[Federal Register Volume 80, Number 247 (Thursday, December 24, 2015)]
[Rules and Regulations]
[Pages 80284-80290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32264]
[[Page 80284]]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Part 845
RIN 3147-AA02
[Docket No. NTSB-GC-2012-0002]
Rules of Practice in Transportation: Investigative Hearings,
Meetings, Reports, and Petitions for Reconsideration
AGENCY: National Transportation Safety Board (NTSB or Board).
ACTION: Final rule.
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SUMMARY: The NTSB amends its regulations which contain the NTSB's
procedures for holding investigative hearings, various types of
meetings, issuing reports, and responding to petitions for
reconsideration. The NTSB introduced a number of substantive and
technical changes in its notice of proposed rulemaking (NPRM). In the
preamble to this final rule NTSB responds to the five comments the
agency received, and explains the adopted changes, including
reorganizing the regulation into different subparts to ensure the
entire part is easy to follow.
DATES: Effective January 25, 2016.
ADDRESSES: A copy of the final rule, published in the Federal Register
(FR), is available for inspection and copying in the NTSB's public
reading room, located at 490 L'Enfant Plaza SW., Washington, DC 20594-
2003. Alternatively, a copy of the NPRM is available on the government-
wide Web site on regulations at http://www.regulations.gov (Docket ID
Number NTSB-GC-2012-0002).
FOR FURTHER INFORMATION CONTACT: David Tochen, General Counsel, (202)
314-6080.
SUPPLEMENTARY INFORMATION:
I. Notice of Proposed Rulemaking
On March 19, 2015, the NTSB published an NPRM inviting public
comments concerning the NTSB's procedural rules for investigative
hearings, Board meetings, agency reports, and petitions for
reconsideration, codified at 49 CFR part 845. 80 FR 14339. In addition
to various technical changes, the NTSB proposed reorganizing the part
into subparts and including descriptions of Board products.
The NTSB issued its NPRM in accordance with its June 25, 2012
notice indicating the agency's intent to undertake a review of all NTSB
regulations to ensure they are updated. 77 FR 37865. Executive Order
13579, ``Regulation and Independent Regulatory Agencies'' (76 FR 41587,
July 14, 2011), prompted the NTSB to conduct its review of all NTSB
regulations. The purpose of Executive Order 13579 is to ensure all
agencies adhere to the key principles found in Executive Order 13563,
``Improving Regulation and Regulatory Review'' (76 FR 3821, January 21,
2011), which include promoting public participation in rulemaking,
improving integration and innovation, promoting flexibility and freedom
of choice, and ensuring scientific integrity during the rulemaking
process in order to create a regulatory system that protects public
health, welfare, safety, and the environment while promoting economic
growth, innovation, competitiveness, and job creation. The NTSB
explained in its June 25, 2012, notice that it is committed to ensuring
its regulations remain updated and comply with these principles. The
NTSB published an additional notice in the Federal Register on January
8, 2013, describing the NTSB's plan for updating all regulations. 78 FR
1193. In accordance with these two notices published in the Federal
Register, the NTSB reviewed all sections within 49 CFR part 845, in the
interest of ensuring they accomplish the objectives stated in Executive
Order 13563. The NTSB published the NPRM pursuant to the agency's plan
of retrospective review.
II. Comments Received and Responses Thereto
The NTSB received five comments in response to the March 19, 2015
NPRM. Two of the comments addressed proposed changes to 49 CFR part
845, as well as the changes and additions we proposed in our August 12,
2014 NPRM to reorganize and change 49 CFR part 831 (``Investigation
Procedures''). 79 FR 47064. In this regard, Airlines for America (A4A)
submitted a comment reiterating its concerns about our proposed use of
the term ``event'' in our NPRM for part 831, and recommended we expand
our protections of voluntarily submitted information in Sec. 831.6. In
addition, The Boeing Company (Boeing) included a copy of its comment in
response to our part 831 NPRM. Boeing also reiterated its
recommendation that we adopt a practice of sharing draft Board reports
with parties.
The Air Line Pilots Association, International (ALPA) urged us to
change the terms ``probable cause'' to ``probable cause(s)'' throughout
the part. Similarly, the United States Coast Guard (USCG) submitted a
comment requesting we remove the term ``event'' from part 845; in
particular, the USCG mentioned Sec. 845.2 (``Investigative hearings'')
in this suggestion. In addition, ALPA encouraged the NTSB to continue
to use the terms ``accident'' and ``incident'' for aviation-specific
investigations rather than the term ``event.''
