start. Collection of this data is an eligible part of the proposed project for funding purposes.
(6) This part does not in any way revoke prior FTA approvals to enter final design that were made prior to February 5, 2001.
(7) Projects approved to advance into final design receive blanket pre-award authority to incur project costs for final design activities prior to grant approval.
(i) This pre-award authority does not extend to right of way acquisition or construction, nor does it constitute a commitment by FTA that future Federal funds will be approved for this project.
(ii) All Federal requirements must be met prior to incurring costs in order to retain eligibility of the costs for future FTA grant assistance.
(d)
(i) The evaluations and ratings established by this rule;
(ii) The technical capability of project sponsors to complete the proposed new starts project; and
(iii) A determination by FTA that no outstanding issues exist that could interfere with successful implementation of the proposed new starts project.
(2) An FFGA shall not be executed for a project that is not authorized for final design and construction by Federal law.
(3) FFGAs will be executed only for those projects which:
(i) Are rated as “recommended” or “highly recommended;”
(ii) Have completed the appropriate steps in the project development process;
(iii) Meet all applicable Federal and FTA program requirements; and
(iv) Are ready to utilize Federal new starts funds, consistent with available program authorization.
(4) In any instance in which FTA decides to provide financial assistance under section 5309 for construction of a new start project, FTA will negotiate an FFGA with the grantee during final design of that project. Pursuant to the terms and conditions of the FFGA:
(i) A maximum level of Federal financial contribution under the section 5309 new starts program will be fixed;
(ii) The grantee will be required to complete construction of the project, as defined, to the point of initiation of revenue operations, and to absorb any additional costs incurred or necessitated;
(iii) FTA and the grantee will establish a schedule for anticipating Federal contributions during the final design and construction period; and
(iv) Specific annual contributions under the FFGA will be subject to the availability of budget authority and the ability of the grantee to use the funds effectively.
(5) The total amount of Federal obligations under Full Funding Grant Agreements and potential obligations under Letters of Intent will not exceed the amount authorized for new starts under 49 U.S.C. § 5309.
(6) FTA may also make a “contingent commitment,” which is subject to future congressional authorizations and appropriations, pursuant to 49 U.S.C. 5309(g), 5338(b), and 5338(h).
(7) Consistent with the Government Performance and Results Act of 1993 (GPRA), the FFGA will require implementation of the data collection plan prepared in accordance with § 611.7(c)(4):
(i) Prior to the beginning of construction activities the grantee shall collect the “before” data on the existing system, if such data has not already been collected as part of final design, and document the predicted characteristics and performance of the project.
(ii) Two years after the project opens for revenue service, the grantee shall collect the “after” data on the transit system and the new start project, determine the impacts of the project, analyze the consistency of the “predicted” performance of the project with the “after” data, and report the findings and supporting data to FTA.
(iii) For funding purposes, collection of the “before” data, collection of the “after” data, and the development and reporting of findings are eligible parts of the proposed project.
(8) This part does not in any way alter, revoke, or require re-evaluation of existing FFGAs that were issued prior to February 5, 2001.
In order to approve a grant or loan for a proposed new starts project under 49 U.S.C. 5309, and to approve entry into preliminary engineering and final design as required by section 5309(e)(6), FTA must find that the proposed project is justified as described in section 5309(e)(1)(B).
(a) To make the statutory evaluations and assign ratings for project justification, FTA will evaluate information developed locally through alternatives analyses and refined through preliminary engineering and final design.
(1) The method used to make this determination will be a multiple measure approach in which the merits of candidate projects will be evaluated in terms of each of the criteria specified by this section.
(2) The measures for these criteria are specified in Appendix A to this rule.
(3) The measures will be applied to the project as it has been proposed to FTA for new starts funding under 49 U.S.C. 5309.
(4) The ratings for each of the criteria will be expressed in terms of descriptive indicators, as follows: “high,” “medium-high,” “medium,” “low-medium,” or “low.”
(b) The criteria are as follows:
(1) Mobility Improvements.
(2) Environmental Benefits.
(3) Operating Efficiencies.
(4) Transportation System User Benefits (Cost-Effectiveness).
(5) Existing land use, transit supportive land use policies, and future patterns.
(6) Other factors. Additional factors, including but not limited to:
(i) The degree to which the programs and policies (e.g., parking policies, etc.) are in place as assumed in the forecasts,
(ii) Project management capability, including the technical capability of the grant recipient to construct the project, and
(iii) Additional factors relevant to local and national priorities and relevant to the success of the project.
(c) In evaluating proposed new starts projects under these criteria:
(1) As a candidate project proceeds through preliminary engineering and final design, a greater degree of certainty is expected with respect to the scope of the project and a greater level
(2) For the criteria under § 611.9(b)(1)-(4), the proposed new start will be compared to the baseline alternative.
(d) In evaluating proposed new starts projects under these criteria, the following factors shall be considered:
(1) The direct and indirect costs of relevant alternatives;
(2) Factors such as congestion relief, improved mobility, air pollution, noise pollution, energy consumption, and all associated ancillary and mitigation costs necessary to carry out each alternative analyzed, and recognize reductions in local infrastructure costs achieved through compact land use development;
(3) Existing land use, mass transportation supportive land use policies, and future patterns;
(4) The degree to which the project increases the mobility of the mass transportation dependent population or promotes economic development;
(5) Population density and current transit ridership in the corridor;
(6) The technical capability of the grant recipient to construct the project;
(7) Differences in local land, construction, and operating costs; and
(8) Other factors as appropriate.
(e) FTA may amend the measures for these criteria, pending the results of ongoing studies regarding transit benefit evaluation methods.
(f) The individual ratings for each of the criteria described in this section will be combined into a summary rating of “high,” “medium-high,” “medium,” “low-medium,” or “low” for project justification. “Other factors” will be considered as appropriate.
In order to approve a grant or loan under 49 U.S.C. 5309, FTA must find that the proposed project is supported by an acceptable degree of local financial commitment, as required by section 5309(e)(1)(C). The local financial commitment to a proposed project will be evaluated according to the following measures:
(a) The proposed share of project capital costs to be met using funds from sources other than the section 5309 new starts program, including both the non-Federal match required by Federal law and any additional capital funding (“overmatch”), and the degree to which planning and preliminary engineering activities have been carried out without funding from the section 5309 new starts program;
(b) The stability and reliability of the proposed capital financing plan for the new starts project; and
(c) The stability and reliability of the proposed operating financing plan to fund operation of the entire transit system as planned over a 20-year planning horizon.
(d) For each proposed project, ratings for paragraphs (b) and (c) of this section will be reported in terms of descriptive indicators, as follows: “high,” “medium-high,” “medium,” “low-medium,” or “low.” For paragraph (a) of this section, the percentage of Federal funding sought from 49 U.S.C. § 5309 will be reported.
(e) The summary ratings for each measure described in this section will be combined into a summary rating of “high,” “medium-high,” “medium,” “low-medium,” or “low” for local financial commitment.
(a) The summary ratings developed for project justification local financial commitment (§ § 611.9 and 611.11) will form the basis for the overall rating for each project.
(b) FTA will assign overall ratings of “highly recommended,” “recommended,” and “not recommended,” as required by 49 U.S.C. 5309(e)(6), to each proposed project.
(1) These ratings will indicate the overall merit of a proposed new starts project at the time of evaluation.
(2) Ratings for individual projects will be updated annually for purposes of the annual report on funding levels and allocations of funds required by section 5309(o)(1), and as required for FTA approvals to enter into preliminary engineering, final design, or FFGAs.
(c) These ratings will be used to:
(1) approve advancement of a proposed project into preliminary engineering and final design;
(2) Approve projects for FFGAs;
(3) Support annual funding recommendations to Congress in the annual report on funding levels and allocations of funds required by 49 U.S.C. 5309(o)(1); and
(4) For purposes of the supplemental report on new starts, as required under section 5309(o)(2).
(d) FTA will assign overall ratings for proposed new starts projects based on the following conditions:
(1) Projects will be rated as “recommended” if they receive a summary rating of at least “medium” for both project justification (§ 611.9) and local financial commitment (§ 611.11);
(2) Projects will be rated as “highly recommended” if they receive a summary rating higher than “medium” for both local financial commitment and project justification.
(3) Projects will be rated as “not recommended” if they do not receive a summary rating of at least “medium” for both project justification and local financial commitment.
FTA will use several measures to evaluate candidate new starts projects according to the criteria established by 49 U.S.C. 5309(e)(1)(B). These measures have been developed according to the considerations identified at 49 U.S.C. 5309(e)(3) (“Project Justification”), consistent with Executive Order 12893. From time to time, FTA has published technical guidance on the application of these measures, and the agency expects it will continue to do so. Moreover, FTA may well choose to amend these measures, pending the results of ongoing studies regarding transit benefit evaluation methods. The first four criteria listed below assess the benefits of a proposed new start project by comparing the project to the baseline alternative. Therefore, the baseline alternative must be defined so that comparisons with the new start project isolate the costs and benefits of the major transit investment. At a minimum, the baseline alternative must include in the project corridor all reasonable cost-effective transit improvements short of investment in the new start project. Depending on the circumstances and through prior agreement with FTA, the baseline alternative can be defined appropriately in one of three ways. First, where the adopted financially constrained regional transportation plan includes within the corridor all reasonable cost-effective transit improvements short of the new start project, a no-build alternative that includes those improvements may serve as the baseline. Second, where additional cost-effective transit improvements can be made beyond those provided by the adopted plan, the baseline will add those cost-effective transit improvements. Third, where the proposed new start project is part of a multimodal alternative that includes major highway components, the baseline alternative will be the preferred multimodal alternative without the new start project and associated transit services. Prior to submittal of a request to enter preliminary engineering for the new start project, grantees must obtain FTA approval of the definition of the baseline alternative. Consistent with the requirement that differences between the new start project and the baseline alternative measure only the benefits and costs of the project itself, planning factors external to the new start project and its supporting bus service must be the same for both the baseline and new start project alternatives. Consequently, the highway and transit networks defined for the analysis must be the same outside the corridor for which the new start project is proposed. Further, policies affecting travel demand and travel costs, such as land use, transit fares and parking costs, must be applied consistently to both the baseline alternative and the new start project alternative. The fifth criterion, “existing land use, transit supportive land use policies, and future patterns,” reflects the importance of transit-supportive local land use and related conditions and policies as an indicator of ultimate project success.
(a) Mobility Improvements.
(1) The aggregate travel time savings in the forecast year anticipated from the new start project compared to the baseline alternative. This measure sums the travel time savings accruing to travelers projected to use transit in the baseline alternative, travelers projected to shift to transit because of the new start project, and non-transit users in the new start project who would benefit from reduced traffic congestion.
(i) After September 1, 2001, FTA will employ a revised measure of travel benefits accruing to travelers.
(ii) The revised measure will be based on a multi-modal measure of perceived travel times faced by all users of the transportation system.
(2) The absolute number of existing low income households located within
(3) The absolute number of existing jobs within
(b) Environmental Benefits.
(1) The forecast change in criteria pollutant emissions and in greenhouse gas emissions, ascribable to the proposed new investment, calculated in terms of annual tons for each criteria pollutant or gas (forecast year), compared to the baseline alternative;
(2) The forecast net change per year (forecast year) in the regional consumption of energy, ascribable to the proposed new investment, expressed in British Thermal Units (BTU), compared to the baseline alternative; and
(3) Current Environmental Protection Agency designations for the region's compliance with National Ambient Air Quality Standards.
(c) Operating Efficiencies. The forecast change in operating cost per passenger-mile (forecast year), for the entire transit system. The new start will be compared to the baseline alternative.
(d) Transportation System User Benefits (Cost-Effectiveness).
(1) The cost effectiveness of a proposed project shall be evaluated according to a measure of transportation system user benefits, based on a multimodal measure of perceived travel times faced by all users of the transportation system, for the forecast year, divided by the incremental cost of the proposed project. Incremental costs and benefits will be calculated as the differences between the proposed new start and the baseline alternative.
(2) Until the effective date of the transportation system user benefits measure of cost effectiveness, cost effectiveness will be computed as the incremental costs of the proposed project divided by its incremental transit ridership, as compared to the baseline alternative.
(i) Costs include the forecast annualized capital and annual operating costs of the entire transit system.
(ii) Ridership includes forecast total annual ridership on the entire transit system, excluding transfers.
(e) Existing land use, transit supportive land use policies, and future patterns. Existing land use, transit-supportive land use policies, and future patterns shall be rated by evaluating existing conditions in the corridor and the degree to which local land use policies are likely to foster transit supportive land use, measured in terms of the kinds of policies in place, and the commitment to these policies. The following factors will form the basis for this evaluation:
(1) Existing land use;
(2) Impact of proposed new starts project on land use;
(3) Growth-management policies;
(4) Transit-supportive corridor policies;
(5) Supportive zoning regulations near transit stations;
(6) Tools to implement land use policies;
(7) The performance of land use policies; and
(8) Existing and planned pedestrian facilities, including access for persons with disabilities.
(f) Other factors. Other factors that will be considered when evaluating projects for funding commitments include, but are not limited to:
(1) Multimodal emphasis of the locally preferred investment strategy, including the proposed new start as one element;
(2) Environmental justice considerations and equity issues,
(3) Opportunities for increased access to employment for low income persons, and Welfare-to-Work initiatives;
(4) Livable Communities initiatives and local economic activities;
(5) Consideration of alternative land use development scenarios in local evaluation and decision making for the locally preferred transit investment decision;
(6) Consideration of innovative financing, procurement, and construction techniques, including design-build turnkey applications; and
(7) Additional factors relevant to local and national priorities and to the success of the project, such as Empowerment Zones, Brownfields, and FTA's Bus Rapid Transit Demonstration Program.
FTA will use the following measures to evaluate the local financial commitment to a proposed project:
(a) The proposed share of project capital costs to be met using funds from sources other than the 49 U.S.C. 5309 new starts program, including both the local match required by Federal law and any additional capital funding (“overmatch”). Consideration will be given to:
(i) The use of innovative financing techniques, as described in the May 9, 1995,
(ii) The use of “flexible funds” as provided under the CMAQ and STP programs;
(iii) The degree to which alternatives analysis and preliminary engineering activities were carried out without funding from the § 5309 new starts program; and
(iv) The actual percentage of the cost of recently-completed or simultaneously undertaken fixed guideway systems and extensions that are related to the proposed project under review, from sources other than the section 5309 new starts program (FTA's intent is to recognize that a region's local financial commitment to fixed guideway systems and extensions may not be limited to a single project).
(b) The stability and reliability of the proposed capital financing plan, according to:
(i) The stability, reliability, and level of commitment of each proposed source of local match, including inter-governmental grants, tax sources, and debt obligations, with an emphasis on availability within the project development timetable;
(ii) Whether adequate provisions have been made to cover unanticipated cost overruns and funding shortfalls; and
(iii) Whether adequate provisions have been made to fund the capital needs of the entire transit system as planned, including key station plans as required under 49 CFR 37.47 and 37.51, over a 20-year planning horizon period.
(c) The stability and reliability of the proposed operating financing plan to fund operation of the entire transit system as planned over a 20-year planning horizon.
23 U.S.C. 134, 135, and 217(g); 42 U.S.C. 3334, 4233, 4332, 7410 et seq; 49 U.S.C. 5303-5306, 5323(k); and 49 CFR 1.48(b), 1.51(f) and 21.7(a).
The regulations in 23 CFR part 450, subpart C, shall be followed in complying with the requirements of this subpart. 23 CFR part 450, subpart C, requires a metropolitan planning organization (MPO) be designated for each urbanized area and that the metropolitan area have a continuing, cooperative, and comprehensive transportation planning process that results in plans and programs that consider all transportation modes. These plans and programs shall lead to the development of an integrated, intermodal metropolitan transportation system that facilitates the efficient, economic movement of people and goods.
The regulations in 23 CFR part 450, subpart B, should be followed in complying with the requirements of this subpart. 23 CFR part 450, subpart B, requires each State to carry out an intermodal statewide transportation planning process, including the development of a statewide transportation plan and transportation improvement program that facilitates the efficient, economic movement of people and goods in all areas of the State, including those areas subject to the requirements of 23 U.S.C. 135 and sections 3, 5, 8, 9 and 26 of the Federal Transit Act (49 U.S.C. app. 1602, 1604, 1607, 1607a, and 1622).
The coordination of Federal and federally assisted programs and projects implementing OMB revised Circular No. A-95, which are set forth in 23 CFR part 420, subpart C, are incorporated into this subpart.
23 U.S.C. 303; 49 U.S.C. 5303-5305; and 49 CFR 1.48 and 1.51.
61 FR 67175, Dec. 19, 1996, unless otherwise noted.
The regulations in 23 CFR Part 500, subparts A and B shall be followed in complying with the requirements of this part. Part 500, subparts A and B implement 23 U.S.C. 303 for State development, establishment, and implementation of systems for managing traffic congestion (CMS), public transportation facilities and equipment (PTMS), intermodal transportation facilities and systems (IMS), and traffic monitoring for highways and public transportation facilities and equipment.
42 U.S.C. 4321
The procedures for complying with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
Sec. 403(b), Pub. L. 95-620; E.O. 12185.
(a) FTA assistance for the construction, reconstruction, or modification of buildings for which applications are submitted to FTA after October 1, 1980, will be approved only after the completion of an energy assessment. An energy assessment shall consist of an analysis of the total energy requirements of a building, within the scope of the proposed construction activity and at a level of detail appropriate to that scope, which considers:
(1) Overall design of the facility or modification, and alternative designs;
(2) Materials and techniques used in construction or rehabilitation;
(3) Special or innovative conservation features that may be used;
(4) Fuel requirements for heating, cooling, and operations essential to the function of the structure, projected over the life of the facility and including projected costs of this fuel; and
(5) Kind of energy to be used, including:
(i) Consideration of opportunities for using fuels other than petroleum and natural gas, and
(ii) Consideration of using alternative, renewable energy sources.
(b) Compliance with the requirements of paragraph (a) of this section shall be documented as part of the Environmental Assessment or Environmental Impact Statement for projects which are subject to a requirement for one. Projects for which there is no environmental assessment or EIS shall document compliance by submission of appropriate material with the application for FTA assistance for actual construction.
(c) The cost of undertaking and documenting an energy assessment may be eligible for FTA participation if the requirements of Federal Management Circular 74-4 (A-87) are met.
(d) This requirement shall not apply to projects for which the final project application or environmental assessment have been submitted to FTA prior to October 1, 1980.
49 U.S.C. 5308; 49 CFR 1.51.
67 FR 40104, June 11, 2002, unless otherwise noted.
(a) An eligible applicant is a designated recipient (designated recipient has the same meaning as in 49 U.S.C. 5307(a)(2)) in either an:
(1) Ozone and carbon monoxide nonattainment areas that have the specific classifications established by the 1990 Clean Air Act Amendments [Public Law 101-549], or
(2) Ozone and carbon monoxide (CO) “maintenance” areas that, before they were redesignated to attainment by the Environmental Protection Agency (EPA), had these same classifications.
(b) The nonattainment classifications for ozone are “marginal,” “moderate,” “serious,” “severe,” and “extreme.” The nonattainment classifications for CO are “moderate” and “serious.”
(a) Eligible activities include the purchase or lease of clean fuel buses and facilities, repowering or retrofitting buses to operate on clean fuels, and the improvement of existing facilities to accommodate clean fuel buses.
(b) The term “clean fuel vehicle” means a vehicle that—
(1) Is powered by—
(i) Compressed natural gas;
(ii) Liquefied natural gas;
(iii) Biodiesel fuels;
(iv) Batteries;
(v) Alcohol-based fuels;
(vi) Hybrid electric;
(vii) Fuel cells;
(viii) Clean diesel, to the extent allowed under this section; or
(ix) Other low or zero emissions technology; and
(2) The Administrator of the Environmental Protection Agency has certified sufficiently reduces harmful emissions.
(c) Eligible projects are the following:
(1) Purchasing or leasing clean fuel buses, including buses that employ a lightweight composite primary structure, and vans for use in revenue service. The purchase or lease of non-revenue vehicles is not an eligible project.
(2) Constructing or leasing clean fuel bus facilities or electrical recharging facilities and related equipment. Facilities and related equipment for clean diesel buses are not eligible.
(3) Improving existing mass transportation facilities to accommodate clean fuel buses.
(4) Repowering pre-1993 engines with clean fuel technology that meets the current urban bus emission standards. Repowering means the removal of an engine from a bus followed by the installation of another engine and applies to engines that are replaced with new, previously unused, engines as well as those exchanged from an inventory of rebuilt engines.
(5) Retrofitting or rebuilding pre-1993 engines if before half life (
(6) At the discretion of FTA, projects relating to clean fuel, biodiesel, hybrid electric, or zero emissions technology vehicles that achieve emissions reductions equivalent or superior to existing clean fuel or hybrid electric technologies.
(a) Pre-applications must be submitted to the appropriate FTA regional office no later than January 1 of each fiscal year. Subject to the availability of funds, FTA will apportion the funds based on the formula and the pool of applicants, no later than February 1 of each year. Once the applicant has been notified of the apportionment of funds and the eligibility of its application, it should proceed to complete and file the final application. The final application
(b) The pre-application consists of a Letter of Interest and a Pre-application Worksheet as described as follows:
(1)
(2)
The applicant must use the certification contained in the Annual Notice of Assurances and Certifications published in the
The Clean Fuels Formula funds will be apportioned according to the following formula:
(a)
(1) The number of vehicles in the bus fleet of the eligible applicant, weighted by the severity of nonattainment for the area in which the eligible applicant is located; and
(2) The total number of vehicles in the bus fleets of all eligible applicants in areas with a population of 1,000,000 and above, weighted by the severity of nonattainment for all areas in which those eligible projects are located as provided in paragraphs (c) and (d) of this section. The remaining 50 percent shall be apportioned such that each designated recipient receives a grant in an amount equal to the ratio between:
(i) The number of bus passenger miles of the eligible designated recipient, weighted by the severity of nonattainment of the area in which the eligible applicant is located as provided in paragraphs (c) and (d) of this section.
