[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2004 Edition]
[From the U.S. Government Printing Office]



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          49


          Parts 600 to 999

                         Revised as of October 1, 2004


          Transportation
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2004
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2004



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 49:
    Subtitle B--Other Regulations Relating to Transportation 
      (Continued)
          Chapter VI--Federal Transit Administration, 
          Department of Transportation                               5
          Chapter VII--National Railroad Passenger Corporation 
          (AMTRAK)                                                  93
          Chapter VIII--National Transportation Safety Board       109
  Finding Aids:
      Table of CFR Titles and Chapters........................     199
      Alphabetical List of Agencies Appearing in the CFR......     217
      List of CFR Sections Affected...........................     227

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 49 CFR 601.1 refers 
                       to title 49, part 601, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
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LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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OMB CONTROL NUMBERS

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Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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the revision dates of the 50 CFR titles.

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in the Code of Federal Regulations.

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2004.

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                               THIS TITLE

    Title 49--Transportation is composed of eight volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-185, parts 186-199, parts 200-399, parts 400-599, parts 600-999, 
parts 1000-1199, part 1200 to End. The first volume (parts 1-99) 
contains current regulations issued under subtitle A--Office of the 
Secretary of Transportation; the second volume (parts 100-185) and the 
third volume (parts 186-199) contain the current regulations issued 
under chapter I--Research and Special Programs Administration (DOT); the 
fourth volume (parts 200-399) contains the current regulations issued 
under chapter II--Federal Railroad Administration (DOT) and chapter 
III--Federal Motor Carrier Safety Administration (DOT); the fifth volume 
(parts 400-599) contains the current regulations issued under chapter 
IV--Coast Guard (DHS) and chapter V--National Highway Traffic Safety 
Administration (DOT); the sixth volume (parts 600-999) contains the 
current regulations issued under chapter VI--Federal Transit 
Administration (DOT), chapter VII--National Railroad Passenger 
Corporation (AMTRAK), and chapter VIII--National Transportation Safety 
Board; the seventh volume (parts 1000-1199) contains the current 
regulations issued under chapter X--Surface Transportation Board (DOT); 
and the eighth volume (part 1200 to End) contains the current 
regulations issued under chapter X--Surface Transportation Board, 
chapter XI--Bureau of Transportation Statistics, and chapter XII--
Transportation Security Administration, Department of Homeland Security. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of October 1, 2004.

    In the volume containing parts 100-185, see Sec.  172.101 for the 
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards 
appear in part 571.

    For this volume, Ruth Green was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

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[[Page 1]]



                        TITLE 49--TRANSPORTATION




                  (This book contains parts 600 to 999)

  --------------------------------------------------------------------
                                                                    Part

  SUBTITLE B--Other Regulations Relating To Transportation (Continued)

chapter vi--Federal Transit Administration, Department of 
  Transportation............................................         601

chapter vii--National Railroad Passenger Corporation 
  (AMTRAK)..................................................         700

chapter viii--National Transportation Safety Board..........         800

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  Subtitle B--Other Regulations Relating To Transportation (Continued)

[[Page 5]]



CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
601             Organization, functions, and procedures.....           7
604             Charter service.............................          11
605             School bus operations.......................          19
609             Transportation for elderly and handicapped 
                    persons.................................          26
611             Major capital investment projects...........          28
613             Planning assistance and standards...........          36
614             Transportation infrastructure management....          37
622             Environmental impact and related procedures.          37
624             Clean fuels formula grant program...........          38
630             Uniform system of accounts and records and 
                    reporting system........................          45
633             Project management oversight................          50
639             Capital leases..............................          53
640             Credit assistance for surface transportation 
                    projects................................          57
655             Prevention of alcohol misuse and prohibited 
                    drug use in transit operations..........          57
659             Rail fixed guideway systems; State safety 
                    oversight...............................          71
661             Buy America requirements--Surface 
                    Transportation Assistance Act of 1982, 
                    as amended..............................          74
663             Pre-award and post-delivery audits of 
                    rolling stock purchases.................          82
665             Bus testing.................................          86

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PART 601_ORGANIZATION, FUNCTIONS, AND PROCEDURES--Table of Contents




                            Subpart A_General

Sec.
601.1 Purpose.
601.2 Organization of the Administration.
601.3 General responsibilities.
601.4 Responsibilities of the Administrator.

                          Subpart B_Delegations

601.10 Delegations of authority.

              Subpart C_Public Availability of Information

601.20 Sources of information.

    Authority: 49 U.S.C. 1657, 1659; Reorganization Plan No. 2 of 1968 
(82 Stat. 1369); 49 CFR 1.51.



                            Subpart A_General

    Source: 41 FR 56808, Dec. 30, 1976, unless otherwise noted.



Sec. 601.1  Purpose.

    This part describes the organization or the Federal Transit 
Administration (``FTA'') an operating administration within the 
Department of Transportation. This part also describes the general 
responsibilities and authority of the officials directing the various 
offices of which FTA is composed. In addition, this part describes the 
sources and locations of available FTA program information.



Sec. 601.2  Organization of the Administration.

    (a) The headquarters organization of FTA is composed of 10 principal 
offices which function under the overall direction of the Federal 
Transit Administrator (``the Administrator'') and Deputy Administrator. 
These offices are:
    (1) Office of the Administrator.
    (2) Office of the Associate Administrator for Administration.
    (3) Office of Chief Counsel.
    (4) Office of Civil Rights.
    (5) Office of Public Affairs.
    (6) Office of the Associate Administrator for Transit Assistance.
    (7) Office of the Associate Administrator for Policy and Program 
Development.
    (8) Office of the Associate Administrator for Transportation 
Planning.
    (9) Office of the Associate Administrator for Transportation 
Management and Demonstrations.
    (10) Office of the Associate Administrator for Technology 
Development and Deployment.

The Administrator receives staff support from the Executive Secretariat 
which coordinates internal document dissemination and project 
assignments and ensures policy compliance.
    (b) The Office of the Administrator and the Offices of Chief 
Counsel, Public Affairs, the Associate Administrator for Administration, 
the Associate Administrator for Transit Assistance, the Associate 
Administrator for Policy and Program Development, and the Associate 
Administrator for Transportation Planning are located in the Department 
of Transportation Building, 400 7th Street, SW., Washington, DC 20590. 
The Offices of Civil Rights, the Associate Administrator for Technology 
Development and Deployment, and the Associate Administrator for 
Transportation Management and Demonstrations are located in the 
Transpoint Building, 2100 2nd Street, SW., Washington, DC 20590.

------------------------------------------------------------------------
        Region/States                Office/address        Telephone No.
------------------------------------------------------------------------
I--Connecticut, Maine,         FTA Representative, c/o      617-494-2055
 Massachusetts, New             Transportation Systems
 Hampshire, Rhode Island, and   Center, Kendall Square,
 Vermont.                       Room 277, 55 Broadway,
                                Cambridge, Mass. 02142.
II--New York, New Jersey,      FTA Representative, 26       212-264-8162
 Puerto Rico, and Virgin        Federal Plaza, Suite
 Islands.                       507, New York, N.Y.
                                10007.
III--Delaware, District of     FTA Representative, 434      215-597-8098
 Columbia, Maryland,            Walnut St., Suite 1010,
 Pennsylvania, Virginia, and    Philadelphia, Pa. 19106.
 West Virginia.
IV--Alabama, Florida,          FTA Representative, 1720     404-526-3948
 Georgia, Kentucky,             Peachtree Rd. NW., Suite
 Mississippi, North Carolina,   400, Atlanta, Ga. 30309.
 South Carolina, and
 Tennessee.
V--Illinois, Indiana,          FTA Representative, 300      312-353-0100
 Minnesota, Michigan, Ohio,     South Wacker Dr., Suite
 and Wisconsin.                 1740, Chicago, Ill.
                                60606.
VI--Arkansas, Louisiana, New   FTA Representative, 819      817-334-3787
 Mexico, Oklahoma, and Texas.   Taylor St., Suite 3A32,
                                Fort Worth, Tex. 76102.

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VII--Iowa, Kansas, Missouri,   FTA Representative, 6301     816-926-5053
 and Nebraska.                  Pork Hill Rd., Room 303,
                                Kansas City, Mo. 64131.
VIII--Colorado, Montana,       FTA Representative,          303-837-3242
 North Dakota, South Dakota,    Prudential Plaza, Suite
 Utah, and Wyoming.             1822, 1050 17th St.,
                                Denver, Colo. 80202.
IX--Arizona, California,       FTA Representative, Two      415-556-2884
 Hawaii, Nevada, Guam, and      Embarcadero Center,
 American Samoa.                Suite 620, San
                                Francisco, Calif. 94111.
X--Alaska, Idaho, Oregon, and  FTA Representative,          206-442-4210
 Washington.                    Federal Bldg., Suite
                                3106, 915 2d Ave.,
                                Seattle, Wash. 98174.
------------------------------------------------------------------------



Sec. 601.3  General responsibilities.

    The general responsibilities of each of the offices which comprise 
the headquarters organization of FTA are:
    (a) Office of the Associate Administrator for Administration. 
Directed by an Associate Administrator for Administration, this office 
provides general administrative support services for FTA, including 
financial management, personnel administration, audit, procurement, 
logistical and management information systems.
    (b) Office of Chief Counsel. Directed by a Chief Counsel, this 
office provides legal advice and services to the Administrator and other 
FTA officials; coordinates with and provides support to the General 
Counsel of DOT on matters involving urban mass transportation; and, 
provides liaison between FTA and the Department of Labor regarding the 
administration of section 13(c) of Federal Mass Transit Act of 1964, as 
amended (``the Act'').
    (c) Office of Public Affairs. Directed by a Director of Public 
Affairs, this office advises and assists the Administrator in the area 
of public relations and in the dissemination to the public and the news 
media of information about FTA programs, projects and activities.
    (d) Office of the Associate Administrator for Policy and Program 
Development. Directed by an Associate Administrator for Policy and 
Development, this office advises and assists the Administrator in the 
development and evaluation of policies and plans for implementing the 
functions and programs authorized by the Act; coordinates FTA activities 
with those of other agencies; and manages and administers the University 
Research Program under section 11 of the Act (49 U.S.C. 1607(c)). This 
office has three organizational components: The Office of Policy 
Development; the Office of Program Evaluation; and the Office of Policy 
Research.
    (e) Office of the Associate Administrator for Transit Assistance. 
Directed by an Associate Administrator for Transit Assistance, this 
office reviews and processes all applications for urban mass 
transportation capital and operating assistance grants and loans under 
sections 3, 4, 5, 16 and 17 of the Act (49 U.S.C. 1602, 1603, 1604, 1612 
and 1613); reviews and processes applications for Federal assistance to 
the Washington Metropolitan Area Transit Authority (WMATA) under the 
Transportation Act of 1972 and the National Capital Area Transit Act of 
1972; directs the evaluation and analysis of proposed annual programs 
and individual programs and individual projects; and approves and 
recommends for approval annual programs and individual projects. This 
office has three operating components which direct and coordinate post-
approval grant activities: the Office of Grant Assistance, the Office of 
Program Support, and the Office of Program Analysis.
    (f) Office of the Associate Administrator for Transportation 
Planning. Directed by an Associate Administrator for Transportation 
Planning, this office assists the Administrator in directing, 
coordinating and controlling FTA's transportation planning assistance 
and reviews planning activities both in relation to FTA-supported State 
and local actions and planning policy interaction within the Department 
of Transportation and with other Federal agencies; and administers 
grants to States and local public bodies under section 9 of the Act (49 
U.S.C. 1607a). This office has two organizational components: the Office 
of Planning Assistance and the Office of Planning Methodology and 
Technical Support.
    (g) Office of the Associate Administrator for Transportation 
Management and

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Demonstrations. Directed by an Associate Administrator for 
Transportation Management and Demonstrations, this office assists the 
Administrator in directing, conducting and controlling research and 
demonstration activities, including information dissemination, to foster 
the development of methods for improving transit management and 
operations from the perspectives of the operator and the user; 
administers grant and procurement contracts to demonstrate facilities, 
methods and techniques under section 6(a) of the Act (49 U.S.C. 1605), 
and managerial training fellowship grants under section 10 of the Act 
(49 U.S.C. 1607b). This office has two organizational components: the 
Office of Transit Management and the Office of Service and Methods 
Demonstrations.
    (h) Office of the Associate Administrator for Technology Development 
and Deployment. Directed by an Associate Administrator for Technology 
Development and Deployment, this office is responsible for developing 
and administering a program of research, development, testing, 
evaluation, operational demonstration, product qualification, 
standardization, analysis, and information exchange concerning new 
products intended for use in transportation systems assisted by FTA. The 
office is also responsible for FTA's safety and system assurance 
function and for advising the Administrator on matters relating to 
technology. This office administers research, development and 
demonstration projects under section 6(a) of the Act (49 U.S.C. 1605).
    (i) Office of Civil Rights. Directed by a Director of Civil Rights, 
this office advises and assists the Administrator and other FTA 
officials in implementing compliance with applicable laws and directives 
pertaining to civil rights and equal employment opportunity, both within 
FTA and in the conduct of urban mass transportation projects and 
programs.



Sec. 601.4  Responsibilities of the Administrator.

    The Administrator is responsible for the planning, direction, and 
control of the activities of FTA and has authority to approve urban mass 
transportation grants, loans, and contracts. The Deputy Administrator is 
the ``first assistant'' for purposes of the Federal Vacancies Reform Act 
of 1998 (Pub. L. 105-277) and shall, in the event of the absence or 
disability of the Administrator, serve as the Acting Administrator, 
subject to the limitations in that Act. In the event of the absence or 
disability of both the Administrator and the Deputy Administrator, 
officials designated by the agency's internal order on succession shall 
serve as Acting Deputy Administrator and shall perform the duties of the 
Administrator, except for any non-delegable statutory and/or regulatory 
duties.

[64 FR 61033, Nov. 9, 1999]



                          Subpart B_Delegations



Sec. 601.10  Delegations of authority.

    (a) Pursuant to authority delegated to the Administrator by 49 CFR 
1.45(b) and 1.51 of the regulations of the Office of the Secretary of 
Transportation, the following powers and duties of the Administrator are 
redelegated to the officials indicated--
    (1) The Associate Administrator for Transit Assistance is delegated 
authority to execute grant contracts, loan agreements, and amendments 
thereto with respect to approved capital and operating grants, loans and 
advanced land acquisition loan projects under sections 3, 4, 5, 16 and 
17 of the Act (49 U.S.C. 1602, 1603, 1604, 1612 and 1613); under limited 
circumstances review and approve applications for grants and grant 
amendments under the FT Act and section 110 of the Federal-Aid Highway 
Act of 1976 and 121(a) of the Federal-Aid Highway Act of 1973, as 
amended (23 U.S.C. 103 (e) (4) and 142). The Associate Administrator is 
further authorized, in connection with the administration of those 
projects, to approve requisitions for funds, third-

party contracts, and project budget amendments within previously 
authorized limits.
    (2) The Associate Administrator for Policy and Program Development 
is delegated authority to execute and amend grant contracts and 
amendments for university research and training projects under section 
11 of the Act (49 U.S.C. 1607c). The Associate

[[Page 10]]

Administrator is further authorized in connection with the 
administration of those projects to approve requisitions for funds, 
third-party contracts and project budget amendments within previously 
authorized limits.
    (3) The Associate Administrator for Technology Development and 
Deployment is delegated authority to execute and amend grant contracts 
and procurement requests for approved projects under section 6(a) of the 
Act (49 U.S.C. 1605); The Associate Administrator is further authorized, 
in connection with the administration of grant contracts, procurement 
contracts, interagency reimbursable agreements and purchase orders, to 
approve requisitions for funds, third-party contracts, and project 
budget amendments within previously authorized limits.
    (4) The Associate Administrator for Transportation Planning is 
delegated authority to execute and amend grant contracts and interagency 
agreements for planning, engineering, architectural feasibility and 
operational improvement study projects under section 9 of the Act (48 
U.S.C. 1607a); review and approve grant applications and grant 
amendments requested pursuant to section 9 of the Act by urbanized areas 
of less than 500,000 population. The Associate Administrator is further 
authorized in connection with the administration of such contracts to 
approve requisitions for funds, third-party contracts and project budget 
amendments within previously authorized limits.
    (5) The Associate Administrator for Transportation Management and 
Demonstrations is delegated authority to execute and amend grant 
contracts for projects designed to demonstrate facilities, methods and 
techniques of transit management and operations under section 6(a) of 
the Act (49 U.S.C. 1605) and for approved managerial training fellowship 
projects under section 10 of the Act (49 U.S.C. 1607b). The Associate 
Administrator is further authorized, in connection with the 
administration of such projects to approve requisitions for project 
funds, third-party contracts and project budget amendments within 
previously authorized limits.
    (b) All authority delegated to an official listed in paragraph (a) 
of this section may be redelegated by that official to one or more 
employees under his jurisdiction.

[41 FR 56809, Dec. 30, 1976]



              Subpart C_Public Availability of Information



Sec. 601.20  Sources of information.

    (a) The Federal Transit Administration has published a series of 
internal and external directives which contain the history, 
organization, policy, procedures, criteria, guidelines, interpretations 
and general regulations formulated and adopted by FTA as guidance for 
grant recipients, and the general public. All directives are listed in 
FTA Notice N 0000.17 ``Directives Checklist.''
    (b) Single copies of the checklist or any directive may be obtained 
without charge upon written request either to the Director, Office of 
Public Affairs, Federal Transit Administration, Room 9314, 400 Seventh 
Street, SW., Washington, DC 20590, or any Federal Transit Administration 
regional office listed in Sec. 601.2.
    (c) The Federal Transit Administration maintains, under the 
supervision of the Director of Public Affairs, a document inspection 
facility in Room 9314 at the headquarters of the Department of 
Transportation Building (Nassif Building), 400 Seventh Street, SW., 
Washington, DC 20590, through which the following FTA documents may be 
obtained:
    (1) An index to, and copies of, the internal and external directives 
of the Federal Transit Administration.
    (2) Any proposed or final regulation issued by the Federal Transit 
Administration, and any background information for these regulations.
    (d) Any person desiring to inspect any of these records, or obtain a 
copy thereof, must submit a request in writing, specifying the record to 
be inspected or copied to the Director, Office of Public Affairs, 
Federal Transit Administration, Room 9314, 400 Seventh Street, SW., 
Washington, DC 20590, accompanied by the appropriate

[[Page 11]]

fee for copies prescribed in 49 CFR part 7, subpart I.

(Authority: 5 U.S.C. 552; 49 U.S.C. 1657; 49 CFR 7.1(d))

[47 FR 55684, Dec. 13, 1982]



PART 604_CHARTER SERVICE--Table of Contents




                            Subpart A_General

Sec.
604.1 Purpose.
604.3 Applicability.
604.5 Definitions.
604.7 Charter agreement.
604.9 Charter service.
604.11 Procedures for determining if there are any willing and able 
          private charter operators.
604.13 Reviewing evidence submitted by private charter operators.

                       Subpart B_Complaint Process

604.15 Filing a complaint.
604.17 Remedies.
604.19 Appeals.
604.21 Judicial review.

Appendix A to Part 604

    Authority: 49 U.S.C. 5323(d); 23 U.S.C. 103(e)(4); 142(a); and 
142(c); and 49 CFR 1.51.

    Source: 52 FR 11933, Apr. 13, 1987, unless otherwise noted.



                            Subpart A_General



Sec. 604.1  Purpose.

    The purpose of this part is to implement section 3(f) and section 
12(c)(6) of the FT Act.



Sec. 604.3  Applicability.

    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.



Sec. 604.5  Definitions.

    (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) The Acts means the FT Act and those parts of Title 23 United 
States Code, 23 U.S.C. 103(e)(4), 142(a) and 142(c), that provide for 
assistance to public bodies for purchasing buses.
    (c) Administrator means the Administrator of FTA or his or her 
designee.
    (d) Categories of Revenue Vehicle means bus or van.
    (e) Charter Service means transportation using buses or vans, or 
facilities funded under the Acts of a group of persons who pursuant to a 
common purpose, under a single contract, at a fixed charge (in 
accordance with the carrier's tariff) for the vehicle or service, have 
acquired the exclusive use of the vehicle or service to travel together 
under an itinerary either specified in advance or modified after having 
left the place of origin. This definition includes the incidental use of 
FTA funded equipment for the exclusive transportation of school 
students, personnel, and equipment.
    (f) Chief Counsel means the Chief Counsel of FTA.
    (g) Days means calendar days in subpart A and Federal working days 
in subpart B.
    (h) Designated Official means the applicant's and recipient's 
employee authorized to file applications on behalf of the applicant or 
to enter into agreements on behalf of the recipient.
    (i) Incidental Charter Service means charter service which does not: 
(1) interfere with or detract from the provision of the mass 
transportation service for which the equipment or facilities were funded 
under the Acts; or (2) does not shorten the mass transportation life of 
the equipment or facilities.
    (j) Interested Party means an individual, partnership, corporation, 
association, or public or private organization that has a financial 
interest which is adversely affected by the act or acts of a recipient 
regarding charter service.
    (k) Non-urbanized area means an area with a population of less than 
50,000 people.
    (l) Recipient means one that has received or is receiving Federal 
financial assistance under the Acts. The term includes subrecipients of 
a recipient, subrecipients in FTA's State administered programs, public 
bodies that receive assistance that will be passed on to another public 
or quasi-public body, any

[[Page 12]]

operator for a recipient, whether publicly or privately owned, and may 
include lessees of federally assisted buses and other equipment. For any 
FTA State administered program, the State is the recipient.
    (m) State Administered Program means any FTA grant program in which 
the State is the recipient of funds, passes the funds to subrecipients, 
and administers the program for FTA.
    (n) FT Act means the Federal Mass Transit Act of 1964, as amended, 
49 U.S.C. 1601 et seq.
    (o) FTA means the Federal Transit Administration.
    (p) Willing and able means having the desire, having the physical 
capability of providing the categories of revenue vehicles requested, 
and possessing the legal authority, including the necessary safety 
certifications, licenses and other legal prerequisites, to provide 
charter service in the area in which it is proposed to be provided.



Sec. 604.7  Charter agreement.

    (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 charter 
bus agreement signed by the applicant's designated official with each 
grant application submitted to FTA after May 13, 1987. For FTA's State 
administered programs, the State is the applicant.
    (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 et seq.) or under 23 U.S.C. 
103(e)(4), 142(a) or 142(c) (the Acts) only to the extent that there are 
no private charter service operators willing and able to provide the 
charter service that (name of applicant) and all recipients through 
(name of applicant) desire to provide unless one or more of the 
exceptions in 49 CFR 604.9 applies.
    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.

                                Applicant

________________________________________________________________________

Name

________________________________________________________________________

Title

________________________________________________________________________

Date

                     Federal Transit Administration

________________________________________________________________________

Name

________________________________________________________________________

Title

________________________________________________________________________

Date

    (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

[[Page 13]]

of the agreement set forth in Sec. 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.

(Approved by the Office of Management and Budget under Control No. 2132-
0543)



Sec. 604.9  Charter service.

    (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 Sec. 604.9(b) applies.
    (b) Exceptions. (1) A recipient may provide any and all charter 
service with FTA funded equipment and facilities to the extent that 
there are no willing and able private charter operators.
    (2) A recipient may enter into a contract with a private charter 
operator to provide charter equipment to or service for the private 
charter operator if:
    (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

[[Page 14]]

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) Cost evaluation. A recipient may provide charter service when it 
can do so at a significantly lower cost than can private charter 
operators. Cost differences may be considered significant when there is 
approximately a twenty percent difference between the average charge for 
service by private operators and the recipient's fully allocated cost of 
providing the service, or when the advisory panel determines them to be 
significant.
    (B) Equipment uniqueness. A recipient may provide charter service 
using equipment that is not available from a private source, when such 
equipment is essential to the purpose of the charter trip.
    (C) Service nature. A recipient may provide unscheduled or demand 
responsive service that could not be provided

[[Page 15]]

by a private operator without advance notice or at a substantial 
surcharge to the customer.
    (D) Specific local factors. A recipient may provide service which 
responds to a clear need that cannot be met by the local private sector, 
and which is important to the economic or social health and vitality of 
the local area.
    (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 notice explaining why it is seeking an exception and state that 
they have at least 30 days to submit written comments to the recipient 
on the request;
    (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.