We understand commenters' concerns regarding use of the term
``event'' throughout this part. Several commenters expressed similar
concerns in response to our part 831 NPRM. In our forthcoming final
rule to finalize the changes to part 831, we will explain our responses
to such comments concerning the term ``event.'' For this final rule to
finalize changes to part 845, we simply note we understand the concerns
with the term, and we have removed it from the regulatory text
appearing in this final rule.
The commenters also submitted recommendations for specific
sections, to which we respond below.
A. Section 845.9, ``Prehearing Conference''
1. Comments Received
Regarding Sec. 845.9, in which the NTSB proposed retaining most of
the text of Sec. 845.23 describing prehearing conferences, ALPA
recommends retaining the existing language in Sec. 845.23(b) and
adding the following text to Sec. 845.9(b): ``copies of all exhibits
proposed for admission by the board of inquiry and the parties shall be
furnished to the board and to all the parties, insofar as available at
the time.'' The text the NTSB proposed would require all parties be
advised of the witnesses to be called, the areas in which the witnesses
would be examined, and the evidence to be offered. The proposed text
would also require parties to the hearing to submit, at the prehearing
conference, copies of any additional documentary exhibits they desire
to offer for admission at the hearing. The proposed text did not
include the phrase, ``insofar as available at the time.''
2. Response to Comments
The NTSB believes it is unnecessary to include the phrase,
``insofar as available at the time [of the prehearing conference],'' as
ALPA suggests. As proposed, the sentence requiring submission of copies
of exhibits expected to be offered at hearings is sufficient to connote
the exhibits would be available when offered. As ALPA noted, this
requirement already exists in the current version of Sec. 845.23(b).
In addition, paragraph (c) of Sec. 845.9 addresses the issue of a
party to a hearing holding information the party
[[Page 80285]]
knows it intends to produce at the hearing.
B. Section 845.13, ``Proposed Findings''
1. Comments Received
Boeing recommends we adopt the International Civil Aviation
Organization (ICAO) protocol of sharing draft reports with all parties
to an NTSB investigation. Boeing contends not sharing draft reports can
be detrimental to the quality of Board reports. In its submission,
Boeing also attached a copy of its comment to our NPRM for part 831
regarding this issue.\1\
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\1\ While Boeing's comment is also applicable to Sec.
845.30(a), the organization discussed sharing of draft reports only
within the context of Sec. 845.13.
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A4A generally supports all the changes we proposed in part 845. A4A
does not object to our proposed text in Sec. 845.13 (``Proposed
findings''), but asks us to remain cognizant that partial releases of
information could cause ``unproductive speculation.'' In the comment
A4A submitted in response to our NPRM proposing changes to part 831,
A4A stated it strongly supports the practice of sharing draft reports
for parties' review prior to the Board's review of the draft, in
accordance with the ICAO practice.
2. Response to Comments
The NTSB understands parties' interest in reviewing draft reports
prior to the Board's review of them. In this regard, the agency has
considered carefully the feedback we received in response to the part
831 NPRM. The agency appreciates the candor and recommendations
commenters offered concerning this issue, and we are mindful that our
practice differs from that of ICAO. At present, the agency believes
changing its practice of the review process for draft reports is best
left to internal agency procedures and need not be the subject of a
rulemaking exercise. As a result, the NTSB will not change the proposed
text of Sec. 845.13 to address the sharing of draft reports.
C. Sections 845.20 (``Meetings'') and 845.21, ``Symposiums, Forums, and
Conferences''
1. Comments Received
The Association of American Railroads (AAR) stated it believes the
NTSB is attempting impermissibly to expand our authority. AAR opines
our description of our practice for holding forums, symposiums, and
conferences in Sec. 845.21 is improper because these proceedings are
``not within the scope of the NTSB's mandate or authority.'' In
addition, AAR challenges our process for choosing which investigations
are worthy of Board meetings. In the NPRM, the agency proposed Sec.
845.20 to state the Board may hold a meeting whenever ``the Board
determines holding a meeting is in the public interest.'' AAR believes
``the `public interest' standard is not in the current regulation at 49
CFR 804.3, and it essentially presumes an unrestricted ability to hold
public meetings about any topic.''
ALPA supports our proposed language in Sec. 845.21(b) stating
symposiums, forums, and conferences are not intended to obtain evidence
or establish facts for a particular NTSB investigation.