(ii) The total number of bus passenger miles of all eligible applicants in areas with a population of 1,000,000 and above, weighted by the severity of nonattainment of all areas in which those eligible applicants are located as provided in paragraphs (c) and (d) of this section.
(b)
(c)
(i) 1.0 if, at the time of the apportionment, the area is a maintenance area for ozone;
(ii) 1.1 if, at the time of the apportionment, the area is classified as a marginal ozone nonattainment area;
(iii) 1.2 if, at the time of the apportionment, the area is classified as a moderate ozone nonattainment area;
(iv) 1.3 if, at the time of the apportionment, the area is classified as a serious ozone nonattainment area;
(v) 1.4 if, at the time of the apportionment, the area is classified as a severe ozone nonattainment area;
(vi) 1.5 if, at the time of the apportionment, the area is classified as an extreme ozone nonattainment area;
(2) The weighting factor for CO shall be determined based on the factors:
(i) 1.0 if, at the time of the apportionment, the area is a maintenance area for carbon monoxide;
(ii) 1.2 if, at the time of the apportionment, the area is classified as a moderate carbon monoxide nonattainment area;
(iii) 1.3 if, at the time of the apportionment, the area is classified as a serious carbon monoxide nonattainment area.
(3) The number of buses in the fleet and the bus passenger miles shall be multiplied by the higher of the ozone or CO factors.
(d)
(e)
(2) Not more than 35 percent of the amount made available by or appropriated under 49 U.S.C. 5338 in each fiscal year to carry out this section may be made available to fund clean diesel buses.
(3) Not more than 5 percent of the amount made available by or appropriated under 49 U.S.C. 5338 in each fiscal year to carry out this section may be made available to fund 21 retrofitting or replacement of the engines of buses that do not meet the clean air standards of the Environmental Protection Agency, as in effect on the date on which the application for such retrofitting or replacement is submitted under § 624.5.
Maximum grant amount. The amount of a grant made to a designated recipient under this section shall not exceed the lesser of—for an eligible project in an area with a population of less than 1,000,000, $15,000,000,—and for an eligible project in an area with a population of at least 1,000,000, $25,000,000; or 80 percent of the total cost of the eligible project. Any amounts that would otherwise be apportioned to a designated reciipient under this Note that exceed the amount described in this Note shall be reapportioned among other designated recipients in accordance with this section.
(a) Recipients of financial assistance under 49 U.S.C. 5308 who purchase or lease hybrid electric, battery electric and fuel cell vehicles must report to the appropriate FTA regional office on a quarterly basis for the first three years of the useful life of the vehicle with the following information:
(1) Vehicle miles traveled;
(2) Fuel/energy costs;
(3) Vehicle fuel/energy consumption and oil consumption;
(4) Number of road calls or breakdowns resulting from clean fuel and advanced propulsion technology systems, and
(5) Maintenance costs associated with the clean fuels or advanced propulsion system.
(b) Recipients of financial assistance under 49 U.S.C. 5308 who purchase or lease compressed natural gas (CNG), liquefied natural gas (LNG), and liquefied petroleum gas (LPG) vehicles may report the information described in paragraph (a) of this section, but this reporting is voluntary.
(c) Recipients of financial assistance under 49 U.S.C. 5308 who purchase or lease clean diesel vehicles should not report information beyond the normal FTA quarterly reporting requirements.
The following are instructions for completing the pre-application worksheet:
(1)
(2)
(3)
(4)
(5)
(1)
(2)
(3) Indicate the Federal amount and total amount for improvements to existing facilities to accommodate clean fuel buses. Enter any descriptive or explanatory information on the line for additional items, including what fuel type is being accommodated.
(4) Indicate the Federal amount and total amount for repowering/replacing pre-1993 engines with engines that meet current emissions standards when installed. Please include a separate entry for each fuel type. For the purposes of this program, repowering/replacement means the removal of an engine from the bus followed by the installation of another engine. This applies to engines that are replaced with new, previously unused engines, as well as those exchanged from an inventory of rebuilt engines.
(5) Enter a quantity, Federal amount, and total amount by fuel type for retrofit/rebuild of pre-1993 engines to comply with latest EPA-certified emissions standards. For the purposes of this program, “retrofit” means the use of the latest after-market technology such as “upgrade kits,” or after-treatment device(s) that treat the exhaust after it has left the engine, such as catalytic converters or particulate filters. “Before the half-life rebuild” means that the retrofitting would need to occur before the bus is six years old. Since this provision applies to pre-1993 engines, this provision is of limited time availability.
(6) This section should describe any proposed clean fuel project not included in the categories above. Since any project not included above requires approval at the discretion of FTA, projects included here should also be described in the letter of interest. Include the Federal amount and total.
(7)
This section contains the active bus fleet and annual bus passenger miles information that is required to run the Clean Fuels formula.
(1) Enter the number of buses in the active fixed route fleet. For this purpose, “bus” includes articulated motorbus, Class A bus (>35 seats), Class B bus (25-35 seats), Class C bus (<25 seats), double-decked bus, school bus, and electric trolley bus. Use NTD data that was reported 2 years prior (
(2) Enter the fixed route annual bus passenger miles for 2 years prior (
This section provides a dollar total for the areas that are affected by either maximum or minimum constraints. These constraints apply to the entire program and not to individual applicants. However, in order to comply with these constraints, FTA must know how much each applicant is applying for in each of these areas.
(1) Enter the total Federal dollar amount for the purchase/lease of clean diesel vehicles.
(2) Enter the total Federal dollar amount for project elements that fall into the category of purchasing hybrid electric or battery-powered buses or constructing facilities designed to service them.
(3) Enter the total Federal dollar amount for project elements that fall into the category of retrofitting or replacing bus engines that do not meet the clean air standards of the EPA.
Because of the uncertainty of how many grantees will apply, the actual amount that a grantee receives in an apportionment may be different from the amount requested in the application that was submitted. Furthermore, because clean diesel and retrofit/replacement of bus engines are subject to maximum constraints, the amounts specifically apportioned for those purposes may not resemble the proportionality of the application. For example, suppose Grantee A's application included $500,000 for clean diesel and $100,000 for a compressed natural gas bus. If the 35 percent ceiling for clean diesel is exceeded by the total applications, Grantee A may only be allowed $50,000 to be used specifically for clean diesel because of the ceiling. The remainder of the funds apportioned to Grantee A (say, $300,000) would have to be used in areas without a maximum constraint,
The chief executive officer or the general manager of the transit agency should sign this certification.
Sec. 111, Pub. L. 93-503, 88 Stat. 1573 (49 U.S.C. 1611); Secs. 303(a) and 304(c), Public Law 97-424, 96 Stat. 2141 (49 U.S.C. 1607); and 49 CFR 1.51.
58 FR 4888, Jan. 15, 1993, unless otherwise noted.
The purpose of this part is to prescribe requirements and procedures necessary for compliance with the Uniform System of Accounts and Records and Reporting System mandated by section 15 of the Federal Transit Act, as amended, 49 U.S.C. 1611, and to set forth the procedures for addressing a reporting agency's failure to comply with these requirements.
This part applies to all applicants and beneficiaries of Federal financial assistance under section 9 of the Federal Transit Act, as amended (49 U.S.C. 1607a).
(a) Except as otherwise provided, terms defined in the Federal Transit
(b) Terms defined in the current editions of the Urban Mass Transportation Industry Uniform System of Accounts and Records and the annual Reporting Manual, are used in this part as so defined.
(c) For purposes of this part:
(a)
(b)
(c)
Failure to report data in accordance with this part will result in the reporting agency being ineligible to receive any section 9 grants directly or indirectly (e.g., a public agency receiving The FTA funds through another public agency rather than directly from the FTA). This ineligibility applies to all
(a)
(b)
The FTA will review each section 15 report to verify the reasonableness of the data submitted. If any of the data do not appear reasonable, the FTA will notify the reporting agency of this fact and request written justification to document the accuracy of the questioned data. Failure of a reporting agency to make a good faith written response to this request will be treated under § 630.5 as failure to report data.
The FTA may enter a zero or adjust any questionable data item(s) in a reporting agency's section 15 report used in computing the section 9 apportionment. These adjustments may be made if any data appear inaccurate or have not been collected and reported in accordance with the FTA's definitions and/or confidence and precision levels, or if there is lack of adequate documentation or a reliable recordkeeping system.
Before taking final action under § 630.5, § 630.6, § 630.7 or § 630.8, the FTA will transmit a written request to the reporting agencies to provide the necessary information within a specified reasonable period of time. The FTA will advise the reporting agency of its final decision in this regard.
Waivers of one or more sections of the reporting requirements may be granted at the discretion of the Administrator on a written showing that the party seeking the waiver cannot furnish the required data without unreasonable expense and inconvenience. Each waiver will be for a specified period of time.
Errors in the data used in making the apportionment may be discovered after any particular year's apportionment is completed. If so, the FTA shall make adjustments to correct these errors in a subsequent year's apportionment to the extent feasible.
All of the information collection requests in this part have been approved by the Office of Management and Budget under control number 2132-0008.
Section 15 of the Federal Transit Act, as amended, provides for establishment of two information-gathering analytic systems: A Uniform System of Accounts and Records, and a Reporting System for the collection and dissemination of public mass transportation financial and operating data by uniform categories. The purpose of these two Systems is to provide information on which to base public transportation planning and public sector investment decisions. The section 15 system is administered by the Federal Transit Administration (FTA).
• Various categories of accounts and records for classifying financial and operating data;
• Precise definitions as to what data elements are to be included in these categories; and
• Definitions of practices for systematic colloection and recording of such information.
• While a specific accounting system is recommended for this recordkeeping, it is possible to make a translation from most existing accounting systems to comply with the
• For transmitting data from transit agencies to the FTA;
• For editing and storing the data; and
• For the FTA to report information to various groups.
Under the terms of section 15 of the Federal Transit Act, as amended, all applicants for, and beneficiaries of, Federal assistance under section 9 of the Act (under the formula grant programs) must comply with the Reporting System and the Uniform System of Accounts and Records in order to be eligible for Federal grants. It should be noted that separate and complete Section 15 reports must be submitted by or for each purchased transportation service provider that operates 100 or more revenue vehicles for the purchased service during the maximum service period.
This appendix presents a general introduction to the structure and operation of the two Systems. It is not a detailed set of instructions for completion of a Section 15 report or establishment of a System of Accounts and Records. Persons in need of more information should refer to the current editions of the Urban Mass Transportation Industry Uniform System of Accounts and Records and the Reporting Manual, available from: Federal Transit Administration, Audit Review and Analysis Division, Office of Capital and Formula Assistance, P.O. Box 61126, Washington, DC 20039-1126.
The FTA periodically updates these reference documents or supplements them to revise or clarify section 15 definitions, reporting forms and instructions. Section 630.4 makes clear that reporting agencies must use the most recent edition of reference documents and reporting forms to comply with the section 15 requirements. The FTA therefore encourages local officials to check with the FTA before completing a Section 15 report to avoid unnecessary efforts and delays.
Certain information collection and recording requirements were tailored to accommodate the unique characteristics of certain transportation modes. Reduced requirements were permitted during limited time periods to ease transition to complete reporting for these modes. Reduced reporting requirements for commuter rail systems and vanpool services ended in the 1987 report year. In addition, the reduced reporting requirements for private subscription and private noncontract conventional bus service is eliminated for the 1992 report year.
The FTA has developed a single required reporting format for use by all transit agencies. The single required level accommodates variations in size, local laws, and modes of transport.
The Uniform Systems also contain a limited amount of additional more detailed financial and operational data that can be submitted at the reporting agency's option. Because the optional subcategories of data can be aggregated to the required level, these subcategories define the more aggregated data. The definitions for data reported at the required level are consistent with, and summarized from, those for the more detailed optional data.
The Uniform System of Accounts and Records (USOA) consists of a financial accounting and operational recordkeeping system designed for mass transportation managers and planners. Its uniformity permits more thorough and accurate comparisons and analyses of different transit agencies' operating costs and efficiencies than if each had a unique recordkeeping and accounting system. The System establishes various categories of accounts and records for classifying mass transportation operating and financial data, and includes precise definitions of transportation terminology to ensure that all users share a common understanding of how to use and interpret the collected data.
Beneficiaries of, and applicants for, Federal assistance are not required to use the Uniform System of Accounts and Records in keeping their own records. If an applicant or beneficiary chooses not to use the System, however, it must nevertheless be able to translate its accounts and records system to the accounts prescribed in the System. The accounting system that the reporting agency uses must permit preparation of financial and operating data that conform to the Uniform System directly from its records at the
(i) The data must have been developed using the accrual method of accounting. Those transit systems that use cash-basis accounting, in whole or in part, must make work sheet adjustments in their account books to record the data on the accrual basis.
(ii) Reporting agencies must follow or be able to directly translate their system to the accounting treatment specified in the publication “Uniform System of Accounts and Records.”
(iii) The reporting agency's accounting categories (chart of accounts) must be correctly related, using a clear audit trail, to the accounting categories prescribed in the Uniform System of Accounts and Records.
In the Section 15 Uniform System of Accounts and Records, operating expenses incurred by the transit system are classified by transit mode. The FTA developed expense classifications in two dimensions for uniformity and to enhance the usefulness of the data collected under section 15. The classifications are typical of those of most transit accounting systems. The two dimensions are:
(i) The type of expenditure (expense object class); and
(ii) The function or activity performed.
Operating expenses can be identified either in function or object class categories, or cross-classified, allowing identification using both categories. The Uniform System also categorizes expenditures by four basic functions submitted by all reporting agencies. A limited number of additional details are optional. All reporting agencies are required to use a single set of object class categories.
The Uniform System has a single set of revenue object classes to be used by all reporting agencies, and provides a limited number of additional details that are optional.
The Uniform System provides a classification for sources and uses of capital to be submitted by all reporting agencies. These classifications replace capital information previously required on the balance sheet and capital subsidiary schedule.
The Uniform System of Accounts and Records also includes collecting and recording of certain operating data elements.
Details and definitions of the expense object classes, functions, revenue object classes, sources and uses of capital, and operating data elements are contained in the current edition of the “Reporting Manual,” which is updated annually, and the USOA reference documents.
(1) The Section 15 Reporting System consists of forms and procedures for transmitting data from transit agencies to the FTA. All beneficiaries of Federal financial assistance must submit the required forms and information in order to allow the FTA to: (1) Store and generate information on the Nation's mass transportation systems; and (2) calculate apportionment allocations for the section 9 formula grant program (for urbanized areas of 200,000 or more inhabitants). Agencies submitting Section 15 reports may only submit data for transit services which they directly operate and purchase under contract from public agencies and/or private carriers.
Separate and complete Section 15 reports must be submitted by or for each purchased transportation service provider that operates 100 or more revenue vehicles for the purchased service during the maximum service period. The reporting requirements include the following major segments, which are based on information assembled through the Uniform System of Accounts and Records:
1. Capital report.
2. Revenue report.
3. Expense report.
4. Nonfinancial operating data reports.
5. Miscellaneous auxiliary questionnaires and subsidiary schedules.
6. Data declarations.
(2) The Section 15 Reporting System includes two data declarations.
(a) The Chief Executive Officer (CEO) Certification.
The CEO of each reporting agency is required to submit a certification with each annual Section 15 report. The certification must attest:
• To the accuracy of all data contained in the Section 15 report;
• That all data submitted in the Section 15 report are in accord with Section 15 definitions;
• If applicable, that the reporting agency's accounting system used to derive all data submitted in the Section 15 report is the section 15 Uniform System of Accounts and Records and that a Section 15 report using this system was certified by an independent auditor in a previous report year;
• If applicable, the fact that the reporting agency's internal accounting system is other than the Uniform System of Accounts and Records, and that its: (i) accounting system uses the accrual basis of accounting, (ii) accounting system is directly translated, using a clear audit trail, to the accounting treatment and categories specified by the section 15 Uniform System of Accounts and Records, and (iii) accounting system and direct translation to the Uniform System of Accounts and Records are the same as those certified
• That a 100% count of passenger mile data was conducted or that the sampling method used to collect passenger mile data for each mode/type of service meets the FTA requirements.
(b) Auditor Statement on Section 15 Financial Data Reporting Forms and Section 9 Data.
Reporting agencies must submit with their Section 15 report a statement signed by an independent public accountant or other responsible independent entity such as a state audit agency. This statement must express an opinion on whether the financial data reporting forms in the Section 15 report present fairly, in all material respects, the information required to be set forth therein in accordance with the Uniform System of Accounts and Records. The statement shall also indicate whether any of the reporting forms or data elements do not conform to the section 15 requirements, and describe the discrepancies. The statement must consider both required and optional data entries.
Each agency is required to file an Auditor Statement unless it received a written waiver from the FTA. The criteria in either Condition I or Condition II for granting a financial data waiver are:
For agencies that have received a waiver, the CEO annual Certification must verify that the financial data meet one of the above two conditions.
Additionally, all reporting agencies that are in or serve urbanized areas with populations of 200,000 or more and whose report covers 100 or more vehicles in annual maximum service across all modes and types of service must have an independent auditor review all section 15 data used in the section 9 formula allocation. The statement should discuss, by mode and type of service: directional route miles, vehicle revenue miles, passenger miles, and operating cost, and include both directly operated and purchased service. The independent, certified public accountant shall perform the verification in accordance with the “Statements on Standards for Attestation Engagements” issued by the American Institute of Certified Public Accountants. The specific procedures to be reviewed are described in the most recent Section 15 Reporting Manual.
49 U.S.C. 1601 et. seq., 1619.
54 FR 36711, Sept. 1, 1989, unless otherwise noted.
This part implements section 324 of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Pub. L. 100-17), which added section 23 to the FT Act. The part provides for a two-part program for major capital projects receiving assistance from the agency. First, subpart B discusses project management oversight, designed primarily to aid FTA in its role of ensuring successful implementation of federally-funded projects. Second, subpart C discusses the project management plan (PMP) required of all major capital projects. The PMP is designed to enhance the recipient's planning and implementation efforts and to assist FTA's grant application analysis efforts.
This rule applies to a recipient of Federal financial assistance undertaking a major capital project using funds made available under:
(a) Sections 3, 9, or 18 of the Federal Mass Transit Act of 1964, as amended;
(b) 23 U.S.C. 103(e)(4); or
(c) Section 14(b) of the National Capital Transportation Amendments of 1979 (93 Stat. 1320, Pub. L. 96-184).
As used in this part:
(1) Involves the construction of a new fixed guideway or extension of an existing fixed guideway;
(2) Involves the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 million; or
(3) The Administrator determines is a major capital project because the project management oversight program will benefit specifically the agency or the recipient. Typically, this means a project that:
(i) Generally is expected to have a total project cost in excess of $100 million or more to construct;
(ii) Is not exclusively for the routine acquisition, maintenance, or rehabilitation of vehicles or other rolling stock;
(iii) Involves new technology;
(iv) Is of a unique nature for the recipient; or
(v) Involves a recipient whose past experience indicates to the agency the appropriateness of the extension of this program.
The Administrator may contract for project management oversight services when the following two conditions apply:
(a) The recipient is using funds made available under section 3, 9, or 18 of the Federal Mass Transit Act of 1964, as amended; 23 U.S.C. 103(e)(4); or section 14(b) of the National Capital Transportation Amendments of 1979; and
(b) The project is a “major capital project”.
PMO services will be initiated as soon as it is practicable, once the agency determines this part applies. In most cases, this means that PMO will begin during the preliminary engineering phase of the project. However, consistent with other provisions in this part, the Administrator may determine that a project is a “major capital project” at any point during its implementation. Should this occur, PMO will begin as soon as practicable after this agency determination.
A recipient of FTA funds for a major capital project shall provide the Administrator and the PMO contractor chosen under this part access to its records and construction sites, as reasonably may be required.
(a) Any person or entity may provide project management oversight services in connection with a major capital project, with the following exceptions:
(1) An entity may not provide PMO services for its own project; and
(2) An entity may not provide PMO services for a project if there exists a conflict of interest.
(b) In choosing private sector persons or entities to provide project management oversight services, FTA uses the procurement requirements in the government-wide procurement regulations, found at 48 CFR CH I.
(a) FTA is authorized to expend up to
(b) A contract entered into between FTA and a person or entity for project management oversight services under this part will provide for the payment by FTA of 100 percent of the cost of carrying out the contract.
(a) If a project meets the definition of major capital project, the recipient shall submit a project management plan prepared in accordance with § 633.25 of this part, as a condition of Federal financial assistance. As a general rule, the PMP must be submitted during the grant review process and is part of FTA's grant application review. This section applies if:
(1) The project fails under one of the automatic major capital investment project categories (§ 633.5(1) or (2) of this part); or
(2) FTA makes a determination that a project is a major capital project, consistent with the definition of major capital project in § 633.5. This determination normally will be made during the grant review process. However, FTA may make such determination after grant approval.
(b)(1) FTA will notify the recipient when it must submit the PMP. Normally, FTA will notify the recipient sometime during the grant review process. If FTA determines the project is major under its discretionary authority after the grant has been approved, FTA will inform the recipient of its determination as soon as possible.