[52 FR 11933, Apr. 13, 1987, as amended at 53 FR 53355, Dec. 30, 1988; 
58 FR 36899, July 9, 1993; 58 FR 52685, Oct. 12, 1993; 59 FR 51134, Oct. 
7, 1994]



Sec. 604.11  Procedures for determining if there are any willing and 
able private charter operators.

    (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 
,

[[Page 16]]

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.

(Approved by the Office of Management and Budget under Control No. 2132-
0543)

[52 FR 11933, Apr. 13, 1987, as amended at 55 FR 34932, Aug. 27, 1990; 
59 FR 43778, Aug. 25, 1994]



Sec. 604.13  Reviewing evidence submitted by private charter operators.

    (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

[[Page 17]]

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.

(Approved by the Office of Management and Budget under Control No. 2132-
0543)



                       Subpart B_Complaint Process



Sec. 604.15  Filing a complaint.

    (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 without obvious merit and that it states grounds on which relief may 
be granted, the Regional Administrator shall advise the complainant and 
respondent to attempt to conciliate the dispute. The period for informal 
conciliation shall last for up to 30 days from the date of receipt of 
the Regional Administrator's order unless an extension is mutually 
agreed upon by the parties.
    (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.

[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]



Sec. 604.17  Remedies.

    (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.

[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]



Sec. 604.19  Appeals.

    (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

[[Page 18]]

(''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.

[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]



Sec. 604.21  Judicial review.

    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.

[52 FR 11933, Apr. 13, 1987, as amended at 58 FR 52685, Oct. 12, 1993]

                         Appendix A to Part 604

    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.

------------------------------------------------------------------------
               Program title                           Agency
------------------------------------------------------------------------
Project Grant and Cooperative Agreements    Public Health Service, HHS.
 for Tuberculosis Control Programs.
Mental Health Service for Cuban Entrants..  Public Health Service, HHS.
Mental Health Planning and Demonstration    Public Health Service, HHS.
 Projects.
Alcohol, Drug Abuse Treatment and           Public Health Service, HHS.
 Rehabilitation Block Grant.
Family Planning-Services..................  Public Health Service, HHS.
Community Health Centers..................  Public Health Service, HHS.
Indian Health Services--Health Management   Public Health Service, HHS.
 Development Program.
Migrant Health Centers Grants.............  Public Health Service, HHS.
Childhood Immunization Grants.............  Public Health Service, HHS.
Administration for Children, Youth and      Office of Human Development
 Families (ACYF)--Head Start.                Services, HHS.
ACYF Child Welfare Research and             Office of Human Development
 Demonstration Program.                      Services, HHS.
ACYF Runaway and Homeless Youth...........  Office of Human Development
                                             Services, HHS.
ACYF Adoption Opportunities...............  Office of Human Development
                                             Services, HHS.
ACYF Child Abuse and Neglect (State         Office of Human Development
 Grants).                                    Services, HHS.
ACYF Child Abuse and Neglect Discretionary  Office of Human Development
                                             Services, HHS.
Administration for Native Americans (ANA)   Office of Human Development
 Native American Programs--Financial         Services, HHS.
 Assistance Grants.
ANA Research, Demonstration and Evaluation  Office of Human Development
                                             Services, HHS.
ANA Training and Technical Assistance.....  Office of Human Development
                                             Services, HHS.
Administration of Developmental             Office of Human Development
 Disabilities (ADD)--Basic Support and       Services, HHS.
 Advocacy Grants.
ADD Special Projects......................  Office of Human Development
                                             Services, HHS.
ADD University Affiliated Facilities......  Office of Human Development
                                             Services, HHS.
Administration on Aging (ADA) Special       Office of Human Development
 Programs for the Aging--Grants for          Services, HHS Title III,
 Supportive Services and Senior Centers.     Part B--
ADA Title III, Part C, Nutrition Services.  Office of Human Development
                                             Services, HHS.
ADA Grants to Indian Tribes...............  Office of Human Development
                                             Services, HHS.
ADA Training, Research and Discretionary    Office of Human Development
 Projects and Programs.                      Services, HHS.
Social Service Block Grant................  Office of Human Development
                                             Services, HHS.
Medical Assistance Program Title XIX......  Health Care Financing
                                             Medicaid; Administration,
                                             HHS.
Medicare--Supplemental Medical Insurance..  Health Care Financing
                                             Administration, HHS.0
Aid to Families with Dependent Children     Family Support
 (AFDC)--Maintenance Assistance.             Administration, HHS.
Work Incentive Program....................  Family Support
                                             Administration, HHS.
Community Service Block Grant (CSBG)......  Family Support
                                             Administration, HHS.
CSBG Discretionary Awards.................  Family Support
                                             Administration, HHS.
CSBG Discretionary Awards--Community Food   Family Support
 and Nutrition.                              Administration, HHS.
Social Security--Disability Insurance.....  Social Security
                                             Administration, HHS.
Supplemental Security Income..............  Social Security
                                             Administration, HHS.
Home Health Services and Training.........  Public Health Service, HHS.

[[Page 19]]

 
Coal Miners Respiratory Impairment          Public Health Service, HHS.
 Treatment Clinics and Services.
Preventive Health Services--Sexually        Public Health Service, HHS.
 Transmitted Diseases Control Grants.
Health Programs for Refugees..............  Public Health Service, HHS.
------------------------------------------------------------------------


[53 FR 53355, Dec. 30, 1988]



PART 605_SCHOOL BUS OPERATIONS--Table of Contents




                            Subpart A_General

Sec.
605.1 Purpose.
605.2 Scope.
605.3 Definitions.
605.4 Public hearing requirement.

                     Subpart B_School Bus Agreements

605.10 Purpose.
605.11 Exemptions.
605.12 Use of project equipment.
605.13 Tripper service.
605.14 Agreement.
605.15 Content of agreement.
605.16 Notice.
605.17 Certification in lieu of notice.
605.18 Comments by private school bus operators.
605.19 Approval of school bus operations.

Subpart C_Modification of Prior Agreements and Amendment of Application 
                             for Assistance

605.20 Modification of prior agreements.
605.21 Amendment of applications for assistance.

               Subpart D_Complaint Procedures and Remedies

605.30 Filing a complaint.
605.31 Notification to the respondent.
605.32 Accumulation of evidentiary material.
605.33 Adjudication.
605.34 Remedy where there has been a violation of the agreement.
605.35 Judicial review.

                     Subpart E_Reporting and Records

605.40 Reports and information.

Appendix A to Part 605

    Authority: Federal Mass Transit Act of 1964, as amended (49 U.S.C. 
1601 et seq.); 23 U.S.C. 103(e)(4); 23 U.S.C. 142 (a) and (c); and 49 
CFR 1.51.

    Source: 41 FR 14128, Apr. 1, 1976, unless otherwise noted.



                            Subpart A_General



Sec. 605.1  Purpose.

    (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.



Sec. 605.2  Scope.

    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 et seq.); (b) 23 U.S.C. 142 (a) and 
(c); and 23 U.S.C. 103 (e)(4).



Sec. 605.3  Definitions.

    (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--
    The Acts means the Federal Mass Transit Act of 1964, as amended (49 
U.S.C. 1601 et seq.); 23 U.S.C. 142 (a) and (c); and 23 U.S.C. 
103(e)(4).

[[Page 20]]

    Administrator means the Federal Mass Transit Administrator or his 
designee.
    Adequate transportation means transportation for students and school 
personnel which the Administrator determines conforms to applicable 
safety laws; is on time; poses a minimum of discipline problems; is not 
subject to fluctuating rates; and is operated efficiently and in harmony 
with state educational goals and programs.
    Agreement means a contractual agreement required under section 3(g) 
of the Federal Mass Transit Act of 1964, as amended (49 U.S.C. 1602(g)).
    Applicant means applicant for assistance under the Acts.
    Assistance means Federal financial assistance for the purchase of 
buses and the construction or operation of facilities and equipment for 
use in providing mass transportation services under the Acts, but does 
not include research, development and demonstration projects funded 
under the Acts.
    Grant contract means the contract between the Government and the 
grantee which states the terms and conditions for assistance under the 
Acts.
    Government means the Government of the United States of America.
    Grantee means a recipient of assistance under the Acts.
    Incidental means the transportation of school students, personnel 
and equipment in charter bus operations during off peak hours which does 
not interfere with regularly scheduled service to the public (as defined 
in the Opinion of the Comptroller General of the United States, B160204, 
December 7, 1966, which is attached as appendix A of this part).
    Interested party means an individual, partnership, corporation, 
association or public or private organization that has a financial 
interest which is adversely affected by the act or acts of a grantee 
with respect to school bus operations.
    Reasonable Rates means rates found by the Administration to be fair 
and equitable taking into consideration the local conditions which 
surround the area where the rate is in question.
    School bus operations means transportation by bus exclusively for 
school students, personnel and equipment in Type I and Type II school 
vehicles as defined in Highway Safety Program Standard No. 17.
    Tripper service means regularly scheduled mass transportation 
service which is open to the public, and which is designed or modified 
to accommodate the needs of school students and personnel, using various 
fare collections or subsidy systems. Buses used in tripper service must 
be clearly marked as open to the public and may not carry designations 
such as ``school bus'' or ``school special''. These buses may stop only 
at a grantee or operator's regular service stop. All routes traveled by 
tripper buses must be within a grantee's or operator's regular route 
service as indicated in their published route schedules.
    Urban area means the entire area in which a local public body is 
authorized by appropriate local, State and Federal law to provide 
regularly scheduled mass transportation service. This includes all areas 
which are either: (a) Within an ``urbanized area'' as defined and fixed 
in accordance with 23 CFR part 470, subpart B; or (b) within an ``urban 
area'' or other built-up place as determined by the Secretary under 
section 12(c)(4) of the Federal Mass Transit Act of 1964, as amended (49 
U.S.C. 1608(c)(4)).



Sec. 605.4  Public hearing requirement.

    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)).



                     Subpart B_School Bus Agreements



Sec. 605.10  Purpose.

    The purpose of this subpart is to formulate procedures for the 
development of an agreement concerning school bus operations.

[[Page 21]]



Sec. 605.11  Exemptions.

    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 et seq.), anytime during the 12-month period immediately 
prior to November 26, 1974.



Sec. 605.12  Use of project equipment.

    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.



Sec. 605.13  Tripper service.

    The prohibition against the use of buses, facilities and equipment 
funded under the Acts shall not apply to tripper service.



Sec. 605.14  Agreement.

    Except as provided in Sec. 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.



Sec. 605.15  Content of agreement.

    (a) Every grantee who is not authorized by the Administrator under 
Sec. 605.11 of this part to engage in school bus operations shall, as a 
condition of assistance, enter into a written agreement required by 
Sec. 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 Sec. 605.11 of this part 
shall, as a condition of assistance, enter into a written agreement 
required by Sec. 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 Sec. 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

[[Page 22]]

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.



Sec. 605.16  Notice.

    (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 those buses will be available for school bus operations.
    (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 Sec. 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.



Sec. 605.17  Certification in lieu of notice.

    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 Sec. 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 Sec. 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.



Sec. 605.18  Comments by private school bus operators.

    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.



Sec. 605.19  Approval of school bus operations.

    (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 Sec. 605.16.
    (e) Private school bus operators who receive notice under paragraph 
(d) of this section may within 20 days after

[[Page 23]]

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 
Sec. 605.14.



Subpart C_Modification of Prior Agreements and Amendment of Application 
                             for Assistance



Sec. 605.20  Modification of prior agreements.

    (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 Sec. 605.11 of this part. A copy of the statement 
should be provided private school bus operators who provide service in 
the grantee's urban area.
    (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 Sec. 605.17.



Sec. 605.21  Amendment of applications for assistance.

    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 Sec. 605.20(b) through (d).



               Subpart D_Complaint Procedures and Remedies



Sec. 605.30  Filing a complaint.

    Any interested party may file a complaint with the Administrator 
alleging a violation or violations of terms of an agreement entered into 
pursuant to Sec. 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.



Sec. 605.31  Notification to the respondent.

    On receipt of any complaint under Sec. 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.



Sec. 605.32  Accumulation of evidentiary material.

    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.



Sec. 605.33  Adjudication.

    (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

[[Page 24]]

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.



Sec. 605.34  Remedy where there has been a violation of the agreement.

    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.



Sec. 605.35  Judicial review.

    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.



                     Subpart E_Reporting and Records



Sec. 605.40  Reports and information.

    The Administrator may order any grantee or operator for the grantee, 
to file special or separate reports setting forth information relating 
to any transportation service rendered by such grantee or operator, in 
addition to any other reports required by this part.

                         Appendix A to Part 605

                                              Comptroller General of the
                                                          United States,
                                       Washington, DC, December 7, 1966.
    Dear Mr. Wilson: The enclosure with your letter of October 4, 1966, 
concerns the legality of providing a grant under the Federal Mass 
Transit Act of 1964 to the City of San Diego, (City), California. The 
problem involved arises in connection with the definition in subsection 
9(d)(5) of the Act, 49 U.S.C. 1608(d)(5), excluding charter or 
sightseeing service from the term ``mass transportation.''
    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

[[Page 25]]

by this Department contains the following provisions:
    `` `Sec. 4. Use of Project Facilities and Equipment--The Public Body 
agrees that the Project facilities and equipment will be used for the 
provision of mass transportation service within its urban area for the 
period of the useful life of such facilities and equipment. . . . The 
Public Body further agrees that during the useful life of the Project 
facilities and equipment it will submit to HUD such financial statements 
and other data as may be deemed necessary to assure compliance with this 
Section.' ''
    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 incidental use.''
    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 equipment which does not detract from or interfere with 
the urban mass transportation service for which the equipment is needed 
would be deemed an incidental use of such equipment, and that such use 
of project equipment is entirely permissible under our legislation. What 
uses are in fact incidental, under this test, can be determined only on 
a case-by-case basis.''
    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 Security National 
Insurance Co. v. Secuoyah Marina, 246F.2d 830, ``incident'' is defined 
as meaning ``that which appertains to something else which is primary.'' 
Thus, we cannot say HUD's definition of incidental use as set forth 
above is unreasonable. Under the Act involved grants may be made to 
purchase buses only if the buses are needed for an efficient and 
coordinated mass transportation system. It would appear that if buses 
are purchased in order to meet this need, and are, in fact, used to meet 
such need, the use of such buses for charter service when not needed for 
mass transportation services would, in effect, be an ``incidental use,'' 
insofar as pertinent here. In our opinion such incidental use would not 
violate the provisions of the 1964 Act.
    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

[[Page 26]]

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,

                                                       Frank H. Weitzel,
                                           Assistant Comptroller General
                                                   of the United States.
    Enclosures:
    The Honorable Bob Wilson, House of Representatives.

                                                         March 29, 1976.

                      Inflationary Impact Statement

               final regulations on school bus operations

    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.

                                                   Robert E. Patricelli,
                                                    Federal Mass Transit
                                                          Administrator.



PART 609_TRANSPORTATION FOR ELDERLY AND HANDICAPPED PERSONS--Table of Contents




Sec.
609.1 Purpose.
609.3 Definitions.
609.5 Applicability.
609.23 Reduced fare.

Appendix A to Part 609--Elderly and Handicapped

    Authority: 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.

    Source: 41 FR 18239, Apr. 30, 1976, unless otherwise noted.



Sec. 609.1  Purpose.

    The purpose of this part is to establish formally the requirements 
of the Federal Transit Administration (FTA) on transportation for 
elderly and handicapped persons.



Sec. 609.3  Definitions.

    As used herein:
    Elderly and handicapped persons means those individuals who, by 
reason of illness, injury, age, congenital malfunction, or other 
permanent or temporary incapacity or disability, including those who are 
nonambulatory wheelchair-bound and those with semi-ambulatory 
capabilities, are unable without special facilities or special planning 
or design to utilize mass transportation facilities and services as 
effectively as persons who are not so affected.



Sec. 609.5  Applicability.

    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

[[Page 27]]

Sec. Sec. 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.

[41 FR 18239, Apr. 30, 1976, as amended at 61 FR 19562, May 2, 1996]



Sec. 609.23  Reduced fare.

    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 
another entity under lease or otherwise.

[41 FR 18239, Apr. 30, 1976, as amended at 61 FR 19562, May 2, 1996]

             Appendix A to Part 609--Elderly and Handicapped

    The definitions of the term elderly and handicapped as applied under 
FTA's elderly and handicapped half-fare program (49 CFR part 609) shall 
apply to this rule. This permits a broader class of handicapped persons 
to take advantage of the exception than would be permitted under the 
more restrictive definition applied to the non-discrimination provisions 
of the Department's section 504 program (49 CFR 27.5), which includes 
only handicapped persons otherwise unable to use the recipient's bus 
service for the general public.
    Accordingly, for the purposes of this part, the definition of 
elderly persons may be determined by the FTA recipient but must, at a 
minimum, include all persons 65 years of age or over.
    Similarly, the definition of handicapped persons is derived from the 
existing regulations at 49 CFR 609.3 which provide that Handicapped 
persons means those individuals who, by reason of illness, injury, age, 
congenital malfunction, or other permanent or temporary incapacity or 
disability, including those who are nonambulatory wheelchair-bound and 
those with semi-ambulatory capabilities, are unable without special 
facilities or special planning or design to utilize mass transportation 
facilities and services as effectively as persons who are not so 
affected.
    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. Question: Can the definition of elderly or handicapped be 
restricted on the basis of residency, citizenship, income, employment 
status, or the ability to operate an automobile?
    Answer: No. Section 5(m) is applicable to elderly and handicapped 
persons. It is FTA's policy that such categorical exceptions are not 
permitted under the Act.
    2. Question: Can the eligibility of temporary handicaps be 
restricted on the basis of their duration?
    Answer: Handicaps of less than 90 days duration may be excluded. 
Handicaps of more than 90 days duration must be included.
    3. Question: Can the definition of handicap be limited in any way?
    Answer: FTA has allowed applicants to exclude some conditions which 
appear to meet the functional definition of handicap provided in section 
5302(a)(5) of the Federal transit laws (49 U.S.C. Chapter 53). These 
include pregnancy, obesity, drug or alcohol addiction, and certain 
conditions which do not fall under the statutory definition (e.g., loss 
of a finger, some chronic heart or lung conditions, controlled epilepsy, 
etc.). Individuals may also be excluded whose handicap involves a 
contagious disease or poses a danger to the individual or other 
passengers. Other exceptions should be reviewed on a case-by-case basis.
    4. Question: Is blindness considered a handicap under Section 5(m)?
    Answer: Yes.
    5. Question: Is deafness considered a handicap under section 5(m)?
    Answer: As a rule, no, because deafness, especially on buses, is not 
considered a disability which requires special planning, facilities, or 
design. However, deafness is recognized as a handicap in the Department 
of Transportation's ADA regulation, and applicants for Section 5 
assistance are encouraged to include the deaf as eligible for off-peak 
half-fares.
    6. Question: Is mental illness considered a handicap under section 
5(m)?

[[Page 28]]

    Answer: As a rule, no, because of the difficulty in establishing 
criteria or guidelines for defining eligibility. However, FTA encourages 
applicants to provide the broadest possible coverage in defining 
eligible handicaps, including mental illness.
    7. Question: Can operators delegate the responsibility for 
certifying individuals as eligible to other agencies?
    Answer: Yes, provided that such agencies administer the 
certification of individuals in an acceptable manner and are reasonably 
accessible to the elderly and handicapped. Many operators currently make 
extensive use of social service agencies (both public and private) to 
identify and certify eligible individuals.
    8. Question: Can operators require elderly and handicapped 
individuals to be recognized by any existing agency (e.g., require that 
handicapped persons be receiving Social Service or Veterans' 
Administration benefits)?
    Answer: Recognition by such agencies is commonly used to certify 
eligible individuals. However, such recognition should not be a 
mandatory prerequisite for eligibility. For example, many persons with 
eligible temporary handicaps may not be recognized as handicapped by 
social service agencies.
    9. Question: Can the operator require that elderly and handicapped 
persons come to a central office to register for an off-peak half-fare 
program?
    Answer: FTA strongly encourages operators to develop procedures 
which maximize the availability of off-peak half-fares to eligible 
individuals. Requiring individuals to travel to a single office which 
may be inconveniently located is not consistent with this policy, 
although it is not strictly prohibited. FTA reserves the right to review 
such local requirements on a case-by-case basis.
    10. Question: Must ID cards issued by one operator be transferable 
to another?
    Answer: No. However, FTA encourages consistency among off-peak 
procedures and the maximizing of availability to eligible individuals, 
especially among operators within a single urban area. Nevertheless, 
each operator is permitted to require its own certification of 
individuals using its service.
    11. Question: Can an operator require an elderly or handicapped 
person to submit to a procedure certifying their eligibility before they 
can receive half-fare? For example, if an operator requires eligible 
individuals to have a special ID card, can the half-fare be denied to an 
individual who can otherwise give proof of age, etc, but does not have 
an ID card?
    Answer: Yes, although FTA does not endorse this practice.

[53 FR 53356, Dec. 30, 1988. Redesignated and amended at 61 FR 19562, 
May 2, 1996]



PART 611_MAJOR CAPITAL INVESTMENT PROJECTS--Table of Contents




Sec.
611.1 Purpose and contents.
611.3 Applicability.
611.5 Definitions.
611.7 Relation to planning and project development processes.
611.9 Project justification criteria for grants and loans for fixed 
          guideway systems.
611.11 Local financial commitment criteria.
611.13 Overall project ratings.

Appendix A to Part 611--Description of Measures for Project Evaluation.

    Authority: 49 U.S.C. 5309; 49 CFR 1.51

    Source: 65 FR 76880, Dec. 7, 2000, unless otherwise noted.



Sec. 611.1  Purpose and contents.

    (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.

[[Page 29]]

    (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).



Sec. 611.3  Applicability.

    (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 
Grant Agreement (FFGA) has already been executed.
    (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 et seq.); and
    (3) Required to carry out a State Implementation Plan.



Sec. 611.5  Definitions.

    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:
    Alternatives analysis is a corridor level analysis which evaluates 
all reasonable mode and alignment alternatives for addressing a 
transportation problem, and results in the adoption of a locally 
preferred alternative by the appropriate State and local agencies and 
official boards through a public process.
    Baseline alternative is the alternative against which the proposed 
new starts project is compared to develop project justification 
measures. Relative to the no build alternative, it should include 
transit improvements lower in cost than the new start which result in a 
better ratio of measures of transit mobility compared to cost than the 
no build alternative.
    BRT means bus rapid transit.
    Bus Rapid Transit refers to coordinated improvements in a transit 
system's infrastructure, equipment, operations, and technology that give 
preferential treatment to buses on fixed guideways and urban roadways. 
The intention of Bus Rapid Transit is to reduce bus travel time, improve 
service reliability, increase the convenience of users, and ultimately, 
increase bus ridership.
    Extension to existing fixed-guideway system means a project to 
extend an existing fixed guideway system.
    FFGA means a Full Funding Grant Agreement.
    Final Design is the final phase of project development, and includes 
(but is not limited to) the preparation of final construction plans 
(including construction management plans), detailed specifications, 
construction cost estimates, and bid documents.
    Fixed guideway system means a mass transportation facility which 
utilizes and occupies a separate right-of-way, or rail line, for the 
exclusive use of mass transportation and other high occupancy vehicles, 
or uses a fixed catenary system and a right of way usable by other forms 
of transportation. This includes, but is not limited to, rapid rail, 
light rail, commuter rail, automated guideway transit, people movers, 
ferry boat service, and fixed-guideway facilities for buses (such as bus 
rapid transit) and other high occupancy vehicles. A new fixed guideway 
system means a newly-constructed fixed guideway system in a corridor or 
alignment where no such system exists.
    FTA means the Federal Transit Administration.

[[Page 30]]

    Full Funding Grant Agreement means an instrument that defines the 
scope of a project, the Federal financial contribution, and other terms 
and conditions.
    Major transit investment means any project that involves the 
construction of a new fixed guideway system or extension of an existing 
fixed guideway system for use by mass transit vehicles.
    NEPA process means those procedures necessary to meet the 
requirements of the National Environmental Policy Act of 1969, as 
amended (NEPA), at 23 CFR part 771; the NEPA process is completed when a 
Record of Decision (ROD) or Finding of No Significant Impact (FONSI) is 
issued.
    New start means a new fixed guideway system, or an extension to an 
existing fixed guideway system.
    Preliminary Engineering is the process by which the scope of the 
proposed project is finalized, estimates of project costs, benefits and 
impacts are refined, NEPA requirements are completed, project management 
plans and fleet management plans are further developed, and local 
funding commitments are put in place.
    Secretary means the Secretary of Transportation.
    TEA-21 means the Transportation Equity Act for the 21st Century.