Regarding Sec. 845.21, the USCG cautions, to the extent a
proceeding may have a relationship to ongoing investigation(s) and the
proceeding occurs prior to the completion of an investigation, holding
the proceeding could result in premature or incomplete findings and
recommendations. The USCG also states our proposed language ``does not
consider other investigations that are conducted concurrently, such as
internal agency investigations, and the facts and conclusions that may
result from those efforts.'' The USCG recommends we remove the term
``ongoing'' from the regulatory text.
2. Response to Comments
We disagree with AAR's contention that we lack the authority to
hold forums, symposiums, and conferences. Under 49 U.S.C. 1116, we have
held such proceedings for purposes of educating the agency and the
public on transportation trends or aspects of transportation that could
benefit from safety improvements. Section 1116(b) provides broad
authority to the NTSB to accomplish this purpose.
Given this statutory language, it is axiomatic that the NTSB's
responsibility is not limited to the requirements of 49 U.S.C. 1131 and
1132 regarding investigations, or section 1133 regarding the review of
aviation and mariner certificate and license appeals. The NTSB is also
required to conduct special studies and investigations concerning
transportation safety in general. The NTSB is best situated to exercise
this mandate, given the expertise of its staff and the experiences the
agency gains in investigations of accidents and incidents that safety
improvements could prevent.
In light of this responsibility, the NTSB holds forums, symposiums,
and conferences concerning transportation issues the agency determines
warrant further interest or research. The NTSB's proposed regulatory
text for Sec. 845.21 reflects this objective, as it includes a
statement that the agency does not hold such proceedings for purposes
of obtaining evidence for a specific investigation of an accident or
incident.
We also appreciate the USCG's comment regarding Sec. 845.21(b).
Specifically, our proposed text stated forums, symposiums, and
conferences ``may have a relationship to previous or ongoing
investigative activities; however, their purpose is not to obtain
evidence for a specific investigation.''
The clear purpose of NTSB forums, symposiums, and conferences is to
focus attention on and educate the public, transportation regulators,
and the NTSB itself on key transportation safety issues. Taking
advantage of the educational opportunities these proceedings provide
helps to ensure comprehensive NTSB investigations. Our acknowledgement
in the regulatory text that such proceedings are not held for obtaining
evidence, but for focusing attention, raising awareness, encouraging
dialogue, educating the agency, or generally advancing or developing
safety recommendations, is consistent with our past practices and our
statutory responsibility, pursuant to 49 U.S.C. 1116. Given the purpose
of these proceedings, as described in the proposed text for Sec.
845.21, we decline to alter the text, as we do not believe the
proceedings could result in premature or incomplete findings and
recommendations.
D. Sections 845.30, ``Board Products,'' and 845.31, ``Public Docket''
1. Comments Received
Regarding our proposed text describing public dockets, which
contain information pertinent to an investigation, the USCG recommends
we include text stating we will coordinate with the USCG concerning
public release of information in marine investigations.
In its comment, AAR mentions Sec. 845.31 in reiterating its
position that the changes the NTSB proposed in part 845 are beyond the
scope of the agency's authority. Regarding the text of Sec. 845.31,
AAR states the language would allow the NTSB to open a public docket
``concerning a safety study or report, special investigation report, or
other agency product'' in addition to doing so for an actual
investigation.
AAR also mentions Sec. 845.30(b) in the context of whether the
section encompasses documents beyond the scope of the NTSB's authority.
AAR states Sec. 845.30(b) ``covers `Board Products' and now includes
(a) NTSB studies and reports `of more than one event that share
commonalities', (b)
[[Page 80286]]
safety studies and reports, and (c) safety recommendations `as a stand-
alone Board product.' '' With regard to all the sections AAR identified
as containing language that exceeds the scope of the NTSB's
authorization, AAR states, ``NTSB occupying itself with these types of
activities will divert resources from the critical mission given to
NTSB by Congress at 49 U.S.C. 1131.'' AAR, however, mentions the
railroads support public education and involvement, ``particularly in
matters related to safety,'' but contends the NTSB's proposed text
describes activities beyond the scope of NTSB's statutory authority.
2. Response to Comments
Regarding the USCG's comment recommending we include text stating
for marine investigations, we will coordinate release of public dockets
in advance with the USCG, although we decline to adopt this change in
Sec. 845.31. Section 845.31, which is largely duplicative of the
existing version of Sec. 845.50, describes public dockets in general
terms, and provides information concerning how the public may obtain a
copy of a public docket. The NTSB believes specific protocols
concerning coordination with other agencies is more suitable for an
interagency agreement or discussion.