(2) Once FTA has notified the recipient that it must submit a plan, the recipient will have a minimum of 90 days to submit the plan.
Within 60 days of receipt of a project management plan, the Administrator will notify the recipient that:
(a) The plan is approved;
(b) The plan is disapproved, including the reasons for the disapproval;
(c) The plan will require modification, as specified, before approval; or
(d) The Administrator has not yet completed review of the plan, and state when it will be reviewed.
At a minimum, a recipient's project management plan shall include—
(a) A description of adequate recipient staff organization, complete with well-defined reporting relationships, statements of functional responsibilities, job descriptions, and job qualifications;
(b) A budget covering the project management organization, appropriate consultants, property acquisition, utility relocation, systems demonstration staff, audits, and such miscellaneous costs as the recipient may be prepared to justify;
(c) A construction schedule;
(d) A document control procedure and recordkeeping system;
(e) A change order procedure which includes a documented, systematic approach to the handling of construction change orders;
(f) A description of organizational structures, management skills, and staffing levels required throughout the construction phase;
(g) Quality control and quality assurance programs which define functions, procedures, and responsibilities for construction and for system installation and integration of system components;
(h) Material testing policies and procedures;
(i) Plan for internal reporting requirements including cost and schedule control procedures; and
(j) Criteria and procedures to be used for testing the operational system or its major components;
(a) Upon approval of a project management plan by the Administrator the recipient shall begin implementing the plan.
(b) If a recipient must modify an approved project management plan, the recipient shall submit the proposed changes to the Administrator along with an explanation of the need for the changes.
(c) A recipient shall submit periodic updates of the project management plan to the Administrator. Such updates shall include, but not be limited to:
(1) Project budget;
(2) Project schedule;
(3) Financing, both capital and operating;
(4) Ridership estimates, including operating plan; and
(5) Where applicable, the status of local efforts to enhance ridership when estimates are contingent, in part, upon the success of such efforts.
(d) A recipient shall submit current data on a major capital project's budget and schedule to the Administrator on a monthly basis.
A waiver will be considered upon initiation by the grantee or by the agency itself. The Administrator may, on a case-by-case basis, waive:
(a) Any of the PMP elements in § 633.25 of this part if the Administrator determines the element is not necessary for a particular plan; or
(b) The requirement of having a new project management plan submitted for a major capital project if a recipient seeks to manage the major capital project under a previously-approved project management plan.
49 U.S.C. 5302; 49 CFR 1.51.
56 FR 51794, Oct. 15, 1991, unless otherwise noted.
This part contains the requirements to qualify for capital assistance when leasing facilities or equipment under the Federal transit laws. This part is set out in four subparts, with subpart A containing general information on scope and definitions. Subpart B contains the principal requirements of this
This rule implements section 3003 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178). Section 3003 amended section 5302 of Chapter 53 of Title 49 of the United States Code to allow a recipient to use capital funds to finance the leasing of facilities and equipment on the condition that the leasing arrangements are more cost effective than purchase or construction.
This part applies to all requests for capital assistance under Chapter 53 of Title 49 of the United States Code where the proposed method of obtaining a capital asset is by lease rather than purchase or construction.
In this part:
(a) A lease may qualify for capital assistance if it meets the following criteria:
(1) The capital asset to be acquired by lease is otherwise eligible for capital assistance;
(2) There is or will be no existing Federal interest in the capital asset as of the date the lease will take effect unless as determined pursuant to § 639.13(b); and
(3) Lease of the capital asset is more cost-effective than purchase or construction of the asset, as determined under subpart C of this part.
(b) Once a lease has been qualified for capital assistance, it need not be re-qualified absent an affirmative act or omission by the recipient that vitiates the cost-effectiveness determination.
(a)
(b)
(c)
(d)
(1) The lease is otherwise eligible under this part;
(2) The recipient can demonstrate that the lease, when entered into, was more cost effective than purchase or construction; and
(3) The procurement of the asset by lease was in accordance with Federal requirements that applied at the time the procurement tool place.
A recipient may choose to receive capital assistance for a capital lease approved under this part—
(a) In a single grant under which lease payments may be drawn down periodically for the life of the lease; or
(b) In increments that are obligated by FTA periodically (usually in annual section 9 grants). In this case, a recipient—
(1) Must certify to FTA that it has the financial capacity to meet its future obligations under the lease in the event Federal funds are not available for capital assistance in subsequent years; and
(2) May incur costs under its lease before FTA's obligation of future increments of funding for such a lease. These costs are reimbursable in future grants, so long as the terms of the lease do not substantially change.
(a) All costs directly attributable to making a capital asset available to the lessee are eligible for capital assistance, including, but not limited to—
(1) Finance charges, including interest;
(2) Ancillary costs such as delivery and installation charges; and
(3) Maintenance costs.
(b) Any asset leased under this part must be eligible for capital assistance under a traditional purchase or construction grant.
(a) A recipient of capital assistance for a capital lease is subject to the same statutory and administrative requirements as a recipient who purchases or constructs a capital asset.
(b) A lessor of a capital lease is subject to the same statutory and administrative requirements as a direct seller of the same capital asset would be when the lessor—
(1) Purchases or constructs a capital asset in contemplation of leasing it to a recipient; or
(2) Modifies an existing capital asset in contemplation of leasing it to a recipient.
(a) To qualify a lease for capital assistance, a recipient must—
(1) Make a written comparison of the cost of leasing the asset with the cost of purchasing or constructing it; and
(2) Certify to FTA before entering into the lease or before receiving a capital grant for the asset, whichever is later, that obtaining the asset by lease is more cost-effective than purchase or construction of such asset.
(b) For purposes of this part, obtaining the asset by lease is more cost-effective than purchase or construction when the lease cost calculated under § 639.25 of this part is less than the purchase cost calculated under § 639.23 of this part.
(c) If a recipient is unable to perform the prescribed cost-effectiveness comparison as described in this subpart, it may ask FTA to approve an alternate form of cost-effectiveness evaluation.
(a) For purposes of this subpart, the purchase or construction cost of a capital asset is—
(1) The estimated cost to purchase or construct the asset; plus
(2) Ancillary costs such as delivery and installation; plus
(3) The net present value of the estimated future cost to provide any other service or benefit requested by the applicant in its proposal to obtain the capital asset.
(b) The estimated cost to purchase or construct must be—
(1) Reasonable;
(2) Based on realistic current market conditions; and
(3) Based on the expected useful life of the asset in mass transportation service, as indicated in paragraph (c) of this section.
(c) For purposes of this part, the expected useful life of a revenue vehicle is the useful life which is established by FTA for recipients of Federal assistance under FTA's Circulars for section 9 recipients. For assets other than revenue vehicles, the applicant is responsible for establishing a reasonable expected useful life. If the recipient does not intend to use the capital asset it is proposing to obtain by lease in mass transportation service for its entire expected useful life, when calculating the purchase cost, the recipient must calculate the fair market value of the asset as of the date the lease will terminate pursuant to Guidelines found in section 108(b) of part II Standard Terms and Conditions for valuation of property withdrawn from transit use before the end of its useful life and subtract that amount from the purchase price. The resulting amount is the purchase price for purposes of this rule.
(a) For purposes of this part, the lease cost of a capital asset is—
(1) The cost to lease the asset for the same use and same time period specified in the recipient's proposal to obtain the asset by purchase or construction; plus
(2) Ancillary costs such as delivery and installation; plus
(3) The net present value of the estimated future cost to provide any other service or benefit requested by the applicant in its proposal to obtain the capital asset.
(b) The estimated lease costs must be reasonable, based on realistic market conditions applicable to the recipient and must be expressed in present value terms.
In making the comparison between leasing and purchasing or constructing an asset, recipients should ascribe a realistic dollar value to any non-financial factors that are considered by using performance-based specifications in the comparison. In addition to factors unique to each recipient, the following factors are to be used where possible and appropriate:
(a) Operation costs;
(b) Reliability of service;
(c) Maintenance costs;
(d) Difference in warranties;
(e) Passenger comfort;
(f) Insurance costs;
(g) Costs/savings related to timing of acquisition of asset.
(h) Value of asset at expiration of the lease.
(a) Except as provided in paragraph (c) of this section, if a capital lease under this part is terminated or its terms substantially modified before the end of the period used in the cost-effectiveness evaluation, or if the recipient by an affirmative act or omission vitiates the cost-effectiveness determination of the lease, future lease
(1) Any Federal funds paid for the portion of the lease term eliminated by early termination; and
(2) The Federal share of the excess, if any, of the present value of lease costs, which exceeds the purchase costs as calculated under subpart C of this part for the period of the lease up to the point of termination.
(b) Penalties resulting from early termination of a capital lease under this part are not eligible for Federal financial assistance.
(c) Paragraph (a) of this section does not apply if a lessor defaults on or otherwise does not meet its obligations under the capital lease and the recipient takes appropriate action to ensure that the procurement continues to be cost-effective. FTA shall be notified of any such event.
Each recipient must maintain an inventory of capital assets acquired by standard FTA project management guidelines.
Secs. 1501
The regulations in 49 CFR part 80 shall be followed in complying with the requirements of this part. Title 49, CFR, part 80 implements the Transportation Infrastructure Finance and Innovation Act of 1998, secs. 1501
49 U.S.C. 5331; 49 CFR 1.51.
66 FR 42002, Aug. 9, 2001, unless otherwise noted.
The purpose of this part is to establish programs to be implemented by employers that receive financial assistance from the Federal Transit Administration (FTA) and by contractors of those employers, that are designed to help prevent accidents, injuries, and fatalities resulting from the misuse of alcohol and use of prohibited drugs by employees who perform safety-sensitive functions.
(a) This part includes nine subparts. Subpart A of this part covers the general requirements of FTA's drug and alcohol testing programs. Subpart B of this part specifies the basic requirements of each employer's alcohol misuse and prohibited drug use program, including the elements required to be in each employer's testing program. Subpart C of this part describes prohibited drug use. Subpart D of this part describes prohibited alcohol use. Subpart E of this part describes the types of alcohol and drug tests to be conducted. Subpart F of this part addresses the testing procedural requirements mandated by the Omnibus Transportation Employee Testing Act of 1991, and as required in 49 CFR Part 40. Subpart G of this part lists the consequences for covered employees who engage in alcohol misuse or prohibited drug use. Subpart H of this part contains administrative matters, such as reports and recordkeeping requirements. Subpart I of this part specifies how a recipient certifies compliance with the rule.
(b) This part must be read in conjunction with 49 CFR Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs.
(a) Except as specifically excluded in paragraph (b) of this section, this part applies to:
(1) Each recipient and subrecipient receiving Federal assistance under:
(i) 49 U.S.C. 5307, 5309, or 5311; or
(ii) 23 U.S.C. 103(e)(4); and
(2) Any contractor of a recipient or subrecipient of Federal assistance under:
(i) 49 U.S.C. 5307, 5309, or 5311; or
(ii) 23 U.S.C. 103(e)(4).
(b) A recipient operating a railroad regulated by the Federal Railroad Administration (FRA) shall follow 49 CFR Part 219 and § 655.83 for its railroad operations, and shall follow this part for its non-railroad operations, if any.
For this part, the terms listed in this section have the following definitions. The definitions of additional terms used in this part but not listed in this section can be found in 49 CFR Part 40.
(1) An individual dies; or
(2) An individual suffers bodily injury and immediately receives medical treatment away from the scene of the accident; or
(3) With respect to an occurrence in which the mass transit vehicle involved is a bus, electric bus, van, or automobile, one or more vehicles (including non-FTA funded vehicles) incurs disabling damage as the result of the occurrence and such vehicle or vehicles are transported away from the scene by a tow truck or other vehicle; or
(4) With respect to an occurrence in which the mass transit vehicle involved is a rail car, trolley car, trolley bus, or vessel, the mass transit vehicle is removed from operation.
(1) The volunteer is required to hold a commercial driver's license to operate the vehicle; or
(2) The volunteer performs a safety-sensitive function for an entity subject to this part and receives remuneration in excess of his or her actual expenses incurred while engaged in the volunteer activity.
(1)
(2)
(ii) Tire disablement without other damage even if no spare tire is available.
(iii) Headlamp or tail light damage.
(iv) Damage to turn signals, horn, or windshield wipers, which makes the vehicle inoperable.
(1) All forms of non-highway ground transportation that run on rails or electromagnetic guideways, including:
(i) Commuter or other short-haul rail passenger service in a metropolitan or
(ii) High speed ground transportation systems that connect metropolitan areas, without regard to whether they use new technologies not associated with traditional railroads.
(2) Such term does not include rapid transit operations within an urban area that are not connected to the general railroad system of transportation.
(1) Operating a revenue service vehicle, including when not in revenue service;
(2) Operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver's License;
(3) Controlling dispatch or movement of a revenue service vehicle;
(4) Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service. This section does not apply to the following: an employer who receives funding under 49 U.S.C. 5307 or 5309, is in an area less than 200,000 in population, and contracts out such services; or an employer who receives funding under 49 U.S.C. 5311 and contracts out such services;
(5) Carrying a firearm for security purposes.
(a) An employer subject to this part may petition the FTA for a waiver allowing the employer to stand down, per 49 CFR Part 40, an employee following a report of a laboratory confirmed positive drug test or refusal, pending the outcome of the verification process.
(b) Each petition for a waiver must be in writing and include facts and justification to support the waiver. Each petition must satisfy the requirements for obtaining a waiver, as provided in 49 CFR 40.21.
(c) Each petition for a waiver must be submitted to the Office of Safety and Security, Federal Transit Administration, U.S. Department of Transportation, 400 Seventh Street, SW. Washington, DC 20590.
(d) The Administrator may grant a waiver subject to 49 CFR 40.21(d).
(a) Except as provided in paragraph (b) of this section, this part preempts any state or local law, rule, regulation, or order to the extent that:
(1) Compliance with both the state or local requirement and any requirement in this part is not possible; or
(2) Compliance with the state or local requirement is an obstacle to the accomplishment and execution of any requirement in this part.
(b) This part shall not be construed to preempt provisions of state criminal laws that impose sanctions for reckless conduct attributed to prohibited drug use or alcohol misuse leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees or employers or to the general public.
An employer must have an anti-drug and alcohol misuse testing program in place by the date the employer begins operations.
Each employer shall establish an anti-drug use and alcohol misuse program consistent with the requirements of this part.
An anti-drug use and alcohol misuse program shall include the following:
(a) A statement describing the employer's policy on prohibited drug use and alcohol misuse in the workplace, including the consequences associated with prohibited drug use and alcohol misuse. This policy statement shall include all of the elements specified in § 655.15. Each employer shall disseminate the policy consistent with the provisions of § 655.16.
(b) An education and training program which meets the requirements of § 655.14.
(c) A testing program, as described in Subparts C and D of this part, which meets the requirements of this part and 49 CFR Part 40.
(d) Procedures for referring a covered employee who has a verified positive drug test result or an alcohol concentration of 0.04 or greater to a Substance Abuse Professional, consistent with 49 CFR Part 40.
Each employer shall establish an employee education and training program for all covered employees, including:
(a)
(b)
(2)
The local governing board of the employer or operator shall adopt an anti-drug and alcohol misuse policy statement. The statement must be made available to each covered employee, and shall include the following:
(a) The identity of the person, office, branch and/or position designated by the employer to answer employee questions about the employer's anti-drug use and alcohol misuse programs.
(b) The categories of employees who are subject to the provisions of this part.
(c) Specific information concerning the behavior and conduct prohibited by this part.
(d) The specific circumstances under which a covered employee will be tested for prohibited drugs or alcohol misuse under this part.
(e) The procedures that will be used to test for the presence of illegal drugs or alcohol misuse, protect the employee and the integrity of the drug and alcohol testing process, safeguard the validity of the test results, and ensure the test results are attributed to the correct covered employee.
(f) The requirement that a covered employee submit to drug and alcohol testing administered in accordance with this part.
(g) A description of the kind of behavior that constitutes a refusal to take a drug or alcohol test, and a statement that such a refusal constitutes a violation of the employer's policy.
(h) The consequences for a covered employee who has a verified positive drug or a confirmed alcohol test result with an alcohol concentration of 0.04 or greater, or who refuses to submit to a
(i) The consequences, as set forth in § 655.35 of subpart D, for a covered employee who is found to have an alcohol concentration of 0.02 or greater but less than 0.04.
(j) The employer shall inform each covered employee if it implements elements of an anti-drug use or alcohol misuse program that are not required by this part. An employer may not impose requirements that are inconsistent with, contrary to, or frustrate the provisions of this part.
Each employer shall provide written notice to every covered employee and to representatives of employee organizations of the employer's anti-drug and alcohol misuse policies and procedures.
Before performing a drug or alcohol test under this part, each employer shall notify a covered employee that the test is required by this part. No employer shall falsely represent that a test is administered under this part.
(a) An employer shall establish a program that provides testing for prohibited drugs and drug metabolites in the following circumstances: pre-employment, post-accident, reasonable suspicion, random, and return to duty/follow-up.
(b) When administering a drug test, an employer shall ensure that the following drugs are tested for:
(1) Marijuana;
(2) Cocaine;
(3) Opiates;
(4) Amphetamines; and
(5) Phencyclidine.
(c) Consumption of these products is prohibited at all times.
(a) An employer shall establish a program that provides for testing for alcohol in the following circumstances: post-accident, reasonable suspicion, random, and return to duty/follow-up. An employer may also conduct pre-employment alcohol testing.
(b) Each employer shall prohibit a covered employee, while having an alcohol concentration of 0.04 or greater, from performing or continuing to perform a safety-sensitive function.
Each employer shall prohibit a covered employee from using alcohol while performing safety-sensitive functions. No employer having actual knowledge that a covered employee is using alcohol while performing safety-sensitive functions shall permit the employee to perform or continue to perform safety-sensitive functions.
(a)
(b)
(1) The opportunity for the covered employee to acknowledge the use of alcohol at the time he or she is called to report to duty and the inability to perform his or her safety-sensitive function.
(2) The requirement that the covered employee take an alcohol test, if the covered employee has acknowledged the use of alcohol, but claims ability to perform his or her safety-sensitive function.
Each employer shall prohibit alcohol use by any covered employee required to take a post-accident alcohol test under § 655.44 for eight hours following the accident or until he or she undergoes a post-accident alcohol test, whichever occurs first.
(a) No employer shall permit a covered employee tested under the provisions of subpart E of this part who is found to have an alcohol concentration of 0.02 or greater but less than 0.04 to perform or continue to perform safety-sensitive functions, until:
(1) The employee's alcohol concentration measures less than 0.02; or
(2) The start of the employee's next regularly scheduled duty period, but not less than eight hours following administration of the test.
(b) Except as provided in paragraph (a) of this section, no employer shall take any action under this part against an employee based solely on test results showing an alcohol concentration less than 0.04. This does not prohibit an employer with authority independent of this part from taking any action otherwise consistent with law.
(a)(1) Before allowing a covered employee or applicant to perform a safety-sensitive function for the first time, the employer must ensure that the employee takes a pre-employment drug test administered under this part with a verified negative result. An employer may not allow a covered employee, including an applicant, to perform a safety-sensitive function unless the employee takes a drug test administered under this part with a verified negative result.
(2) When a covered employee or applicant has previously failed or refused a pre-employment drug test administered under this part, the employee must provide the employer proof of having successfully completed a referral, evaluation and treatment plan as described in § 655.62.
(b) An employer may not transfer an employee from a nonsafety-sensitive function to a safety-sensitive function until the employee takes a pre-employment drug test administered under this part with a verified negative result.
(c) If a pre-employment drug test is canceled, the employer shall require the covered employee or applicant to take another pre-employment drug test administered under this part with a verified negative result.
(d) When a covered employee or applicant has not performed a safety-sensitive function for 90 consecutive calendar days regardless of the reason, and the employee has not been in the employer's random selection pool during that time, the employer shall ensure that the employee takes a pre-employment drug test with a verified negative result.
An employer may, but is not required to, conduct pre-employment alcohol testing under this part. If an employer chooses to conduct pre-employment alcohol testing, the employer must comply with the following requirements:
(a) The employer must conduct a pre-employment alcohol test before the first performance of safety-sensitive functions by every covered employee (whether a new employee or someone who has transferred to a position involving the performance of safety-sensitive functions).
(b) The employer must treat all covered employees performing safety-sensitive functions the same for the purpose of pre-employment alcohol testing (i.e., you must not test some covered employees and not others).
(c) The employer must conduct the pre-employment tests after making a contingent offer of employment or transfer, subject to the employee passing the pre-employment alcohol test.
(d) The employer must conduct all pre-employment alcohol tests using the alcohol testing procedures set forth in 49 CFR Part 40.
(e) The employer must not allow a covered employee to begin performing safety-sensitive functions unless the result of the employee's test indicates
(a) An employer shall conduct a drug and/or alcohol test when the employer has reasonable suspicion to believe that the covered employee has used a prohibited drug and/or engaged in alcohol misuse.
(b) An employer's determination that reasonable suspicion exists shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee. A supervisor(s), or other company official(s) who is trained in detecting the signs and symptoms of drug use and alcohol misuse must make the required observations.
(c) Alcohol testing is authorized under this section only if the observations required by paragraph (b) of this section are made during, just preceding, or just after the period of the workday that the covered employee is required to be in compliance with this part. An employer may direct a covered employee to undergo reasonable suspicion testing for alcohol only while the employee is performing safety-sensitive functions; just before the employee is to perform safety-sensitive functions; or just after the employee has ceased performing such functions.