Sec. 611.7  Relation to planning and project development processes.

    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) Alternatives Analysis. (1) To be eligible for FTA capital 
investment funding for a major fixed guideway transit project, local 
project sponsors must perform an alternatives analysis.
    (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) Preliminary Engineering. Consistent with 49 USC 5309(e)(6) and 
5328(a)(2), FTA will approve/disapprove entry of a proposed project into 
preliminary engineering within 30 days of receipt of a formal request 
from the project sponsor(s).
    (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 Sec. Sec. 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.

[[Page 31]]

    (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) Final Design. Consistent with 49 USC 5309(e)(6) and 5328(a)(3), 
FTA will approve/disapprove entry of a proposed project into final 
design within 120 days of receipt of a formal request from the project 
sponsor(s).
    (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 Sec. Sec. 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 Sec. 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) Full funding grant agreements. (1) FTA will determine whether to 
execute an FFGA based on:
    (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

[[Page 32]]

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. Sec. 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 Sec. 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.



Sec. 611.9  Project justification criteria for grants and loans for fixed 
guideway systems.

    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.''

[[Page 33]]

    (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 of commitment is 
expected with respect to land use.
    (2) For the criteria under Sec. 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.



Sec. 611.11  Local financial commitment criteria.

    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. Sec. 5309 will be reported.
    (e) The summary ratings for each measure described in this section 
will

[[Page 34]]

be combined into a summary rating of ``high,'' ``medium-high,'' 
``medium,'' ``low-medium,'' or ``low'' for local financial commitment.



Sec. 611.13  Overall project ratings.

    (a) The summary ratings developed for project justification local 
financial commitment (Sec. Sec. 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 
(Sec. 611.9) and local financial commitment (Sec. 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.

    Appendix A to Part 611--Description of Measures Used for Project 
                               Evaluation.

                          Project Justification

    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,

[[Page 35]]

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 \1/2\-mile of boarding points associated with the proposed system 
increment.
    (3) The absolute number of existing jobs within \1/2\-mile of 
boarding points associated with the proposed system increment.
    (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.

[[Page 36]]

                       Local Financial Commitment

    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, Federal Register notice on FTA's Innovative Financing 
Initiative (60 FR 24682);
    (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 Sec. 
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.



PART 613_PLANNING ASSISTANCE AND STANDARDS--Table of Contents




     Subpart A_Metropolitan Transportation Planning and Programming

Sec.
613.100 Metropolitan transportation planning and programming.

       Subpart B_Statewide Transportation Planning and Programming

613.200 Statewide transportation planning and programming.

 Subpart C_Coordination of Federal and Federally Assisted Programs and 
                                Projects

613.300 Coordination of Federal and federally assisted programs and 
          projects.

    Authority: 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).



     Subpart A_Metropolitan Transportation Planning and Programming



Sec. 613.100  Metropolitan transportation planning and programming.

    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.

[58 FR 58079, Oct. 28, 1993]



       Subpart B_Statewide Transportation Planning and Programming



Sec. 613.200  Statewide transportation planning and programming.

    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

[[Page 37]]

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).

[58 FR 58079, Oct. 28, 1993]



 Subpart C_Coordination of Federal and Federally Assisted Programs and 
                                Projects



Sec. 613.300  Coordination of Federal and federally assisted programs 
and projects.

    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.

[41 FR 33443, Aug. 9, 1976]



PART 614_TRANSPORTATION INFRASTRUCTURE MANAGEMENT--Table of Contents




    Authority: 23 U.S.C. 303; 49 U.S.C. 5303-5305; and 49 CFR 1.48 and 
1.51.

    Source: 61 FR 67175, Dec. 19, 1996, unless otherwise noted.



Sec. 614.101  Cross-reference to management systems.

    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.



PART 622_ENVIRONMENTAL IMPACT AND RELATED PROCEDURES--Table of Contents




                   Subpart A_Environmental Procedures

Sec.
622.101 Cross-reference to procedures.

Subpart B [Reserved]

              Subpart C_Requirements for Energy Assessments

622.301 Buildings.



                   Subpart A_Environmental Procedures

    Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 1601 et seq.; 49 CFR 
1.51.



Sec. 622.101  Cross-reference to procedures.

    The procedures for complying with the National Environmental Policy 
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, 
regulations, and orders are set forth in part 771 of title 23 of the 
Code of Federal Regulations.

[52 FR 32660, Aug. 28, 1987]

Subpart B [Reserved]



              Subpart C_Requirements for Energy Assessments

    Authority: Sec. 403(b), Pub. L. 95-620; E.O. 12185.



Sec. 622.301  Buildings.

    (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:

[[Page 38]]

    (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.

[45 FR 58038, Aug. 29, 1980]



PART 624_CLEAN FUELS FORMULA GRANT PROGRAM--Table of Contents




Sec.
624.1 Eligible applicant.
624.3 Eligible activities.
624.5 Application process.
624.7 Certification.
624.9 Formula.
624.11 Reporting.

Appendix A to Part 624--Pre-Application Worksheet

    Authority: 49 U.S.C. 5308; 49 CFR 1.51.

    Source: 67 FR 40104, June 11, 2002, unless otherwise noted.



Sec. 624.1  Eligible applicant.

    (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.''



Sec. 624.3  Eligible activities.

    (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.

[[Page 39]]

    (5) Retrofitting or rebuilding pre-1993 engines if before half life 
(e.g., prior to six years of bus life) to rebuild; ``retrofit'' means 
use of the latest after-market technology such as ``upgrade kits,'' or 
after-treatment devices that treat the exhaust after it has left the 
engine, such as catalytic converters and particulate filters.
    (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.



Sec. 624.5  Application process.

    (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 must be submitted 
electronically if the grantee is using the electronic application 
process (i.e., TEAM).
    (b) The pre-application consists of a Letter of Interest and a Pre-
application Worksheet as described as follows:
    (1) Letter of interest. This letter serves as the cover letter for 
the Pre-application Worksheet, expressing interest in submitting an 
application. It describes the overall clean fuel technology program of 
the agency, including the technology selected, describes the necessary 
infrastructure to support the program and the long-range objectives of 
the program including the eventual size of the clean fuel fleet. It 
summarizes the eligible activities for which the agency is applying and 
the amount of funds that the agency is seeking.
    (2) Pre-application worksheet. Applicants must use the worksheet 
found in Appendix A to this part.



Sec. 624.7  Certification.

    The applicant must use the certification contained in the Annual 
Notice of Assurances and Certifications published in the Federal 
Register each October.



Sec. 624.9  Formula.

    The Clean Fuels Formula funds will be apportioned according to the 
following formula:
    (a) Areas with population 1,000,000 and above. Two thirds of the 
funds available each fiscal year shall be apportioned to applicants with 
eligible projects in urban areas with a population of 1,000,000 and 
above. Of this, 50 percent shall be apportioned so that each applicant 
receives a grant in an amount equal to the ratio between:
    (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) Areas under 1,000,000 population. The formula for areas under 
1,000,000 in population is the same as paragraph (a) of this section, 
except the formula removes the pool of eligible applicants in areas with 
a population of 1,000,000 and above and replaces it with the pool of 
eligible applicants in areas with populations under 1,000,000.
    (c) Weighting factors. (1) The weighting factor for ozone shall be 
determined based on the following factors.

[[Page 40]]

    (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) Additional adjustment. The number of buses in the fleet and the 
bus passenger miles shall be further multiplied by a factor of 1.2 if 
the area is both nonattainment for CO and either nonattainment or 
maintenance for ozone.
    (e) Limitation on uses. (1) Not less 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 shall be available for any eligible 
projects for which an application is received from a designated 
recipient for the purchase or construction of hybrid electric or 
battery-powered buses or facilities specifically designed to service 
those buses.
    (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 
Sec. 624.5.
    Note to Sec. 624.9. 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.

[67 FR 41579, June 18, 2002]



Sec. 624.11  Reporting.

    (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

[[Page 41]]

report information beyond the normal FTA quarterly reporting 
requirements.

            Appendix A to Part 624--Pre-Application Worksheet

    The following are instructions for completing the pre-application 
worksheet:
    (1) Requesting Agency. Fill in the name of the applicant. The 
applicant must be a designated recipient.
    (2) UZA (or Urban Area). List the name of the urbanized area if the 
applicant is located in an urbanized area. Otherwise, indicate the name 
of the city or town.
    (3) Nonattainment or Maintenance Area Name. List the name of the 
nonattainment or maintenance area in which your agency provides service.
    (4) Classification for Ozone. List the current EPA nonattainment 
classification for your service area. (The classification must be of the 
following terms: marginal, moderate, serious, severe, or extreme.)
    (5) Classification for Carbon Monoxide. List the current EPA 
nonattainment classification for your service area. (The classification 
must be either moderate or serious.)

                          I. Proposed activity.

    (1) New Bus Purchase/Lease. Enter the number of vans or buses by 
fuel category in the pre-application. For hybrid electric vehicles, 
include fuel types. Indicate whether the structure is lightweight 
composite or traditional structure and weight. Enter the total and 
Federal amount for each fuel type.
    (2) Construct/Lease New Clean Fuel Facility and Related Equipment. 
Indicate the Federal and total amount for a clean fuels facility, 
related equipment or electrical recharging facility. Enter any 
descriptive or explanatory information on the lines for additional 
information, including what fuel type is being accommodated. Facilities 
to accommodate clean diesel are not eligible.
    (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) Summary. Indicate the Totals for the Federal and Total Amounts 
requested for all projects listed in this Section I.

                                II. Data

    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 (e.g., if applying in FY 2003, use 
data from FY 2001). For UZAs that have already submitted information to 
the National Transit Database (NTD), add the data from column H of Form 
408 for the following vehicle types: AB, BA, BB, BC, DD, SB, and TB. 
(These vehicle types are defined in reporter's guidance for the NTD.)
    (2) Enter the fixed route annual bus passenger miles for 2 years 
prior (e.g., if applying in FY 2003, use data from FY 2001. This may 
include motorbus (see types above) or trolley bus. For UZAs that have 
submitted NTD data, add the information from column I of line 25 of Form 
406 for the modes MB and TB.

         III. Projects Subject to Minimum/Maximum Apportionments

    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.

[[Page 42]]

    (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.
    Note: 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, i.e., in areas other than clean 
diesel or retrofit/replacement of bus engines if applied for.

                            IV. Certification

    The chief executive officer or the general manager of the transit 
agency should sign this certification.

[[Page 43]]

[GRAPHIC] [TIFF OMITTED] TR11JN02.000


[[Page 44]]


[GRAPHIC] [TIFF OMITTED] TR11JN02.001


[[Page 45]]


[GRAPHIC] [TIFF OMITTED] TR11JN02.002



PART 630_UNIFORM SYSTEM OF ACCOUNTS AND RECORDS AND REPORTING SYSTEM
--Table of Contents




Sec.
630.1 Purpose.
630.2 Scope.
630.3 Definitions.
630.4 Requirements.
630.5 Failure to report data.
630.6 Late and incomplete reports.
630.7 Failure to respond to questions.
630.8 Questionable data items.
630.9 Notice of FTA action.
630.10 Waiver of reporting requirements.
630.11 Data adjustments.
630.12 Display of OMB control numbers.

Appendix A to Part 630--Overview and Explanation of the Urban Mass 
          Transportation Industry Uniform System of Accounts and Records 
          and Reporting System

    Authority: 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.

    Source: 58 FR 4888, Jan. 15, 1993, unless otherwise noted.



Sec. 630.1  Purpose.

    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.



Sec. 630.2  Scope.

    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).



Sec. 630.3  Definitions.

    (a) Except as otherwise provided, terms defined in the Federal 
Transit

[[Page 46]]

Act, as amended (49 U.S.C. 1601 et seq.), are used in this part as so 
defined.
    (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:
    Administrator means the Federal Transit Administrator or the 
Administrator's designee.
    Applicant means an applicant for assistance under section 9 of the 
Federal Transit Act, as amended.
    Assistance means Federal financial assistance for the acquisition, 
construction, or operation of public mass transportation services.
    Beneficiary means any organization operating and delivering urban 
transit services that directly receives benefits from assistance under 
section 9 of the Federal Transit Act, as amended.
    Chief Executive Officer (CEO) means the principal executive in 
charge of and responsible for the reporting agency.
    Current edition of the Urban Mass Transportation Industry Uniform 
System of Accounts and Records and the Reporting Manual means the most 
recently issued edition of the reference documents.
    Days mean calendar days.
    The Federal Transit Act means the Federal Transit Act, as amended 
(49 U.S.C. 1601a et seq.)
    Mass Transportation Agency or transit agency means an agency 
authorized to transport people by bus, rail, or other conveyance, either 
publicly or privately owned, and which provides to the public general or 
special service (but not including school, charter, or sightseeing 
service) on a regular and continuing, scheduled or unscheduled, basis. 
Transit agencies are classified according to the mode of transit service 
operated. A multi-mode transit agency operates two or more modes, which 
are defined in the current editions of the Urban Mass Transportation 
Industry Uniform System of Accounts and Records and the Reporting 
Manual.
    Reference Document(s) means the current editions of the Urban Mass 
Transportation Industry Uniform System of Accounts and Records, and the 
Reporting Manual. These documents are subject to periodic revision. 
Beneficiaries and applicants are responsible for using the current 
editions of the reference documents.
    Reporting agency means the agency required to submit a report under 
section 15.



Sec. 630.4  Requirements.

    (a) Uniform system of accounts and records. Each applicant for and 
direct beneficiary of Federal financial assistance under section 9 of 
the Federal Transit Act must comply with the applicable requirements of 
the section 15 Uniform System of Accounts and Records, as set forth in 
the current edition of the ``Urban Mass Transportation Industry Uniform 
System of Accounts and Records''; the ``Reporting Manual''; Circulars; 
and other reference documentation.
    (b) Reporting system. Each applicant for, and direct beneficiary of, 
Federal financial assistance under section 9 of the Federal Transit Act 
must comply with the applicable requirements of the section 15 Reporting 
System, as set forth in the current edition of the ``Urban Mass 
Transportation Industry Uniform System of Accounts and Records''; the 
``Reporting Manual''; Circulars; and other reference documentation.
    (c) Copies. Copies of these referenced documents are available from 
the Federal Transit Administration, Office of Grants Management, Audit 
Review and Analysis Division, P.O. Box 61126, Washington, DC 20039-1126. 
These reference documents are subject to periodic revision. Revisions of 
these documents will be mailed to all persons required to comply and a 
notice of any significant changes in these reference documents will be 
published in Federal Register.



Sec. 630.5  Failure to report data.

    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

[[Page 47]]

reporting agencies without regard to the size of the urbanized area 
served by the reporting agency.



Sec. 630.6  Late and incomplete reports.

    (a) Late reports. Each reporting agency shall ensure that its report 
is received by the FTA on due dates prescribed in the annual Reporting 
Manual. A reporting agency may request an extension of 30 days after the 
due date. The FTA will treat a failure to submit the required report by 
the due date as failure to report data under Sec. 630.05.
    (b) Incomplete reports. The FTA will treat any report or submission 
which does not contain all the necessary reporting forms, data, or 
certifications for services directly operated by the reporting agency in 
substantial conformance with the definitions, procedures, and format 
requirements set out in the section 15 Uniform System of Accounts and 
Records and Reporting System as failure to report data under Sec. 
630.05. The FTA will treat the submission of a report with incomplete 
data or missing forms for services provided under contract to the 
reporting agency by private or public carriers as failure to report data 
under Sec. 630.05 provided that the reporting agency has exhausted all 
possibilities for obtaining this information.



Sec. 630.7  Failure to respond to questions.

    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 Sec. 630.5 as failure to 
report data.



Sec. 630.8  Questionable data items.

    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.



Sec. 630.9  Notice of FTA action.

    Before taking final action under Sec. 630.5, Sec. 630.6, Sec. 
630.7 or Sec. 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.



Sec. 630.10  Waiver of reporting requirements.

    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.



Sec. 630.11  Data adjustments.

    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.



Sec. 630.12  Display of OMB control numbers.

    All of the information collection requests in this part have been 
approved by the Office of Management and Budget under control number 
2132-0008.

   Appendix A to Part 630--Overview and Explanation of the Urban Mass 
   Transportation Industry Uniform System of Accounts and Records and 
                            Reporting System

                             A. Introduction

    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).

[[Page 48]]

    The Uniform System of Accounts and Records consists of:
     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 Section 15 Reporting 
System, which consists of forms and procedures:
     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.

                       B. Purpose of This Appendix

    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.

               C. Special (Reduced) Reporting Requirements

    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.

  D. A Single Required Level of Section 15 Reporting and Recordkeeping

    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.

              E. The Uniform System of Accounts and Records

    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.

               (1) Use of the Accounts and Records System

    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

[[Page 49]]

end of the fiscal year, and must be consistent with the following:
    (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.

     (2) General Structure of 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.

                         F. The Reporting System

    (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

[[Page 50]]

by an independent auditor in a previous reporting year; and
     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:
    Condition I. The reporting agency (1) has adopted the Industry 
Uniform System of Accounts and Records (USOA) and (2) has previously 
submitted a Section 15 report that was compiled using the USOA and was 
reviewed by an independent auditor; or
    Condition II. The reporting agency (1) uses an internal accounting 
system other than the accounting system prescribed by the USOA, (2) uses 
the accrual basis of accounting, (3) directly translates the system and 
accounting categories, using a clear audit trail, to the accounting 
treatment and categories specified by the USOA, and (4) has previously 
submitted a Section 15 report that was compiled using the same internal 
accounting system and translation to the USOA and was reviewed by an 
independent auditor.
    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.



PART 633_PROJECT MANAGEMENT OVERSIGHT--Table of Contents




                      Subpart A_General Provisions

Sec.
633.1 Purpose.
633.3 Scope.
633.5 Definitions.

             Subpart B_Project Management Oversight Services

633.11 Covered projects.
633.13 Initiation of PMO services.
633.15 Access to information.
633.17 PMO contractor eligibility.
633.19 Financing the PMO program.

                   Subpart C_Project Management Plans

633.21 Basic requirement.
633.23 FTA review of PMP.
633.25 Contents of a project management plan.
633.27 Implementation of a project management plan.
633.29 PMP waivers.

    Authority: 49 U.S.C. 1601 et. seq., 1619.

    Source: 54 FR 36711, Sept. 1, 1989, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 633.1  Purpose.

    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.

[[Page 51]]



Sec. 633.3  Scope.

    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).



Sec. 633.5  Definitions.

    As used in this part:
    Administrator means the Administrator of the Federal Transit 
Administration or the Administrator's designee.
    Days means calendar days.
    Fixed guideway means any public transportation facility which 
utilizes and occupies a separate right-of-way or rails. This includes, 
but is not limited to, rapid rail, light rail, commuter rail, automated 
guideway transit, people movers, and exclusive facilities for buses and 
other high occupancy vehicles.
    Full funding agreement means a written agreement between FTA and a 
recipient that establishes a financial ceiling with respect to the 
Government's participation in a project; sets forth the scope of a 
project; and sets forth the mutual understanding, terms, and conditions 
relating to the construction and management of a project.
    Major capital project means a project that:
    (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.
    Project management oversight means the monitoring of a major capital 
project's progress to determine whether a project is on time, within 
budget, in conformance with design criteria, constructed to approved 
plans and specifications and is efficiently and effectively implemented.
    Project management plan means a written document prepared by a 
recipient that explicitly defines all tasks necessary to implement a 
major capital project.
    Recipient means a direct recipient of Federal financial assistance 
from FTA.
    FT Act means the Federal Mass Transit Act of 1964, as amended.
    FTA means the Federal Transit Administration.



             Subpart B_Project Management Oversight Services



Sec. 633.11  Covered projects.

    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''.



Sec. 633.13  Initiation of PMO services.

    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.

[[Page 52]]



Sec. 633.15  Access to information.

    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.



Sec. 633.17  PMO contractor eligibility.

    (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.



Sec. 633.19  Financing the PMO program.

    (a) FTA is authorized to expend up to \1/2\ of 1 percent of the 
funds made available each fiscal year under sections 3, 9, or 18 of the 
FT Act, 23 U.S.C. 103(e)(4), or section 14(b) of the National Capital 
Transportation Amendments of 1979 (93 Stat. 1320) to contract with any 
person or entity to provide a project management oversight service in 
connection with a major capital project as defined in this part.
    (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.



                   Subpart C_Project Management Plans



Sec. 633.21  Basic requirement.

    (a) If a project meets the definition of major capital project, the 
recipient shall submit a project management plan prepared in accordance 
with Sec. 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 (Sec. 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 
Sec. 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.



Sec. 633.23  FTA review of PMP.

    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.



Sec. 633.25  Contents of a project management plan.

    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;

[[Page 53]]

    (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;



Sec. 633.27  Implementation of a project management plan.

    (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.



Sec. 633.29  PMP waivers.

    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 Sec. 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.



PART 639_CAPITAL LEASES--Table of Contents




                            Subpart A_General

Sec.
639.1 General overview of this part.
639.3 Purpose of this part.
639.5 Scope of this part.
639.7 Definitions.

                         Subpart B_Requirements

639.11 Lease qualification requirements.
639.13 Eligible types of leases.
639.15 Eligible forms of grant.
639.17 Eligible lease costs.
639.19 Other Federal requirements.

                      Subpart C_Cost-Effectiveness

639.21 Determination of cost-effectiveness.
639.23 Calculation of purchase or construction cost.
639.25 Calculation of lease cost.
639.27 Minimum criteria.

                       Subpart D_Lease Management

639.31 Early lease termination or modification.
639.33 Management of leased assets.

    Authority: 49 U.S.C. 5302; 49 CFR 1.51.

    Source: 56 FR 51794, Oct. 15, 1991, unless otherwise noted.



                            Subpart A_General



Sec. 639.1  General overview of this part.

    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

[[Page 54]]

part, including eligibility requirements, the self-certification system 
used, and identification of the various forms of leases and grants that 
are eligible under the program. Subpart B also contains a section on 
other Federal requirements that may apply. Subpart C includes the actual 
calculations that each recipient should undertake before certifying that 
a lease is cost-effective. Finally, subpart D contains requirements on 
early lease termination and project management in general.

[63 FR 68366, Dec. 10, 1998]



Sec. 639.3  Purpose of this part.

    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.

[63 FR 68367, Dec. 10, 1998]



Sec. 639.5  Scope of this part.

    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.

[63 FR 68367, Dec. 10, 1998]



Sec. 639.7  Definitions.

    In this part:
    Applicant is included in the term ``recipient''.
    Capital asset means facilities or equipment with a useful life of at 
least one year, which are eligible for capital assistance.
    Capital assistance means Federal financial assistance for capital 
projects under section 9 of the FT Act.
    Capital lease means any transaction whereby the recipient acquires 
the right to use a capital asset without obtaining full ownership 
regardless of the tax status of the transaction.
    Equipment means non-expendable personal property.
    Facilities means real property, including land, improvements and 
fixtures.
    Interest rate means the most advantageous interest rate actually 
available to the recipient in the market.
    Present value means the value at the time of calculation of a future 
payment, or series of future payments discounted by the time value of 
money as represented by an interest rate or similar cost of funds.
    Recipient means an entity that receives Federal financial assistance 
from FTA, including an entity that receives Federal financial assistance 
from FTA through a State or other public body. In this part, a recipient 
includes an applicant for Federal financial assistance.
    FT Act means the Federal Mass Transit Act of 1964, as amended, 49 
U.S.C. 1601 et seq.
    FTA means the Federal Transit Administration.



                         Subpart B_Requirements



Sec. 639.11  Lease qualification requirements.

    (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 Sec. 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.



Sec. 639.13  Eligible types of leases.

    (a) General. Any leasing arrangement, the terms of which provide for 
the recipient's use of a capital asset, potentially is eligible as a 
capital project under Chapter 53 of Title 49 of the United States Code, 
regardless of the classification of the leasing arrangement for tax 
purposes.