The NTSB disagrees with AAR's opinion that the NTSB should not
conduct safety studies and issue reports. As discussed above, Congress
specifically directed the NTSB to conduct safety studies on a variety
of issues. In addition, the NTSB's responsibility to issue safety
recommendations is clear, both in the agency's authorizing legislation
and legislative history. 49 U.S.C. 1135; H.R. Rep. No. 103-239(I) at 1
(1993) (emphasizing the importance of the NTSB's safety recommendations
and stating that such recommendations ``have saved countless human
lives''). As a result of this statutory direction, the NTSB will not
alter its practice of conducting safety studies, issuing safety
recommendations, and creating and issuing other types of documents that
will improve transportation safety. The agency can only achieve its
broad mandate by issuing such documents. The NTSB's choice of the term
``Board products'' will ensure adequate flexibility in the future, to
encompass a variety of documents the agency determines will aid in
achieving the ultimate goal of improving transportation safety.
E. Section 845.32, ``Petitions for Reconsideration or Modification of
Report''
Although no comments addressed the issue of whether the NTSB's
disposition of a petition for reconsideration or modification should be
subject to judicial review, the agency notes a recent judicial order
denying a petition for review. On June 19, 2015, the Court of Appeals
for the District of Columbia Circuit held the NTSB's disposition of a
petition for reconsideration was not subject to a federal court's
review. Joshi v. Nat'l Transp. Safety Bd., 791 F.3d 8 (D.C. Cir. 2015),
pet. for cert. filed, 2015 WL 7593160 (Nov. 17, 2015). The Joshi case
arose out of an aircraft accident in which the pilot and four
passengers died in Indiana in April 2006.
The agency denied the petition for reconsideration, and the
petitioner sought review of both the NTSB's reports of its
investigation and the response to his petition for reconsideration. The
appellate court held that, because neither the reports nor the response
can be considered a final order subject to judicial review, the court
lacked jurisdiction to hear the case.
In reaching its conclusion, the court cited 49 CFR 831.4 (``Nature
of investigation''), which states the NTSB uses its investigations ``to
ascertain measures that would best tend to prevent similar accidents or
incidents in the future.'' 49 CFR 831.4. The court went on to quote the
regulation further, which states NTSB investigations are considered
``fact-finding proceedings with no formal issues and no adverse
parties. They are not subject to the provisions of the Administrative
Procedure Act and are not conducted for the purpose of determining the
rights or liabilities of any person.'' Id.; Joshi, 791 F.3d at 12.
The court stated it lacked jurisdiction to consider not only the
agency's reports and conclusions, but it also could not review the
NTSB's denial of the petition for reconsideration. The court based this
conclusion on the fact that the reconsideration procedure the
petitioner used was not created by any statute, but was a process set
forth in the NTSB's regulations. The court described the process as one
that allows the agency to receive new evidence after it completes an
accident investigation and noted this procedure functions to ensure the
NTSB ``develops safety recommendations based on the most complete
record possible.'' 791 F.3d at 12. As a result, the court characterized
petitions for reconsideration as ``simply another stage of the accident
investigation procedure.'' Id. Therefore, the NTSB's disposition of
petitions are not subject to review in federal court. The NTSB believes
it is worthwhile to mention the Joshi decision in this rulemaking
document, due to its relevance to the NTSB's disposition of petitions
for reconsideration.
F. Additional Edits
In this final rule, the NTSB re-inserts the phrase ``in the event
of a catastrophic accident'' within Sec. 845.4 (``Determination to
hold hearing''). The regulatory text of the NPRM did not include this
phrase, even though the phrase currently exists in the regulatory text
of Sec. 845.10. Upon further evaluation of the regulation, the NTSB
has determined it is prudent to retain the phrase.