(d) If an alcohol test required by this section is not administered within two hours following the determination under paragraph (b) of this section, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by this section is not administered within eight hours following the determination under paragraph (b) of this section, the employer shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test.
(a) Accidents. (1)
(ii) The employer shall also drug and alcohol test any other covered employee whose performance could have contributed to the accident, as determined by the employer using the best information available at the time of the decision.
(2)
(ii) If an alcohol test required by this section is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by this section is not administered within eight hours following the accident, the employer shall cease attempts to administer an alcohol test and maintain the record. Records shall be submitted to FTA upon request of the Administrator.
(b) An employer shall ensure that a covered employee required to be drug tested under this section is tested as soon as practicable but within 32 hours of the accident.
(c) A covered employee who is subject to post-accident testing who fails to remain readily available for such testing, including notifying the employer or the employer representative
(d) The decision not to administer a drug and/or alcohol test under this section shall be based on the employer's determination, using the best available information at the time of the determination that the employee's performance could not have contributed to the accident. Such a decision must be documented in detail, including the decision-making process used to reach the decision not to test.
(e) Nothing in this section shall be construed to require the delay of necessary medical attention for the injured following an accident or to prohibit a covered employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care.
(f) The results of a blood, urine, or breath test for the use of prohibited drugs or alcohol misuse, conducted by Federal, State, or local officials having independent authority for the test, shall be considered to meet the requirements of this section provided such test conforms to the applicable Federal, State, or local testing requirements, and that the test results are obtained by the employer. Such test results may be used only when the employer is unable to perform a post-accident test within the required period noted in paragraphs (a) and (b) of this section.
(a) Except as provided in paragraphs (b) through (d) of this section, the minimum annual percentage rate for random drug testing shall be 50 percent of covered employees; the random alcohol testing rate shall be 10 percent. As provided in paragraph (b) of this section, this rate is subject to annual review by the Administrator.
(b) The Administrator's decision to increase or decrease the minimum annual percentage rate for random drug and alcohol testing is based, respectively, on the reported positive drug and alcohol violation rates for the entire industry. All information used for this determination is drawn from the drug and alcohol Management Information System (MIS) reports required by this part. In order to ensure reliability of the data, the Administrator shall consider the quality and completeness of the reported data, may obtain additional information or reports from employers, and may make appropriate modifications in calculating the industry's verified positive results and violation rates. Each year, the Administrator will publish in the
(c) Rates for drug testing. (1) When the minimum annual percentage rate for random drug testing is 50 percent, the Administrator may lower this rate to 25 percent of all covered employees if the Administrator determines that the data received under the reporting requirements of § 655.72 for the two preceding consecutive calendar years indicate that the reported positive rate is less than 1.0 percent.
(2) When the minimum annual percentage rate for random drug testing is 25 percent, and the data received under the reporting requirements of § 655.72 for the calendar year indicate that the reported positive rate is equal to or greater than 1.0 percent, the Administrator will increase the minimum annual percentage rate for random drug or random alcohol testing to 50 percent of all covered employees.
(d) Rates for alcohol testing. (1)(i) When the minimum annual percentage rate for random alcohol testing is 25 percent or more, the Administrator may lower this rate to 10 percent of all covered employees if the Administrator determines that the data received under the reporting requirements of § 655.72 for two consecutive calendar years indicate that the violation rate is less than 0.5 percent.
(ii) When the minimum annual percentage rate for random alcohol testing is 50 percent, the Administrator may lower this rate to 25 percent of all
(2)(i) When the minimum annual percentage rate for random alcohol testing is 10 percent, and the data received under the reporting requirements of § 655.72 for that calendar year indicate that the violation rate is equal to or greater than 0.5 percent, but less than 1.0 percent, the Administrator will increase the minimum annual percentage rate for random alcohol testing to 25 percent of all covered employees.
(ii) When the minimum annual percentage rate for random alcohol testing is 25 percent or less, and the data received under the reporting requirements of § 655.72 for that calendar year indicate that the violation rate is equal to or greater than 1.0 percent, the Administrator will increase the minimum annual percentage rate for random alcohol testing to 50 percent of all covered employees.
(e) The selection of employees for random drug and alcohol testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made.
(f) The employer shall randomly select a sufficient number of covered employees for testing during each calendar year to equal an annual rate not less than the minimum annual percentage rates for random drug and alcohol testing determined by the Administrator. If the employer conducts random drug and alcohol testing through a consortium, the number of employees to be tested may be calculated for each individual employer or may be based on the total number of covered employees covered by the consortium who are subject to random drug and alcohol testing at the same minimum annual percentage rate under this part.
(g) Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.
(h) Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately. If the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the testing site immediately.
(i) A covered employee shall only be randomly tested for alcohol misuse while the employee is performing safety-sensitive functions; just before the employee is to perform safety-sensitive functions; or just after the employee has ceased performing such functions. A covered employee may be randomly tested for prohibited drug use anytime while on duty.
(j) If a given covered employee is subject to random drug and alcohol testing under the testing rules of more than one DOT agency for the same employer, the employee shall be subject to random drug and alcohol testing at the percentage rate established for the calendar year by the DOT agency regulating more than 50 percent of the employee's function.
(k) If an employer is required to conduct random drug and alcohol testing under the drug and alcohol testing rules of more than one DOT agency, the employer may—
(1) Establish separate pools for random selection, with each pool containing the covered employees who are subject to testing at the same required rate; or
(2) Randomly select such employees for testing at the highest percentage rate established for the calendar year by any DOT agency to which the employer is subject.
Where a covered employee refuses to submit to a test, has a verified positive drug test result, and/or has a confirmed alcohol test result of 0.04 or greater, the employer, before returning the employee to duty to perform a safety-sensitive function, shall follow the procedures outlined in 49 CFR Part 40.
An employer shall conduct follow-up testing of each employee who returns to duty, as specified in 49 CFR Part 40, subpart O.
If an employer chooses to permit a covered employee to perform a safety-sensitive function within 8 hours of an alcohol test indicating an alcohol concentration of 0.02 or greater but less than 0.04, the employer shall retest the covered employee to ensure compliance with the provisions of § 655.35. The covered employee may not perform safety-sensitive functions unless the confirmation alcohol test result is less than 0.02.
(a) Each employer shall require a covered employee to submit to a post-accident drug and alcohol test required under § 655.44, a random drug and alcohol test required under § 655.45, a reasonable suspicion drug and alcohol test required under § 655.43, or a follow-up drug and alcohol test required under § 655.47. No employer shall permit an employee who refuses to submit to such a test to perform or continue to perform safety-sensitive functions.
(b) When an employee refuses to submit to a drug or alcohol test, the employer shall follow the procedures outlined in 49 CFR Part 40.
The drug and alcohol testing procedures in 49 CFR Part 40 apply to employers covered by this part, and must be read together with this part, unless expressly provided otherwise in this part.
The SAP must perform the functions in 49 CFR Part 40.
An employer shall not permit an employee with direct or immediate supervisory responsibility or authority over another employee to serve as the urine collection person, breath alcohol technician, or saliva-testing technician for a drug or alcohol test of the employee.
(a) (1) Immediately after receiving notice from a medical review officer (MRO) or a consortium/third party administrator (C/TPA) that a covered employee has a verified positive drug test result, the employer shall require that the covered employee cease performing a safety-sensitive function.
(2) Immediately after receiving notice from a Breath Alcohol Technician (BAT) that a covered employee has a confirmed alcohol test result of 0.04 or greater, the employer shall require that the covered employee cease performing a safety-sensitive function.
(3) If an employee refuses to submit to a drug or alcohol test required by this part, the employer shall require that the covered employee cease performing a safety-sensitive function.
(b) Before allowing the covered employee to resume performing a safety-sensitive function, the employer shall ensure the employee meets the requirements of 49 CFR Part 40 for returning to duty, including taking a return to duty drug and/or alcohol test.
If a covered employee has a verified positive drug test result, or has a confirmed alcohol test of 0.04 or greater, or refuses to submit to a drug or alcohol test required by this part, the employer shall advise the employee of the resources available for evaluating and resolving problems associated with prohibited drug use and alcohol misuse, including the names, addresses, and telephone numbers of substance abuse professionals (SAPs) and counseling and treatment programs.
(a)
(b)
(1)
(2)
(3)
(c)
(1) Records related to the collection process:
(i) Collection logbooks, if used.
(ii) Documents relating to the random selection process.
(iii) Documents generated in connection with decisions to administer reasonable suspicion drug or alcohol tests.
(iv) Documents generated in connection with decisions on post-accident drug and alcohol testing.
(v) MRO documents verifying existence of a medical explanation of the inability of a covered employee to provide an adequate urine or breathe sample.
(2) Records related to test results:
(i) The employer's copy of the custody and control form.
(ii) Documents related to the refusal of any covered employee to submit to a test required by this part.
(iii) Documents presented by a covered employee to dispute the result of a test administered under this part.
(3) Records related to referral and return to duty and follow-up testing: Records concerning a covered employee's entry into and completion of the treatment program recommended by the substance abuse professional.
(4) Records related to employee training:
(i) Training materials on drug use awareness and alcohol misuse, including a copy of the employer's policy on prohibited drug use and alcohol misuse.
(ii) Names of covered employees attending training on prohibited drug use and alcohol misuse and the dates and times of such training.
(iii) Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for drug and alcohol testing based on reasonable suspicion.
(iv) Certification that any training conducted under this part complies with the requirements for such training.
(5) Copies of annual MIS reports submitted to FTA.
(a) Each recipient shall annually prepare and maintain a summary of the results of its anti-drug and alcohol misuse testing programs performed under this part during the previous calendar year.
(b) When requested by FTA, each recipient shall submit to FTA's Office of Safety and Security, or its designated agent, by March 15, a report covering the previous calendar year (January 1 through December 31) summarizing the results of its anti-drug and alcohol misuse programs.
(c) Each recipient shall be responsible for ensuring the accuracy and timeliness of each report submitted by an employer, contractor, consortium or joint enterprise or by a third party service provider acting on the recipient's or employer's behalf.
(d) As an employer, you must use the Management Information System (MIS) form and instructions as required by 49 CFR part 40, § 40.25 and appendix H. You may also use the electronic version of the MIS form provided by the DOT. The Administrator may designate means (
(e) To calculate the total number of covered employees eligible for random testing throughout the year, as an employer, you must add the total number of covered employees eligible for testing during each random testing period for the year and divide that total by the number of random testing periods. Covered employees, and only covered employees, are to be in an employer's random testing pool, and all covered employees must be in the random pool. If you are an employer conducting random testing more often than once per month (
(f) If you have a covered employee who performs multi-DOT agency functions (
(g) A service agent (
(a) Except as required by law, or expressly authorized or required in this section, no employer may release information pertaining to a covered employee that is contained in records required to be maintained by § 655.71.
(b) A covered employee is entitled, upon written request, to obtain copies of any records pertaining to the covered employee's use of prohibited drugs or misuse of alcohol, including any records pertaining to his or her drug or alcohol tests. The employer shall provide promptly the records requested by the employee. Access to a covered employee's records shall not be contingent upon the employer's receipt of payment for the production of those records.
(c) An employer shall permit access to all facilities utilized and records compiled in complying with the requirements of this part to the Secretary of Transportation or any DOT
(d) An employer shall disclose data for its drug and alcohol testing programs, and any other information pertaining to the employer's anti-drug and alcohol misuse programs required to be maintained by this part, to the Secretary of Transportation or any DOT agency with regulatory authority over the employer or covered employee or to a State oversight agency authorized to oversee rail fixed guideway systems, upon the Secretary's request or the respective agency's request.
(e) When requested by the National Transportation Safety Board as part of an accident investigation, employers shall disclose information related to the employer's drug or alcohol testing related to the accident under investigation.
(f) Records shall be made available to a subsequent employer upon receipt of a written request from the covered employee. Subsequent disclosure by the employer is permitted only as expressly authorized by the terms of the covered employee's request.
(g) An employer may disclose information required to be maintained under this part pertaining to a covered employee to the employee or the decisionmaker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual, and arising from the results of a drug or alcohol test under this part (including, but not limited to, a worker's compensation, unemployment compensation, or other proceeding relating to a benefit sought by the covered employee.)
(h) An employer shall release information regarding a covered employee's record as directed by the specific, written consent of the employee authorizing release of the information to an identified person.
(i) An employer may disclose drug and alcohol testing information required to be maintained under this part, pertaining to a covered employee, to the State oversight agency or grantee required to certify to FTA compliance with the drug and alcohol testing procedures of 49 CFR parts 40 and 655.
A grantee shall ensure that the recipients of funds under 49 U.S.C. 5307, 5309, 5311 or 23 U.S.C. 103(e)(4) comply with this part.
(a)
(b)
(c)
(a) A recipient of FTA financial assistance shall annually certify compliance, as set forth in § 655.82, to the applicable FTA Regional Office.
(b) A certification must be authorized by the organization's governing board or other authorizing official, and must be signed by a party specifically authorized to do so.
(c) A recipient will be ineligible for further FTA financial assistance if the recipient fails to establish and implement an anti-drug and alcohol misuse program in accordance with this part.
49 U.S.C. 5330.
70 FR 22578, Apr. 29, 2005, unless otherwise noted.
This part implements 49 U.S.C. 5330 by requiring a state to oversee the safety and security of rail fixed guideway systems through a designated oversight agency.
This part applies only to states with rail fixed guideway systems, as defined in this part.
(1) Is not regulated by the Federal Railroad Administration; and
(2) Is included in FTA's calculation of fixed guideway route miles or receives funding under FTA's formula program for urbanized areas (49 U.S.C. 5336); or
(3) Has submitted documentation to FTA indicating its intent to be included in FTA's calculation of fixed guideway route miles to receive funding under FTA's formula program for urbanized areas (49 U.S.C. 5336).
(a) The Administrator of the FTA may withhold up to five percent of the amount required to be distributed to any state or affected urbanized area in such state under FTA's formula program for urbanized areas, if:
(1) The state in the previous fiscal year has not met the requirements of this part; and
(2) The Administrator determines that the state is not making adequate efforts to comply with this part.
(b) The Administrator may agree to restore withheld formula funds, if compliance is achieved within two years (See 49 U.S.C. 5330).
(a)
(b)
(c)
(1) Coincide with the execution of any grant agreement for a New Starts project between FTA and a rail transit agency within the state's jurisdiction; or
(2) Occur before the application by a rail transit agency for funding under FTA's formula program for urbanized areas (49 U.S.C. 5336).
(d)
(1) The name of the oversight agency designated to implement requirements in this part;
(2) Documentation of the oversight agency's authority to provide state oversight;
(3) Contact information for the representative identified by the designated oversight agency with responsibility for oversight activities;
(4) A description of the organizational and financial relationship between the designated oversight agency and the rail transit agency; and
(5) A schedule for the designated agency's development of its State Safety Oversight Program, including the projected date of its initial submission, as required in § 659.39(a).
(e)
(1) May agree to designate one agency of one state, or an agency representative of all states, to implement the requirements in this part; and
(2) In the event multiple states share oversight responsibility for a rail fixed guideway system, the states must ensure that the rail fixed guideway system is subject to a single program standard, adopted by all affected states.
(f)
(a) A state may withhold an investigation report that may have been prepared or adopted by the oversight agency from being admitted as evidence or used in a civil action for damages resulting from a matter mentioned in the report.
(b) This part does not require public availability of the rail transit agency's security plan and any referenced procedures.
The state oversight agency is responsible for establishing standards for rail safety and security practices and procedures to be used by rail transit agencies within its purview. In addition, the state oversight agency must oversee the execution of these practices and procedures, to ensure compliance with the provisions of this part. This subpart identifies and describes the various requirements for the state oversight agency.
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(a) The oversight agency shall require the rail transit agency to develop and implement a written system safety program plan that complies with requirements in this part and the oversight agency's program standard.
(b) The oversight agency shall review and approve the rail transit agency system safety program plan.
(c) After approval, the oversight agency shall issue a formal letter of approval to the rail transit agency, including the checklist used to conduct the review.
The system safety plan shall include, at a minimum:
(a) A policy statement signed by the agency's chief executive that endorses the safety program and describes the authority that establishes the system safety program plan.
(b) A clear definition of the goals and objectives for the safety program and stated management responsibilities to ensure they are achieved.
(c) An overview of the management structure of the rail transit agency, including:
(1) An organization chart;
(2) A description of how the safety function is integrated into the rest of the rail transit organization; and
(3) Clear identification of the lines of authority used by the rail transit agency to manage safety issues.
(d) The process used to control changes to the system safety program plan, including:
(1) Specifying an annual assessment of whether the system safety program plan should be updated; and
(2) Required coordination with the oversight agency, including timeframes for submission, revision, and approval.
(e) A description of the specific activities required to implement the system safety program, including:
(1) Tasks to be performed by the rail transit safety function, by position and management accountability, specified in matrices and/or narrative format; and
(2) Safety-related tasks to be performed by other rail transit departments, by position and management accountability, specified in matrices and/or narrative format.
(f) A description of the process used by the rail transit agency to implement its hazard management program, including activities for:
(1) Hazard identification;
(2) Hazard investigation, evaluation and analysis;
(3) Hazard control and elimination;
(4) Hazard tracking; and
(5) Requirements for on-going reporting to the oversight agency relating to hazard management activities and status.
(g) A description of the process used by the rail transit agency to ensure that safety concerns are addressed in modifications to existing systems, vehicles, and equipment, which do not require formal safety certification but which may have safety impacts.
(h) A description of the safety certification process required by the rail transit agency to ensure that safety concerns and hazards are adequately addressed prior to the initiation of passenger operations for New Starts and subsequent major projects to extend, rehabilitate, or modify an existing system, or to replace vehicles and equipment.
(i) A description of the process used to collect, maintain, analyze, and distribute safety data, to ensure that the safety function within the rail transit organization receives the necessary information to support implementation of the system safety program.
(j) A description of the process used by the rail transit agency to perform accident notification, investigation and reporting, including:
(1) Notification thresholds for internal and external organizations;
(2) Accident investigation process and references to procedures;
(3) The process used to develop, implement, and track corrective actions that address investigation findings;
(4) Reporting to internal and external organizations; and
(5) Coordination with the oversight agency.
(k) A description of the process used by the rail transit agency to develop an approved, coordinated schedule for all emergency management program activities, which include:
(1) Meetings with external agencies;
(2) Emergency planning responsibilities and requirements;
(3) Process used to evaluate emergency preparedness, such as annual emergency field exercises;
(4) After action reports and implementation of findings;
(5) Revision and distribution of emergency response procedures;
(6) Familiarization training for public safety organizations; and
(7) Employee training.
(l) A description of the process used by the rail transit agency to ensure that planned and scheduled internal safety reviews are performed to evaluate compliance with the system safety program plan, including:
(1) Identification of departments and functions subject to review;
(2) Responsibility for scheduling reviews;
(3) Process for conducting reviews, including the development of checklists and procedures and the issuing of findings;
(4) Review of reporting requirements;
(5) Tracking the status of implemented recommendations; and
(6) Coordination with the oversight agency.
(m) A description of the process used by the rail transit agency to develop, maintain, and ensure compliance with rules and procedures having a safety impact, including:
(1) Identification of operating and maintenance rules and procedures subject to review;
(2) Techniques used to assess the implementation of operating and maintenance rules and procedures by employees, such as performance testing;
(3) Techniques used to assess the effectiveness of supervision relating to the implementation of operating and maintenance rules; and
(4) Process for documenting results and incorporating them into the hazard management program.
(n) A description of the process used for facilities and equipment safety inspections, including:
(1) Identification of the facilities and equipment subject to regular safety-related inspection and testing;
(2) Techniques used to conduct inspections and testing;
(3) Inspection schedules and procedures; and
(4) Description of how results are entered into the hazard management process.
(o) A description of the maintenance audits and inspections program, including identification of the affected facilities and equipment, maintenance cycles, documentation required, and the process for integrating identified problems into the hazard management process.
(p) A description of the training and certification program for employees and contractors, including:
(1) Categories of safety-related work requiring training and certification;
(2) A description of the training and certification program for employees and contractors in safety-related positions;
(3) Process used to maintain and access employee and contractor training records; and
(4) Process used to assess compliance with training and certification requirements.
(q) A description of the configuration management control process, including:
(1) The authority to make configuration changes;
(2) Process for making changes; and
(3) Assurances necessary for formally notifying all involved departments.
(r) A description of the safety program for employees and contractors that incorporates the applicable local, state, and federal requirements, including:
(1) Safety requirements that employees and contractors must follow when working on, or in close proximity to, rail transit agency property; and
(2) Processes for ensuring the employees and contractors know and follow the requirements.
(s) A description of the hazardous materials program, including the process used to ensure knowledge of and compliance with program requirements.
(t) A description of the drug and alcohol program and the process used to ensure knowledge of and compliance with program requirements.
(u) A description of the measures, controls, and assurances in place to ensure that safety principles, requirements and representatives are included in the rail transit agency's procurement process.
(a) The oversight agency shall require the rail transit agency to implement a system security plan that, at a minimum, complies with requirements in this part and the oversight agency's program standard. The system security plan must be developed and maintained as a separate document and may not be part of the rail transit agency's system safety program plan.
(b) The oversight agency may prohibit a rail transit agency from publicly disclosing the system security plan.
(c) After approving the system security plan, the oversight agency shall issue a formal letter of approval, including the checklist used to conduct the review, to the rail transit agency.
The system security plan must, at a minimum address the following:
(a) Identify the policies, goals, and objectives for the security program endorsed by the agency's chief executive.