[[Page 55]]

    (b) Special circumstances. A recipient may request FTA to determine 
the eligibility of a certain financial arrangement if the recipient 
believes it might not meet the requirements of this part.
    (c) Lump sum lease. A recipient that wishes to enter into a lease 
which requires the draw down of a single lump sum payment at the 
inception of the lease (or payments in advance of the incurrence of 
costs) rather than periodic payments during the life of the lease must 
notify FTA prior to execution of the lease concerning how it will ensure 
satisfactory continuing control of the asset for the duration of the 
lease. FTA has the right to disapprove any arrangements where it has not 
been demonstrated that the recipient will have control over the asset. 
FTA may require the recipient to submit its cost-effectiveness 
comparison for review.
    (d) Pre-existing lease. A lease entered into before grant approval, 
or before November 14, 1991 may be eligible for capital assistance for 
costs incurred after approval of such a lease by FTA under this part, if
    (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.

[56 FR 51794, Oct. 15, 1991, as amended at 63 FR 68367, Dec. 10, 1998]



Sec. 639.15  Eligible forms of grant.

    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.



Sec. 639.17  Eligible lease costs.

    (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.

[61 FR 25090, May 17, 1996]



Sec. 639.19  Other Federal requirements.

    (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.



                      Subpart C_Cost-Effectiveness



Sec. 639.21  Determination of cost-effectiveness.

    (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.

[[Page 56]]

    (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 Sec. 639.25 of this part is less than the purchase 
cost calculated under Sec. 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.



Sec. 639.23  Calculation of purchase or construction cost.

    (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.



Sec. 639.25  Calculation of lease cost.

    (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.



Sec. 639.27  Minimum criteria.

    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.



                       Subpart D_Lease Management



Sec. 639.31  Early lease termination or modification.

    (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

[[Page 57]]

costs will no longer qualify as eligible capital expenses. In addition, 
the recipient must reimburse the project--
    (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.



Sec. 639.33  Management of leased assets.

    Each recipient must maintain an inventory of capital assets acquired 
by standard FTA project management guidelines.



PART 640_CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS
--Table of Contents




    Authority: Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241, 
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.51.



Sec. 640.1  Cross-reference to credit assistance.

    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 et seq., Pub. L. 105-178, 112 Stat. 107, 241.

[64 FR 29753, June 2, 1999]



PART 655_PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN TRANSIT 
OPERATIONS--Table of Contents




                            Subpart A_General

Sec.
655.1 Purpose.
655.2 Overview.
655.3 Applicability.
655.4 Definitions.
655.5 Stand-down waivers for drug testing.
655.6 Preemption of state and local laws.
655.7 Starting date for testing programs.

                     Subpart B_Program Requirements

655.11 Requirement to establish an anti-drug use and alcohol misuse 
          program.
655.12 Required elements of an anti-drug use and alcohol misuse program.
655.13 [Reserved]
655.14 Education and training programs.
655.15 Policy statement contents.
655.16 Requirement to disseminate policy.
655.17 Notice requirement.
655.18-655.20 [Reserved]

                      Subpart C_Prohibited Drug Use

655.21 Drug testing.
655.22-655.30 [Reserved]

                    Subpart D_Prohibited Alcohol Use

655.31 Alcohol testing.
655.32 On duty use.
655.33 Pre-duty use.
655.34 Use following an accident.
655.35 Other alcohol-related conduct.
655.36-655.40 [Reserved]

                       Subpart E_Types of Testing

655.41 Pre-employment drug testing.
655.42 Pre-employment alcohol testing.
655.43 Reasonable suspicion testing.
655.44 Post-accident testing.
655.45 Random testing.
655.46 Return to duty following refusal to submit to a test, verified 
          positive drug test result and/or breath alcohol test result of 
          0.04 or greater.
655.47 Follow-up testing after returning to duty.
655.48 Retesting of covered employees with an alcohol concentration of 
          0.02 or greater but less than 0.04.
655.49 Refusal to submit to a drug or alcohol test.
655.50 [Reserved]

[[Page 58]]

              Subpart F_Drug and Alcohol Testing Procedures

655.51 Compliance with testing procedures requirements.
655.52 Substance abuse professional (SAP).
655.53 Supervisor acting as collection site personnel.
655.54-655.60 [Reserved]

                         Subpart G_Consequences

655.61 Action when an employee has a verified positive drug test result 
          or has a confirmed alcohol test result of 0.04 or greater, or 
          refuses to submit to a test.
655.62 Referral, evaluation, and treatment.
655.63-655.70 [Reserved]

                  Subpart H_Administrative Requirements

655.71 Retention of records.
655.72 Reporting of results in a management information system.
655.73 Access to facilities and records.
655.74-655.80 [Reserved]

                     Subpart I_Certifying Compliance

655.81 Grantee oversight responsibility.
655.82 Compliance as a condition of financial assistance.
655.83 Requirement to certify compliance.

    Authority: 49 U.S.C. 5331; 49 CFR 1.51.

    Source: 66 FR 42002, Aug. 9, 2001, unless otherwise noted.



                            Subpart A_General



Sec. 655.1  Purpose.

    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.



Sec. 655.2  Overview.

    (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.



Sec. 655.3  Applicability.

    (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 Sec. 
655.83 for its railroad operations, and shall follow this part for its 
non-railroad operations, if any.



Sec. 655.4  Definitions.

    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.
    Accident means an occurrence associated with the operation of a 
vehicle, if as a result:
    (1) An individual dies; or
    (2) An individual suffers bodily injury and immediately receives 
medical treatment away from the scene of the accident; or

[[Page 59]]

    (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.
    Administrator means the Administrator of the Federal Transit 
Administration or the Administrator's designee.
    Anti-drug program means a program to detect and deter the use of 
prohibited drugs as required by this part.
    Certification means a recipient's written statement, authorized by 
the organization's governing board or other authorizing official that 
the recipient has complied with the provisions of this part. (See Sec. 
655.82 and Sec. 655.83 for certification requirements.)
    Contractor means a person or organization that provides a safety-
sensitive service for a recipient, subrecipient, employer, or operator 
consistent with a specific understanding or arrangement. The 
understanding can be a written contract or an informal arrangement that 
reflects an ongoing relationship between the parties.
    Covered employee means a person, including an applicant or 
transferee, who performs or will perform a safety-sensitive function for 
an entity subject to this part. A volunteer is a covered employee if:
    (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.
    Disabling damage means damage that precludes departure of a motor 
vehicle from the scene of the accident in its usual manner in daylight 
after simple repairs.
    (1) Inclusion. Damage to a motor vehicle, where the vehicle could 
have been driven, but would have been further damaged if so driven.
    (2) Exclusions. (i) Damage that can be remedied temporarily at the 
scene of the accident without special tools or parts.
    (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.
    DOT or The Department means the United States Department of 
Transportation.
    DOT agency means an agency (or ``operating administration'') of the 
United States Department of Transportation administering regulations 
requiring drug and alcohol testing. See 14 CFR part 121, appendices I 
and J; 33 CFR part 95; 46 CFR parts 4, 5, and 16; and 49 CFR parts 199, 
219, 382, and 655.
    Employer means a recipient or other entity that provides mass 
transportation service or which performs a safety-sensitive function for 
such recipient or other entity. This term includes subrecipients, 
operators, and contractors.
    FTA means the Federal Transit Administration, an agency of the U.S. 
Department of Transportation.
    Performing (a safety-sensitive function) means a covered employee is 
considered to be performing a safety-sensitive function and includes any 
period in which he or she is actually performing, ready to perform, or 
immediately available to perform such functions.
    Positive rate for random drug testing means the number of verified 
positive results for random drug tests conducted under this part plus 
the number of refusals of random drug tests required by this part, 
divided by the total number of random drug tests results (i.e., 
positive, negative, and refusals) under this part.
    Railroad means:
    (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

[[Page 60]]

suburban area, as well as any commuter rail service that was operated by 
the Consolidated Rail Corporation as of January 1, 1979; and
    (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.
    Recipient means an entity receiving Federal financial assistance 
under 49 U.S.C. 5307, 5309, or 5311; or under 23 U.S.C. 103(e)(4).
    Refuse to submit means any circumstance outlined in 49 CFR 40.191 
and 40.261.
    Safety-sensitive function means any of the following duties, when 
performed by employees of recipients, subrecipients, operators, or 
contractors:
    (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.
    Vehicle means a bus, electric bus, van, automobile, rail car, 
trolley car, trolley bus, or vessel. A mass transit vehicle is a vehicle 
used for mass transportation or for ancillary services.
    Violation rate for random alcohol testing means the number of 0.04 
and above random alcohol confirmation test results conducted under this 
part plus the number of refusals of random alcohol tests required by 
this part, divided by the total number of alcohol random screening tests 
(including refusals) conducted under this part.

[66 FR 42002, Aug. 9, 2001, as amended at 68 FR 75462, Dec. 31, 2003]



Sec. 655.5  Stand-down waivers for drug testing.

    (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).



Sec. 655.6  Preemption of state and local laws.

    (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.



Sec. 655.7  Starting date for testing programs.

    An employer must have an anti-drug and alcohol misuse testing 
program in place by the date the employer begins operations.

[[Page 61]]



                     Subpart B_Program Requirements



Sec. 655.11  Requirement to establish an anti-drug use and alcohol 
misuse program.

    Each employer shall establish an anti-drug use and alcohol misuse 
program consistent with the requirements of this part.



Sec. 655.12  Required elements of an anti-drug use and alcohol misuse 
program.

    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 Sec. 655.15. 
Each employer shall disseminate the policy consistent with the 
provisions of Sec. 655.16.
    (b) An education and training program which meets the requirements 
of Sec. 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.



Sec. 655.13  [Reserved]



Sec. 655.14  Education and training programs.

    Each employer shall establish an employee education and training 
program for all covered employees, including:
    (a) Education. The education component shall include display and 
distribution to every covered employee of: informational material and a 
community service hot-line telephone number for employee assistance, if 
available.
    (b) Training. (1) Covered employees. Covered employees must receive 
at least 60 minutes of training on the effects and consequences of 
prohibited drug use on personal health, safety, and the work 
environment, and on the signs and symptoms that may indicate prohibited 
drug use.
    (2) Supervisors. Supervisors and/or other company officers 
authorized by the employer to make reasonable suspicion determinations 
shall receive at least 60 minutes of training on the physical, 
behavioral, and performance indicators of probable drug use and at least 
60 minutes of training on the physical, behavioral, speech, and 
performance indicators of probable alcohol misuse.



Sec. 655.15  Policy statement contents.

    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

[[Page 62]]

test under this part, including the mandatory requirements that the 
covered employee be removed immediately from his or her safety-sensitive 
function and be evaluated by a substance abuse professional, as required 
by 49 CFR Part 40.
    (i) The consequences, as set forth in Sec. 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.



Sec. 655.16  Requirement to disseminate policy.

    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.



Sec. 655.17  Notice requirement.

    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.



Sec. Sec. 655.18-655.20  [Reserved]



                      Subpart C_Prohibited Drug Use



Sec. 655.21  Drug testing.

    (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.



Sec. Sec. 655.22-655.30  [Reserved]



                    Subpart D_Prohibited Alcohol Use



Sec. 655.31  Alcohol testing.

    (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.



Sec. 655.32  On duty use.

    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.



Sec. 655.33  Pre-duty use.

    (a) General. Each employer shall prohibit a covered employee from 
using alcohol within 4 hours prior to performing safety-sensitive 
functions. No employer having actual knowledge that a covered employee 
has used alcohol within four hours of performing a safety-sensitive 
function shall permit the employee to perform or continue to perform 
safety-sensitive functions.
    (b) On-call employees. An employer shall prohibit the consumption of 
alcohol for the specified on-call hours of each covered employee who is 
on-call. The procedure shall include:
    (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.

[[Page 63]]



Sec. 655.34  Use following an accident.

    Each employer shall prohibit alcohol use by any covered employee 
required to take a post-accident alcohol test under Sec. 655.44 for 
eight hours following the accident or until he or she undergoes a post-
accident alcohol test, whichever occurs first.



Sec. 655.35  Other alcohol-related conduct.

    (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.



Sec. Sec. 655.36-655.40  [Reserved]



                       Subpart E_Types of Testing



Sec. 655.41  Pre-employment drug testing.

    (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 
Sec. 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.



Sec. 655.42  Pre-employment alcohol testing.

    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

[[Page 64]]

an alcohol concentration of less than 0.02.



Sec. 655.43  Reasonable suspicion testing.

    (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.



Sec. 655.44  Post-accident testing.

    (a) Accidents. (1) Fatal accidents. (i) As soon as practicable 
following an accident involving the loss of human life, an employer 
shall conduct drug and alcohol tests on each surviving covered employee 
operating the mass transit vehicle at the time of the accident. Post-
accident drug and alcohol testing of the operator is not required under 
this section if the covered employee is tested under the fatal accident 
testing requirements of the Federal Motor Carrier Safety Administration 
rule 49 CFR 389.303(a)(1) or (b)(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) Nonfatal accidents. (i) As soon as practicable following an 
accident not involving the loss of human life in which a mass transit 
vehicle is involved, the employer shall drug and alcohol test each 
covered employee operating the mass transit vehicle at the time of the 
accident unless the employer determines, using the best information 
available at the time of the decision, that the covered employee's 
performance can be completely discounted as a contributing factor to the 
accident. 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.
    (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

[[Page 65]]

of his or her location if he or she leaves the scene of the accident 
prior to submission to such test, may be deemed by the employer to have 
refused to submit to testing.
    (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.



Sec. 655.45  Random testing.

    (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 Federal Register the minimum annual 
percentage rates for random drug and alcohol testing of covered 
employees. The new minimum annual percentage rate for random drug and 
alcohol testing will be applicable starting January 1 of the calendar 
year following publication.
    (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 
Sec. 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 
Sec. 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 Sec. 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

[[Page 66]]

covered employees if the Administrator determines that the data received 
under the reporting requirements of Sec. 655.72 for two consecutive 
calendar years indicate that the violation rate is less than 1.0 percent 
but equal to or greater than 0.5 percent.
    (2)(i) When the minimum annual percentage rate for random alcohol 
testing is 10 percent, and the data received under the reporting 
requirements of Sec. 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 Sec. 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.

[[Page 67]]



Sec. 655.46  Return to duty following refusal to submit to a test, verified 

positive drug test result and/or breath alcohol test result of 0.04 or 
greater.

    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.



Sec. 655.47  Follow-up testing after returning to duty.

    An employer shall conduct follow-up testing of each employee who 
returns to duty, as specified in 49 CFR Part 40, subpart O.



Sec. 655.48  Retesting of covered employees with an alcohol concentration 
of 0.02 or greater but less than 0.04.

    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 Sec. 655.35. The covered employee may not perform safety-
sensitive functions unless the confirmation alcohol test result is less 
than 0.02.



Sec. 655.49  Refusal to submit to a drug or alcohol test.

    (a) Each employer shall require a covered employee to submit to a 
post-accident drug and alcohol test required under Sec. 655.44, a 
random drug and alcohol test required under Sec. 655.45, a reasonable 
suspicion drug and alcohol test required under Sec. 655.43, or a 
follow-up drug and alcohol test required under Sec. 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.



Sec. 655.50  [Reserved]



              Subpart F_Drug and Alcohol Testing Procedures



Sec. 655.51  Compliance with testing procedures requirements.

    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.



Sec. 655.52  Substance abuse professional (SAP).

    The SAP must perform the functions in 49 CFR Part 40.



Sec. 655.53  Supervisor acting as collection site personnel.

    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.



Sec. Sec. 655.54-655.60  [Reserved]



                         Subpart G_Consequences



Sec. 655.61  Action when an employee has a verified positive drug test 

result or has a confirmed alcohol test result of 0.04 or greater, or refuses 
to submit to a test.

    (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.

[[Page 68]]

    (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.



Sec. 655.62  Referral, evaluation, and treatment.

    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.



Sec. Sec. 655.63-655.70  [Reserved]



                  Subpart H_Administrative Requirements



Sec. 655. 71  Retention of records.

    (a) General requirement. An employer shall maintain records of its 
anti-drug and alcohol misuse program as provided in this section. The 
records shall be maintained in a secure location with controlled access.
    (b) Period of retention. In determining compliance with the 
retention period requirement, each record shall be maintained for the 
specified minimum period of time as measured from the date of the 
creation of the record. Each employer shall maintain the records in 
accordance with the following schedule:
    (1) Five years. Records of covered employee verified positive drug 
or alcohol test results, documentation of refusals to take required drug 
or alcohol tests, and covered employee referrals to the substance abuse 
professional, and copies of annual MIS reports submitted to FTA.
    (2) Two years. Records related to the collection process and 
employee training.
    (3) One year. Records of negative drug or alcohol test results.
    (c) Types of records. The following specific records must be 
maintained:
    (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.

[[Page 69]]



Sec. 655.72  Reporting of results in a management information system.

    (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, Sec. 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.g., 
electronic program transmitted via the Internet), other than hard-copy, 
for MIS form submission. For information on where to submit MIS forms 
and for the electronic version of the form, see: http://transit-
safety.volpe.dot.gov/DAMIS.
    (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 (e.g., you 
select daily, weekly, bi-weekly), you do not need to compute this total 
number of covered employees rate more than on a once per month basis. As 
an employer, you may use a service agent (e.g., C/TPA) to perform random 
selections for you; and your covered employees may be part of a larger 
random testing pool of covered employees. However, you must ensure that 
the service agent you use is testing at the appropriate percentage 
established for your industry and that only covered employees are in the 
random testing pool.
    (f) If you have a covered employee who performs multi-DOT agency 
functions (e.g., an employee drives a paratransit vehicle and performs 
pipeline maintenance duties for you), count the employee only on the MIS 
report for the DOT agency under which he or she is random tested. 
Normally, this will be the DOT agency under which the employee performs 
more than 50% of his or her duties. Employers may have to explain the 
testing data for these employees in the event of a DOT agency inspection 
or audit.
    (g) A service agent (e.g., Consortia/Third Party Administrator as 
defined in 49 CFR part 40) may prepare the MIS report on behalf of an 
employer. However, a company official (e.g., Designated Employer 
Representative as defined in 49 CFR part 40) must certify the accuracy 
and completeness of the MIS report, no matter who prepares it.

[66 FR 42002, Aug. 9, 2001, as amended at 68 FR 75462, Dec. 31, 2003]



Sec. 655.73  Access to facilities and records.

    (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 Sec. 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

[[Page 70]]

agency with regulatory authority over the employer or any of its 
employees or to a State oversight agency authorized to oversee rail 
fixed guideway systems.
    (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.



Sec. Sec. 655.74-655.80  [Reserved]



                     Subpart I_Certifying Compliance



Sec. 655.81  Grantee oversight responsibility.

    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.



Sec. 655.82  Compliance as a condition of financial assistance.

    (a) General. A recipient may not be eligible for Federal financial 
assistance under 49 U.S.C. 5307, 5309, or 5311 or under 23 U.S.C. 
103(e)(4), if a recipient fails to establish and implement an anti-drug 
and alcohol misuse program as required by this part. Failure to certify 
compliance with these requirements, as specified in Sec. 655.83, may 
result in the suspension of a grantee's eligibility for Federal funding.
    (b) Criminal violation. A recipient is subject to criminal sanctions 
and fines for false statements or misrepresentations under 18 U.S.C. 
1001.
    (c) State's role. Each State shall certify compliance on behalf of 
its 49 U.S.C. 5307, 5309, 5311 or 23 U.S.C. 103(e)(4) subrecipients, as 
applicable. In so certifying, the State shall ensure that each 
subrecipient is complying with the requirements of this part. A section 
5307, 5309, 5311 or 103(e)(4) subrecipient, through the administering 
State, is subject to suspension of funding from the State if such 
subrecipient is not in compliance with this part.



Sec. 655.83  Requirement to certify compliance.

    (a) A recipient of FTA financial assistance shall annually certify 
compliance, as set forth in Sec. 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.

[[Page 71]]



PART 659_RAIL FIXED GUIDEWAY SYSTEMS; STATE SAFETY OVERSIGHT
--Table of Contents




                      Subpart A_General Provisions

Sec.
659.1 Purpose.
659.3 Scope.
659.5 Definitions.
659.7 Withholding of funds for non-compliance.

                     Subpart B_The Role of the State

659.21 Designation of oversight agency.
659.23 Confidential investigation reports.

                  Subpart C_The Oversight Agency's Role

659.31 The system safety program standard.
659.33 System safety program plans.
659.35 Transit agency annual audit reports.
659.37 Safety reviews.
659.39 Transit agency report on accidents and unacceptable hazardous 
          conditions.
659.41 Investigations.
659.43 Corrective actions.
659.45 Oversight agency report to the Federal Transit Administration.
659.47 Use of contractors.
659.49 Certification of compliance.

Appendix to Part 659--Sample Certification of Compliance.

    Authority: 49 U.S.C. Sec. 5330.

    Source: 60 FR 67046, Dec. 27, 1995, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 659.1  Purpose.

    This part implements 49 U.S.C. 5330 by requiring a State to oversee 
the safety of rail fixed guideway systems through a designated oversight 
agency.



Sec. 659.3  Scope.

    This part applies to a State that has within its boundaries a rail 
fixed guideway system not regulated by the Federal Railroad 
Administration (FRA).



Sec. 659.5  Definitions.

    As used in this part--
    Accident means any event involving the revenue service operation of 
a rail fixed guideway system if as a result:
    (1) An individual dies;
    (2) An individual suffers bodily injury and immediately receives 
medical treatment away from the scene of the accident; or
    (3) A collision, derailment, or fire causes property damage in 
excess of $100,000.
    APTA Guidelines means the American Public Transit Association's 
``Manual for the Development of Rail Transit System Safety Program 
Plans,'' published on August 20, 1991.
    Contractor means an entity that performs tasks required by this part 
on behalf of the oversight or transit agency. The transit agency may not 
be a contractor for the oversight agency.
    FTA means the Federal Transit Administration, an agency within the 
U.S. Department of Transportation.
    Hazardous condition means a condition that may endanger human life 
or property. It includes unacceptable hazardous conditions.
    Investigation means a process to determine the probable cause of an 
accident or an unacceptable hazardous condition; it may involve no more 
than a review and approval of the transit agency's determination of the 
probable cause of an accident or unacceptable hazardous condition.
    Oversight agency means the entity, other than the transit agency, 
designated by the State or several States to implement this part.
    Rail fixed guideway system means any light, heavy, or rapid rail 
system, monorail, inclined plane, funicular, trolley, or automated 
guideway that is:
    (1) 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); and
    (2) Not regulated by the Federal Railroad Administration.
    Safety means freedom from danger.
    Safety review means a formal, comprehensive, on-site examination by 
the oversight agency of a transit agency's safety practices to determine 
whether they comply with the policies and procedures required under the 
transit agency's system safety program plan.
    Security means freedom from intentional danger.
    System safety program plan means a document adopted by the transit 
agency detailing its safety policies, objectives, responsibilities, and 
procedures.
    System safety program standard means the standard developed and 
adopted by the State oversight agency which, at a

[[Page 72]]

minimum, complies with the APTA Guidelines and which addresses personal 
security.
    Transit agency means an entity operating a rail fixed guideway 
system.
    Unacceptable hazardous condition means a hazardous condition 
determined to be an unacceptable hazardous condition using the APTA 
Guidelines' Hazard Resolution Matrix (APTA Guidelines, checklist number 
7).



Sec. 659.7  Withholding of funds for non-compliance.

    The Administrator of the FTA may withhold up to five percent of the 
amount required to be apportioned for use in any State or affected 
urbanized area in such State under FTA's formula program for urbanized 
areas for any fiscal year beginning after September 30, 1997, if the 
State in the previous fiscal year has not met the requirements of this 
part and the Administrator determines that the State is not making 
adequate efforts to comply with this part.



                     Subpart B_The Role of the State



Sec. 659.21  Designation of oversight agency.

    (a) For a transit agency or agencies operating within a single 
State, the State must designate an agency of the State, other than a 
transit agency, to serve as the oversight agency and to implement the 
requirements of this part.
    (b) For a transit agency operating a system within more than one 
State, those States may designate a single entity, other than the 
transit agency, to implement the requirements of this part.



Sec. 659.23  Confidential investigation reports.

    The State may prohibit an investigation report that may be prepared 
by the oversight agency from being admitted into evidence or used in a 
civil action for damages resulting from a matter mentioned in the 
report.



                  Subpart C_The Oversight Agency's Role



Sec. 659.31  The system safety program standard.