The NTSB's NPRM proposed two sections that both described the
procedure of providing notice of the time and place of the
investigative hearing. Section 845.5(c)(1) proposed text stating the
``NTSB'' would provide notice of the time and place of the
investigative hearing to all known interested persons. Section 845.7
proposed text stating the investigative hearing officer, upon
designation by the NTSB Chairman, would have the authority to give
notice concerning the time and place of investigative hearing. While
the text of these sections is not inconsistent, and is identical to the
language that exists in the current versions of Sec. Sec. 845.12 and
845.21, the NTSB nevertheless believes, as an administrative matter, it
is appropriate to remove from Sec. 845.5(c)(1) the statement that,
``[t]he NTSB will provide notice of the time and place of the
investigative hearing. . . .'' The NTSB provides such notice by way of
delegating to the hearing officer the responsibility and the authority
to do so. In the interest of providing regulations that are concise and
abundantly clear, the NTSB removes the aforementioned statement from
Sec. 845.5(c)(1). In addition, in Sec. 845.7, the NTSB herein adds
the phrase, ``or a Board Member designated by the Chairman'' to the
introductory text stating the investigative hearing officer, upon
designation by the NTSB Chairman or a Board Member designated by the
Chairman will have the list of ``powers'' that follows within the
section. This addition will ensure the designation of a hearing officer
can occur at times the NTSB Chairman has delegated his or her
authority.
III. Regulatory Analysis
In the NPRM, the NTSB included a regulatory analysis section
concerning
[[Page 80287]]
various Executive Orders and statutory provisions. 80 FR 14341 (Mar.
19, 2015). The NTSB did not receive any comments concerning the results
of the analysis. The NTSB again notes the following concerning such
Executive Orders and statutory provisions.
This final rule is not a significant regulatory action under
Executive Order 12866, ``Regulatory Planning and Review.'' Therefore,
Executive Order 12866 does not require a Regulatory Assessment, and the
Office of Management and Budget (OMB) has not reviewed this proposed
rule under Executive Order 12866. In addition, on July 11, 2011, the
President issued Executive Order 13579, ``Regulation and Independent
Regulatory Agencies,'' 76 FR 41587, July 14, 2011). Section 2(a) of the
Executive Order states:
Independent regulatory agencies ``should consider how best to
promote retrospective analysis of rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.''
76 FR at 41587. Consistent with Executive Order 13579, the NTSB's
amendments to 49 CFR part 845 reflect its judgment that this part
should be updated and streamlined.
This rule does not require an analysis under the Unfunded Mandates
Reform Act, 2 United States Code (U.S.C.) 1501-1571, or the National
Environmental Policy Act, 42 U.S.C. 4321-4347.
The NTSB has also analyzed these amendments in accordance with the
principles and criteria contained in Executive Order 13132,
``Federalism.'' This final rule does not contain any regulations that
would: (1) Have a substantial direct effect on the states, the
relationship between the national government and the states, or the
distribution of power and responsibilities among the various levels of
government; (2) impose substantial direct compliance costs on state and
local governments; or (3) preempt state law. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
The NTSB is also aware that the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires each agency to review its rulemaking to
assess the potential impact on small entities, unless the agency
determines a rule is not expected to have a significant economic impact
on a substantial number of small entities. The NTSB certifies this
final rule will not have a significant economic impact on a substantial
number of small entities.
Regarding other Executive Orders and statutory provisions, this
final rule also complies with all applicable standards in sections 3(a)
and 3(b)(2) of Executive Order 12988, ``Civil Justice Reform,'' to
minimize litigation, eliminate ambiguity, and reduce burden. In
addition, the NTSB has evaluated this rule under: Executive Order
12630, ``Governmental Actions and Interference with Constitutionally
Protected Property Rights''; Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks''; Executive
Order 13175, ``Consultation and Coordination with Indian Tribal
Governments''; Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use''; and
the National Technology Transfer and Advancement Act, 15 U.S.C. 272
note. The NTSB has concluded this rule does not contravene any of the
requirements set forth in these Executive Orders or statutes, nor does
this rule prompt further consideration with regard to such
requirements.
List of Subjects in 49 CFR Part 845
Administrative practice and procedure, Investigations, Organization
and functions (Government agencies), Reporting and recordkeeping
requirements, Safety, Transportation.
For the reasons discussed in the preamble, the NTSB revises 49 CFR
part 845 to read as follows:
PART 845--RULES OF PRACTICE IN TRANSPORTATION: INVESTIGATIVE
HEARINGS; MEETINGS, REPORTS, AND PETITIONS FOR RECONSIDERATION
Sec.