(b) Document the rail transit agency's process for managing threats and vulnerabilities during operations, and for major projects, extensions, new vehicles and equipment, including integration with the safety certification process;
(c) Identify controls in place that address the personal security of passengers and employees;
(d) Document the rail transit agency's process for conducting internal security reviews to evaluate compliance and measure the effectiveness of the system security plan; and
(e) Document the rail transit agency's process for making its system security plan and accompanying procedures available to the oversight agency for review and approval.
(a) The oversight agency shall require the rail transit agency to conduct an annual review of its system safety program plan and system security plan.
(b) In the event the rail transit agency's system safety program plan is modified, the rail transit agency must submit the modified plan and any subsequently modified procedures to the oversight agency for review and approval. After the plan is approved, the oversight agency must issue a formal letter of approval to the rail transit agency.
(c) In the event the rail transit agency's system security plan is modified, the rail transit agency must make the modified system security plan and accompanying procedures available to the oversight agency for review, consistent with requirements specified in § 659.23(e) of this part. After the plan is approved, the oversight agency shall issue a formal letter of approval to the rail transit agency.
(a) The oversight agency shall require the rail transit agency to develop and document a process for the performance of on-going internal safety and security reviews in its system safety program plan.
(b) The internal safety and security review process must, at a minimum:
(1) Describe the process used by the rail transit agency to determine if all identified elements of its system safety program plan and system security plan are performing as intended; and
(2) Ensure that all elements of the system safety program plan and system security plan are reviewed in an on-going manner and completed over a three-year cycle.
(c) The rail transit agency must notify the oversight agency at least thirty (30) days before the conduct of scheduled internal safety and security reviews.
(d) The rail transit agency shall submit to the oversight agency any checklists or procedures it will use during the safety portion of its review.
(e) The rail transit agency shall make available to the oversight agency any checklists or procedures subject to the security portion of its review, consistent with § 659.23(e).
(f) The oversight agency shall require the rail transit agency to annually submit a report documenting internal
(g) The annual report must be accompanied by a formal letter of certification signed by the rail transit agency's chief executive, indicating that the rail transit agency is in compliance with its system safety program plan and system security plan.
(h) If the rail transit agency determines that findings from its internal safety and security reviews indicate that the rail transit agency is not in compliance with its system safety program plan or system security plan, the chief executive must identify the activities the rail transit agency will take to achieve compliance.
(i) The oversight agency must formally review and approve the annual report.
At least every three (3) years, beginning with the initiation of rail transit agency passenger operations, the oversight agency must conduct an on-site review of the rail transit agency's implementation of its system safety program plan and system security plan. Alternatively, the on-site review may be conducted in an on-going manner over the three year timeframe. At the conclusion of the review cycle, the oversight agency must prepare and issue a report containing findings and recommendations resulting from that review, which, at a minimum, must include an analysis of the effectiveness of the system safety program plan and the security plan and a determination of whether either should be updated.
(a) The oversight agency must require the rail transit agency to develop and document in its system safety program plan a process to identify and resolve hazards during its operation, including any hazards resulting from subsequent system extensions or modifications, operational changes, or other changes within the rail transit environment.
(b) The hazard management process must, at a minimum:
(1) Define the rail transit agency's approach to hazard management and the implementation of an integrated system-wide hazard resolution process;
(2) Specify the sources of, and the mechanisms to support, the on-going identification of hazards;
(3) Define the process by which identified hazards will be evaluated and prioritized for elimination or control;
(4) Identify the mechanism used to track through resolution the identified hazard(s);
(5) Define minimum thresholds for the notification and reporting of hazard(s) to oversight agencies; and
(6) Specify the process by which the rail transit agency will provide on-going reporting of hazard resolution activities to the oversight agency.
(a) The oversight agency must require the rail transit agency to notify the oversight agency within two (2) hours of any incident involving a rail transit vehicle or taking place on rail transit-controlled property where one or more of the following occurs:
(1) A fatality at the scene; or where an individual is confirmed dead within thirty (30) days of a rail transit-related incident;
(2) Injuries requiring immediate medical attention away from the scene for two or more individuals;
(3) Property damage to rail transit vehicles, non-rail transit vehicles, other rail transit property or facilities and non-transit property that equals or exceeds $25,000;
(4) An evacuation due to life safety reasons;
(5) A collision at a grade crossing;
(6) A main-line derailment;
(7) A collision with an individual on a rail right of way; or
(8) A collision between a rail transit vehicle and a second rail transit vehicle, or a rail transit non-revenue vehicle.
(b) The oversight agency shall require rail transit agencies that share track with the general railroad system and are subject to the Federal Railroad Administration notification requirements, to notify the oversight agency
(c) The oversight agency shall identify in its program standard the method of notification and the information to be provided by the rail transit agency
(a) The oversight agency must investigate, or cause to be investigated, at a minimum, any incident involving a rail transit vehicle or taking place on rail transit-controlled property meeting the notification thresholds identified in § 659.33(a).
(b) The oversight agency must use its own investigation procedures or those that have been formally adopted from the rail transit agency and that have been submitted to FTA.
(c) In the event the oversight agency authorizes the rail transit agency to conduct investigations on its behalf, it must do so formally and require the rail transit agency to use investigation procedures that have been formally approved by the oversight agency.
(d) Each investigation must be documented in a final report that includes a description of investigation activities, identified causal and contributing factors, and a corrective action plan.
(e) A final investigation report must be formally adopted by the oversight agency for each accident investigation.
(1) If the oversight agency has conducted the investigation, it must formally transmit its final investigation report to the rail transit agency.
(2) If the oversight agency has authorized an entity other than itself (including the rail transit agency) to conduct the accident investigation on its behalf, the oversight agency must review and formally adopt the final investigation report.
(3) If the oversight agency does not concur with the findings of the rail transit agency investigation report, it must either:
(i) Conduct its own investigation according to paragraphs (b), (d) and (e)(1) of this section; or
(ii) Formally transmit its dissent to the findings of the accident investigation, report its dissent to the rail transit agency, and negotiate with the rail transit agency until a resolution on the findings is reached.
(f) The oversight agency shall have the authority to require periodic status reports that document investigation activities and findings in a time frame determined by the oversight agency.
(a) The oversight agency must, at a minimum, require the development of a corrective action plan for the following:
(1) Results from investigations, in which identified causal and contributing factors are determined by the rail transit agency or oversight agency as requiring corrective actions; and
(2) Findings from safety and security reviews performed by the oversight agency.
(b) Each corrective action plan should identify the action to be taken by the rail transit agency, an implementation schedule, and the individual or department responsible for the implementation.
(c) The corrective action plan must be reviewed and formally approved by the oversight agency.
(d) The oversight agency must establish a process to resolve disputes between itself and the rail transit agency resulting from the development or enforcement of a corrective action plan.
(e) The oversight agency must identify the process by which findings from an NTSB accident investigation will be evaluated to determine whether or not a corrective action plan should be developed by either the oversight agency or rail transit agency to address NTSB findings.
(f) The rail transit agency must provide the oversight agency:
(1) Verification that the corrective action(s) has been implemented as described in the corrective action plan, or that a proposed alternate action(s) has been implemented subject to oversight agency review and approval; and
(2) Periodic reports requested by the oversight agency, describing the status of each corrective action(s) not completely implemented, as described in the corrective action plan.
(g) The oversight agency must monitor and track the implementation of each approved corrective action plan.
(a)
(b) An initial submission must include the following:
(1) Oversight agency program standard and referenced procedures; and
(2) Certification that the system safety program plan and the system security plan have been developed, reviewed, and approved.
(c)
(1) A publicly available annual report summarizing its oversight activities for the preceding twelve months, including a description of the causal factors of investigated accidents, status of corrective actions, updates and modifications to rail transit agency program documentation, and the level of effort used by the oversight agency to carry out its oversight activities.
(2) A report documenting and tracking findings from three-year safety review activities, and whether a three-year safety review has been completed since the last annual report was submitted.
(3) Program standard and supporting procedures that have changed during the preceding year.
(4) Certification that any changes or modifications to the rail transit agency system safety program plan or system security plan have been reviewed and approved by the oversight agency.
(d)
(e)
The oversight agency shall prohibit a party or entity from providing services to both the oversight agency and rail transit agency when there is a conflict of interest, as defined by the state.
(a) Annually, the oversight agency must certify to the FTA that it has complied with the requirements of this part.
(b) The oversight agency must submit each certification electronically to FTA using a reporting system specified by FTA.
(c) The oversight agency must maintain a signed copy of each annual certification to FTA, subject to audit by FTA.
49 U.S.C. 5323(j) (formerly sec. 165, Pub. L. 97-424; as amended by sec. 337, Pub. L. 100-17, sec. 1048, Pub. L. 102-240, sec.
56 FR 932, Jan. 9, 1991, unless otherwise noted.
Unless otherwise noted, this part applies to all federally assisted procurements using funds authorized by the Federal Mass Transit Act of 1964, as amended; 23 U.S.C. 103(e)(4); and section 14 of the National Capital Transportation Act of 1969, as amended.
As used in this part:
(a) Except as provided in § 661.7 and § 661.11 of this part, no funds may be obligated by FTA for a grantee project unless all iron, steel, and manufactured products used in the project are produced in the United States.
(b) All steel and iron manufacturing processes must take place in the United States, except metallurgical processes involving refinement of steel additives.
(c) The steel and iron requirements apply to all construction materials made primarily of steel or iron and used in infrastructure projects such as transit or maintenance facilities, rail lines, and bridges. These items include, but are not limited to, structural steel or iron, steel or iron beams and columns, running rail and contact rail. These requirements do not apply to steel or iron used as components or subcomponents of other manufactured products or rolling stock.
(d) For a manufactured product to be considered produced in the United States:
(1) All of the manufacturing processes for the product must take place in the United States; and
(2) All of the components of the product must be of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents.
If steel, iron, or manufactured products (as defined in §§ 661.3 and 661.5 of this part) are being procured, the appropriate certificate as set forth below shall be completed and submitted by each bidder or offeror in accordance
The bidder or offeror hereby certifies that it will comply with the requirements of section 165(a) of the Surface Transportation Assistance Act of 1982, as amended, and the applicable regulations in 49 CFR part 661.
The bidder or offeror hereby certifies that it cannot comply with the requirements of section 165(a) of the Surface Transportation Assistance Act of 1982, as amended, but it may qualify for an exception to the requirement pursuant to section 165(b)(2) or (b)(4) of the Surface Transportation Assistance Act of 1982, as amended, and the applicable regulations in 49 CFR 661.7.
(a) Section 165(b) of the Act provides that the general requirements of section 165(a) shall not apply in four specific instances. This section sets out the conditions for the three statutory waivers based on public interest, non-availability, and price-differential. Section 661.11 of this part sets out the conditions for the fourth statutory waiver governing the procurement of rolling stock and associated equipment.
(b) Under the provision of section 165(b)(1) of the Act, the Administrator may waive the general requirements of section 165(a) if the Administrator finds that their application would be inconsistent with the public interest. In determining whether the conditions exist to grant this public interest waiver, the Administrator will consider all appropriate factors on a case-by-case basis, unless a general exception is specifically set out in this part.
(c) Under the provision of section 165(b)(2) of the Act, the Administrator may waive the general requirements of section 165(a) if the Administrator finds that the materials for which a waiver is requested are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
(1) It will be presumed that the conditions exist to grant this non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States.
(2) In the case of a sole source procurement, the Administrator will grant this non-availability waiver only if the grantee provides sufficient information which indicates that the item to be procured is only available from a single source or that the item to be procured is not produced in sufficient and reasonably available quantities of a satisfactory quality in the United States.
(d) Under the provision of section 165(b)(4) of the Act, the Administrator may waive the general requirements of section 165(a) if the Administrator finds that the inclusion of a domestic item or domestic material will increase the cost of the contract between the grantee and its supplier of that item or material by more than 25 percent. The Administrator will grant this price-differential waiver if the amount of the lowest responsive and responsible bid offering the item or material that is not produced in the United States multiplied by 1.25 is less than the amount of the lowest responsive and responsible bid offering the item or material produced in the United States.
(e) The four statutory waivers of section 165(b) of the Act as set out in this part shall be treated as being separate and distinct from each other.
(f) The waivers described in paragraphs (b) and (c) of this section may be granted for a component or subcomponent in the case of the procurement of the items governed by section 165(b)(3) of the Act (requirements for rolling stock). If a waiver is granted for a component or a subcomponent, that component or subcomponent will be considered to be of domestic origin for the purposes of § 661.11 of this part.
(g) The waivers described in paragraphs (b) and (c) of this section may be granted for a specific item or material that is used in the production of a manufactured product that is governed by the requirements of § 661.5(d) of this part. If such a waiver is granted to such a specific item or material, that item or material will be treated as being of domestic origin.
(h) The provisions of this section shall not apply to products produced in a foreign country if the Secretary, in consultation with the United States Trade Representative, determines that:
(1) That foreign country is party to an agreement with the United States pursuant to which the head of an agency of the United States has waived the requirements of this section; and
(2) That foreign country has violated the terms of the agreement by discriminating against products covered by this section that are produced in the United States and are covered by the agreement.
(a) All waivers published in 48 CFR 25.108 which establish excepted articles, materials, and supplies for the Buy American Act of 1933 (41 U.S.C. 10a-d), as the waivers may be amended from time to time, apply to this part under the provisions of § 661.7 (b) and (c).
(b) Under the provisions of § 661.7 (b) and (c) of this part, microcomputer equipment, including software, of foreign origin can be procured by grantees (50 FR 18760, May 2, 1985 and 51 FR 36126, October 8, 1986).
(c) Under the provisions of § 661.7(b) of this part, a general public interest waiver from the Buy America requirements for “small purchases” (as defined in the “common grant rule,” at 49 CFR 18.36(d)) made by FTA grantees with capital, planning, or operating assistance.
(a) This section sets out the application procedures for obtaining all waivers, except those general exceptions set forth in this part for which individual applications are unnecessary and those covered by section 165(b)(3) of the Act. The procedures for obtaining an exception covered by section 165(b)(3) are set forth in § 661.11 of this part.
(b) A bidder or offeror who seeks to establish grounds for an exception must seek the exception, in a timely manner, through the grantee.
(c) Except as provided in paragraph (d) of this section, only a grantee may request a waiver. The request must be in writing, include facts and justification to support the waiver, and be submitted to the Administrator through the appropriate Regional Office.
(d) FTA will consider a request for a waiver from a potential bidder, offeror, or supplier only if the waiver is being sought under § 661.7 (f) or (g) of this part.
(e) The Administrator will issue a written determination setting forth the reasons for granting or denying the exception request. Each request for an exception, and FTA's action on the request, are available for public inspection under the provisions of 49 CFR part 601, subpart C.
(a) The provisions of § 661.5 do not apply to the procurement of buses and other rolling stock (including train control, communication, and traction power equipment), if the cost of components produced in the United States is more than 60 percent of the cost of all components and final assembly takes place in the United States.
(b) The domestic content requirements in paragraph (a) of this section also apply to the domestic content requirements for components set forth in paragraphs (i), (j), and (l) of this section.
(c) A component is any article, material, or supply, whether manufactured or unmanufactured, that is directly incorporated into an end product at the final assembly location.
(d) A component may be manufactured at the final assembly location if the manufacturing process to produce the component is an activity separate and distinct from the final assembly of the end product.
(e) A component is considered to be manufactured if there are sufficient activities taking place to advance the value or improve the condition of the subcomponents of that component;
(f) Except as provided in paragraph (k) of this section, a subcomponent is any article, material, or supply, whether manufactured or unmanufactured, that is one step removed from a component (as defined in paragraph (c) of this section) in the manufacturing process and that is incorporated directly into a component.
(g) For a component to be of domestic origin, more that 60 percent of the subcomponents of that component, by cost, must be of domestic origin, and the manufacture of the component must take place in the United States. If, under the terms of this part, a component is determined to be of domestic origin, its entire cost may be used in calculating the cost of domestic content of an end product.
(h) A subcomponent is of domestic origin if it is manufactured in the United States.
(i) If a subcomponent manufactured in the United States is exported for inclusion in a component that is manufactured outside the United States and it receives tariff exemptions under the procedures set forth in 19 CFR 10.11 through 10.24, the subcomponent retains its domestic identity and can be included in the calculation of the domestic content of an end product even if such a subcomponent represents less than 60 percent of the cost of a particular component.
(j) If a subcomponent manufactured in the United States is exported for inclusion in a component manufactured outside the United States and it does not receive tariff exemption under the procedures set forth in 19 CFR 10.11 through 10.24, the subcomponent loses its domestic identity and cannot be included in the calculation of the domestic content of an end product.
(k) Raw materials produced in the United States and then exported for incorporation into a component are not considered to be a subcomponent for the purpose of calculating domestic content. The value of such raw materials is to be included in the cost of the foreign component.
(l) If a component is manufactured in the United States, but contains less than 60 percent domestic subcomponents, by cost, the cost of the domestic subcomponents and the cost of manufacturing the component may be included in the calculation of the domestic content of the end product.
(m) For purposes of this section, except as provided in paragraph (o) of this section:
(1) The cost of a component or a subcomponent is the price that a bidder or offeror must pay to a subcontractor or supplier for that component or subcomponent. Transportation costs to the final assembly location must be included in calculating the cost of foreign components and subcomponents.
(2) If a component or subcomponent is manufactured by the bidder or offeror, the cost of the component is the cost of labor and materials incorporated into the component or subcomponent, an allowance for profit, and the administrative and overhead costs attributable to that component or subcomponent under normal accounting principles.
(n) The cost of a component of foreign origin is set using the foreign exchange rate at the time the bidder or offeror executes the appropriate Buy America certificate.
(o) The cost of a subcomponent that retains its domestic identity consistent with paragraph (j) of this section shall be the cost of the subcomponent when last purchased, f.o.b. United States port of exportation or point of border crossing as set out in the invoice and entry papers or, if no purchase was made, the value of the subcomponent at the time of its shipment for exportation, f.o.b. United States port of exportation or point of border crossing as set out in the invoice and entry papers.
(p) In accordance with 49 U.S.C. 5323(j), labor costs involved in final assembly shall not be included in calculating component costs.
(q) The actual cost, not the bid price, of a component is to be considered in calculating domestic content.
(r) Final assembly is the creation of the end product from individual elements brought together for that purpose through application of manufacturing processes. If a system is being
(s) An end product means any item subject to 49 U.S.C. 5323(j) that is to be acquired by a grantee, as specified in the overall project contract.
(t) Train control equipment includes, but is not limited to, the following equipment:
(1) Mimic board in central control
(2) Dispatcher's console
(3) Local control panels
(4) Station (way side) block control relay cabinets
(5) Terminal dispatcher machines
(6) Cable/cable trays
(7) Switch machines
(8) Way side signals
(9) Impedance bonds
(10) Relay rack bungalows
(11) Central computer control
(12) Brake equipment
(13) Brake systems
(u) Communication equipment includes, but is not limited to, the following equipment:
(1) Radios
(2) Space station transmitter and receivers
(3) Vehicular and hand-held radios
(4) PABX telephone switching equipment
(5) PABX telephone instruments
(6) Public address amplifiers
(7) Public address speakers
(8) Cable transmission system cable
(9) Cable transmission system multiplex equipment
(10) Communication console at central control
(11) Uninterruptible power supply inverters/rectifiers
(12) Uninterruptible power supply batteries
(13) Data transmission system central processors
(14) Data transmission system remote terminals
(15) Line printers for data transmission system
(16) Communication system monitor test panel
(17) Security console at central control
(v) Traction power equipment includes, but is not limited to the following:
(1) Primary AC switch gear
(2) Primary AC transformer rectifiers
(3) DC switch gear
(4) Traction power console and CRT display system at central control
(5) Bus ducts with buses (AC and DC)
(6) Batteries
(7) Traction power rectifier assemblies
(8) Distribution panels (AC and DC)
(9) Facility step-down transformers
(10) Motor control centers (facility use only)
(11) Battery chargers
(12) Supervisory control panel
(13) Annunciator panels
(14) Low voltage facility distribution switch board
(15) DC connect switches
(16) Negative bus boxes
(17) Power rail insulators
(18) Power cables (AC and DC)
(19) Cable trays
(20) Instrumentation for traction power equipment
(21) Connectors, tensioners, and insulators for overhead power wire systems
(22) Negative drainage boards
(23) Inverters
(24) Traction motors
(25) Propulsion gear boxes
(26) Third rail pick-up equipment
(27) Pantographs
(w) The power or third rail is not considered traction power equipment and is thus subject to the requirements of 49 U.S.C. 5323(j) and the requirements of § 661.5.
(x) A bidder on a contract for an item covered by 49 U.S.C. 5323(j) who will comply with section 165(b)(3) and regulations in this section is not required to follow the application for waiver procedures set out in § 661.9. In lieu of these procedures, the bidder must submit the appropriate certificate required by § 661.12.
(a) The provisions of § 661.11 of this part do not apply when foreign sourced spare parts for buses and other rolling stock (including train control, communication, and traction power equipment) whose total cost is 10 percent or less of the overall project contract cost are being procured as part of the same contract for the major capital item.
(b) [Reserved]
The following is a list of items that typically would be considered components of a bus. This list is not all-inclusive.
Engines, transmissions, front axle assemblies, rear axle assemblies, drive shaft assemblies, front suspension assemblies, rear suspension assemblies, air compressor and pneumatic systems, generator/alternator and electrical systems, steering system assemblies, front and rear air brake assemblies, air conditioning compressor assemblies, air conditioning evaporator/condenser assemblies, heating systems. passenger seats, driver's seat assemblies, window assemblies, entrance and exit door assemblies, door control systems, destination sign assemblies, interior lighting assemblies, front and rear end cap assemblies, front and rear bumper assemblies, specialty steel (structural steel tubing, etc.) aluminum extrusions, aluminum, steel or fiberglass exterior panels, and interior trim, flooring, and floor coverings.