    (a) The oversight agency must develop and adopt a system safety 
program standard that, at a minimum--
    (1) Complies with the American Public Transit Association's ``Manual 
for the Development of Rail Transit System Safety Program Plans'' (APTA 
Guidelines) published on August 20, 1991, hereby incorporated by 
reference; and
    (2) Requires the transit agency to address the personal security of 
its passengers and employees.
    (b) The APTA Guidelines specify procedures for developing a system 
safety program plan, generally discuss the principles of system safety, 
and specifically address certain issues critical to the safe operation 
of a rail fixed guideway system.
    (c) The incorporation by reference of the APTA Guidelines has been 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR Part 51. Copies of the APTA Guidelines may be 
obtained from the American Public Transit Association, 1201 New York 
Avenue, NW., Washington DC 20005-3917, (202) 893-4000. The Guidelines 
may be inspected at, and are available from the Federal Transit 
Administration, Office of Safety and Security, 400 7th Street, SW., 
Washington, D.C. 20590, and at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.

[60 FR 67046, Dec. 27, 1995, as amended at 69 FR 18803, Apr. 9, 2004]



Sec. 659.33  System safety program plans.

    (a) Except as provided in Sec. 659.33(b), the oversight agency must 
--
    (1) Require the transit agency to implement, beginning on January 1, 
1997,

[[Page 73]]

a system safety program plan conforming to the oversight agency's system 
safety program standard; and
    (2) Approve in writing before January 1, 1997, the transit agency's 
system safety program plan.
    (b) The oversight agency must --
    (1) Require the transit agency to implement beginning on January 1, 
1998, the security portion of its system safety program plan; and
    (2) Approve in writing before January 1, 1998, the security portions 
of the transit agency's system safety program plan.
    (c) After December 31, 1996, the oversight agency must review and 
approve, in writing, the transit agency's system safety program plan, as 
necessary, and require the transit agency to update its system safety 
program plan, as necessary.
    (d) The oversight agency may prohibit a transit agency from publicly 
disclosing the security aspects of the system safety program plan.

[60 FR 67046, Dec. 27, 1995, as amended at 61 FR 67493, Dec. 23, 1996]



Sec. 659.35  Transit agency annual audit reports.

    The oversight agency must--
    (a) Require that the transit agency submit, annually, a copy of the 
annual safety audit report prepared by the transit agency as a result of 
the Internal Safety Audit Process (APTA Guidelines, checklist number 9); 
and
    (b) Review the annual safety audit reports prepared by the transit 
agency.



Sec. 659.37  Safety reviews.

    At least every three years the oversight agency must conduct an on-
site safety review of the transit agency's implementation of its system 
safety program plan and prepare and issue a report containing findings 
and recommendations resulting from that review, which, at a minimum, 
must include an analysis of the efficacy of the system safety program 
plan and a determination of whether it should be updated.



Sec. 659.39  Transit agency report on accidents and unacceptable hazardous 
conditions.

    The oversight agency must require that the transit agency report 
accidents and unacceptable hazardous conditions to the oversight agency 
within a specified period of time.



Sec. 659.41  Investigations.

    The oversight agency must--
    (a) Establish procedures to investigate accidents and unacceptable 
hazardous conditions.
    (b) Unless the National Transportation Safety Board has investigated 
or will investigate an accident, the oversight agency must investigate 
accidents and unacceptable hazardous conditions occurring at a transit 
agency under its jurisdiction.



Sec. 659.43  Corrective actions.

    The oversight agency must require the transit agency to minimize, 
control, correct, or eliminate any investigated hazardous condition 
within a time period specified by and in accordance with a corrective 
action plan approved by the oversight agency.



Sec. 659.45  Oversight agency report to the Federal Transit Administration.

    (a) Initial submissions. Before January 1, 1997, the oversight 
agency must submit to FTA the following information, which must be 
updated as necessary:
    (1) The name and address of the oversight agency;
    (2) The name(s) and address(es) of the transit agency or agencies 
subject to the oversight agency's jurisdiction under this part; and
    (3) A written description of the oversight agency's oversight 
program including the following information:
    (i) A copy of its system safety program standard;
    (ii) Its procedures or process for reviewing and approving the 
transit agency's system safety program plan;
    (iii) Its investigatory procedures; and
    (iv) Its procedures for ensuring that appropriate corrective actions 
have been taken by the transit agency to correct, eliminate, minimize, 
or control investigated hazardous conditions.

[[Page 74]]

    (b) Annual submissions. Before March 15 of each year, the oversight 
agency must submit to FTA a publicly available annual report summarizing 
its oversight activities for the preceding twelve months, including a 
description of the most common probable causal factors of accidents and 
unacceptable hazardous conditions.
    (c) Periodic submissions. Status reports of accidents, hazardous 
conditions, and corrective action plans must be forwarded to the FTA 
upon request.
    (d) Addresses. Reports and annual summaries must be sent to: Federal 
Transit Administration, Office of Safety and Security, 400 7th Street, 
S.W., Washington, DC 20590.

[60 FR 67046, Dec. 27, 1995, as amended at 61 FR 67493, Dec. 23, 1996]



Sec. 659.47  Use of contractors.

    (a) The oversight agency may use a contractor to--
    (1) Develop a system safety program standard;
    (2) Review system safety program plans;
    (3) Review annual audit reports;
    (4) Conduct safety reviews;
    (5) Prepare safety review findings;
    (6) Establish investigation procedures;
    (7) Conduct investigations;
    (8) Review corrective action plans; and/or
    (9) Prepare initial or annual submissions to FTA.
    (b) The oversight agency may allow a transit agency to use a 
contractor to--
    (1) Develop or update a system safety program plan;
    (2) Prepare annual audit reports; and/or
    (3) Develop a corrective action plan.



Sec. 659.49  Certification of compliance.

    (a) Before January 1, 1997, and annually thereafter, the oversight 
agency must certify to the FTA that it has complied with the 
requirements of this part. Each certification shall comply with the 
applicable sample certification provided in the appendix to this part. 
Each certification shall be sent to: Federal Transit Administration, 
Office of Safety and Security, 400 7th Street, S.W., Washington, DC 
20590.
    (b) Each certification must be signed by an official authorized by 
the oversight agency and must comply with the applicable sample 
certification provided in the appendix to this part.

        Appendix to Part 659--Sample Certification of Compliance

    This appendix contains an example of certification language.
    I, (name), (title), certify that (name of the oversight agency) has 
implemented a State oversight program that meets the requirements of 49 
CFR part 659 and further certify that I have no conflict of interest 
with any rail fixed guideway system overseen as a result of 49 CFR part 
659, nor does (name of the oversight agency) and its contractors.



PART 661_BUY AMERICA REQUIREMENTS_SURFACE TRANSPORTATION ASSISTANCE 
ACT OF 1982, AS AMENDED--Table of Contents




Sec.
661.1 Applicability.
661.3 Definitions.
661.5 General requirements.
661.6 Certification requirement for procurement of steel or manufactured 
          products.
661.7 Waivers.
661.9 Application for waivers.
661.11 Rolling stock procurements.
661.12 Certification requirement for procurement of buses, other rolling 
          stock and associated equipment.
661.13 Grantee responsibility.
661.15 Investigation procedures.
661.17 Failure to comply with certification.
661.18 Intentional violations.
661.19 Sanctions.
661.20 Rights of third parties.
661.21 State Buy America provisions.

    Authority: 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, and 
sec. 3020(b), Pub. L. 105-178); 49 CFR 1.51.

    Source: 56 FR 932, Jan. 9, 1991, unless otherwise noted.



Sec. 661.1  Applicability.

    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.



Sec. 661.3  Definitions.

    As used in this part:

[[Page 75]]

    Act means the Surface Transportation Assistance Act of 1982 (Pub. L. 
97-424), as amended by section 337 of the Surface Transportation and 
Uniform Relocation Assistance of 1987 (Pub. L. 100-17).
    Administrator means the Administrator of FTA, or designee.
    Component means any article, material, or supply, whether 
manufactured or unmanufactured, that is directly incorporated into the 
end product at the final assembly location.
    Grantee means any entity that is a recipient of FTA funds.
    Manufacutured product means an item produced as a result of 
manufacturing process.
    Manufacturing process means the application of processes to alter 
the form or function of materials or of elements of the product in a 
manner adding value and transforming those materials or elements so that 
they represent a new end product functionally different from that which 
would result from mere assembly of the elements or materials.
    Rolling stock means transit vehicles such as buses, vans, cars, 
railcars, locomotives, trolley cars and buses, and ferry boats, as well 
as vehicles used for support services.
    STURAA means the Surface Transportation and Uniform Relocation 
Assistance Act of 1987 (Pub. L. No. 100-17).
    FTA means the Federal Transit Administration.
    United States means the several States, the Commonwealth of Puerto 
Rico, the District of Columbia, Guam, American Samoa, the Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands.

[56 FR 932, Jan. 9, 1991, as amended at 61 FR 6302, Feb. 16, 1996]



Sec. 661.5  General requirements.

    (a) Except as provided in Sec. 661.7 and Sec. 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.

[61 FR 6302, Feb. 16, 1996]



Sec. 661.6  Certification requirement for procurement of steel or 
manufactured products.

    If steel or manufactured products (as defined in Sec. Sec. 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 in 
accordance with the requirement contained in Sec. 661.13(b) of this 
part.

              Certificate of Compliance With Section 165(a)

    The bidder 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.

Date____________________________________________________________________
Signature_______________________________________________________________
Company Name____________________________________________________________
Title___________________________________________________________________

           Certificate for Non-Compliance With Section 165(a)

    The bidder 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 and regulations in 49 CFR 661.7.

Date____________________________________________________________________
Signature_______________________________________________________________

[[Page 76]]

Company Name____________________________________________________________
Title___________________________________________________________________



Sec. 661.7  Waivers.

    (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 Sec. 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 Sec. 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.

               Appendix A to Sec. 661.7--General Waivers

    (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 Sec. 661.7 (b) and (c).

[[Page 77]]

    (b) Under the provisions of Sec. 661.7(b) of this part, 15 
passenger vans produced by Chrysler Corporation are exempt from the 
requirement that final assembly of the vans take place in the United 
States (49 FR 13944, April 9, 1984).
    (c) Under the provisions of Sec. 661.7(b) of this part, 15 
Passenger Wagons produced by Chrysler Corporation are exempt from the 
requirement that final assembly of the wagons take place in the United 
States (letter to Chrysler Corporation dated May 13, 1987.)
    (d) Under the provisions of Sec. 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).
    (e) Under the provisions of Sec. 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.

[56 FR 932, Jan. 9, 1991, as amended at 60 FR 37928, July 24, 1995, 61 
FR 6302, Feb. 16, 1996]



Sec. 661.9  Application for waivers.

    (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 Sec. 661.11 of this part.
    (b) A bidder 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 
or supplier only if the waiver is being sought under Sec. 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.



Sec. 661.11  Rolling stock procurements.

    (a) The provisions of Sec. 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; that is, if the 
subcomponents have been substantially transformed or merged into a new 
and functionally different article.
    (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.

[[Page 78]]

    (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 procured as 
the end product by the grantee, the installation of the system qualifies 
as final assembly.
    (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:

[[Page 79]]

    (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 Sec. 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 Sec. 661.9. In lieu of these procedures, the bidder must submit the 
appropriate certificate required by Sec. 661.12.

               Appendix A to Sec. 661.11--General Waivers

    (a) The provisions of Sec. 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]

         Appendix B to Sec. 661.11--Typical Components of Buses

    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.

  Appendix C to Sec. 661.11--Typical Components of Rail Rolling Stock

    The following is a list of items that typically would be considered 
components of rail rolling stock. This list is not all inclusive.


[[Page 80]]


    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.

[61 FR 6302, Feb. 16, 1996, as amended at 62 FR 40954, July 31, 1997]



Sec. 661.12  Certification requirement for procurement of buses, other 
rolling stock and associated 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 
Sec. 661.13(b) of this part.

            Certificate of Compliance With Section 165(b)(3)

    The bidder 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 regulations of 49 CFR 
661.11.

Date____________________________________________________________________
Signature_______________________________________________________________
Company Name____________________________________________________________
Title___________________________________________________________________

          Certificate for Non-Compliance with Section 165(b)(3)

    The bidder 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 regulations in 49 
CFR 661.7.

Date____________________________________________________________________
Signature_______________________________________________________________
Company Name____________________________________________________________
Title___________________________________________________________________



Sec. 661.13  Grantee responsibility.

    (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 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 a 
completed Buy America certificate in accordance with Sec. 661.6 or 
Sec. 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 a written 
explanation of the circumstances surrounding the submission of the 
incomplete or incorrect certification in accordance with 28 U.S.C. 1746, 
sworn under penalty of perjury, stating that the submission resulted 
from inadvertent or clerical error. The bidder or offeror will also 
submit evidence of intent, such as information about the origin of the 
product, invoices, or other working documents. The bidder or offeror 
will simultaneously send a copy of this information to the FTA grantee.
    (2) 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 Sec. 661.15(m).
    (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 offerer is bound by its 
original certification and is not permitted to change its certification 
after bid opening. A bidder or offeror that certifies that it will 
comply with the applicable Buy America requirements is not eligible for 
a waiver of those requirements.

[56 FR 932, Jan. 9, 1991, as amended at 68 FR 9799, Feb. 28, 2003]



Sec. 661.15  Investigation procedures.

    (a) It is presumed that a bidder who has submitted the required Buy 
America certificate is complying with the

[[Page 81]]

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 with the bidder'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 to document its compliance with its Buy America 
certificate. The successful bidder 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) will be transmitted 
to the petitioner. The petitioner may submit comments on the reply to 
FTA within 10 working days after receipt of the reply. The grantee and 
the low bidder will be furnished with a copy of the petitioner's 
comments, and their comments must be received by FTA within 5 working 
days after receipt of the petitioner's comments.
    (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

[[Page 82]]

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.



Sec. 661.17  Failure to comply with certification.

    If a successful bidder 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 takes these necessary steps, 
it will not be allowed to change its original bid price. If a bidder 
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.



Sec. 661.18  Intentional violations.

    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 in or shipped to the United States and used in projects 
to which this section applies, or
    (b) Otherwise represented that any such product was produced in the 
United States.

[61 FR 6303, Feb. 16, 1996]



Sec. 661.19  Sanctions.

    A willful refusal to comply with a certification by a successful 
bidder may lead to the initiation of debarment or suspension proceedings 
under part 29 of this title.



Sec. 661.20  Rights of third parties.

    The sole right of any third party under the Buy America provision is 
to petition FTA under the provisions of Sec. 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.



Sec. 661.21  State Buy America provisions.

    (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.



PART 663_PRE-AWARD AND POST-DELIVERY AUDITS OF ROLLING STOCK PURCHASES
--Table of Contents




                            Subpart A_General

Sec.
663.1 Purpose.
663.3 Scope.
663.5 Definitions.
663.7 Certification of compliance to FTA.
663.9 Audit limitations.
663.11 Audit financing.
663.13 Buy America requirements.

[[Page 83]]

663.15 Compliance.

                       Subpart B_Pre-Award Audits

663.21 Pre-award audit requirements.
663.23 Description of pre-award audit.
663.25 Pre-award Buy America certification.
663.27 Pre-award purchaser's requirements certification.

                     Subpart C_Post-Delivery Audits

663.31 Post-delivery audit requirements.
663.33 Description of post-delivery audit.
663.35 Post-delivery Buy America certification.
663.37 Post-delivery purchaser's requirements certification.
663.39 Post-delivery audit review.

Subpart D_Certification of Compliance With or Inapplicability of Federal 
                     Motor Vehicle Safety Standards

663.41 Certification of compliance with Federal motor vehicle safety 
          standards.
663.43 Certification that Federal motor vehicle standards do not apply.

    Authority: 49 U.S.C. 1608(j); 23 U.S.C. 103(e)(4); Pub. L. 96-184, 
93 Stat. 1320; Pub. L. 101-551, 104 Stat. 2733; 49 CFR 1.51.

    Source: 56 FR 48395, Sept. 24, 1991, unless otherwise noted.



                            Subpart A_General



Sec. 663.1  Purpose.

    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 Federal financial 
assistance purchases rolling stock with funds made available under the 
Federal Mass Transit Act, as amended.



Sec. 663.3  Scope.

    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.



Sec. 663.5  Definitions.

    As used in this part--
    (a) Pre-award means that period in the procurement process before 
the recipient enters into a formal contract with the supplier.
    (b) Post-delivery means the time period in the procurement process 
from when the rolling stock is delivered to the recipient until title to 
the rolling stock is transferred to the recipient or the rolling stock 
is put into revenue service, whichever is first.
    (c) Recipient means a recipient of Federal financial assistance from 
FTA.
    (d) Revenue service means operation of rolling stock for 
transportation of fare-paying passengers as anticipated by the 
recipient.
    (e) Rolling stock means buses, vans, cars, railcars, locomotives, 
trolley cars and buses, ferry boats, and vehicles used for guideways and 
incline planes.
    (f) Audit means a review resulting in a report containing the 
necessary certifications of compliance with Buy America standards, 
purchaser's requirements specifications, and, where appropriate, a 
manufacturer's certification of compliance with or inapplicability of 
the Federal Motor Vehicle Safety Standards, required by section 319 of 
STURAA and this part.
    (g) FTA means the Federal Transit Administration.



Sec. 663.7  Certification of compliance to FTA.

    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.



Sec. 663.9  Audit limitations.

    (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

[[Page 84]]

    (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.



Sec. 663.11  Audit financing.

    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.



Sec. 663.13  Buy America requirements.

    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.



Sec. 663.15  Compliance.

    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.



                       Subpart B_Pre-Award Audits



Sec. 663.21  Pre-award audit requirements.

    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.



Sec. 663.23  Description of pre-award audit.

    A pre-award audit under this part includes--
    (a) A Buy America certification as described in Sec. 663.25 of this 
part;
    (b) A purchaser's requirements certification as described in Sec. 
663.27 of this part; and
    (c) Where appropriate, a manufacturer's Federal Motor Vehicle Safety 
certification information as described in Sec. 663.41 or Sec. 663.43 
of this part.



Sec. 663.25  Pre-award Buy America certification.

    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.



Sec. 663.27  Pre-award purchaser's requirements certification.

    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

[[Page 85]]

    (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.



                     Subpart C_Post-Delivery Audits



Sec. 663.31  Post-delivery audit requirements.

    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.



Sec. 663.33  Description of post-delivery audit.

    A post-delivery audit under this part includes--
    (a) A post-delivery Buy America certification as described in Sec. 
663.35 of this part;
    (b) A post-delivery purchaser's requirements certification as 
described in Sec. 663.37 of this part; and
    (c) When appropriate, a manufacturer's Federal Motor Vehicle Safety 
Standard self-certification information as described in Sec. 663.41 or 
Sec. 663.43 of this part.



Sec. 663.35  Post-delivery Buy America certification.

    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 Act of 1982, as amended, after having reviewed 
itself or by means of an audit prepared by someone other than the 
manufacturer or its agent documentation provided by the manufacturer 
which lists--
    (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.



Sec. 663.37  Post-delivery purchaser's requirements certification.

    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 ten or fewer buses, or any number of primary 
manufacturer standard production and unmodified vans, after visually 
inspecting and road testing the vehicles, the vehicles meet the contract 
specifications.



Sec. 663.39  Post-delivery audit review.

    (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.

[[Page 86]]



Subpart D_Certification of Compliance With or Inapplicability of Federal 
                     Motor Vehicle Safety Standards



Sec. 663.41  Certification of compliance with Federal motor vehicle safety 
standards.

    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.



Sec. 663.43  Certification that Federal motor vehicle standards do not 
apply.

    (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.



PART 665_BUS TESTING--Table of Contents




                            Subpart A_General

Sec.
665.1 Purpose.
665.3 Scope.
665.5 Definitions.
665.7 Grantee certification of compliance.

                    Subpart B_Bus Testing Procedures

665.11 Testing requirements.
665.13 Test report and manufacturer certification.

                          Subpart C_Operations

665.21 Scheduling.
665.23 Fees.
665.25 Transportation of vehicle.
665.27 Procedures during testing.

Appendix A to Part 665--Tests To Be Performed at the Bus Testing 
          Facility

    Authority: Federal Transit Act of 1964, as amended, 49 U.S.C. 1601 
et seq., 1608(h); section 317, Surface Transportation and Uniform 
Relocation Assistance Act of 1987; and 49 CFR 1.51.

    Source: 57 FR 33397, July 28, 1992, unless otherwise noted.



                            Subpart A_General



Sec. 665.1  Purpose.

    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.



Sec. 665.3  Scope.

    (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 Sec. Sec. 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.

[57 FR 33397, July 28, 1992, as amended at 58 FR 10990, Feb. 23, 1993; 
58 FR 58733, Nov. 3, 1993]

[[Page 87]]



Sec. 665.5  Definitions.

    As used in this part--
    Administrator means the Administrator of the Federal Transit 
Administration or designee.
    Bus means a rubber-tired automotive vehicle used for the provision 
of mass transportation service by or for a recipient.
    Bus model means a bus design or variation of a bus design usually 
designated by the manufacturer by a specific name and/or model number.
    Bus testing facility means a testing facility established by 
renovation of a facility constructed with Federal assistance at Altoona, 
Pennsylvania, under section 317(b)(1) of the Surface Transportation and 
Uniform Relocation Assistance Act of 1987, and includes proving ground 
facilities operated in connection with the facility.
    FT Act means the Federal Transit Act, as amended (49 U.S.C. app. 
1601 et seq.).
    Major change in chassis design means, for vehicles manufactured on a 
mass produced chassis, a change in frame structure, material or 
configuration, or a change in chassis suspension type.
    Major change in components means:
    (1) For those vehicles that are not manufactured on a mass produced 
chassis, a change in a vehicle's engine, axle, transmission, suspension, 
or steering components;
    (2) For those that are manufactured on a mass produced chassis, a 
change in the vehicle's chassis from one major design to another.
    Major change in configuration means a change which may have a 
significant impact on vehicle handling and stability, or structural 
integrity.
    Mass produced van or chassis means a van or chassis that has or is 
projected to have an annual production rate of 20,000 or more units.
    Mass transportation service means the operation of a vehicle which 
provides general or special service to the public on a regular and 
continuing basis.
    Modified mass-produced chassis or van means a vehicle that is 
manufactured from an incomplete, partially assembled mass-produced 
chassis or van as provided by an OEM to a small bus manufacturer. This 
includes vehicles whose chassis structure has been modified to include: 
The addition of a tandem or tag axle; the installation of a drop or 
lowered floor; changes to the GVWR from the OEM rating; or other 
modifications that are not made in strict conformance with the OEM's 
modifications guidelines.
    New bus model means a bus model which--
    (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.
    Non-mass-produced chassis or van means a vehicle that is 
manufactured from an incomplete, partially assembled chassis or van as 
provided by an OEM to a secondary small bus manufacturer, and where the 
annual production rate of the OEM chassis or van is less than 20,000 
units.
    Original Equipment Manufacturer (OEM) means the original 
manufacturer of a chassis or van supplied as a complete or incomplete 
vehicle to a small bus manufacturer.
    Partial testing means the performance of those bus tests which may 
yield significantly different data from that obtained in previous bus 
testing conducted at the bus testing facility.
    Recipient means an entity which receives funds under sections 3, 9, 
16(b)(2), or 18 of the FT Act, either directly from FTA or through a 
State administering agency.
    Small bus manufacturer means a secondary market assembler that 
acquires a chassis or van from an original equipment manufacturer for 
subsequent modification/assembly and sale as 5-year/150,000-mile and/or 
4-year/100,000-mile minimum service life vehicles.
    Test report means the final document prepared by the operator of the 
bus testing facility stating the results of the tests performed on each 
bus.
    Unmodified mass-produced chassis means a vehicle that is 
manufactured from an incomplete, partially assembled mass-produced 
chassis as provided by an OEM to a small bus manufacturer. This includes 
vehicles whose chassis structure has either not been modified, or is 
modified in strict conformance with the OEM's modification

[[Page 88]]

guidelines. The addition of a tandem or tag axle would exclude a bus 
model from this definition.
    Unmodified mass-produced van means a vehicle that is mass-produced, 
complete and fully assembled as provided by an OEM. This includes vans 
with raised roofs, and/or wheelchair lifts, or ramps that are installed 
by the OEM, or by a party other than the OEM provided that the 
installation of these components is completed in strict conformance with 
the OEM modification guidelines.