845.1 Applicability.
Subpart A--Investigative Hearings
845.2 Investigative hearings.
845.3 Sessions open to the public.
845.4 Determination to hold hearing.
845.5 Board of inquiry.
845.6 Designation of parties.
845.7 Hearing officer.
845.8 Technical panel.
845.9 Prehearing conference.
845.10 Right of representation.
845.11 Examination of witnesses.
845.12 Evidence.
845.13 Proposed findings.
845.14 Transcript.
845.15 Payment of witnesses.
Subpart B--Meetings
845.20 Meetings.
845.21 Symposiums, forums, and conferences.
Subpart C--Miscellaneous Provisions
845.30 Board products.
845.31 Public docket.
845.32 Petitions for reconsideration or modification of report.
845.33 Investigation to remain open.
Authority: Sec. 515, Pub. L. 106-554, App. C, 114 Stat. 2763,
2763A-153 (44 U.S.C. 3516 note); 49 U.S.C. 1112, 1113(f), 1116,
1131, unless otherwise noted.
Sec. 845.1 Applicability.
Unless otherwise specifically ordered by the National
Transportation Safety Board (NTSB), the provisions of this part shall
govern all NTSB proceedings conducted under the authority of 49 U.S.C.
1113 and 1131, and reports issued by the Board.
Subpart A--Investigative Hearings
Sec. 845.2 Investigative hearings.
Investigative hearings are convened to assist the NTSB in further
developing the facts, conditions, and circumstances of the
transportation accident or incident, which will ultimately assist the
Board in determining the cause or probable cause of the accident or
incident, and in ascertaining measures that will tend to prevent such
accidents or incidents and promote transportation safety. Investigative
hearings are fact-finding proceedings with no adverse parties. They are
not subject to the provisions of the Administrative Procedure Act (5
U.S.C. 554) and are not conducted for the purpose of determining the
rights, liabilities, or blame of any person or entity.
Sec. 845.3 Sessions open to the public.
(a) All investigative hearings shall normally be open to the
public. However, no person shall be allowed at any time to interfere
with the proper and orderly functioning of the hearing.
(b) Sessions shall not be open to the public when evidence of a
classified nature or which affects national security is to be received.
Sec. 845.4 Determination to hold hearing.
(a) The Board may order an investigative hearing as part of an
investigation whenever a hearing is deemed necessary in the public
interest.
(b) If a quorum of the Board is not immediately available in the
event of a catastrophic accident, the determination to hold an
investigative hearing may be made by the Chairman of the Board.
Sec. 845.5 Board of inquiry.
(a) Composition of board of inquiry. The board of inquiry shall
consist of a chairman of the board of inquiry, as specified in
paragraph (c) of this section, and other members in accordance with
Board policy.
(b) Duties of board of inquiry. The board of inquiry shall examine
witnesses and secure, in the form of a public record, facts pertaining
to the
[[Page 80288]]
accident or incident under investigation and surrounding circumstances
and conditions from which the Board may determine probable cause and
may formulate recommendations and/or other documents for corrective or
preventative action.
(c) Chairman of board of inquiry. The chairman of the board of
inquiry, or his or her designee, shall have the following powers:
(1) To designate parties to the investigative hearing and revoke
such designations;
(2) To open, continue, or adjourn the investigative hearing;
(3) To determine the admissibility of and to receive evidence and
to regulate the course of the investigative hearing;
(4) To dispose of procedural requests or similar matters; and
(5) To take any other appropriate action to ensure the orderly
conduct of the investigative hearing.
Sec. 845.6 Designation of parties.
(a) The chairman of the board of inquiry shall designate as parties
to the investigative hearing those persons and organizations 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 to the investigative hearing shall be
represented by suitable representatives who do not occupy legal
positions.
(b) No party to the investigation and/or investigative hearing
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 to the investigative hearing.
Sec. 845.7 Hearing officer.
The investigative hearing officer, upon designation by the NTSB
Chairman or a Board Member designated by the Chairman, shall have the
following powers:
(a) To give notice concerning the time and place of investigative
hearing;
(b) To administer oaths and affirmations to witnesses; and
(c) To issue subpoenas requiring the attendance and testimony of
witnesses and production of documents. The investigative hearing
officer may, in consultation with the chairman of the board of inquiry
and the NTSB Managing Director, add witnesses until the time of the
prehearing conference.
Sec. 845.8 Technical panel.
The appropriate office director(s) and/or the hearing officer, in
consultation with the NTSB Managing Director, shall determine if a
technical panel is needed and, if so, shall designate members of the
NTSB technical staff to participate in the investigative hearing.
Members of the technical panel may conduct pre-screening of witnesses
through interviews, and may take other actions to prepare for the
hearing. At the hearing, the technical panel will initially examine the
witnesses through questioning. The technical panel shall examine
witnesses and secure, in the form of a public record, facts pertaining
to the accident or incident under investigation and surrounding
circumstances and conditions.
Sec. 845.9 Prehearing conference.