The following is a list of items that typically would be considered components of rail rolling stock. This list is not all inclusive.
Car shells, main transformer, pantographs, traction motors, propulsion gear boxes, interior linings, acceleration and braking resistors, propulsion controls, low voltage auxiliary power supplies, air conditioning equipment, air brake compressors, brake controls, foundation brake equipment, articulation assemblies, train control systems, window assemblies, communication equipment, lighting, seating, doors, door actuators, and controls, couplers and draft gear, trucks, journal bearings, axles, diagnostic equipment, and third rail pick-up equipment.
If buses or other rolling stock (including train control, communication, and traction power equipment) are being procured, the appropriate certificate as set forth below shall be completed and submitted by each bidder in accordance with the requirement contained in § 661.13(b) of this part.
The bidder or offeror hereby certifies that it will comply with the requirements of section 165(b)(3), of the Surface Transportation Assistance Act of 1982, as amended, and the applicable regulations of 49 CFR 661.11.
The bidder or offeror hereby certifies that it cannot comply with the requirements of section 165(b)(3) of the Surface Transportation Assistance Act of 1982, as amended, but may qualify for an exception to the requirement consistent with section 165(b)(2) or (b)(4) of the Surface Transportation Assistance Act, as amended, and the applicable regulations in 49 CFR 661.7.
(a) The grantee shall adhere to the Buy America clause set forth in its grant contract with FTA.
(b) The grantee shall include in its bid or request for proposal (RFP) specification for procurement within the scope of this part an appropriate notice of the Buy America provision. Such specifications shall require, as a condition of responsiveness, that the bidder or offeror submit with the bid or offer a completed Buy America certificate in accordance with §§ 661.6 or 661.12 of this part, as appropriate.
(1) A bidder or offeror who has submitted an incomplete Buy America certificate or an incorrect certificate of noncompliance through inadvertent or clerical error (but not including failure to sign the certificate, submission of certificates of both compliance and non-compliance, or failure to submit any certification), may submit to the FTA Chief Counsel within ten (10) days of bid opening of submission or a final offer, a written explanation of the circumstances surrounding the submission of the incomplete or incorrect certification in accordance with 28 U.S.C.
(i) The FTA Chief Counsel may request additional information from the bidder or offeror, if necessary. The grantee may not make a contract award until the FTA Chief Counsel issues his/her determination, except as provided in § 661.15(m).
(ii) [Reserved]
(2) For negotiated procurements, compliance with the Buy America requirements shall be determined on the basis of the certification submitted with the final offer or final revised proposal. However, where a grantee awards on the basis of initial proposals without discussion, the certification submitted with the initial proposal shall control.
(3) Certification based on ignorance of the proper application of the Buy America requirements is not an inadvertent or clerical error.
(c) Whether or not a bidder or offeror certifies that it will comply with the applicable requirement, such bidder or offeror is bound by its original certification (in the case of a sealed bidding procurement) or its certification submitted with its final offer (in the case of a negotiated procurement) and is not permitted to change its certification after bid opening or submission of a final offer. Where a bidder or offeror certifies that it will comply with the applicable Buy America requirements, the bidder, offeror, or grantee is not eligible for a waiver of those requirements.
(a) It is presumed that a bidder or offeror who has submitted the required Buy America certificate is complying with the Buy America provision. A false certification is a criminal act in violation of 18 U.S.C. 1001.
(b) Any party may petition FTA to investigate the compliance of a successful bidder or offeror with the bidder's or offeror's certification. That party (“the petitioner”) must include in the petition a statement of the grounds of the petition and any supporting documentation. If FTA determines that the information presented in the petition indicates that the presumption in paragraph (a) of this section has been overcome, FTA will initiate an investigation.
(c) In appropriate circumstances, FTA may determine on its own to initiate an investigation without receiving a petition from a third party.
(d) When FTA determines under paragraph (b) or (c) of this section to conduct an investigation, it requests that the grantee require the successful bidder or offeror to document its compliance with its Buy America certificate. The successful bidder or offeror has the burden of proof to establish that it is in compliance. Documentation of compliance is based on the specific circumstances of each investigation, and FTA will specify the documentation required in each case.
(e) The grantee shall reply to the request under paragraph (d) of this section within 15 working days of the request. The investigated party may correspond directly with FTA during the course of investigation, if it informs the grantee that it intends to do so, and if the grantee agrees to such action in writing. The grantee must inform FTA, in writing, that the investigated party will respond directly to FTA. An investigated party may provide confidential or proprietary information (see paragraph (l) of this section) directly to FTA while providing other information required to be submitted as part of the investigation through the grantee.
(f) Any additional information requested or required by FTA must be submitted within 5 working days after the receipt of such request unless specifically exempted by FTA.
(g) The grantee's reply (or that of the bidder or offeror) will be transmitted to the petitioner. The petitioner may submit comments on the reply to FTA within 10 working days after receipt of
(h) The failure of a party to comply with the time limits stated in this section may result in resolution of the investigation without consideration of untimely filed comments.
(i) During the course of an investigation, with appropriate notification to affected parties, FTA may conduct site visits of manufacturing facilities and final assembly locations as it considers appropriate.
(j) FTA will, upon request, make available to any interested party information bearing on the substance of the investigation which has been submitted by the petitioner, interested parties or grantees, except to the extent that withholding of information is permitted or required by law or regulation.
(k) If a party submitting information considers that the information submitted contains proprietary material which should be withheld, a statement advising FTA of this fact may be included, and the alleged proprietary information must be identified wherever it appears. Any comments on the information provided shall be submitted within a maximum of ten days.
(l) For purposes of paragraph (j) of this section, confidential or proprietary material is any material or data whose disclosure could reasonably be expected to cause substantial competitive harm to the party claiming that the material is confidential or proprietary.
(m) When a petition for investigation has been filed before award, the grantee will not make an award before the resolution of the investigation, unless the grantee determines that:
(1) The items to be procured are urgently required;
(2) Delivery of performance will be unduly delayed by failure to make the award promptly; or
(3) Failure to make prompt award will otherwise cause undue harm to the grantee or the Federal Government.
(n) In the event that the grantee determines that the award is to be made during the pendency of an investigation, the grantee will notify FTA before to making such award. FTA reserves the right not to participate in the funding of any contract awarded during the pendency of an investigation.
(o) Initial decisions by FTA will be in written form. Reconsideration of an initial decision of FTA may be requested by any party involved in an investigation. FTA will only reconsider a decision only if the party requesting reconsideration submits new matters of fact or points of law that were not known or available to the party during the investigation. A request for reconsideration of a decision of FTA shall be filed not later than ten (10) working days after the initial written decision. A request for reconsideration will be subject to the procedures in this section consistent with the need for prompt resolution of the matter.
If a successful bidder or offeror fails to demonstrate that it is in compliance with its certification, it will be required to take the necessary steps in order to achieve compliance. If a bidder or offeror takes these necessary steps, it will not be allowed to change its original bid price or the price of its final offer. If a bidder or offeror does not take the necessary steps, it will not be awarded the contract if the contract has not yet been awarded, and it is in breach of contract if a contract has been awarded.
A person shall be ineligible to receive any contract or subcontract made with funds authorized under the Intermodal Surface Transportation Efficiency Act of 1991 pursuant to part 29 of this title if it has been determined by a court or Federal agency that the person intentionally—
(a) Affixed a label bearing a “Made in America” inscription, or an inscription with the same meaning, to a product not made in the United States, but sold
(b) Otherwise represented that any such product was produced in the United States.
A willful refusal to comply with a certification by a successful bidder or offeror may lead to the initiation of debarment or suspension proceedings under part 29 of this title.
(a) A party adversely affected by an FTA action under this subsection shall have the right to seek review under the Administrative Procedure Act (APA), 5 U.S.C. 702
(b) Except as provided in paragraph (a) of this section, the sole right of any third party under the Buy America provision is to petition FTA under the provisions of § 661.15 of this part. No third party has any additional right, at law or equity, for any remedy including, but not limited to, injunctions, damages, or cancellation of the Federal grant or contracts of the grantee.
(a) Except as provided in paragraph (b) of this section, any State may impose more stringent Buy America or buy national requirements than contained in section 165 of the Act and the regulations in this part.
(b) FTA will not participate in contracts governed by the following:
(1) State Buy America or Buy National preference provisions which are not as strict as the Federal requirements.
(2) State and local Buy National or Buy America preference provisions which are not explicitly set out under State law. For example, administrative interpretations of non-specific State legislation will not control.
(3) State and local Buy Local preference provisions.
49 U.S.C. 1608(j); 23 U.S.C. 103(e)(f); Pub. L. 96-184, 93 Stat. 1320; Pub. L. 101-551, 104 Stat. 2733; sec. 3023(m), Pub. L. 109-59; 49 CFR 1.51.
56 FR 48395, Sept. 24, 1991, unless otherwise noted.
This part implements section 12(j) of the Federal Mass Transit Act of 1964, as amended, which was added by section 319 of the 1987 Surface Transportation and Uniform Relocation Assistance Act (Pub. L. 100-17). Section 12(j) requires the Federal Transit Administration, by delegation from the Secretary of Transportation, to issue regulations requiring pre-award and post-delivery audits when a recipient of
This part applies to a recipient purchasing rolling stock to carry passengers in revenue service with funds made available under sections 3, 9, 18, and 16(b)(2) of the Federal Mass Transit Act, as amended; 23 U.S.C. 103(e)(4); and section 14 of the National Capital Transportation Act of 1969, as amended.
As used in this part—
(a)
(b)
(c)
(d)
(e)
(f)
(g)
A recipient purchasing revenue service rolling stock with funds obligated by FTA on or after October 24, 1991, must certify to FTA that it will conduct or cause to be conducted pre-award and post-delivery audits as prescribed in this part. In addition, such a recipient must maintain on file the certifications required under subparts B, C, and D of this part.
(a) An audit under this part is limited to verifying compliance with
(1) Applicable Buy America requirements [section 165 of the Surface Transportation Assistance Act of 1982, as amended,]; and
(2) Solicitation specification requirements of the recipient.
(b) An audit under this part includes, where appropriate, a copy of a manufacturer's self certification information that the vehicle complies with Federal Motor Vehicle Safety Standards or a certification that such standards are inapplicable.
(c) An audit conducted under this part is separate from the single annual audit requirement established by Office of Management and Budget Circular A-128, “Audits of State and Local Governments,” dated May 16, 1985.
A recipient purchasing revenue rolling stock with FTA funds may charge the cost of activities required by this part to the grant which FTA made for such purchase.
A Buy America certification under this part shall be issued in addition to any certification which may be required by part 661 of this title. Nothing in this part precludes FTA from conducting a Buy America investigation under part 661 of this title.
A recipient subject to this part shall comply with all applicable requirements of this part. Such compliance is a condition of receiving Federal financial assistance from FTA. A recipient determined not to be in compliance with this part will be subject to the immediate suspension, withholding, or repayment of Federal financial assistance from FTA or other appropriate actions unless and until it comes into compliance with this part.
A recipient purchasing revenue service rolling stock with FTA funds must ensure that a pre-award audit under this part is complete before the recipient enters into a formal contract for the purchase of such rolling stock.
A pre-award audit under this part includes—
(a) A Buy America certification as described in § 663.25 of this part;
(b) A purchaser's requirements certification as described in § 663.27 of this part; and
(c) Where appropriate, a manufacturer's Federal Motor Vehicle Safety certification information as described in § 663.41 or § 663.43 of this part.
For purposes of this part, a pre-award Buy America certification is a certification that the recipient keeps on file that—
(a) There is a letter from FTA which grants a waiver to the rolling stock to be purchased from the Buy America requirements under section 165(b)(1), (b)(2), or (b)(4) of the Surface Transportation Assistance Act of 1982, as amended; or
(b) The recipient is satisfied that the rolling stock to be purchased meets the requirements of section 165(a) or (b)(3) of the Surface Transportation Assistance Act of 1982, as amended, after having reviewed itself or through an audit prepared by someone other than the manufacturer or its agent documentation provided by the manufacturer which lists—
(1) Component and subcomponent parts of the rolling stock to be purchased identified by manufacturer of the parts, their country of origin and costs; and
(2) The location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly.
For purposes of this part, a pre-award purchaser's requirements certification is a certification a recipient keeps on file that—
(a) The rolling stock the recipient is contracting for is the same product described in the purchaser's solicitation specification; and
(b) The proposed manufacturer is a responsible manufacturer with the capability to produce a vehicle that meets the recipient's specification set forth in the recipient's solicitation.
A recipient purchasing revenue service rolling stock with FTA funds must ensure that a post-delivery audit under this part is complete before title to the rolling stock is transferred to the recipient.
A post-delivery audit under this part includes—
(a) A post-delivery Buy America certification as described in § 663.35 of this part;
(b) A post-delivery purchaser's requirements certification as described in § 663.37 of this part; and
(c) When appropriate, a manufacturer's Federal Motor Vehicle Safety Standard self-certification information as described in § 663.41 or § 663.43 of this part.
For purposes of this part, a post-delivery Buy America certification is a certification that the recipient keeps on file that—
(a) There is a letter from FTA which grants a waiver to the rolling stock received from the Buy America requirements under sections 165 (b)(1), or (b)(4) of the Surface Transportation Assistance Act of 1982, as amended; or
(b) The recipient is satisfied that the rolling stock received meets the requirements of section 165 (a) or (b)(3) of the Surface Transportation Assistance
(1) Components and subcomponent parts of the rolling stock identified by manufacturer of the parts, their country of origin and costs; and
(2) The actual location of the final assembly point for the rolling stock including a description of the activities which took place at the final assembly point and the cost of the final assembly.
For purposes of this part, a post-delivery purchaser's requirements certification is a certification that the recipient keeps on file that—
(a) Except for procurements covered under paragraph (c) in this section, a resident inspector (other than an agent or employee of the manufacturer) was at the manufacturing site throughout the period of manufacture of the rolling stock to be purchased and monitored and completed a report on the manufacture of such rolling stock. Such a report, at a minimum, shall—
(1) Provide accurate records of all vehicle construction activities; and
(2) Address how the construction and operation of the vehicles fulfills the contract specifications.
(b) After reviewing the report required under paragraph (a) of this section, and visually inspecting and road testing the delivered vehicles, the vehicles meet the contract specifications.
(c) For procurements of:
(1) Ten or fewer buses; or
(2) Procurements of twenty vehicles or fewer serving rural (other than urbanized) areas, or urbanized areas of 200,000 people or fewer; or
(3) Any number of primary manufacturer standard production and unmodified vans, after visually inspecting and road testing the vehicles, the vehicles meet the contract specifications.
(a) If a recipient cannot complete a post-delivery audit because the recipient or its agent cannot certify Buy America compliance or that the rolling stock meets the purchaser's requirements specified in the contract, the rolling stock may be rejected and final acceptance by the recipient will not be required. The recipient may exercise any legal rights it has under the contract or at law.
(b) This provision does not preclude the recipient and manufacturer from agreeing to a conditional acceptance of rolling stock pending manufacturer's correction of deviations within a reasonable period of time.
If a vehicle purchased under this part is subject to the Federal Motor Vehicle Safety Standards issued by the National Highway Traffic Safety Administration in part 571 of this title, a recipient shall keep on file its certification that it received, both at the pre-award and post-delivery stage, a copy of the manufacturer's self-certification information that the vehicle complies with relevant Federal Motor Vehicle Safety Standards.
(a) Except for rolling stock subject to paragraph (b) of this section, if a vehicle purchased under this part is not subject to the Federal Motor Vehicle Safety Standards issued by the National Highway Traffic Safety Administration in part 571 of this title, the recipient shall keep on file its certification that it received a statement to that effect from the manufacturer.
(b) This subpart shall not apply to rolling stock that is not a motor vehicle.
Federal Transit Act of 1964, as amended, 49 U.S.C. 1601
57 FR 33397, July 28, 1992, unless otherwise noted.
An applicant for Federal financial assistance under the Federal Transit Act for the purchase or lease of buses with funds obligated by the FTA after September 30, 1989, must certify to the FTA that any new bus model acquired with such assistance has been tested in accordance with this part. This part contains the information necessary for a recipient to ensure compliance with this provision.
(a) This part applies to a recipient of Federal financial assistance under sections 3, 9, 16(b)(2), or 18 of the FT Act, and, except as provided in subsections (b), (c), and (d) is effective October 1, 1989;
(b) The provisions of section 665.11(e)(3) are effective November 8, 1990;
(c) The provisions in sections 665.11 (c), (d), and (f) concerning partial testing are effective August 27, 1992; and
(d) The provisions in §§ 665.11(e) (4) and (5) concerning the last two categories of buses which must be tested, apply as follows:
(1) For vehicles that are manufactured from modified mass-produced chassis or vans, or manufactured from non-mass-produced chassis or vans, testing and a final report will be required for all vehicles offered in response to advertisements for bids or requests for proposals issued on or after June 1, 1994.
(2) For vehicles manufactured from unmodified mass-produced chassis, testing and a final report will be required for all vehicles offered in response to advertisements for bids or requests for proposals issued on or after October 1, 1994.
As used in this part—
(1) For those vehicles that are not manufactured on a mass produced chassis, a change in a vehicle's engine,
(2) For those that are manufactured on a mass produced chassis, a change in the vehicle's chassis from one major design to another.
(1) Has not been used in mass transit service in the United States before October 1, 1988; or
(2) Has been used in such service but which after September 30, 1988, is being produced with a major change in configuration or components.
(a) In each application to the FTA for the purchase or lease of buses, a recipient shall certify that any new bus model, or any bus model with a major change in configuration or components, to be acquired or leased with funds obligated by the FTA after September 30, 1989, will be tested at the bus testing facility, and a test report provided before final acceptance of the first vehicle by the recipient.
(b) It is the responsibility of the recipient in dealing with a manufacturer, to determine whether a vehicle to be acquired is subject to these procedures.
(a) A new bus model to be tested at the bus testing facility shall—
(1) Be a single model;
(2) Meet all applicable Federal Motor Vehicle Safety Standards, as defined by the National Highway Traffic Safety Administration in part 571 of this title;
(3) Be substantially fabricated and assembled by techniques and tooling that will be used in production of subsequent buses of that model.
(b) If the new bus model had not been previously tested at the bus testing facility, then the new bus model shall undergo the full tests requirements for maintainability, reliability, safety, performance, structural integrity, fuel economy, and noise;
(c) If the new bus model had not been previously tested at the bus testing facility and is being produced on a mass produced chassis that has been previously tested on another bus model at the bus testing facility, then the new bus model may undergo partial testing requirements;
(d) If the new bus model had been previously tested at the bus testing facility, then the new bus model may undergo partial testing requirements.
(e) The following vehicle types shall be tested:
(1) Minimum service life of 12 years or 500,000 miles—typified by heavy duty large buses, approximately 35-40 foot, as well as articulated buses.
(2) Minimum service life of ten years or 350,000 miles—typified by heavy duty small buses, approximately 30 foot.
(3) Minimum service life of seven years or 200,000 miles—typified by medium duty mid-size buses, approximately 25-35 foot.
(4) Minimum service life of five years or 150,000 miles—typified by light duty mid-size buses, approximately 25-35 foot.
(5) Minimum service life of four years or 100,000 miles—typified by light duty small buses, cutaways, and modified vans, approximately 16-28 foot.
(f) Tests performed in a higher service life category (
(g) The operator of the facility shall develop a test plan for the testing of vehicles at the facility, which generally follows the guidelines set forth in appendix A of this part.
(a) Upon completion of testing, the operator of the facility shall provide a test report to the entity that submitted the bus for testing.
(b)(1) A manufacturer of a new bus model or a bus produced with a major change in component or configuration shall provide a copy of the test report to a recipient during the point in the procurement process specified by the recipient.
(2) A manufacturer who releases a report under paragraph (b)(1) of this section also shall provide notice to the operator of the facility that the report is available to the public.
(c) If a bus model subject to a test report has a change that is not a major change under this part, the manufacturer shall advise the recipient during the procurement process and shall include description of the change and its basis for concluding that it is not a major change.
(d) A test report shall be available publicly once the owner of the report makes it available during the recipient's procurement process. The operator of the facility will have available for distribution copies of all the publicly available reports.
(e) The test report is the only information or documentation that will be made available publicly in connection with any bus model tested at the facility.
(a) A manufacturer may schedule a vehicle for testing by contacting Penn State's Transportation Institute (PSTI) at the following address: The
(b) Upon contacting PSTI, the manufacturer will be provided the following:
(1) A draft contract for the testing;
(2) A fee schedule; and
(3) The draft test procedures that will be conducted on the vehicle.
(c) PSTI will provide final test procedures to be conducted on the vehicle at the time of contract execution.
(d) PSTI will process vehicles for testing in the order in which the contracts are signed.
(a) Fees charged by the operator are according to a schedule approved by the FTA, which include different fees for partial testing.
(b) Fees will be prorated for a vehicle withdrawn from the facility before the completion of testing.
A manufacturer is responsible for transporting its vehicle to and from the facility at the beginning and completion of the testing.
(a) The facility operator shall perform all testing, consistent with established procedures at the facility and with the test procedures provided to the manufacturer at the time of contract execution.
(b) The manufacturer of a bus being tested may terminate the test program at any time before the completion of testing, and shall be charged a fee for the tests performed.