[57 FR 33397, July 28, 1992, as amended at 58 FR 58733, Nov. 3, 1993]



Sec. 665.7  Grantee certification of compliance.

    (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.



                    Subpart B_Bus Testing Procedures



Sec. 665.11  Testing requirements.

    (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 (i.e., longer 
service life) need not be repeated when the same bus model is used in 
lesser service life applications. However, the use of a bus model in a 
service life application higher than it has been tested for may make the 
bus subject to the bus testing requirements.
    (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.



Sec. 665.13  Test report and manufacturer certification.

    (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.

[[Page 89]]

    (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.



                          Subpart C_Operations



Sec. 665.21  Scheduling.

    (a) A manufacturer may schedule a vehicle for testing by contacting 
Penn State's Transportation Institute (PSTI) at the following address: 
The Pennsylvania State University, Pennsylvania Transportation 
Institute, Research Building B, University Park, PA 16802, (814) 863-
1889.
    (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.



Sec. 665.23  Fees.

    (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.



Sec. 665.25  Transportation of vehicle.

    A manufacturer is responsible for transporting its vehicle to and 
from the facility at the beginning and completion of the testing.



Sec. 665.27  Procedures during 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.

    Appendix A to Part 665--Tests To Be Performed at the Bus Testing 
                                Facility

    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.

                           1. Maintainability

    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

[[Page 90]]

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.

                             2. Reliability

    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.

                                3. Safety

    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.

                             4. Performance

    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.

                         5. Structural Integrity

    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.

               a. Structural Strength and Distortion Tests

    (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.

                        b. Structural Durability

    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

[[Page 91]]

and identification of possible structural anomalies.

                             6. Fuel Economy

    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.

                                7. Noise

    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.

[[Page 93]]



      CHAPTER VII--NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)




  --------------------------------------------------------------------
Part                                                                Page
700             Organization, functioning and available 
                    information.............................          95
701             Amtrak Freedom of Information Act program...          97

[[Page 95]]



PART 700_ORGANIZATION, FUNCTIONING AND AVAILABLE INFORMATION
--Table of Contents




Sec.
700.1 Purpose.
700.2 Organization and functioning of Amtrak.
700.3 Availability of documents, assistance, and information.

    Authority: 5 U.S.C. 552(a) (1), (2).

    Source: 49 FR 24378, June 13, 1984, unless otherwise noted.



Sec. 700.1  Purpose.

    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.



Sec. 700.2  Organization and functioning of Amtrak.

    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 et seq. (``the Act''). The Act 
requires that Amtrak be operated and managed as a for-profit 
corporation, that it be incorporated under the District of Columbia 
Business Corporation Act, and subject to the provisions of that statute 
to the extent not inconsistent with the Act, and that it provide a 
balanced transportation system by developing, operating, and improving 
intercity rail passenger service. The Act also states that Amtrak will 
not be an agency or establishment of the United States Government. 
Amtrak thus is a corporation created by Congress to compete for the 
transportation business of the intercity traveller, to the end that the 
travelling public will have a choice of travel modes. The address of its 
headquarters is 400 North Capitol Street, NW., Washington, DC 20001. 
Telephone: (202) 383-3000.
    (a) Board of Directors. Amtrak's major policies are established by 
its board of directors. The nine members of the board are selected as 
follows: The Secretary of Transportation serves as an ex-officio member 
and Amtrak's President, ex-officio, is Chairman of the Board; three 
members are appointed by the President of the United States and 
confirmed by the Senate (representing labor, State Governors, and 
business); two represent commuter authorities and are selected by the 
President from lists drawn up by those authorities; and two are selected 
by the Corporation's preferred stockholder, the Department of 
Transportation.
    (b) Officers and central management. Amtrak is managed by a 
President and a Management Committee consisting of four Executive Vice 
Presidents. Reporting to the Executive Vice Presidents are eleven vice 
presidents representing sales, transportation marketing, planning and 
development, computer services, labor relations, finance and treasurer, 
personnel, passenger and operating services, government affairs, 
operations and maintenance, engineering, and the General Counsel. Areas 
handled as special matters with the authority of vice presidents, such 
as corporate communications, safety, real estate, procurement, materials 
management, police and security, contract administration, and internal 
audit are supervised by assistant vice presidents and directors.
    (c) Regional and field structure. The need for decentralization of 
functions in the areas of passenger services and transportation 
operations has led to the creation of Amtrak's regional and field 
structure. Field offices are located in major cities such as Baltimore, 
Philadelphia, New York, Albany, Boston, Chicago, Seattle and Los 
Angeles. Pursuant to overall policies established at headquarters in 
Washington, DC, these offices handle matters like the assignment and 
scheduling of employees who work on board moving trains; purchase, 
stowage and preparation of food for dining service; maintenance and 
rehabilitation of rolling stock; and daily operating arrangements such 
as the make-up of trains or the cleaning and repairing of cars on 
trains.
    (d) Route system. Amtrak's basic route system has been established 
pursuant to statutory guidelines, and in some cases by specific 
statutory directive. Out of a route system covering about 23,000 route-
miles, Amtrak owns a right-of-way of about 2,600 track miles in the 
Northeast Corridor (Washington-New York-Boston; New Haven-

[[Page 96]]


Springfield; and Philadelphia-Harrisburg) and small segments of track 
near Albany, New York, and Kalamazoo, Michigan. In the Northeast 
Corridor Amtrak trains are run by operating crews consisting of Amtrak 
employees. On other routes, Amtrak operates trains on the tracks of 
about twenty different privately owned railroads and compensates the 
railroad for the use of their facilities and for the services of their 
employees, including engineers, conductors, and maintenance personnel. 
Those private railroads are responsible for the conditions of the 
roadbed and for coordinating the flow of traffic over their lines.
    (e) Operations. Amtrak provides about 250 trains daily, serving 
about 500 stations in over forty states. Amtrak owns most of its cars 
and locomotives, some of its stations, and most of its repair 
facilities. Its capital improvements and almost half of its operating 
losses are supported principally through Federal financing, with some 
State, regional and local financial support for some trains and 
stations. Congress requires Amtrak to earn revenues equivalent to at 
least fifty percent of its operating costs, and it currently does so.
    (f) Revenue production. The sale of tickets for transportation and 
accommodations, Amtrak's principal source of revenue, is accomplished 
through Amtrak ticket agents at stations, travel agencies, and five 
central reservation offices which service a nationwide telephone 
network. National Timetables contain basic information about routes, 
stations, and services.



Sec. 700.3  Availability of documents, assistance, and information.

    (a) A member of the public having need for assistance or information 
concerning any of the matters described in Sec. 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 Sec. 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 Official Railway

[[Page 97]]

Guide, which is available by subscription from its publisher at 424 West 
33rd Street, New York, New York 10001. A copy of the guide can usually 
be found at each staffed Amtrak station, and at the offices of travel 
agents authorized to sell Amtrak tickets. Tariff changes which occur 
between issues of the Guide are published and widely distributed by 
Amtrak pending their publication in the next issue of the Guide.
    (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.



PART 701_AMTRAK FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents




Sec.
701.1 General provisions.
701.2 Definitions.
701.3 Policy.
701.4 Amtrak public information.
701.5 Requirements for making requests.
701.6 Release and processing procedures.
701.7 Timing of responses to requests.
701.8 Responses to requests.
701.9 Business information.
701.10 Appeals.
701.11 Fees.
701.12 Other rights and services.

    Authority: 5 U.S.C. 552; 49 U.S.C. 24301(e).

    Source: 63 FR 7311, Feb. 13, 1998, unless otherwise noted.



Sec. 701.1  General provisions.

    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 
(i.e., train timetables, press releases) may be obtained without 
following Amtrak's FOIA procedures. As a matter of policy, Amtrak may 
make discretionary disclosures of records or information exempt under 
the FOIA whenever disclosure would not foreseeably harm an interest 
protected by an FOIA exemption; however, this policy does not create any 
right enforceable in court.



Sec. 701.2  Definitions.

    Unless the context requires otherwise in this part, masculine 
pronouns include the feminine gender and ``includes'' means ``includes 
but is not limited to.''
    (a) Amtrak or Corporation means the National Railroad Passenger 
Corporation.
    (b) Appeal means a request submitted to the President of Amtrak or 
designee for review of an adverse initial determination.
    (c) Business days means working days; Saturdays, Sundays, and legal 
public holidays are excluded in computing response time for processing 
FOIA requests.
    (d) Disclose or disclosure means making records available for 
examination or copying, or furnishing a copy of nonexempt responsive 
records.
    (e) Electronic data means records and information (including E-mail) 
that are created, stored, and retrievable by electronic means.
    (f) Exempt information means information that is exempt from 
disclosure under one or more of the nine exemptions to the FOIA.
    (g) Final determination means a decision by the President of Amtrak 
or designee concerning a request for review of an adverse initial 
determination received in response to an FOIA request.
    (h) Freedom of Information Act or ``FOIA'' means the statute as 
codified in section 552 of Title 5 of the United States Code as amended.
    (i) Freedom of Information Officer means the Amtrak official 
designated to fulfill the responsibilities of implementing and 
administering the Freedom of Information Act as specifically designated 
under this part.

[[Page 98]]

    (j) Initial determination means a decision by an Amtrak FOIA Officer 
in response to a request for information under the FOIA.
    (k) Pages means paper copies of standard office size or the cost 
equivalent in other media.
    (l) President means the President and Chief Executive Officer (CEO) 
of the National Railroad Passenger Corporation (Amtrak) or designee.
    (m) Record means any writing, drawing, map, recording, tape, film, 
photograph, or other documentary material by which information is 
preserved in any format, including electronic format. A record must 
exist and be in the possession and control of Amtrak at the time of the 
request to be subject to this part and the FOIA. The following are not 
included within the definition of the word ``record'':
    (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) Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    (o) Requester or requesting party means any person who has submitted 
a request to Amtrak.
    (p) Responsive records means documents determined to be within the 
scope of a FOIA request.



Sec. 701.3  Policy.

    (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.



Sec. 701.4  Amtrak public information.

    (a) Public reading room. Amtrak maintains a public reading room at 
its headquarters at 60 Massachusetts Avenue, N.E. in Washington, D.C. 
The public reading room contains records required under the FOIA to be 
regularly available for public inspection and copying. A current 
subject-matter index shall be

[[Page 99]]

maintained of records in the public reading room that are available for 
inspection and copying. The index shall be updated at least quarterly 
with respect to newly included records. A copy of the index shall be 
provided upon request at a cost not to exceed the direct cost of 
duplication.
    (b) Electronic reading room. Amtrak will make available 
electronically reading room records created by the Corporation on or 
after November 1, 1996 on its World Wide Web site which can be accessed 
at http://www.Amtrak.com. An index of the Corporation's reading room 
records will also be made available at the web site. The index will 
indicate reading room records that are available electronically.
    (c) Frequently requested information. The FOIA requires that copies 
of records, regardless of form or format, released pursuant to a FOIA 
request under 5 U.S.C. 552(a)(3) that have become or are likely to 
become the subject of subsequent requests for substantially the same 
records be made publicly available. Such records created by the 
Corporation after November 1, 1996 will be made available electronically 
while records created prior to this date will be made available for 
inspection and copying in Amtrak's public reading room.
    (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) Guide for making requests. A guide on how to use the FOIA for 
requesting records from Amtrak shall be made available to the public 
upon request. Amtrak's major information systems will be described in 
the guide.



Sec. 701.5  Requirements for making requests.

    (a) General requirements. (1) A FOIA request can be made by ``any 
person'' as defined in 5 U.S.C. 551(2), which encompasses individuals 
(including foreign citizens; partnerships; corporations; associations; 
and local, state, tribal, and foreign governments). A FOIA request may 
not be made by a Federal agency.
    (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) How to submit a request. (1) A request must clearly state on the 
envelope and in the letter that it is a Freedom of Information Act or 
``FOIA'' request.
    (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) Content of the request. (1) Description of records--
Identification of records sought under the FOIA is the responsibility of 
the requester. The records sought should be described in sufficient 
detail so that Amtrak personnel can locate them with a reasonable amount 
of effort. When possible, the request should include specific 
information

[[Page 100]]

such as dates, title or name, author, recipient, subject matter of the 
record, file designation or number, or other pertinent details for each 
record or category of records sought.
    (2) Reformulation of a request. Amtrak is not obligated to act on a 
request until the requester provides sufficient information to locate 
the record. Amtrak may offer assistance in identifying records and 
reformulating a request where: the description is considered 
insufficient, the production of voluminous records is required, or a 
considerable number of work hours would be required that would interfere 
with the business of the Corporation. The Freedom of Information Office 
shall notify the requester within ten business days of the type of 
information that will facilitate the search. The requesting party shall 
be given an opportunity to supply additional information and may submit 
a revised request, which will be treated as a new request.
    (d) Payment of fees. The submission of a FOIA request constitutes an 
agreement to pay applicable fees accessed up to $25.00 unless the 
requesting party specifies a willingness to pay a greater or lesser 
amount or seeks a fee waiver or reduction in fees.
    (1) Fees in excess of $25.00. When Amtrak determines or estimates 
that applicable fees are likely to exceed $25.00, the requesting party 
shall be notified of estimated or actual fees, unless a commitment has 
been made in advance to pay all fees. If only a portion of the fee can 
be estimated readily, Amtrak shall advise the requester that the 
estimated fee may be a portion of the total fee.
    (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) Fees in excess of $250. When Amtrak estimates or determines that 
allowable charges are likely to exceed $250, an advance deposit of the 
entire fee may be required before continuing to process the request.
    (e) Information regarding fee category. In order to determine the 
appropriate fee category, a request should indicate whether the 
information sought is intended for commercial use or whether the 
requesting party is a member of the staff of an educational or 
noncommercial scientific institution or a representative of the news 
media.
    (f) Records concerning other individuals. If the request is for 
records concerning another individual, either a written authorization 
signed by that individual permitting disclosure of those records to the 
requesting party or proof that the individual is deceased (i.e., a copy 
of a death certificate or an obituary) will help to expedite processing 
of the request.



Sec. 701.6  Release and processing procedures.

    (a) General provisions. In determining records that are responsive 
to a request, Amtrak will ordinarily include only records that exist and 
are in the possession and control of the Corporation as of the date that 
the search is begun. If any other date is used, the requesting party 
will be informed of that date.
    (b) Authority to grant or deny requests. Amtrak's FOIA officer is 
authorized to grant or deny any request for records.
    (c) Notice of referral. If Amtrak refers all or any part of the 
responsibility for responding to a request to another organization, the 
requesting party will be notified. A referral shall not be considered a 
denial of access within the meaning of this part. All consultations and 
referrals of requests will be handled according to the date that the 
FOIA request was initially received.

[[Page 101]]

    (d) Creating a record. There is no obligation on the part of Amtrak 
to create, compile, or obtain a record to satisfy a FOIA request. The 
FOIA also does not require that a new computer program be developed to 
extract the records requested. Amtrak may compile or create a new 
record, however, when doing so would result in a more useful response to 
the requesting party or would be less burdensome to Amtrak than 
providing existing records. The cost of creating or compiling such a 
record may not be charged to the requester unless the fee for creating 
the record is equal to or less than the fee that would be charged for 
providing the existing record.
    (e) Incomplete records. If the records requested are not complete at 
the time of a request, Amtrak may, at its discretion, inform the 
requester that complete nonexempt records will be provided when 
available without having to submit an additional request.
    (f) Electronic records. Amtrak is not obligated to process a request 
for electronic records where creation of a record, programming or a 
particular format would result in a significant expenditure of resources 
or interfere with the corporation's operations.



Sec. 701.7  Timing of responses to requests.

    (a) General. (1) The time limits of the FOIA will begin only after 
the requirements for submitting a request as established in Sec. 701.5 
have been met, and the request is deemed received by the Freedom of 
Information Office.
    (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 Sec. 701.5(d), or
    (ii) The fees have been waived in accordance with Sec. 701.11(k), 
or
    (iii) Payment in advance has been received from the requester when 
required in accordance with Sec. 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 Sec. 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) Initial determination. Whenever possible, an initial 
determination to release or deny a record shall be made within twenty 
business days after receipt of the request. In ``unusual circumstances'' 
as described in paragraph (d) of this section, the time for an initial 
determination may be extended for ten business days.
    (c) Multitrack processing. (1) Amtrak may use two or more processing 
tracks by distinguishing between simple and more complex requests based 
on the amount of work and/or time needed to process a request or the 
number of pages involved.
    (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) Unusual circumstances. (1) The requesting party shall be 
notified in writing if the time limits for processing a request cannot 
be met because of unusual circumstances, and it will be necessary to 
extend the time limits for processing the request. The notification 
shall include the date by which the request can be expected to be 
completed. Where the extension is for more than ten business days, the 
requesting party will be afforded an opportunity to either modify the 
request so that it may be processed within the time limits or to arrange 
an alternative time

[[Page 102]]

period for processing the initial request or modified request.
    (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) Expedited processing. (1) Requests and appeals may be taken out 
of order and given expedited treatment whenever it is determined that 
they involve a compelling need, which means:
    (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.



Sec. 701.8  Responses to requests.

    (a) Granting of requests. When an initial determination is made to 
grant a request in whole or in part, the requesting party shall be 
notified in writing and advised of any fees charged under Sec. 
701.11(e). The records shall be disclosed to the requesting party 
promptly upon payment of applicable fees.
    (b) Adverse determination of requests. (1) Types of denials--The 
requesting party shall be notified in writing of a determination to deny 
a request in any respect. Adverse determinations or denials of records 
consist of:
    (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) Deletions. When practical, records disclosed in part shall be 
marked or annotated to show both the amount and location of the 
information deleted.
    (3) Content of denial letter. The denial letter shall be signed by 
the Freedom of Information Officer or designee and shall include:
    (i) A brief statement of the reason(s) for the adverse determination 
including any FOIA exemptions applied in denying the request;

[[Page 103]]

    (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 Sec. 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.



Sec. 701.9  Business information.

    (a) General. Business information held by Amtrak will be disclosed 
under the FOIA only under this section.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Business information means commercial or financial information 
held by Amtrak that may be protected from disclosure under Exemption 4 
of the FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity including partnerships; 
corporations; associations; and local, state, tribal, and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests and provides justification for a longer designation period.
    (d) Notice to submitters. Amtrak shall provide a submitter with 
prompt written notice of an FOIA request or an appeal that seeks its 
business information when required under paragraph (e) of this section, 
except as provided in paragraph (h), in order to give the submitter an 
opportunity to object to disclosure of any specified portion of the 
information under paragraph (f). The notice shall either describe the 
business information requested or include copies of the requested 
records or portions of records containing the information.
    (e) When notice is required. Notice shall be given to a submitter 
when:
    (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) Opportunity to object to disclosure. Amtrak will allow a 
submitter a reasonable amount of time to respond to the notice described 
in paragraph (d) of this section.
    (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) Notice of intent to disclose. Amtrak shall consider a 
submitter's objections and specific grounds for disclosure in making a 
determination whether to disclose the information. In any instance, when 
a decision is made to disclose information over the objection of a 
submitter, Amtrak shall give the submitter written notice which shall 
include:
    (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) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (1) Amtrak determines that the information should not be disclosed;

[[Page 104]]

    (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) Notice of a FOIA lawsuit. Whenever a FOIA requester files a 
lawsuit seeking to compel disclosure of business information, Amtrak 
shall promptly notify the submitter.
    (j) Notice to requesters. (1) When Amtrak provides a submitter with 
notice and an opportunity to object to disclosure under paragraph (f) of 
this section, the FOIA Office shall also notify the requester(s).
    (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).



Sec. 701.10  Appeals.

    (a) Appeals of adverse determinations. (1) The requesting party may 
appeal:
    (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) Responses to appeals. The decision on any appeal shall be made 
in writing.
    (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) When appeal is required. The requesting party must appeal any 
adverse determination prior to seeking judicial review.



Sec. 701.11  Fees.

    (a) General. Amtrak shall charge for processing requests under the 
FOIA in accordance with this section. A fee of $9.50 per quarter hour 
shall be charged for search and review. For information concerning other 
processing fees, refer to paragraph (e) of this section. Amtrak shall 
collect all applicable fees before releasing copies of requested records 
to the requesting party. Payment of fees shall be made by check or money 
order payable to the National Railroad Passenger Corporation.
    (b) Definitions. For purposes of this section:
    (1) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format.

[[Page 105]]

    (2) Review means the process of examining a record located in 
response to a request to determine whether one or more of the statutory 
exemptions of the FOIA apply. Processing any record for disclosure 
includes doing all that is necessary to redact the record and prepare it 
for release. Review time includes time spent considering formal 
objection to disclosure by a commercial submitter under Sec. 701.9, but 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions. Review costs are recoverable 
even if a record ultimately is not disclosed.
    (3) Reproduction means the making of a copy of a record or the 
information contained in it in order to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (i.e., magnetic tape or disk) among others. Amtrak 
shall honor a requester's specified preference for the form or format of 
disclosure if the record is readily reproducible with reasonable effort 
in the requested form or format by the office responding to the request.
    (4) Direct costs means those expenses actually incurred in searching 
for and reproducing (and, in the case of commercial use requests, 
reviewing) records to respond to a FOIA request. Direct costs include 
such costs as the salary of the employee performing the work (the basic 
rate of pay for the employee plus applicable benefits and the cost of 
operating reproduction equipment). Direct costs do not include overhead 
expenses such as the costs of space and heating or lighting of the 
facility.
    (c) Fee categories. There are four categories of FOIA requesters for 
fee purposes: ``commercial use requesters,'' ``representatives of the 
news media,'' ``educational and non-commercial scientific institution 
requesters,'' and ``all other requesters.'' The categories are defined 
in paragraphs (c)(1) through (5), and applicable fees, which are the 
same for two of the categories, will be assessed as specified in 
paragraph (d) of this section.
    (1) Commercial requesters. The term ``commercial use'' request 
refers to a request from or on behalf of a person who seeks information 
for a use or purpose that furthers his commercial, trade, or profit 
interests, including furthering those interests through litigation. 
Amtrak shall determine, whenever reasonably possible, the use to which a 
requester will put the records sought by the request. When it appears 
that the requesting party will put the records to a commercial use, 
either because of the nature of the request itself or because Amtrak has 
reasonable cause to doubt the stated intended use, Amtrak shall provide 
the requesting party with an opportunity to submit further 
clarification. Where a requester does not explain the use or where 
explanation is insufficient, Amtrak may draw reasonable inferences from 
the requester's identity and charge accordingly.
    (2) Representative of the news media or news media requester refers 
to any person actively gathering news for an entity that is organized 
and operated to publish or broadcast news to the public. The term 
``news'' means information that is about current events or that would be 
of current interest to the public. Examples of news media entities 
include television or radio stations broadcasting to the public at large 
and publishers of periodicals (but only in those instances where they 
can qualify as disseminators of news). For ``freelance'' journalists to 
be regarded as working for a news organization, they must demonstrate a 
solid basis for expecting publication through an organization. A 
publication contract would be the clearest proof, but Amtrak shall also 
look to the past publication record of a requester in making this 
determination. A request for records supporting the news dissemination 
function of the requester shall not be considered to be for commercial 
use.
    (3) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education that operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are not