(a) Except as provided in paragraph (d) of this section, the
chairman of the board of inquiry, or his/her designee, shall hold a
prehearing conference with the parties to the investigative hearing at
a convenient time and place prior to the hearing. At the prehearing
conference, the parties shall be advised of the witnesses to be called
at the investigative hearing, the topics about which they will be
examined, and the exhibits that will be offered in evidence.
(b) At the prehearing conference, parties to the investigative
hearing shall submit copies of any additional documentary exhibits they
desire to offer for admission at the hearing.
(c) A party to the investigative hearing who, at the time of the
prehearing conference, fails to advise the chairman of the board of
inquiry of additional exhibits he or she intends to submit, or
additional witnesses he or she desires to examine, shall be prohibited
from introducing such evidence unless the chairman of the board of
inquiry determines for good cause shown that such evidence should be
admitted.
(d) The board of inquiry may hold an investigative hearing on an
expedited schedule. The chairman of the board of inquiry may hold a
prehearing conference for an expedited investigative hearing. When an
expedited investigative hearing is held, the chairman of the board of
inquiry may waive the requirements in paragraphs (b) and (c) of this
section concerning the identification of witnesses, exhibits or other
evidence.
Sec. 845.10 Right of representation.
Any person who appears to testify at an investigative hearing has
the right to be accompanied, represented, or advised by counsel or by
any other representative.
Sec. 845.11 Examination of witnesses.
(a) Examination. In general, the technical panel shall initially
examine witnesses. Following such examination, parties to the
investigative hearing shall be given the opportunity to examine such
witnesses. The board of inquiry shall then conclude the examination
following the parties' questions.
(b) Objections. (1) 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
investigative hearing or any other person.
(2) Such matters shall be controlled by rulings of the chairman of
the board of inquiry on his or her own motion. If the examination of a
witness by a party to the investigative hearing is interrupted by a
ruling of the chairman of the board of inquiry, the party shall have
the opportunity to show materiality, relevancy, or competency of the
testimony or evidence sought to be elicited from the witness.
Sec. 845.12 Evidence.
In accordance with Sec. 845.2, the chairman of the board of
inquiry shall receive all testimony and evidence that may be of aid in
determining the probable cause of the transportation accident or
incident. He or she may exclude any testimony or exhibits that are not
pertinent to the investigation or are merely cumulative.
Sec. 845.13 Proposed findings.
Following the investigative hearing, any party to the hearing 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 or incidents. The proposals shall be
submitted within the time specified by the investigative hearing
officer at the close of the hearing, and shall be made a part of the
public docket. Parties to the investigative hearing shall serve copies
of their proposals on all other parties to the hearing.
Sec. 845.14 Transcript.
A verbatim report of the investigative hearing shall be taken. Any
interested person may obtain copies of the transcript from the NTSB or
from the court reporting firm preparing the transcript upon payment of
the fees fixed therefor. (See part 801, subpart G, Fee schedule.)
Sec. 845.15 Payment of witnesses.
Any witness subpoenaed to attend the investigative hearing under
this part shall be paid such fees for travel and attendance for which
the hearing officer shall certify.
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Subpart B--Meetings
Sec. 845.20 Meetings.
The Board may hold a meeting concerning an investigation or Board
product, as described in Sec. 804.3 of this chapter or any other
circumstance, when the Board determines holding a meeting is in the
public interest.
Sec. 845.21 Symposiums, forums, and conferences.
(a)(1) Definitions. (i) A symposium is a public proceeding focused
on a specific topic, where invited participants provide presentations
of their research, views or expertise on the topic and are available
for questions.
(ii) A forum is a public proceeding generally organized in a
question-and-answer format with various invited participants who may
make presentation and are available for questioning by the Board or
designated NTSB staff as individuals in a panel format.
(iii) A conference is a large, organized proceeding where
individuals present materials, and a moderator or chairperson
facilitates group discussions.
(2) These proceedings are related to transportation safety matters
and will be convened for the purpose of focusing attention, raising
awareness, encouraging dialogue, educating the NTSB, or generally
advancing or developing safety recommendations. The goals of the
proceeding will be clearly articulated and outlined, and will be
consistent with the mission of the NTSB.
(b) A quorum of Board Members is not required to attend a forum,
symposium, or conference. All three types of proceedings described in
paragraph (a) of this section may have a relationship to previous or
ongoing investigative activities; however, their purpose is not to
obtain evidence for a specific investigation.