(c) The operator shall perform all maintenance and repairs on the test vehicle, consistent with manufacturers specifications, unless the operator determines that the nature of the maintenance or repair is best performed by the manufacturer under the operator's supervision.
(d) The manufacturer may observe all tests. The manufacturer may not provide maintenance or service unless requested to do so by the operator.
The seven tests to be performed on each vehicle are required by STURAA and are based in part on tests described in the FTA report “First Article Transit Bus Test Plan”, which is mentioned in the legislative history of section 317. When appropriate, SAE test procedures and other procedures accepted by the transit industry will be used. The seven tests are described in general terms in the following paragraphs.
The maintainability test includes bus servicing, preventive maintenance, inspection, and repair. It also will include the removal and reinstallation of the engine and drive train components that would be expected to require replacement during the bus' normal life cycle. Much of the maintainability data will be obtained during the bus durability test at the proving ground. Up to twenty-five percent of the bus life will be simulated and there will be servicing, preventive maintenance, and repair actions. These actions will be done by test facility staff, although manufacturers will be allowed to maintain a representative on site during the testing. Test facility staff may require a manufacturer to provide vehicle servicing or repair, under the supervision of the facility staff. Since the operator will not become familiar with the detailed design of all new bus models that are tested, tests to determine the time and skill required to remove and reinstall an engine, a transmission, or other major propulsion system components may require advice from the bus manufacturer. All routine and corrective maintenance will be carried out by the test operator in accordance with the manufacturer's specifications.
The maintainability test report will include the frequency, personnel hours, and replacement parts or supplies required for each action during the test. The accessibility of selected components and other observations that could be important to a bus user will be included in the report.
The question of reliability will be addressed by recording all bus breakdowns during testing. It is recognized that with one test bus it is not feasible to conduct statistical reliability tests. It is anticipated that bus operation on the durability course should reveal the problems that would otherwise not be detected until much later during scheduled transit service. The bus failures, repair time, and the actions required to get the bus back into operation will be recorded in the report.
The safety test will consist of a handling and stability test. The handling and stability test is an obstacle avoidance or double-lane change test that will be performed at the proving ground. The double-lane change course will be different for each type of bus and the speed could be different for each type of bus. Coach speed will be held constant throughout a given test run. Individual test runs will be made at increasing speeds up to 45 mph or until the coach can no longer be operated safely over the course, whichever speed is lower. Both left-and-right-hand lane changes will be tested.
The performance test will be performed on the proving ground and will measure acceleration and gradeability with the test vehicle operated at seated load weight. Top speed also will be measured if it can be done safely on the track. The test will be performed using a fifth wheel or equivalent and associated instrumentation. The bus will be accelerated at full throttle from standstill to maximum safe speed on the track. The report will include a table of time required to accelerate to each 10 mph increment of speed and when possible, the top speed. The gradeability capabilities will be calculated both from the test data and a test from a dead stop on a minimum of a 15 percent grade.
Two different structural integrity tests will be performed. Structural strength and distortion tests will be performed at the testing facility in Altoona and structural durability tests will be performed at the proving ground.
(1) The structural strength and distortion tests will be conducted and will be different for each type of bus. For example, a shakedown of the bus structure will be conducted by loading and unloading the bus no more than three times with a distributed load equal to 2.5 times gross load. The bus then will be loaded with a distributed load to gross vehicle weight. (Gross vehicle weight is a curb weight plus gross load.) Increase in floor deflection will be measured as the bus weight is increased from curb weight to gross vehicle weight. Then the bus will be loaded with a distributed load equal to 2.5 times gross load. The bus then will be unloaded and inspected for any permanent deformation on the floor or coach structure.
(2) The bus will be loaded to gross vehicle weight, with one wheel on top of a 6-inch-high curb and then in a 6-inch-deep pot hole. This test will be repeated for all four wheels. The test will verify: (a) Normal operation of the steering mechanism and (b) Operability of all passenger doors, passenger escape mechanisms, windows, and service doors. In addition, a water leak test will be conducted.
(3) Using a load-equalizing towing sling, a static tension load equal to 1.2 times the bus curb weight will be applied to the bus towing fixtures (front and rear). The load will be removed and the two eyes and adjoining structure will be inspected for damages or permanent deformations.
(4) The bus at curb weight will be towed with a heavy wrecker truck for several miles after which it will be inspected for structural damage or permanent deformation.
(5) With the bus at curb weight probable damages due to tire deflating and jacking will be tested.
(6) With the bus at curb weight possible damages or deformation associated with lifting the bus on a two post hoist system or supporting it on jack stands will be assessed.
The structural durability test also will be different for each type of bus, but all tests will be performed on the durability course at the proving ground, simulating up to twenty-five percent of the vehicle's normal service life. During the test there will be inspections of the bus structure and the mileage and identification of possible structural anomalies.
This test will be run to determine the fuel economy in miles per gallon or equivalent of the new bus models. The test will be run at seated load weight on a duty cycle that simulates transit service for the type of vehicle being tested. The fuel measurement devices under consideration include volumetric, gravimetric, flow and pressure.
This fuel economy test bears no relation to the calculations done by the Environmental Protection Agency (EPA) to determine fuel economy levels for the Corporate Average Fuel Economy Program. However, the test will provide data which can be used by recipients in their purchase decisions.
There will be two noise tests: a. Interior noise and vibration; and b. Exterior noise. It is recognized that different levels of noise are expected and acceptable with different types of vehicles and different test procedures might be required.
5 U.S.C. 552(a) (1), (2).
49 FR 24378, June 13, 1984, unless otherwise noted.
This part describes the organization and functioning of Amtrak and the availability to the public of documents and information concerning its policies, procedures and activities.
The creation of the National Railroad Passenger Corporation (“Amtrak”) was authorized by the Rail Passenger Service Act, as amended, 84 Stat. 1327, 45 U.S.C. 541
(a)
(b)
(c)
(d)
(e)
(f)
(a) A member of the public having need for assistance or information concerning any of the matters described in § 700.2 should address his or her concerns in a letter or other written communication directed to the appropriate vice president or to the Director of Corporate Communications. Amtrak will bring such communications to the attention of the appropriate official if they are misdirected in the first instance. Formal requests for “records” under 5 U.S.C. 552(a)(3) of the Freedom of Information Act are to be made in accordance with the provisions of 49 CFR 701.4.
(b) The National Train Timetables described in § 700.2(f) are widely distributed in the continental United States and are available in major cities in Europe, Canada and Mexico. When they are updated (usually in April and October each year) each printing involves about 1,000,000 copies. They are ordinarily available at staffed Amtrak stations and copies are usually kept on hand in the offices of about 9800 travel agents who are authorized to sell Amtrak tickets. A person unable to obtain a copy locally should request one from the Director of Corporate Communications at the Washington, DC headquarters. The timetable depicts the major Amtrak train routes on a map of the United States, and most of the remainder of the booklet shows the schedules for specific trains. Several pages are used to offer travel information dealing with the availability of assistance to handicapped travellers, red cap service, purchase of tickets on board, use of credit cards and personal checks, handling of baggage, refunds for unused tickets and similar matters.
(c) Also available to members of the public at most staffed Amtrak stations, and usually maintained in the offices of travel agencies authorized to sell Amtrak tickets, is a copy of the Reservations and Ticketing Manual (RTM) which constitutes a compendium of information governing Amtrak employees in furnishing transportation to the travelling public. It contains substantial segments dedicated to the following topics: Amtrak's computer system and its communication codes; interline service agreements; passenger and baggage services; customer relations functions; reservations policy and procedures; acceptance of checks and credit cards; refunds; missed connection policies; ticketing; accommodations; employee pass travel; location maps for Amtrak stations; and intermodal state maps.
(d) A full statement of Amtrak's tariffs containing the fares for point-to-point travel, regional plan travel and all relevant travel conditions, such as excursions, discounts, family plans, accommodations, etc., is contained in the privately published
(e) Each of the documents described in paragraphs (b) through (d) of this section is available to the public for inspection during regular business hours at the office of Amtrak's Freedom of Information Office at its headquarters at 400 North Capitol Street, NW., Washington, DC 20001, and at the office of the Division Manager, Human Resources, in New Haven, Philadelphia, Baltimore, New York, Los Angeles and Chicago. Each document has its own index. Since each index is useful only in connection with the document to which it pertains, and since requests for indices are uncommon, Amtrak has determined that publication of its indices as described in 5 U.S.C. 552(a)(2) would be unnecessary and impracticable.
5 U.S.C. 552; 49 U.S.C. 24301(e).
63 FR 7311, Feb. 13, 1998, unless otherwise noted.
This part contains the rules that the National Railroad Passenger Corporation (“Amtrak”) follows in processing requests for records under the Freedom of Information Act (FOIA), Title 5 of the United States Code, section 552. Information routinely provided to the public (
Unless the context requires otherwise in this part, masculine pronouns include the feminine gender and “includes” means “includes but is not limited to.”
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(1) Library materials compiled for reference purposes or objects of substantial intrinsic value.
(2) Routing and transmittal sheets, notes, and filing notes which do not also include information, comments, or statements of substance.
(3) Anything that is not a tangible or documentary record such as an individual's memory or oral communication.
(4) Objects or articles, whatever their historical or value as evidence.
(n)
(o)
(p)
(a) Amtrak will make records of the Corporation available to the public to the greatest practicable extent in keeping with the spirit of the law. Therefore, records of the Corporation are available for public inspection and copying as provided in this part with the exception of those that the Corporation specifically determines should not be disclosed either in the public interest, for the protection of private rights, or for the efficient conduct of public or corporate business, but only to the extent withholding is permitted by law.
(b) A record of the Corporation, or parts thereof, may be withheld from disclosure if it comes under one or more exemptions in 5 U.S.C. 552(b) or is otherwise exempted by law. Disclosure to a properly constituted advisory committee, to Congress, or to federal agencies does not waive the exemption.
(c) In the event one or more exemptions apply to a record, any reasonably segregable portion of the record will be made available to the requesting person after deletion of the exempt portions. The entire record may be withheld if a determination is made that nonexempt material is so inextricably intertwined that disclosure would leave only essentially meaningless words or phrases, or when it can be reasonably assumed that a skillful and knowledgeable person could reconstruct the deleted information.
(d) The procedures in this part apply only to records in existence at the time of a request. The Corporation has no obligation to create a record solely for the purpose of making it available under the FOIA or to provide a record that will be created in the future.
(e) Each officer and employee of the Corporation dealing with FOIA requests is directed to cooperate in making records available for disclosure under the Act in a prompt manner consistent with this part.
(f) The FOIA time limits will not begin to run until a request has been identified as being made under the Act and deemed received by the Freedom of Information Office.
(g) Generally, when a member of the public complies with the procedures established in this part for obtaining records under the FOIA, the request shall receive prompt attention, and a response shall be made within twenty business days.
(a)
(b)
(c)
(1) Amtrak shall decide on a case-by-case basis whether records fall into the category of “frequently requested FOIA records” based on the following factors:
(i) Previous experience with similar records;
(ii) The nature and type of information contained in the records;
(iii) The identity and number of requesters and whether there is widespread media or commercial interest in the records.
(2) The provision in this paragraph is intended for situations where public access in a timely manner is important. It is not intended to apply where there may be a limited number of requests over a short period of time from a few requesters. Amtrak may remove the records from this category when it is determined that access is no longer necessary.
(d)
(a)
(2) A request must be in writing, indicate that it is being made under the FOIA and provide an adequate description of the records sought. The request should also include applicable information regarding fees as specified in paragraphs (d) and (e) of this section.
(b)
(2) The request must be addressed to the Freedom of Information Office; National Railroad Passenger Corporation; 60 Massachusetts Avenue, N.E.; Washington, D.C. 20002. Requests will also be accepted by facsimile at (202) 906-2169. Amtrak cannot assure that a timely or satisfactory response under this part will be given to written requests addressed to Amtrak offices, officers, or employees other than the Freedom of Information Office. Amtrak employees receiving a communication in the nature of a FOIA request shall forward it to the FOIA Office expeditiously. Amtrak shall advise the requesting party of the date that an improperly addressed request is received by the FOIA Office.
(c)
(2)
(d)
(1)
(i) In order to protect requesters from large and/or unexpected fees, Amtrak will request a specific commitment when it estimates or determines that fees will exceed $100.00.
(ii) A request shall not be considered received, and further processing carried out until the requesting party agrees to pay the anticipated total fee. Any such agreement must be memorialized in writing. A notice under this paragraph will offer the requesting party an opportunity to discuss the matter in order to reformulate the request to meet the requester's needs at a lower cost.
(iii) Amtrak will hold in abeyance for forty-five (45) days requests requiring agreement to pay fees and will thereafter deem the request closed. This action will not prevent the requesting party from refiling the FOIA request with a fee commitment at a subsequent date.
(2)
(e)
(f)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(2) A request for records shall be considered to have been received on the later of the following dates:
(i) The requester has agreed in writing to pay applicable fees in accordance with § 701.5(d), or
(ii) The fees have been waived in accordance with § 701.11(k), or
(iii) Payment in advance has been received from the requester when required in accordance with § 701.11(i).
(3) The time for responding to requests set forth in paragraph (b) of this section may be delayed if:
(i) The request does not sufficiently identify the fee category applicable to the request;
(ii) The request does not state a willingness to pay all fees;
(iii) A request seeking a fee waiver does not address the criteria for fee waivers set forth in § 701.11(k);
(iv) A fee waiver request is denied, and the request does not include an alternative statement indicating that the requesting party is willing to pay all fees.
(b)
(c)
(2) In general, when requests are received, Amtrak's FOIA Office will review and categorize them for tracking purposes. Requests within each track will be processed according to date of receipt.
(3) The FOIA Office may contact a requester when a request does not appear to qualify for fast track processing to provide an opportunity to limit the scope of the request and qualify for a faster track. Such notification shall be at the discretion of the FOIA Office and will depend largely on whether it is believed that a narrowing of the request could place the request on a faster track.
(d)
(2) If Amtrak believes that multiple requests submitted by a requester or by a group of requesters acting in concert constitute a single request that would otherwise involve unusual circumstances and the requests involve clearly related matters, the requests may be aggregated. Multiple requests concerning unrelated matters may not be aggregated.
(3) Unusual circumstances that may justify delay include:
(i) The need to search for and collect the requested records from other facilities that are separate from Amtrak's headquarters offices.
(ii) The need to search for, collect, and examine a voluminous amount of separate and distinct records sought in a single request.
(iii) The need for consultation, which shall be conducted with all practicable speed, with agencies having a substantial interest in the determination of the request, or among two or more Amtrak components having a substantial subject-matter interest in the request.
(e)
(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; and
(ii) An urgency to inform the public about an actual or alleged Amtrak activity, if made by a person primarily engaged in disseminating information.
(2) A request for expedited processing may be made at the time of the initial request for records or at a later date.
(3) A requester seeking expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. This statement must accompany the request in order to be considered and responded to within the ten calendar days required for decisions on expedited access.
(4) A requester who is not a full-time member of the news media must establish that he is a person whose main professional activity or occupation is information dissemination, though it need not be his sole occupation. A requester must establish a particular urgency to inform the public about the Amtrak activity involved in the request.
(5) Within ten business days of receipt of a request for expedited processing, Amtrak shall determine whether to grant such a request and notify the requester of the decision. If a request for expedited treatment is granted, the request shall be given priority and shall be processed as soon as practicable.
(6) Amtrak shall provide prompt consideration of appeals of decisions denying expedited processing.
(a)
(b)
(i) A determination to withhold any requested record in whole or in part;
(ii) A determination that a requested record does not exist or cannot be located;
(iii) A denial of a request for expedited treatment; and
(iv) A determination on any disputed fee matter including a denial of a request for a fee waiver.
(2)
(3)
(i) A brief statement of the reason(s) for the adverse determination including any FOIA exemptions applied in denying the request;
(ii) An estimate of the volume of information withheld (number of pages or some other reasonable form of estimation). An estimate does not need to be provided if the volume is indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption;
(iii) A statement that an appeal may be filed under § 701.10 and a description of the requirements of that section; and
(iv) The name and title or position of the person responsible for the denial.
(a)
(b)
(1)
(2)
(c)
(d)
(e)
(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(2) Amtrak has reason to believe that the information may be protected from disclosure under Exemption 4.
(f)
(1) A detailed written statement must be submitted to Amtrak if the submitter has any objection to disclosure. The statement must specify all grounds for withholding any specified portion of the information sought under the FOIA. In the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential.
(2) In the event that a submitter fails to respond within the time specified in the notice, the submitter will be considered to have no objection to disclosure of the information sought under the FOIA.
(3) Information provided by a submitter in response to the notice may be subject to disclosure under the FOIA.
(g)
(1) A statement of the reason(s) why each of the submitter's objections to disclosure was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h)
(1) Amtrak determines that the information should not be disclosed;
(2) The information has been published or has been officially made available to the public;
(3) Disclosure of the information is required by law (other than the FOIA);
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous. In such a case, Amtrak shall within a reasonable time prior to a specified disclosure date, give the submitter written notice of the final decision to disclose the information; or
(5) The information requested is not designated by the submitter as exempt from disclosure in accordance with this part, unless Amtrak has substantial reason to believe that disclosure of the information would result in competitive harm.
(i)
(j)
(2) When Amtrak notifies a submitter of its intent to disclose requested information under paragraph (g) of this section, Amtrak shall also notify the requester(s).
(3) When a submitter files a lawsuit seeking to prevent the disclosure of business information, Amtrak shall notify the requester(s).
(a)
(i) A decision to withhold any requested record in whole or in part;
(ii) A determination that a requested record does not exist or cannot be located;
(iii) A denial of a request for expedited treatment; or
(iv) Any disputed fee matter or the denial of a request for a fee waiver.
(2) The appeal must be addressed to the President and Chief Executive Officer (CEO); National Railroad Passenger Corporation; 60 Massachusetts Avenue, N.E., Washington, D.C. 20002.
(3) The appeal must be in writing and specify the relevant facts and the basis for the appeal. The appeal letter and envelope must be marked prominently “Freedom of Information Act Appeal” to ensure that it is properly routed.
(4) The appeal must be received by the President's Office within thirty (30) days of the date of denial.
(5) An appeal will not be acted upon if the request becomes a matter of FOIA litigation.
(b)
(1) A decision upholding an adverse determination in whole or in part shall contain a statement of the reason(s) for such action, including any FOIA exemption(s) applied. The requesting party shall also be advised of the provision for judicial review of the decision contained in 5 U.S.C. 552(a)(4)(B).
(2) If the adverse determination is reversed or modified on appeal in whole or in part, the requesting party shall be notified, and the request shall be reprocessed in accordance with the decision.
(c)
(a)
(b)
(1)
(2)
(3)
(4)
(c)
(1)
(2)
(3)
(4)
(5)
(d)
(1)
(2)
(3)
(e)
(2)
(3)
(4)
(5)
(6)
(f)
(g)
(2)
(3)
(h)
(i)
(2) When there is evidence that the requester may not pay the fees that would be incurred by processing the request, an advance deposit may be required. Amtrak may require the full amount due plus applicable interest and an advance payment of the full amount of anticipated fees before beginning to process a new request or continuing to process a pending request where a requester has previously failed to pay a properly charged FOIA fee within thirty (30) days of the date of billing. The time limits of the FOIA will begin only after Amtrak has received such payment.
(3) Amtrak will hold in abeyance for forty-five (45) days requests where deposits are due.
(4) Monies owed for work already completed (i.e., before copies are sent to a requester) shall not be considered an advance payment.
(5) Amtrak shall not deem a request as being received in cases in which an advance deposit or payment is due, and further work will not be done until the required payment is received.
(j)
(k)
(2)
(i) It is likely to contribute significantly to public understanding of the operations or activities of Amtrak, and
(ii) It is not primarily in the commercial interest of the requesting party.
(3) To determine whether the fee waiver requirement in paragraph (k)(2)(i) of this section is met, Amtrak will consider the following factors:
(i)
(ii)
(iii)
(iv)
(4) To determine whether the fee waiver requirement in paragraph (k)(2)(ii) of this section is met, Amtrak will consider the following factors:
(i)
(ii)
(5) Requests for a fee waiver will be considered on a case-by-case basis, based upon the merits of the information provided. Where it is difficult to determine whether the request is commercial in nature, Amtrak may draw inference from the requester's identity and the circumstances of the request.
(6) Requests for a waiver or reduction of fees must address the factors listed in paragraphs (k) (3) and (4) of this section. In all cases, the burden shall be on the requesting party to present evidence of information in support of a request for a waiver of fees.
(l)
Nothing in this part shall be construed as entitling any person, as of right, to any service or the disclosure of any record to which such person is not entitled under the FOIA.
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 as Vice Chairman. The Members exercise various functions, powers, and duties set forth in the Federal Aviation Act of 1958, as amended (49 U.S.C. 40101
(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 Government, Public, and Family Affairs, which supplies the Congress and Federal, State, and local government agencies with information regarding the Safety Board's activities, programs and objectives; supplies the public, the transportation industry and the news media with current, accurate information concerning the work, programs, and objectives of the Board; coordinates public and private responsibilities, including aid to survivors and families of accident victims, in the wake of transportation disasters. This Office maintains the 24-hour Communications Center, which assists in coordinating accident notification and launch operations for all modes and provides an off-hour base for family assistance functions during accident investigations.
(c) The Office of the General Counsel, which provides legal advice and assistance to the Board and its staff; prepares Board rules, opinions and/or orders, and advice to all offices on matters of legal significance; and represents the Board in judicial matters
(d) 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 of certificates, and appeals from actions of the Federal Aviation Administrator in refusing to issue airman certificates.