[[Page 106]]

sought for commercial use but to further scholarly research.
    (4) Noncommercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis, as that term is defined 
in paragraph (c)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. To be in this 
category, the requesting party must show that the request is authorized 
by and is made under the auspices of a qualifying institution and that 
the records are not sought for commercial use but to further scientific 
research.
    (5) Other requesters refers to requesters who do not come under the 
purview of paragraphs (c)(1) through (4) of this section.
    (d) Assessing fees. In responding to FOIA requests, Amtrak shall 
charge the following fees unless a waiver or a reduction in fees has 
been granted under paragraph (k) of this section:
    (1) ``Commercial use'' requesters: The full allowable direct costs 
for search, review, and duplication of records.
    (2) ``Representatives of the news media'' and ``educational and non-
commercial scientific institution'' requesters: Duplication charges 
only, excluding charges for the first 100 pages.
    (3) ``All other'' requesters: The direct costs of search and 
duplication of records. The first 100 pages of duplication and the first 
two hours of search time shall be provided without charge.
    (e) Schedule of fees. (1) Manual searches--Personnel search time 
includes time expended in either manual searches for paper records, 
searches using indices, review of computer search results for relevant 
records, and personal computer system searches.
    (2) Computer searches. The direct costs of conducting a computer 
search will be charged. These direct costs will include the cost of 
operating a central processing unit for that portion of the operating 
time that is directly attributable to searching for responsive records 
as well as the costs of operator/programmer salary apportionable to the 
search.
    (3) Duplication fees. Duplication fees will be charged all 
requesters subject to limitations specified in paragraph (d) of this 
section. Amtrak shall charge 25 cents per page for a paper photocopy of 
a record. For copies produced by computer (such as tapes or printouts), 
Amtrak will charge the direct costs, including the operator time in 
producing the copy. For other forms of duplication, Amtrak will charge 
the direct costs of that duplication.
    (4) Review fees. Review fees will be assessed for commercial use 
requests. Such fees will be assessed for review conducted in making an 
initial determination, or upon appeal, when review is conducted to 
determine whether an exemption not previously considered is applicable.
    (5) Charges for other services. The actual cost or amount shall be 
charged for all other types of output, production, and duplication 
(e.g., photographs, maps, or printed materials). Determinations of 
actual cost shall include the commercial cost of the media, the 
personnel time expended in making the item available for release, and an 
allocated cost for the equipment used in producing the item. The 
requesting party will be charged actual production costs when a 
commercial service is required. Items published and available through 
Amtrak will be made available at the publication price.
    (6) Charges for special services. Apart from the other provisions of 
this section, when Amtrak chooses as a matter of discretion to provide a 
special service such as certifying that records are true copies or 
sending records by other than ordinary mail, the direct costs of 
providing such services shall be charged.
    (f) Commitment to pay fees. When Amtrak determines or estimates that 
applicable fees will likely exceed $25.00, the requesting party will be 
notified of the actual or estimated amount unless a written statement 
has been received indicating a willingness to pay all fees. To protect 
requesters from large and/or unexpected fees, Amtrak will request a 
specific commitment when it is estimated or determined that fees will 
exceed $100.00. See Sec. 701.5(d) for additional information.
    (g) Restrictions in accessing fees. (1) General--Fees for search and 
review will not be charged for a quarter-hour

[[Page 107]]

period unless more than half of that period is required.
    (2) Minimum fee. No fees will be charged if the cost of collecting 
the fee is equal to or greater than the fee itself. That cost includes 
the costs to Amtrak for billing, receiving, recording, and processing 
the fee for deposit, which has been deemed to be $10.00.
    (3) Computer searches. With the exception of requesters seeking 
documents for commercial use, Amtrak shall not charge fees for computer 
search until the cost of search equals the equivalent dollar amount of 
two hours of the salary of the operator performing the search.
    (h) Nonproductive searches. Amtrak may charge for time spent for 
search and review even if responsive records are not located or if the 
records located are determined to be entirely exempt from disclosure.
    (i) Advance payments. (1) When Amtrak estimates or determines that 
charges are likely to exceed $250, an advance payment of the entire fee 
may be required before continuing to process the request.
    (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) Charging interest. Amtrak may charge interest on any unpaid bill 
for processing charges starting on the 31st day following the date of 
billing the requester. Interest charges will be assessed at the rate 
that Amtrak pays for short-term borrowing.
    (k) Waiver or reduction of fees. (1) Automatic waiver of fees--When 
the costs for a FOIA request total $10.00 or less, fees shall be waived 
automatically for all requesters regardless of category.
    (2) Other fee waivers. Decisions to waive or reduce fees that exceed 
the automatic waiver threshold shall be made on a case-by-case basis. 
Records responsive to a request will be furnished without charge or at 
below the established charge where Amtrak determines, based on all 
available information, that disclosure of the requested information is 
in the public interest because:
    (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) The subject of the request--whether the subject of the requested 
records concerns the operations or activities of Amtrak. The subject of 
the requested records must concern identifiable operations or activities 
of Amtrak with a connection that is direct and clear, not remote or 
attenuated.
    (ii) The informative value of the information to be disclosed--
whether the disclosure is likely to contribute to an understanding of 
Amtrak operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about Amtrak's 
operations or activities in order to be found to be likely to contribute 
to an increased public understanding of those operations or activities. 
The disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.

[[Page 108]]

    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure--whether disclosure of the 
requested information will contribute to public understanding. The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject as opposed to the 
individual understanding of the requester. A requester's ability and 
expertise in the subject area as well as the requester's intention to 
effectively convey information to the public shall be considered. It 
shall be presumed that a representative of the news media will satisfy 
this consideration.
    (iv) The significance of the contribution to public understanding--
whether the disclosure is likely to contribute significantly to public 
understanding of Amtrak operations or activities. The public's 
understanding of the subject in question, as compared to the level of 
public understanding existing prior to the disclosure, must be enhanced 
by the disclosure to a significant extent.
    (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) The existence and magnitude of a commercial interest--whether 
the requesting party has a commercial interest that would be furthered 
by the requested disclosure. Amtrak shall consider any commercial 
interest of the requesting party (with reference to the definition of 
``commercial use'' in paragraph (c)(1) of this section), or any person 
on whose behalf the requesting party may be acting that would be 
furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure--whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.'' 
A fee waiver or reduction is justified where the public interest 
standard is satisfied and public interest is greater in magnitude than 
any identified commercial interest in disclosure.
    (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) Aggregating requests. A requester may not file multiple requests 
at the same time in order to avoid payment of fees. Where Amtrak 
reasonably believes that a requester or a group of requesters acting in 
concert is attempting to divide a request into a series of requests for 
the purpose of avoiding fees, Amtrak may aggregate those requests and 
charge accordingly. Amtrak may presume that multiple requests of this 
type made within a thirty-day period have been made in order to avoid 
fees. Where requests are separated by a longer period, Amtrak may 
aggregate them only when there exists a solid basis for determining that 
aggregation is warranted. Multiple requests involving unrelated matters 
may not be aggregated.



Sec. 701.12  Other rights and services.

    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.

[[Page 109]]



           CHAPTER VIII--NATIONAL TRANSPORTATION SAFETY BOARD




  --------------------------------------------------------------------
Part                                                                Page
800             Organization and functions of the Board and 
                    delegations of authority................         111
801             Public availability of information..........         117
802             Rules implementing the Privacy Act of 1974..         124
803             Official seal...............................         131
804             Rules implementing the Government in the 
                    Sunshine Act............................         132
805             Employee responsibilities and conduct.......         136
806             National security information policy and 
                    guidelines, implementing regulations....         144
807             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the National 
                    Transportation Safety Board.............         146
821             Rules of practice in air safety proceedings.         151
825             Rules of procedure for merchant marine 
                    appeals from decisions of the 
                    Commandant, U.S. Coast Guard............         168
826             Rules implementing the Equal Access to 
                    Justice Act of 1980.....................         171
830             Notification and reporting of aircraft 
                    accidents or incidents and overdue 
                    aircraft, and preservation of aircraft 
                    wreckage, mail, cargo, and records......         177
831             Accident/incident investigation procedures..         180
835             Testimony of Board employees................         185
837             Production of records in legal proceedings..         188
840             Rules pertaining to notification of railroad 
                    accidents...............................         189
845             Rules of practice in transportation; 
                    accident/incident hearings and reports..         191
850             Coast Guard--National Transportation Safety 
                    Board marine casualty investigations....         195
851-999         [Reserved]

[[Page 111]]



PART 800_ORGANIZATION AND FUNCTIONS OF THE BOARD AND DELEGATIONS OF AUTHORITY
--Table of Contents




                  Subpart A_Organization and Functions

Sec.
800.1 Purpose.
800.2 Organization.
800.3 Functions.
800.4 Operation.
800.5 Office locations.
800.6 Availability of information and materials.

           Subpart B_Delegations of Authority to Staff Members

800.21 Purpose.
800.22 Delegation to the Managing Director.
800.23 Delegation to the administrative law judges, Office of 
          Administrative Law Judges.
800.24 Delegation to the General Counsel.
800.25 Delegation to the Directors of Office of Aviation Safety, Office 
          of Railroad Safety, Office of Highway Safety, Office of Marine 
          Safety, and Office of Pipeline and Hazardous Materials Safety.
800.26 Delegation to the Chief, Public Inquiries Branch.
800.27 Delegation to investigative officers and employees of the Board.
800.28 Delegation to the Chief Financial Officer.

Appendix to Part 800--Request to the Secretary of the Department of 
          Transportation To Investigate Certain Aircraft Accidents

    Authority: Independent Safety Board Act of 1974, as amended (49 
U.S.C. 1101 et seq.); Federal Aviation Act of 1958, as amended (49 
U.S.C. 40101 et seq.).

    Source: 49 FR 26232, June 27, 1984, unless otherwise noted.



                  Subpart A_Organization and Functions



Sec. 800.1  Purpose.

    This part describes the organization, functions, and operation of 
the National Transportation Safety Board (Board).



Sec. 800.2  Organization.

    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 et seq.), and the Independent Safety Board Act 
of 1974, as amended (49 U.S.C. 1101 et seq.). The Board is an 
independent agency of the United States. More detailed descriptions of 
the Board and its work are contained in other parts of this chapter 
VIII, notably parts 825, 830 through 835, and 840 through 850. Various 
special delegations of authority from the Board and the Chairman to the 
staff are set forth in subpart B of this part. The Board's staff is 
comprised of the following principal components:
    (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

[[Page 112]]

to which the Board is a party or in which the Board is interested.
    (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

[[Page 113]]

safety promotion activities and supports public access to these records; 
and administers the Board's information technology infrastructure, 
including computer systems, networks, databases, and application 
software.
    (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.

[60 FR 61488, Nov. 30, 1996, as amended at 61 FR 14521, April 2, 1995; 
63 FR 71605, Dec. 29, 1998; 64 FR 5621, Feb. 4, 1999]



Sec. 800.3  Functions.

    (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 et seq., denials by the 
Administrator of the Federal Aviation Administrator of applications for 
airman certificates and orders of the Administrator modifying, amending, 
suspending, or revoking certificates or imposing civil penalties. The 
Board also reviews on appeal the decisions of the Commandant, U.S. Coast 
Guard, on appeals from orders of administrative law judges suspending, 
revoking, or denying seamen licenses, certificates, or documents.
    (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.

[60 FR 61488, Nov. 30, 1995]



Sec. 800.4  Operation.

    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 Sec. 800.2.
    (b) Rules published in the Federal Register and codified in this 
Title 49 of the Code of Federal Regulations. These rules may be 
inspected in the Board's public reference room, or purchased from the 
Superintendent of Documents, Government Printing Office.

[[Page 114]]

    (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 Federal Register.

[49 FR 26232, June 27, 1984, as amended at 60 FR 61489, Nov. 30, 1995]



Sec. 800.5  Office locations.

    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.

[60 FR 61489, Nov. 30, 1995]



Sec. 800.6  Availability of information and materials.

    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.



           Subpart B_Delegations of Authority to Staff Members



Sec. 800.21  Purpose.

    The purpose of this Subpart B is to publish special delegations of 
authority to staff members.

[60 FR 61489, Nov. 30, 1995]



Sec. 800.22  Delegation to the Managing Director.

    (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 Federal Register notices 
concerning issuance of accident reports and safety recommendations and 
responses to safety recommendations, as required by sections 304(a)(2) 
and 307 of the Independent Safety Board Act of 1974 (49 U.S.C. 1131(d) 
and 1135(c)).
    (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.

[60 FR 61489, Nov. 30, 1995]



Sec. 800.23  Delegation to the administrative law judges, Office of 
Administrative Law Judges.

    The Board delegates to the administrative law judges the authority 
generally detailed in its procedural regulations at Part 821 of this 
chapter.

[60 FR 61489, Nov. 30, 1995]



Sec. 800.24  Delegation to the General Counsel.

    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.

[[Page 115]]

    (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 amicus briefs pursuant to 
Sec. Sec. 821.9 and 821.48 of this Chapter, and raise on appeal any 
issue the resolution of which he deems important to the proper 
disposition of proceedings under Sec. 821.49 of this Chapter.
    (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.

[60 FR 61489, Nov. 30, 1995, as amended at 63 FR 71606, Dec. 29, 1998]



Sec. 800.25  Delegation to the Directors of Office of Aviation Safety, 

Office of Railroad Safety, Office of Highway Safety, Office of Marine 
Safety, and Office of Pipeline and Hazardous Materials Safety.

    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 Sec. 845.41 of this 
Chapter shall be acted on by the Board.
    (d) Consistent with Board resources, investigate accidents as 
provided under Sec. 304(a) of the Independent Safety Board Act of 1974, 
as amended (49 U.S.C. 1131(a)) and the Appendix to this Part.

[60 FR 61489, Nov. 30, 1995, as amended at 63 FR 71606, Dec. 29, 1998]



Sec. 800.26  Delegation to the Chief, Public Inquiries Branch.

    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.

[63 FR 71606, Dec. 29, 1998]

[[Page 116]]



Sec. 800.27  Delegation to investigative officers and employees of the 
Board.

    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.

[60 FR 61490, Nov. 30, 1995]



Sec. 800.28  Delegation to the Chief Financial Officer.

    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.

[63 FR 71606, Dec. 29, 1998]

  Appendix to Part 800--Request to the Secretary of the Department of 
        Transportation to Investigate Certain Aircraft Accidents

    (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) Provided, That the Board may, through the chiefs of its field 
offices, or their designees who receive the initial notifications, 
advise the Secretary, through his appropriate designee, that the Board 
will assume the full responsibility for the investigation of an accident 
included in this request in the same manner as an accident not so 
included; and Provided further, That the Board, through the chiefs of 
its field offices, or their designees who receive initial notifications 
may request the Secretary, through his appropriate designee, to 
investigate an accident not included in this request, which would 
normally be investigated by the Board under section (b) (1) through (4) 
above, and in the same manner as an accident so included.
    (d) Provided, That this authority shall not be construed to 
authorize the Secretary to hold public hearings or to determine the 
probable cause of the accident; and Provided further, That the Secretary 
will report to the Board in a form acceptable to the Board the facts, 
conditions, and circumstances surrounding each accident from which the 
Board may determine the probable cause.
    (e) And provided further, That this request includes authority to 
conduct autopsies and such other tests of the remains of deceased 
persons aboard the aircraft at the time of the accident, who die as a 
result of the accident, necessary to the investigations requested 
hereunder and such authority may be delegated and redelegated to any 
official or employee of the Federal Aviation Administration (FAA). For 
the purpose of this provision, designated aviation examiners are not 
deemed to be officials or employees of the FAA.
    (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.

[49 FR 26232, June 27, 1984, as amended at 63 FR 71606, Dec. 29, 1998]

[[Page 117]]



PART 801_PUBLIC AVAILABILITY OF INFORMATION--Table of Contents




                   Subpart A_Applicability and Policy

Sec.
801.1 Applicability.
801.2 Policy.
801.3 Definitions.

                        Subpart B_Administration

801.10 General.
801.11 Segregability of records.
801.12 Protection of records.

                          Subpart C_Time Limits

801.20 Initial determination.
801.21 Final determination.
801.22 Extension.

                Subpart D_Accident Investigation Records

801.30 Field aircraft accident investigations.
801.31 Major aircraft accident investigations.
801.32 Aircraft accident public hearings.
801.33 Surface transportation accident investigations.
801.34 Surface accident public hearings.
801.35 Aviation accident reports.
801.36 Surface transportation accident reports.

                     Subpart E_Other Board Documents

801.40 The Board's rules.
801.41 Transportation safety recommendations.
801.42 Indexes to aviation and maritime enforcement cases.
801.43 Administrative staff manuals and instructions and indexes that 
          affect the public.
801.44 Reports to Congress.
801.45 Other records.
801.46 Special document services.

               Subpart F_Exemption From Public Disclosure

801.50 General.
801.51 National defense and foreign policy secrets.
801.52 Internal personnel rules and practices of the Board.
801.53 Records exempt by statute from disclosure.
801.54 Interagency and intra-agency exchanges.
801.55 Unwarranted invasion of personal privacy.
801.56 Records compiled for law enforcement purposes.
801.57 Records for regulation of financial institutions.
801.58 Geological records.
801.59 Trade secrets and commercial or financial information.

Appendix to Part 801--Fee Schedule

    Authority: 5 U.S.C. 552; 49 U.S.C. 1101 et seq.; 18 U.S.C. 641 and 
2071.

    Source: 41 FR 39755, Sept. 16, 1976, unless otherwise noted.



                   Subpart A_Applicability and Policy



Sec. 801.1  Applicability.

    (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.



Sec. 801.2  Policy.

    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.

[[Page 118]]



Sec. 801.3  Definitions.

    Record includes any writing, drawing, map, recording, tape, film, 
photo, or other documentary material by which information is preserved, 
and this definition also applies to section 306(a) of the Independent 
Safety Board Act of 1974, which requires public access to any 
information. In this part, document and record shall have the same 
meaning.
    Chairman means the Chairman of the Board.
    Managing Director means the Managing Director of the Board.



                        Subpart B_Administration



Sec. 801.10  General.

    (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.



Sec. 801.11  Segregability of records.

    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.



Sec. 801.12  Protection of records.

    (a) No person may, without permission, remove from the place where 
it is

[[Page 119]]

made available any record made available to him for inspection or 
copying. Stealing, altering, multilating, obliterating, or destroying, 
in whole or in part, such a record shall be deemed a crime.
    (b) Section 641 of title 18 of the U.S.C. provides, in pertinent 
part, as follows:

    ``Whoever * * * steals, purloins, or knowingly converts to his use 
or the use of another, or without authority, sells, conveys or disposes 
of any record * * * or thing of value of the United States or of any 
department or agency thereof * * * Shall be fined not more than $10,000 
or imprisoned not more than ten years or both; but if the value of such 
property does not exceed the sum of $100, he shall be fined not more 
than $1,000 or imprisoned not more than one year, or both. * * *''

    (c) Section 2071(a) of title 18 of the U.S.C. provides, in pertinent 
part, as follows:

    ``(a) Whoever willfully and unlawfully conceals, removes, mutilates, 
obliterates, or destroys, or attempts to do so, or, with intent to do so 
takes and carries away any record, proceeding, map, book, paper, 
document, or other things, filed or deposited * * * in any public 
office, or with any * * * public officer of the United States, shall be 
fined not more than $2,000 or imprisoned not more than three years, or 
both.''



                          Subpart C_Time Limits



Sec. 801.20  Initial determination.

    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 Sec. 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.



Sec. 801.21  Final determination.

    A determination with respect to any appeal made pursuant to Sec. 
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 Sec. 801.22.



Sec. 801.22  Extension.

    In unusual circumstances as specified in this section, the time 
limits prescribed in either, but not both, Sec. 801.20 or Sec. 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.



                Subpart D_Accident Investigation Records



Sec. 801.30  Field aircraft accident investigations.

    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

[[Page 120]]

or commercial copy order (see appendix).



Sec. 801.31  Major aircraft accident investigations.

    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).



Sec. 801.32  Aircraft accident public hearings.

    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).



Sec. 801.33  Surface transportation accident investigations.

    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).



Sec. 801.34  Surface accident public hearings.

    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.



Sec. 801.35  Aviation accident reports.

    (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 Federal Register, as 
required by section 304(a)(2) of the Independent Safety Board Act of 
1974, the report shall be made available for public inspection in the 
Board's public reference room. (See appendix for copies and 
subscriptions.)



Sec. 801.36  Surface transportation accident reports.

    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 Federal Register, as required by 
section 304 (a)(2) of the Independent Safety Board Act of 1974, the 
report shall be made available for public inspection in the Board's 
public reference room. (See appendix for copies and subscriptions.)



                     Subpart E_Other Board Documents



Sec. 801.40  The Board's rules.

    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.

[[Page 121]]



Sec. 801.41  Transportation safety recommendations.

    All transportation safety recommendations issued by the Board, and 
responses thereto, shall be noticed in the Federal Register as required 
by section 307 of the Independent Safety Board Act of 1974, and 
thereafter shall be made available for inspection or copying in the 
Board's public reference room. (See appendix for copies and 
subscriptions.)



Sec. 801.42  Indexes to aviation and maritime enforcement cases.

    (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.)



Sec. 801.43  Administrative staff manuals and instructions and indexes 
that affect the public.

    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).



Sec. 801.44  Reports to Congress.

    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.



Sec. 801.45  Other records.

    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 Sec. 
801.10(j), and should contain a reasonable description of the specific 
record desired.



Sec. 801.46  Special document services.

    (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.



               Subpart F_Exemption From Public Disclosure



Sec. 801.50  General.

    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 Sec. Sec. 801.51 through 801.58 
included within a particular statutory exemption are not necessarily 
illustrative of all types of records covered by the exemption.



Sec. 801.51  National defense and foreign policy secrets.

    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.)



Sec. 801.52  Internal personnel rules and practices of the Board.

    (a) Records relating solely to internal personnel rules and 
practices that are within the statutory exemptions

[[Page 122]]

include memoranda pertaining to personnel matters such as staffing 
policies, and procedures for the hiring, training, promotion, demotion, 
or discharge of employees, and management plans, records, or proposals 
relating to labor-management relations.
    (b) The purpose of this section is to protect any records relating 
to internal personnel rules and practices dealing with the relations 
between Board management and employees.



Sec. 801.53  Records exempt by statute from disclosure.

    This exemption applies to records specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552b): Provided, That such 
statute (a) requires that the matters be withheld from the public in 
such manner as to leave no discretion on the issue, or (b) establishes 
particular criteria for withholding or refers to particular types of 
matters to be withheld.

(Authority: 5 U.S.C. 552b)

[42 FR 13284, Mar. 10, 1977]



Sec. 801.54  Interagency and intra-agency exchanges.

    (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.



Sec. 801.55  Unwarranted invasion of personal privacy.

    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.



Sec. 801.56  Records compiled for law enforcement purposes.

    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.



Sec. 801.57  Records for regulation of financial institutions.

    Records compiled for agencies regulating or supervising financial 
institutions are exempt from public disclosure.

[[Page 123]]



Sec. 801.58  Geological records.

    Records concerning geological wells are exempt from public 
disclosure.



Sec. 801.59  Trade secrets and commercial or financial information.

    Trade secrets and commercial or financial information obtained from 
a person and privileged or confidential are exempt from public 
disclosure.

[42 FR 13284, Mar. 10, 1977]

                   Appendix to Part 801--Fee Schedule

    1. Fees (pursuant to 31 U.S.C. 483a). Upon request, services 
relating to public documents are available at the following fees:

                             A. Publications

    (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):

------------------------------------------------------------------------
                                                  Calendar
                                       Single       year      Microfiche
                                       copies   subscription
------------------------------------------------------------------------
PB84-910400 Aircraft Accident            $5.00       $55.00       (\1\)
 Reports............................
PB84-916200 Highway Accident Reports     (\1\)        50.00       (\1\)
PB84-916300 Railroad Accident            (\1\)        55.00       (\1\)
 Reports............................
PB84-916400 Marine Accident Reports.     (\1\)        60.00       (\1\)
PB84-916500 Pipeline Accident            (\1\)        45.00       (\1\)
 Reports............................
PB84-916900 Aviation Accident Briefs     (\1\)       160.00       (\1\)
PB84-917100 Highway Accident Briefs.     12.50        (\2\)       (\1\)
PB84-917200 Railroad Accident Briefs     12.50        (\2\)       (\1\)
PB84-917300 Marine Accident Briefs..     10.00        (\2\)       (\1\)
PB84-917400 Pipeline Accident Briefs     10.00        (\2\)       (\1\)
PB84-916600 Transportation Safety        (\1\)        55.00       (\1\)
 Recommendations....................
PB84-916700 Transportation Initial       (\1\)       200.00       (\1\)
 Decisions and Orders and Board
 Opinions & Orders..................
PB84-917000 Transportation Special       (\1\)        50.00      (\1\)
 Reports \3\........................
------------------------------------------------------------------------
\1\ Variable prices based on number of pages; contact NTIS for price
  quote.
\2\ Highway, Railroad, Marine and Pipeline brief subscriptions are
  available by standing order only and require an NTIS deposit account
  (they are issued at irregular intervals, and charges at single copy
  rates will be made only as reports are distributed).
\3\ Transportation Special Reports [this category includes all forms of
  Safety Studies (formerly titled Special Studies, and Safety
  Effectiveness Evaluations), Special Investigation Reports, and
  Railroad/Highway Accident Reports].