(c) Symposiums, forums, and conferences are voluntary for all
invited participants.
Subpart C--Miscellaneous Provisions
Sec. 845.30 Board products.
(a) Reports of investigations. (1) The Board will adopt a report on
the investigation. The report will set forth the relevant facts,
conditions, and circumstances relating to the accident or incident and
the probable cause thereof, along with any appropriate safety
recommendations and/or safety alerts formulated on the basis of the
investigation. The scope and format of the report will be determined in
accordance with Board procedures.
(2) The probable cause and facts, conditions, and circumstances of
other accidents or incidents will be reported in a manner and form
prescribed by the Board. The NTSB allows the appropriate office
director, under his or her delegated authority as described in Sec.
800.25 of this chapter, to issue a ``brief,'' which includes the
probable cause and relevant facts, conditions, and circumstances
concerning the accident or incident. Such briefs do not include
recommendations. In particular circumstances, the Board in its
discretion may choose to approve a brief.
(b) Studies and reports--(1) NTSB studies and reports. The NTSB may
issue reports describing investigations of more than one accident or
incident that share commonalities. Such reports are similar to accident
or incident investigation reports, as described in paragraph (a)(1) of
this section. Such reports often include safety recommendations and/or
safety alerts, which the Board adopts.
(2) Safety studies and reports. The NTSB issues safety studies and
reports, which usually examine safety concerns that require the
investigation of a number of related accidents or incidents to
determine the extent and severity of the safety issues. Such studies
and reports often include safety recommendations and/or safety alerts,
which the Board adopts.
(c) Safety recommendations. The Board may adopt and issue safety
recommendations, either as part of a Board report or as a stand-alone
Board product.
Sec. 845.31 Public docket.
(a) Investigations. (1) As described in Sec. 801.3 of this
chapter, the public docket shall include factual information concerning
the accident or incident. Proposed findings submitted pursuant to Sec.
831.14 or Sec. 845.13 and petitions for reconsideration and
modification submitted pursuant to Sec. 845.32, comments thereon by
other parties, and the Board's rulings on proposed findings and
petitions shall also be placed in the public docket.
(2) The NTSB shall establish the public docket following the
accident or incident, and material shall be added thereto as it becomes
available. Where an investigative hearing is held, the exhibits will be
introduced into the record at the hearing and will be included in the
public docket.
(b) Other Board reports and documents. The NTSB may elect to open
and place materials in a public docket concerning a safety study or
report, special investigation report, or other agency product. The NTSB
will establish the public docket following its issuance of the study or
report.
(c) Availability. The public docket shall be made available to any
person for review, as described in Sec. 801.30 of this chapter.
Records within the public docket are available at www.ntsb.gov.
Sec. 845.32 Petitions for reconsideration or modification of report.
(a) Requirements. (1) The Board will only consider petitions for
reconsideration or modification of findings and determination of
probable cause from a party or other person having a direct interest in
an investigation.
(2) Petitions must be in writing and addressed to the NTSB
Chairman. Please send your petition via email to
[email protected]. In the alternative, you may send your petition
via postal mail to: NTSB Headquarters at 490 L'Enfant Plaza SW.,
Washington, DC 20594.
(3) Petitions must be based on the discovery of new evidence or on
a showing that the Board's findings are erroneous. (i) 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.
(ii) Petitions based on a claim of erroneous findings shall set
forth in detail the grounds upon which the claim is based.
(b) Acceptance of petitions. The Board will not consider petitions
that are repetitious of proposed findings submitted pursuant to Sec.
845.13, or of positions previously advanced.
(c) Proof of service. (1) 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 investigative hearing and proof of service shall be
attached to the petition.
(2) Any party served with a copy of the petition may file comments
no later than 90 days after service of the petition.
(d) Oral presentation. Oral presentation normally will not form a
part of proceedings under this section. However, oral presentation may
be permitted where a party or interested person specifically shows the
written petition for reconsideration or modification is an insufficient
means by
[[Page 80290]]
which to present the party's or person's position.
Sec. 845.33 Investigation to remain open.
The Board never officially closes an investigation, but provides
for the submission of new and pertinent evidence by any interested
person. If the Board finds such evidence is relevant and probative, the
evidence shall be made a part of the public docket and, where
appropriate, the Board will provide parties an opportunity to examine
such evidence and to comment thereon.
Christopher A. Hart,
Chairman.
[FR Doc. 2015-32264 Filed 12-23-15; 8:45 am]
BILLING CODE 7533-01-P