(e) 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.
(f) The Office of Railroad Safety, which conducts investigations of railroad 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 railroad accidents; and conducts special investigations into selected rail accidents involving safety issues of concern to the Board.
(g) The Office of Highway Safety, which conducts investigations of highway accidents, including railroad grade-crossing 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 highway accidents; and conducts special investigations into selected highway accidents involving safety issues of concern to the Board.
(h) The Office of Marine Safety, which conducts investigations of marine 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 marine accidents; participates in the investigation of accidents that occur in foreign countries and that involve U.S.-registered vessels; and conducts special investigations into selected marine accidents involving safety issues of concern to the Board.
(i) The Office of Pipeline and Hazardous Materials Safety, which conducts investigations of pipeline 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 causes of accidents when delegated authority to do so by the Board; initiates safety recommendations to prevent future pipeline and hazardous materials accidents; and conducts special investigations into selected pipeline and hazardous materials accidents involving safety issues of concern to the Board.
(j) The Office of Research and Engineering, which conducts research and carries out analytical studies and tests involving all modes, including readouts of voice and data recorders, flight path analysis and computer simulation/animation, component examination and material failure analysis; 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
(k) The Office of Safety Recommendations & Accomplishments, which oversees the Board's safety recommendations program, including the Board's “MOST WANTED” recommendations, and the Board's safety accomplishment program.
(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 the adequacy of safeguards and procedures concerning the transportation of hazardous materials.
(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.
(j) Dismiss late filed notices of appeal and appeal briefs for lack of good cause.
The Board delegates to the Directors of the Offices of Aviation, Railroad, Highway, Marine, and Pipeline and Hazardous Materials Safety, 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 Chief, Public Inquiries Branch, the authority to determine, initially, the withholding of a board record from inspection or copying, pursuant to part 801 of this chapter.
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.
The Board delegates to the Chief Financial Officer the authority to 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.
(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, aerial 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 publication and public access requirements embodied in title III of the Independent Safety Board Act of 1974 (88 Stat. 2166 (49 U.S.C. 1901 et seq.)). In addition, it provides for document services and the charges therefor, pursuant to 31 U.S.C. 483a.
(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 offices, advice will be promptly given as to how to make such requests.
(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
(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
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 probable cause of the accident; the report shall be issued approximately 6 months after date of accident.
(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
(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 otherwise hire and dispose of materials, real estate, or facilities; documents exchanged preparatory to anticipated legal proceedings; material intended for public release at a specified future time, if premature disclosure would be detrimental to orderly processes of the Board; records of inspections, investigations, and surveys pertaining to internal management of the Board; and matters that would not be routinely disclosed in litigation but which are likely to be the subject of litigation.
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 Report Number and the NTIS accession number can be obtained from the NTSB Public Inquiries Section.
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:
(1) Press releases,
(2) Safety Board regulations (chapter VIII of title 49, Code of Federal Regulations),
(3) Indexes to initial decisions, Board orders, opinion and orders, and staff manuals and instructions,
(4) Safety recommendations, and
(5) NTSB Annual Report.
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 correct or amend the record as requested, and shall present the reasons for any denials.
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 substantial interest in the determination of the request.
(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 the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to NTSB specifying the particular portion of the record desired and the law enforcement activity for which the record is sought;
(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 system of records without meeting the notice requirements, or who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses. These offenses shall be misdemeanors with a fine not to exceed $5,000.
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
(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 may not be granted under this section for nonofficial use—
(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,
(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 statement referred to in § 804.6(d), the NTSB shall maintain a complete transcript of electronic recording adequate to record fully the proceedings of each meeting, or a portion thereof, closed to the public. The NTSB may maintain a set of minutes in lieu of such transcript or recording for meetings closed pursuant to § 804.5 (h) or (j). Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any rollcall vote. All documents considered in connection with any actions shall be identified in such minutes.
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
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
(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 than the business of the persons concerned are the motivating factors;
(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
(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
(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 given by a charitable, religious, professional, social, fraternal, nonprofit educational or recreational, public service, or civic organization.
(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
(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
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
(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 for disciplinary action in addition to any penalty prescribed by Federal statute or regulation, except for active duty officers or enlisted members of the Armed Forces detailed to the Board in which cases disciplinary actions may be effected against such military personnel by the parent military service. Disciplinary action may take the form of a warning, suspension, demotion, or removal, depending upon the gravity of the offense.
(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
(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:
(1) Legislative affairs officer.
(2) Program analysis officer.
(d) Attorneys in grade GS-15.
(e) Office of public affairs:
(1) Director.
(2) Deputy director.
(f) Bureau of administration:
(1) Director.
(2) Deputy director—personnel officer.
(3) Chief, operations and facilities division.
(4) Contracting specialist.
(5) Comptroller.
(6) Budget officer.
(7) Accounting officer.
(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
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 activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(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 but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(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 for deaf persons (TDD's) or equally effective telecommunication systems shall be used.
(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
(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.
49 U.S.C. 1101-1155, 44701-44723, 46301; unless otherwise noted.
68 FR 22625, Apr. 29, 2003, unless otherwise noted.
(a) As used in this part:
(b) Terms defined in 49 U.S.C. Chapters 11, 447 and 463 are used as so defined.
The provisions of this part govern all air safety proceedings, including proceedings before a law judge on petition for review of the denial of any airman certificate (including a medical certificate), or on appeal from any order of the Administrator amending, modifying, suspending or revoking a certificate. The provisions of this part also govern all proceedings on appeal from an order of the Administrator imposing a civil penalty on a flight engineer, mechanic, pilot or repairman, or a person acting in such capacity. All proceedings on appeal to the Board from any initial decision or order of a law judge are also governed by this part.
In addition to sequential numbering of cases as received, each case formally handled by the Board will receive a letter prefix. These letter prefixes reflect the case type: “SE” for safety enforcement (certificate suspension/revocation) cases; “SM” (safety medical) for cases involving denials of medical certification; “CD” for cases involving non-medical certificate denials; “SR” for cases 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 an attorney or other representative designated by that party. 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, and may be examined by, his or her 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 her, or a copy of any transcript made of his or her testimony, on payment of reasonable costs. Original documents, data or evidence may be retained by a party upon permission of
(d) Any party to a proceeding who is represented by an attorney or representative shall notify the Board of the name, address and telephone number of that attorney or representative. In the event of a change in representation, the party shall notify the Board (in the manner provided in § 821.7) and the other parties to the proceeding (pursuant to § 821.8) before the new attorney or representative may participate in the proceeding in any way.
(a)
(2) Subsequent to the filing of a notice of appeal from a law judge's initial decision or appealable order, the issuance of a decision permitting an interlocutory appeal, or the expiration of the period within which an appeal from the law judge's initial decision or appealable order may be filed, all documents are to be filed with the Office of General Counsel, National Transportation Safety Board, 490 L'Enfant Plaza East, SW., Room 6401, Washington, DC 20594.
(3) Documents shall be filed by personal delivery, by U.S. Postal Service first-class mail or by overnight delivery service. Except as specifically provided in Subpart I (governing emergency proceedings), facsimile filing is limited. Documents to be filed with a law judge or the Case Manager may be transmitted by facsimile, but such filing must be followed, no later than the next business day, by transmission of the original by personal delivery, first-class mail or overnight delivery service. Facsimile filing of documents to be filed with the Office of General Counsel is not permitted unless specifically authorized under Subpart I or requested by that office.
(4) Documents shall be deemed filed on the date of personal delivery; on the send date shown on the facsimile (where facsimile service is permitted under paragraph (a)(3) of this section or Subpart I); and, for mail delivery service, on the mailing date shown on the certificate of service, on the date shown on the postmark if there is no certificate of service, or on the mailing date shown by other evidence if there is no certificate of service and no postmark. Where the document bears a postmark that cannot reasonably be reconciled with the mailing date shown on the certificate of service, the document will be deemed filed on the date of the postmark.
(b)
(c)
(2) Documents filed with the Board consisting of more than one page may be affixed only in the upper left-hand corner by staple or clip, and shall not be bound or hole-punched. Any document failing to comply with this requirement is subject to being returned to the filing party.
(d)
(e)
(f)
(g)
(a)
I hereby certify that I have this day served the foregoing [specify document] on the following party's counsel or designated representatives [or party, if without counsel or representative], at the address indicated, by [specify the method of service (
(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 directly on the party.
(b)
(2) Notices of hearing, written initial decisions, law judges' appealable orders and Board orders on appeal shall be served by the Board on parties other than the Administrator by certified mail. Such documents may be served on the Administrator by first-class mail or facsimile. The Board may serve all other documents on the parties by first-class mail or facsimile.
(c)
(d)
(1) When receipt has been acknowledged 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 in the official record, by regular, registered or certified mail, has been returned as unclaimed or refused.
(e)
(a)
(b)
In computing any period of time prescribed or allowed by this part, by notice or order of a law judge or the Board, 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 not a Saturday, Sunday or legal holiday. In all cases, Saturdays, Sundays and legal holidays for the Board shall be included in the computation of time, except they shall not be included in computations of time respecting petitions for review of determinations as to the existence of emergencies under § 821.54.
(a) On written request filed with the Board and served on all other parties, or oral request with any extension granted confirmed in writing and served on all other parties by the requestor, and for good cause shown, the law judge or the Board may grant an extension of time to file any document; however, no extension of time will be granted for the filing of a document to which a statutory time limit applies.
(b) Extensions of time to file petitions for reconsideration shall not be granted upon a showing of good cause, but only in extraordinary circumstances.
(c) The General Counsel is authorized to grant unopposed extensions of time on timely oral request without a showing of good cause in cases on appeal to the Board from a law judge's initial decision or appealable order. Written confirmation of such a grant of extension of time must promptly be sent by the requesting party to the Board and served on all other parties to the proceeding.
(a)
(b)
Waivers of any rights provided by statute or regulation shall either be in writing or by stipulation made at the hearing and entered into the record, and shall set forth the precise terms and conditions of the waiver.
(a)
(b)
(c)
(d)
(e)
A motion requesting that a Board Member disqualify himself or herself from participating in a proceeding under this part shall be filed in writing with the Board.
Rulings of law judges on motions which are not dispositive of the proceeding as a whole 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. Interlocutory appeals shall be disallowed unless the law judge finds, either orally 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 a party. If an interlocutory 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.
(a)
(b)
(c)
(d)
(e)
(a) A party may, in lieu of an answer, file a motion requesting that the petitioner's statement of reasons and supporting facts in a petition for review or the Administrator's allegations of fact in a complaint be made more definite and certain. The motion shall cite the defects complained of and the details sought. If the motion is granted and the law judge's order is not complied with within 15 days after service thereof, the law judge shall strike the portion or portions of the petition for review or complaint to which the motion is directed. If the motion is denied, the moving party shall file an answer within 10 days after service of the law judge's order on the motion.
(b) A party may file a motion to clarify an answer in the event that the answer fails to respond clearly to the petition for review or the complaint.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
Where a 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 disputing that fact.
(a)
(b)
(c)
(d)
(e)
In proceedings under 49 U.S.C. 44703, the burden of proof shall be upon the petitioner.
Upon motion by the Administrator within the time limit for filing an answer, a petition for review shall be dismissed for lack of standing in either of the following instances:
(a) If the petition seeks the issuance of the same type of certificate that was under an order of suspension on the date of the denial; or
(b) If the petition seeks the issuance of the same type of certificate that had been revoked within one year of the date of the denial, unless the order revoking such certificate provides otherwise.
(a)
(b)
(c)
(a)
(b)
In proceedings under 49 U.S.C. 44709, 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 the respondent as to reasons for proposed action under 49 U.S.C. 44709(c), the respondent may move to dismiss such allegations as stale pursuant to the following provisions:
(a) In those cases where the complaint does not allege lack of qualification of the respondent:
(1) The Administrator shall be required to show, by reply filed within 15 days after the date of service of the respondent's motion, that good cause existed for the delay in providing such advice, 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 the imposition of a sanction in the public interest notwithstanding the delay, the law judge shall dismiss the stale allegations and proceed to adjudicate the remaining portion of the complaint, if any.
(b) In those cases where the complaint alleges lack of qualification of the respondent, the law judge shall first determine whether an issue of lack of qualification would be presented if all of the allegations, stale and timely, are assumed to be true. If so, the law judge shall deny the respondent's motion. If not, the law judge shall proceed as in paragraph (a) of this section.
(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 hold conferences, before or during the hearing, for the settlement or simplification of issues;
(3) To issue subpoenas, and to take depositions or cause depositions to be taken;
(4) To dispose of procedural requests or similar matters;
(5) To rule on motions;
(6) To regulate the conduct of hearings;
(7) To administer oaths and affirmations;
(8) To examine witnesses;
(9) To receive evidence and rule upon objections and offers of proof; and
(10) To issue initial decisions.
(c)
(a)
(b)
Each party shall have the right to present a case-in-chief, or defense, by oral and 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) shall be admissible. All material and relevant evidence should be admitted, but the law judge may exclude unduly repetitious evidence.
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 proposed rulings. Prior to the issuance of 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 before the law judge, shall constitute the exclusive record of the proceeding. Copies of the transcript may be obtained by any party upon payment of the reasonable cost thereof. A copy of the transcript may be examined at the National Transportation Safety Board, Office of Administrative Law Judges, Public Docket Section.
(a)
(b)
(c)
If no appeal from the law judge's initial decision or appealable order is timely filed, the initial decision or order shall become final with respect to the parties, but shall not be binding precedent for the Board. The filing of a timely notice of appeal with the Board shall stay the effectiveness of the law judge's initial decision or order, unless the basis for the decision or order is that the Board lacks jurisdiction.
(a)
(b)
(a)
(b)
(2) The appeal brief shall enumerate the appealing party's objections to the law judge's initial decision or appealable order, and shall state the reasons for such objections, including any legal precedent relied upon in support thereof.
(3) Any error contained in the initial decision which is not objected to in the appeal brief may be deemed waived.
(c)
(d)
(e)
(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 or her initial decision or order should be changed, the Board may make any necessary findings and may issue an order in lieu of the law judge's initial decision or order, or may remand the proceeding for any such purpose as the Board may deem necessary.
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(a)
(b)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(1) Set forth the new matter;
(2) Contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and
(3) Contain a statement explaining why such new matter could not have been discovered in the exercise of due diligence prior to the date on which the evidentiary record closed.
Sec. 4, Pub. L. 94-409, 5 U.S.C. 556(d) and 557; 49 U.S.C. 1101-1155, 44701-44723, 46301.
As used in this subpart:
(a) The prohibitions of this section shall apply from the time a petition for review or an appeal is filed unless the person responsible for the communication has knowledge that a petition for review or an appeal will be filed, in which case the prohibitions shall apply at the time of the acquisition of such knowledge. Such prohibitions shall continue until the time of the Board's final disposition of the petition, appeal and any ancillary matters, such as the adjudication of a claim for fees and expenses under the Equal Access to Justice Act.
(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 decisional employee an ex parte communication relevant to the merits of the proceeding;
(2) No Board decisional 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. Ex parte communications
A Board decisional employee who receives, makes or knowingly causes to be made a communication prohibited by § 821.61 shall place in 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 communications described in paragraphs (a) and (b) of this section.
(a) Upon receipt of a communication made or knowingly caused to be made by a party in violation of § 821.61, the presiding law judge (or the chief law judge, if the proceeding has not been assigned to a law judge) or the Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes it administers, require the party to show cause why its 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 interest of justice and the policy of the underlying statutes it administers, consider a violation of § 821.61 sufficient grounds for a decision adverse to a party who has knowingly committed or knowingly caused such a violation to occur. Alternatively, the Board may impose a sanction on the party's attorney or representative, including suspending or barring the attorney or representative from practicing before it, where such action would be appropriate and penalizing the party represented would not be in the interest of justice.
(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 prohibition shall apply at the time of the acquisition of such knowledge.
(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 parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that this Board will use to make them. As used hereinafter, the term “agency” applies to the FAA.
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,
(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 affiliates shall be aggregated to determine eligibility. Any individual, corporation, or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the administrative law judge determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the administrative law judge may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
(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,
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
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 becomes administratively final; (2) issuance of an order disposing of any petitions for reconsideration of the Board's final order in the proceeding; (3) if no petition for reconsideration is filed, the last date on which such a petition could have been filed; or (4) issuance of a final order or any other final resolution of a proceeding, such as a settlement or voluntary dismissal, which is not subject to a petition for reconsideration.
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
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 under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
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
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 the airmen until the Board takes custody thereof or a release is granted pursuant to § 831.12(b) of this chapter.
(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
(b)
(c)
The Directors, Office of Aviation Safety, Office of Railroad Safety, Office of Highway Safety, Office of Marine Safety, and Office of Pipeline and Hazardous Materials 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
(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
(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; Independent Safety Board Act of 1974, as amended (49 U.S.C. 1101
This part prescribes 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 when such testimony is in an official capacity and arises out of or is related to accident investigation. 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
(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.
(c) Board employees may testify about the firsthand information they obtained during an investigation that is not reasonably available elsewhere, including observations recorded in their own factual accident reports. Consistent with the principles cited in § 835.1 and this section, current Board employees are not authorized to testify regarding other employee's reports, or other types of Board documents, including but not limited to safety recommendations, safety studies, safety proposals, safety accomplishments, reports labeled studies, and analysis reports, as they contain staff analysis and/or Board conclusions.
(d) Briefs of accidents may be released in conjunction with factual accident reports. Nevertheless, they are not part of those reports and are not to be admitted in evidence or used in a deposition approved under this part.
(e) Not all material in a factual accident report may be the subject of testimony. The purpose of the factual accident report, in great part, is to inform the public at large, and as a result the factual accident report may contain information and conclusions for which testimony is prohibited by this part.
(f) No employee may testify in any matter absent advance approval by the General Counsel as provided in this part.
(a) As a testimonial aid and to refresh their memories, Board employees may use copies of the factual accident report they prepared, and may refer to and cite from that report during testimony.
(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 with unique, firsthand information may be made available for use in civil actions or civil 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 civil 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, the original of the transcript will be provided the deponent for signature and correction, which the Board does not waive. A copy of the transcript of the testimony and any videotape shall be furnished,
(a) A written request for testimony by deposition or interrogatories of a Board employee relating to an accident shall be addressed to the General Counsel, who may approve or deny the request consistent with this part. Such request shall set forth the title of the civil case, the court, the type of accident (aviation, railroad, etc.), the date and place of the accident, the reasons for desiring the testimony, and a showing that the information desired is not reasonably available from other sources.
(b) Where testimony is sought in connection with civil litigation, the General Counsel shall not approve it until the factual accident report is issued (
(c) The General Counsel shall attach to the approval of any deposition such reasonable conditions as may be deemed appropriate in order that the testimony will be consistent with § 835.1, will be limited to the matters delineated in § 835.3, will not interfere with the performance of the duties of the employee as set forth in § 835.5, and will otherwise conform to the policies of this part.
(d) A subpoena shall not be served upon a Board employee in connection with the taking of a deposition in civil litigation.
It is not necessary to request Board approval for testimony of a former Board employee, nor is testimony limited to depositions. However, the scope of permissible testimony continues to be constrained by all the limitations set forth in § 835.3 and § 835.4.
Any testimony regarding any accident within the Board's jurisdiction, or any expert testimony arising from employment prior to Board service is prohibited absent approval by the General Counsel. Approval shall only be given if testimony will not violate § 835.1 and § 835.3, and is subject to whatever conditions the General Counsel finds necessary to promote the purposes of this part as set forth in § 835.1 and § 835.3.
(a) If the Board employee has received a subpoena to appear and testify in connection with civil litigation, 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 all information requested by the General Counsel.
(c) The General Counsel shall determine the course of action to be taken and will so advise the employee.
(a) As with civil litigation, the Board prefers that testimony be taken by deposition if court rules permit, and that testimony await the issuance of the factual accident report. The Board recognizes, however, that in the case of
(b) In any case, Board employees are prohibited from testifying in any civil, criminal, or other matter, either in person or by deposition or interrogatories, absent advance approval of the General Counsel. The Board discourages the serving of a subpoena for testimony but, if issued, it should be served on the General Counsel, rather than the employee.
(c) If permission to testify by deposition or in person is granted, testimony shall be limited as set forth in § 835.3. Only factual testimony is authorized; no expert or opinion testimony shall be given.
It is the responsibility of the individual requesting testimony to obtain desired documents. There are a number of ways to obtain Board accident reports, factual accident reports, and accompanying accident docket files. Our rules at parts 801 and 837 of this chapter explain our procedures, as will our web site, at
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, this part applies to requests for: material contained in NTSB files; and any information or material acquired by an employee of the NTSB in the performance of official duties or as a result of the employee's status. Two sets of procedures are here established, dependent on the type of material sought. Rules governing requests for employee testimony, as opposed to material production, can be found at 49 CFR part 835. Document production shall not accompany employee testimony, absent compliance with this part and General Counsel approval.
(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)
(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, and its authority for inspection, examination, and testing of physical evidence, and describes the exercise of the Safety Board's priority accorded to its activities when investigating railroad accidents.
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 property wherein a transportation accident has occurred or wreckage from any such accident is located and do all things necessary for proper investigation, including examination or testing of any vehicle, rolling stock, track, or any part of any part of any such item when such examination or testing is determined to be required for purposes of such investigation.
(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
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 docket may be obtained, upon payment of the cost of reproduction, from the Public Inquiries Section, Bureau of Administration, National Transportation Safety Board, Washington, DC 20594.
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
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 proceedings provided by the Commandant under paragraph (d) of this section and any additional evidence the Board may acquire under its own authority.
(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.