    (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:

a. Microfiche Duplicate, $1.65
b. Microfiche Blowback, .11
c. Aperture Card Blowback, 1.40
d. Photographs (from aperture card):
    8x10 B&W Glossy Print, 1.65
    8x10 Color Prints, 2.75
    5x7 Color Prints, 2.47
    3\1/2\x5 Color Prints, 2.47

[[Page 124]]

e. Hardcopy Reproduction:
    8\1/2\x11 .14
    8\1/2\x14 .10
    10x14 .05
    Oversized Pages (Larger than 10x14), .03/sq. 
in.
f. Photographs (from prints):
    8x10 B&W Glossy Prints, 1.65
    8x10 Color Prints, 2.75
    5x7 Color Prints, 2.47
    3\1/2\x5 Color Prints, 2.47
    2x2 Color Slides, 2.47
g. Minimum Order Complete File, 1.00
h. Preliminary Report (only), 1.35
i. Probable Cause (only), 1.35

    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.

(5 U.S.C. 552, 31 U.S.C. 483a, and 49 U.S.C. 1901 et seq.)

[49 FR 4496, Feb. 7, 1984]



PART 802_RULES IMPLEMENTING THE PRIVACY ACT OF 1974--Table of Contents




                   Subpart A_Applicability and Policy

Sec.
802.1 Purpose and scope.
802.2 Definitions.

              Subpart B_Initial Procedures and Requirements

802.5 Procedures for requests pertaining to individual records in a 
          record system.
802.6 Types of requests and specification of records.

[[Page 125]]

802.7 Requests: How, where, and when presented; verification of identity 
          of individuals making requests; accompanying persons; and 
          procedures for acknowledgement of requests.

                    Subpart C_Initial Determinations

802.8 Disclosure of requested information.

               Subpart D_Correction or Amending the Record

802.10 Request for correction or amendment to record.
802.11 Agency review of requests for correction or amendment of record.
802.12 Initial adverse agency determination on correction or amendment.

            Subpart E_Review of Initial Adverse Determination

802.14 Review procedure and judicial review.

                             Subpart F_Fees

802.15 Fees.

                           Subpart G_Penalties

802.18 Penalties.

                      Subpart H_Specific Exemptions

802.20 Security records.

    Authority: 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.

    Source: 41 FR 22358, June 3, 1976, unless otherwise noted.



                   Subpart A_Applicability and Policy



Sec. 802.1  Purpose and scope.

    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.

[41 FR 39758, Sept. 16, 1976]



Sec. 802.2  Definitions.

    In this part:
    Board means the five Members of the National Transportation Safety 
Board, or a quorum thereof;
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence;
    National Transportation Safety Board (NTSB) means the agency set up 
under the Independent Safety Board Act of 1974;
    Record means any item, collection, or grouping of information about 
an individual that is maintained under the control of the NTSB pursuant 
to Federal law or in connection with the transaction of public business, 
including, but not limited to, education, financial transactions, 
medical history, and criminal or employment history, and that contains a 
name, or an identifying number, symbol, or other identifying particular 
assigned to an individual, such as a finger or voice imprint or 
photograph;
    Routine use means the use of such record for a purpose compatible 
with the purpose for which it was collected, including, but not limited 
to, referral to law enforcement agencies of violations of the law and 
for discovery purposes ordered by a court referral to potential 
employers, and for security clearance;
    Statistical record means a record in a system of records maintained 
for statistical research or reporting purposes only and which is not 
used wholly or partially in any determination concerning an identifiable 
individual;
    System Manager means the agency official who is responsible for the 
policies and practices of his particular system or systems of record, as 
specified in the NTSB notices of systems or records; and
    System of records means a group of any records under the control of 
the NTSB from which information is retrieved by the name of an 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual, whether presently in existence or 
set up in the future.

[[Page 126]]



              Subpart B_Initial Procedures and Requirements



Sec. 802.5  Procedures for requests pertaining to individual records in 
a record system.

    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.



Sec. 802.6  Types of requests and specification of records.

    (a) Types of requests. An individual may make the following request 
respecting records about himself maintained by NTSB in any system of 
records subject to the Act:
    (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) Specification of records. All requests for access to records 
must reasonably describe the system of records and the individual's 
record within the system of records in sufficient detail to permit 
identification of the requested record. Specific information regarding 
the system name, the individual's full name, and other information 
helpful in identifying the record or records shall be included. Requests 
for correction or amendment of records shall, in addition, specify the 
particular record involved, state the nature of the correction or 
amendment sought, and furnish justification for the correction or 
amendment.
    (c) Inadequate identification of record. Requests which do not 
contain information sufficient to identify the record requested will be 
returned promptly to the requester, with a notice indicating what 
information is lacking. Individuals making requests in person will be 
informed of any deficiency in the specification of the records at the 
time the request is made. Individuals making requests in writing will be 
notified of any such deficiency when their request is acknowledged.



Sec. 802.7  Requests: How, where, and when presented; verification of 

identity of individuals making requests; accompanying persons; and 
procedures for acknowledgment of requests.

    (a) Requests--general. Requests may be made in person or in writing. 
Assistance regarding requests or other matters relating to the Act may 
be obtained by writing to the Director, Bureau of Administration, 
National Transportation Safety Board, 800 Independence Avenue, SW., 
Washington, DC 20594. The Director, Bureau of Administration, or his 
designee, on request, will aid an individual in preparing an

[[Page 127]]

amendment to the record or to an appeal following denial of a request to 
amend the record, pursuant to subsection (f)(4) of the Act.
    (b) Written requests. Written requests shall be made to the 
Director, Bureau of Administration at the address given above, and shall 
clearly state on the envelope and on the request itself, ``Privacy Act 
Request,'' ``Privacy Act Statement of Disagreement,'' ``Privacy Act 
Disclosure Accounting Request,'' ``Appeal from Privacy Act Adverse 
Determination,'' or ``Privacy Act Correction Request,'' as the case may 
be. Actual receipt by the Director, Bureau of Administration, or his 
designee, shall constitute receipt.
    (c) Requests made in person. Requests may be made in person during 
official working hours of the NTSB at the office where the record is 
located, as listed in the ``Notice of Systems of Records'' for the 
system in which the record is contained.
    (d) Verification of identity of requester. (1) For written requests, 
the requester's identity must be verified before the release of any 
record, unless exempted under the FOIA. This may be accomplished by 
adequate proof of identity in the form of a driver's license or other 
acceptable item of the same type.
    (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) Inability to provide requisite documentation of identity. A 
requester who cannot provide the necessary documentation of identity may 
provide a notarized statement, swearing or affirming his identity and 
the fact that he is aware of the penalties for false statement imposed 
pursuant to 18 U.S.C. 1001, and subsection (i)(3) of the Act. Where 
requested, the Director, Bureau of Administration, or his designee, will 
assist the requester in formulating the necessary document.
    (f) Accompanying persons. A requester may wish to have a person of 
his choice accompany him to review the requested record. Prior to the 
release of the record, the NTSB will require the requester to furnish 
the Director, Bureau of Administration or his designee, with a written 
statement authorizing disclosure of the record in the accompanying 
person's presence.
    (g) Acknowledgment of requests. Written requests to verify the 
existence of, to obtain access to, or to correct or amend records about 
the requester maintained by NTSB in any system of records subject to the 
Act, shall be acknowledged in writing by the Director, Bureau of 
Administration, or his designee, within 3 working days after the date of 
actual receipt of the request by the Director, Bureau of Administration, 
or his designee. The acknowledgment shall advise the requester of the 
need for any additional information to process the request. Wherever 
practicable, the acknowledgment shall notify the individual whether his 
request has been granted or denied. When a request is made in person, 
every effort will be made to determine immediately whether the request 
will be granted. If such decision cannot be made, the request will be 
processed in the same manner as a written request. Records will be made 
available for immediate inspection whenever possible.

[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]



                    Subpart C_Initial Determinations



Sec. 802.8  Disclosure of requested information.

    (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;

[[Page 128]]

    (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.

[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]



               Subpart D_Correction or Amending the Record



Sec. 802.10  Request for correction or amendment to record.

    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.

[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]



Sec. 802.11  Agency review of requests for correction or amendment of record.

    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.

[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]



Sec. 802.12  Initial adverse agency determination on correction or amendment.

    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.

The System Manager is allotted 10 working days (or within such extended 
period as is provided in the section concerning ``unusual 
circumstances'' infra) to respond to the request for review. If the 
requester does not receive an answer within such time, the delay shall 
constitute a denial of the request and shall permit the requester 
immediately to appeal to the Board, or to a district court.

[[Page 129]]



            Subpart E_Review of Initial Adverse Determination



Sec. 802.14  Review procedure and judicial review.

    (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) Review of denial of access. If the appeal upholds the denial 
of access to records, the Board shall: Notify the requester in writing, 
explaining the Board's determination; state that the denial is a final 
agency action and that judicial review is available in a district court 
of the United States in the district where the requester resides or has 
his principal place of business, or where the agency records are 
located, or in the District of Columbia; and request a filing with the 
Board of a concise statement enumerating the reasons for the requester's 
disagreement with the denial, pursuant to subsection (g) of the Act.
    (2) Review of denial of correction or amendment. If the appeal 
upholds the denial in whole or in part for correction or amendment of 
the record, the same notification and judicial review privileges 
described in paragraph (c)(1) of this section shall apply.
    (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) Statements of Disagreement. (1) Written Statements of 
Disagreement may be furnished by the individual within 30 working days 
of the date of actual receipt of the final adverse determination of the 
Board. They shall be addressed to the Director, Bureau of 
Administration, National Transportation Safety Board, 800 Independence 
Avenue, SW., Washington, DC 20594, and shall be clearly marked, both on 
the statement and on the envelope, ``Privacy Act Statement of 
Disagreement.''
    (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.

[[Page 130]]

    (h) Notices of correction and/or amendment, or dispute. After a 
record has been corrected or a Statement of Disagreement has been filed, 
the Director, Bureau of Administration, or his designee, shall within 30 
working days thereof, advise all previous recipients of the affected 
record as to the correction or the filing of the Statement of 
Disagreement. The identity of such recipients shall be determined 
pursuant to an accounting of disclosures required by the Act or any 
other accounting previously made. Any disclosure of disputed information 
occurring after a Statement of Disagreement has been filed shall clearly 
identify the specific information disputed and shall be accompanied by a 
copy of the Statement of Disagreement and a copy of any NTSB Statement 
of Explanation.
    (i) Disclosure to others of records concerning individuals. Neither 
the Board nor other NTSB personnel shall disclose any record which is 
contained in a system of records maintained by NTSB, by any means of 
communication, including oral communication, to any person, or to 
another Government agency, except pursuant to a written request by, or 
with the prior written consent, of the individual to whom the record 
pertains, unless disclosure of the record is:
    (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 Federal Register;
    (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; \1\
---------------------------------------------------------------------------

    \1\ The advance written statement of assurance shall state the 
purpose for which the record is requested and certify that it will be 
used only for statistical purposes. Prior to release under this 
paragraph, the record shall be stripped of all personally identifiable 
information and reviewed to ensure that the identity of any individual 
cannot reasonably be determined by combining two or more statistical 
records.
---------------------------------------------------------------------------

    (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; 
\2\
---------------------------------------------------------------------------

    \2\ A record may be disclosed to a law enforcement agency at the 
initiative of NTSB if criminal conduct is suspected, provided that such 
disclosure has been established as a routine use by publication in the 
Federal Register, and the instance of misconduct is directly related to 
the purpose for which the record is maintained.
---------------------------------------------------------------------------

    (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) Notices of subpoenas. When records concerning an individual are 
subpoenaed or otherwise disclosed pursuant to court order, the NTSB 
officer or employee served with the subpoena shall be responsible for 
assuring that the individual is notified of the disclosure within 5 days 
after such subpoena or other order becomes a matter of public record. 
The notice shall be mailed to

[[Page 131]]

the last known address of the individual and shall contain the following 
information: (1) The date the subpoena is returnable; (2) the court in 
which it is returnable; (3) the name and number of the case or 
proceeding; and (4) the nature of the information sought.
    (k) Notices of emergency disclosures. When information concerning an 
individual has been disclosed to any person under compelling 
circumstances affecting health or safety, the NTSB officer or employee 
who made or authorized the disclosure shall notify the individual at his 
last known address within 5 days of the disclosure. The notice shall 
contain the following information: (1) The nature of the information 
disclosed; (2) the person or agency to whom the information was 
disclosed; (3) the date of the disclosure; and (4) the compelling 
circumstances justifying the disclosure.

[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]



                             Subpart F_Fees



Sec. 802.15  Fees.

    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.



                           Subpart G_Penalties



Sec. 802.18  Penalties.

    (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.



                      Subpart H_Specific Exemptions



Sec. 802.20  Security records.

    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.



PART 803_OFFICIAL SEAL--Table of Contents




Sec.
803.1 Description.
803.3 Authority to affix Seal.
803.5 Use of the Seal.

    Authority: Sec. 303(c)(2), Independent Safety Board Act of 1974, 
Pub. L. 93-633, 88 Stat. 2168 (49 U.S.C. 1902(c)(2)).



Sec. 803.1  Description.

    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

[[Page 132]]

inscription ``National Transportation Safety Board.'' When illustrated 
in color, the background is white. The wings, the body, and the upper 
portion of the legs of the eagle are shades of brown; the head, neck, 
and tail are white; the beak, feet, and lower portion of the legs are 
gold. The inscription on the scroll is black. The encircling inscription 
is the same shade of gold as the eagle's beak. The arrows and the olive 
branch are a lighter shade of gold. The red and blue of the shield are 
national flag red and blue. The official seal of the Board, in black and 
white, appears below: 
[GRAPHIC] [TIFF OMITTED] TC01AU91.227


[43 FR 36454, Aug. 17, 1978]



Sec. 803.3  Authority to affix Seal.

    (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.

[40 FR 30238, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 803.5  Use of the Seal.

    (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.

[40 FR 30238, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



PART 804_RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT
--Table of Contents




Sec.
804.1 Applicability.
804.2 Policy.
804.3 Definitions.
804.4 Open meetings requirement.
804.5 Grounds on which meetings may be closed or information may be 
          withheld.
804.6 Procedures for closing meetings, or withholding information, and 
          requests by affected persons to close a meeting.
804.7 Procedures for public announcement of meetings.

[[Page 133]]

804.8 Changes following public announcement.
804.9 Transcripts, recordings, or minutes of closed meetings.
804.10 Availability and retention of transcripts, recordings, and 
          minutes, and applicable fees.

    Authority: 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.).

    Source: 42 FR 13284, Mar. 10, 1977, unless otherwise noted.



Sec. 804.1  Applicability.

    (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 Sec. 804.9 shall continue to be 
governed by part 801 of the NTSB regulations (49 CFR part 801).



Sec. 804.2  Policy.

    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.



Sec. 804.3  Definitions.

    As used in this part: Meeting means the deliberations of three or 
more Members where such deliberations determine or result in the joint 
conduct or disposition of official NTSB business, and includes 
conference telephone calls otherwise coming within the definition. A 
meeting does not include:
    (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 Sec. 
804.6, (2) to call a meeting on less than seven days' notice as 
permitted by Sec. 804.7(b), or (3) to change the subject matter or the 
determination to open or to close a publicly announced meeting under 
Sec. 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.
    Member means an individual duly appointed and confirmed to the 
collegial body, known as ``the Board,'' which heads the NTSB.
    National Transportation Safety Board (NTSB) means the agency set up 
under the Independent Safety Board Act of 1974.

[42 FR 13284, Mar. 10, 1977, as amended at 42 FR 31794, June 23, 1977]



Sec. 804.4  Open meetings requirement.

    Members shall not jointly conduct or dispose of agency business 
other than in accordance with this part. Except as provided in Sec. 
804.5, every portion of every meeting of the Board shall be open to 
public observation.



Sec. 804.5  Grounds on which meetings may be closed or information may 
be withheld.

    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 Sec. Sec. 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): Provided, That such statute (1) 
requires that the matters be withheld from the public in such a manner 
as to leave no discretion

[[Page 134]]

on the issue, or (2) establishes particular criteria for withholding or 
refers to particular types of matters to be withheld;
    (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: Provided, That the NTSB has not already disclosed to the 
public the content or nature of its proposed action or is not required 
by law to make such disclosure on its own initiative prior to taking 
final action on such proposal; or
    (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.



Sec. 804.6  Procedures for closing meetings, or withholding information, 
and requests by affected persons to close a meeting.

    (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 Sec. 
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 Sec. 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,

[[Page 135]]

the meeting may be closed to the public and shall state each relevant 
exemptive provision. A copy of such certification, together with a 
statement of the presiding officer setting forth the time and place of 
the meeting and the persons present, shall be retained by the NTSB as 
part of the transcript, recording, or minutes required by Sec. 804.9.



Sec. 804.7  Procedures for public announcement of meetings.

    (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 Sec. 804.8, the NTSB shall submit a notice of public 
announcement for publication in the Federal Register.



Sec. 804.8  Changes following public announcement.

    (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.



Sec. 804.9  Transcripts, recordings, or minutes of closed meetings.

    Along with the General Counsel's certification and presiding 
officer's statement referred to in Sec. 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 Sec. 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.



Sec. 804.10  Availability and retention of transcripts, recordings, and 
minutes, and applicable fees.

    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 
Sec. 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

[[Page 136]]

meeting, or a portion thereof, was held, whichever occurs later.



PART 805_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




Sec.
805.735-1 Purpose.
805.735-2 Definitions.
805.735-3 Policy.
805.735-4 Financial interests of Members and employees.
805.735-5 Receipt of gifts, entertainment, and favors by Members or 
          employees.
805.735-6 Misuse of information by Members and employees.
805.735-7 Outside activities of Members and employees.
805.735-8 Employment of family members in transportation and related 
          enterprises.
805.735-9 Use of Government property.
805.735-10 Member and employee indebtedness.
805.735-11 Gambling, betting, and lotteries.
805.735-12 Coercion.
805.735-13 Conduct prejudicial to the Government.
805.735-14 Specific regulations for special Government employees.
805.735-15 Miscellaneous statutory provisions.
805.735-16 Statements of employment and financial interests.
805.735-17 Supplementary statements.
805.735-18 Interests of employees' relatives.
805.735-19 Information not known by employees.
805.735-20 Information not required of employees.
805.735-21 Confidentiality of statements.
805.735-22 Effect of statements on other requirements.
805.735-23 Submission of statements by special Government employees.
805.735-24 Review of financial statements.
805.735-25 Publication and interpretation.
805.735-26 Employee's complaint on filing requirements.
805.735-27 Disciplinary or remedial action.

Appendix I to Part 805--Miscellaneous Statutory Provisions
Appendix II to Part 805--Employees Required to Submit Statements

    Authority: E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR 1965 Supp.; 
5 CFR 735.101 et seq., and 5 CFR 735.404.

    Source: 40 FR 30239, July 17, 1975, unless otherwise noted.



Sec. 805.735-1  Purpose.

    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 et seq.), and the ``Code of Ethics for 
Government Service,'' House Concurrent Resolution 175, 85th Congress, 2d 
Session (72 Stat. B12).



Sec. 805.735-2  Definitions.

    As used in this part.
    Executive order means Executive Order 11222 of May 8, 1965 (30 FR 
6469).
    Members and employees means the Board Members and employees of the 
National Transportation Safety Board (Board) and active duty officers or 
enlisted members of the Armed Forces detailed to the Board, but does not 
include special Government employees.
    Person means an individual, a corporation, a company, an 
association, a firm, a partnership, a society, a joint stock company, or 
any other organization or institution.
    Special Government employee means an employee of the Board who is 
retained, designated, appointed, or employed to perform temporary 
duties, with or without compensation, for a period not to exceed 120 
days during any period of 365 consecutive days, on either a full-time or 
intermittent basis.

[54 FR 10332, Mar. 13, 1989]



Sec. 805.735-3  Policy.

    (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

[[Page 137]]

actual or apparent misconduct or conflicts of interest.
    (c) Members and employees shall avoid any action, whether or not 
specifically prohibited by the regulations in this part which might 
result in, or create the appearance of:
    (1) Using public office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding Government efficiency or economy;
    (4) Losing complete independence or impartiality;
    (5) Making a Government decision outside official channels; or
    (6) Affecting adversely the confidence of the public in the 
integrity of the Government.



Sec. 805.735-4  Financial interests of Members and employees.

    (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.



Sec. 805.735-5  Receipt of gifts, entertainment, and favors by Members or 
employees.

    (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: Provided, That full value, as published in a carrier's tariffs, 
or as is customarily charged to the public, is paid therefor;
    (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

[[Page 138]]

accept food, lodging, and entertainment incident thereto.
    (c) Members and employees shall not solicit contributions from 
another Member or employee for a gift, or make a donation as a gift, to 
a Member or employee in a superior official position.
    (d) A Member or an employee in a superior official position shall 
not accept a gift from an employee or employees receiving less salary 
than himself. However, paragraph (c) of this section and this paragraph 
(d) do not prohibit a voluntary gift of nominal value or a donation in a 
nominal amount made on a special occasion, such as marriage, illness, 
retirement, or transfer.
    (e) Members and employees shall not accept a gift, present, 
decoration, or other thing from a foreign government unless authorized 
by Congress as provided by the Constitution and in 5 U.S.C. 7342.
    (f) Members and employees may not be directly reimbursed by a person 
for travel on official business under agency orders. However, 
reimbursement in the form of a donation may be made to the Board. The 
Member or employee involved will be paid by the Board in accordance with 
applicable laws and regulations relating to reimbursement for official 
travel. If the Member or employee is furnished accommodations, goods, or 
services in kind they may be treated as a donation to the Board, and 
either no per diem and other travel expenses will be paid or an 
appropriate reduction will be made in the per diem or other travel 
expenses payable, depending upon the extent of the donation. No Member 
or employee may be reimbursed, or payment made on his behalf, for 
excessive personal living expenses, gifts, entertainment, or other 
personal benefits.
    (g) Members and employees are not precluded from receiving bona fide 
reimbursement, unless prohibited by law, for expenses of nonofficial 
travel and such other necessary subsistence as is compatible with this 
part for private personal interests for which no Government payment or 
reimbursement is authorized.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 805.735-6  Misuse of information by Members and employees.

    For the purpose of furthering private interest, Members and 
employees shall not, except as provided in Sec. 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.



Sec. 805.735-7  Outside activities of Members and employees.

    (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

[[Page 139]]

physical capacity to perform in an acceptable manner his duties and 
responsibilities within the Board.
    (c) Employees are encouraged to engage in teaching, lecturing, and 
writing that is not prohibited by law, the Executive order, 5 CFR part 
735, or the regulations in this part. However, an employee shall not, 
either for or without compensation, engage in teaching, lecturing, or 
writing, including teaching, lecturing, or writing for the purpose of 
the special preparation of a person or class of persons for an 
examination of the Civil Service Commission or Board of Examiners for 
the Foreign Service, that is dependent on information obtained as a 
result of his employment by the Board, except when that information has 
been made available to the general public or will be made available on 
request, or when the Chairman gives written authorization for the use of 
nonpublic information on the basis that the use is in the public 
interest.
    (d) Board Members, as Presidential appointees covered by section 
401(a) of the Executive order, are specifically precluded by 5 CFR 
735.203(c) from receiving compensation or anything of monetary value for 
any consultation, lecture, discussion, writing, or appearance, the 
subject matter of which is devoted substantially to the 
responsibilities, programs, or operations of their agency, or which 
draws substantially on official data or ideas which have not become part 
of the body of public information.
    (e) If an activity covered by paragraphs (c) and (d) of this section 
is to be undertaken as official duty, expenses will be borne by the 
Board, and the Member or employee may not accept compensation or allow 
his expenses to be paid for by the person or group under whose auspices 
the activity is being performed. If it is determined that the activity 
is to be undertaken in a private capacity, the Member or employee may 
not use duty hours or Government facilities, but he may accept 
compensation, and he may use his official title if he makes it clear 
that he does not represent the Board.
    (f) Members and employees shall not receive any salary or anything 
of monetary value from a private source as compensation for his services 
to the Board (18 U.S.C. 209).
    (g) This section does not preclude a Member or employee from:
    (1) Participating in the activities of national or State political 
parties not prohibited by law;
    (2) Participating in the affairs of or acceptance of an award for a 
meritorious public contribution or achievement given by a charitable, 
religious, professional, social, fraternal, nonprofit educational or 
recreational, public service, or civic organization.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 805.735-8  Employment of family members in transportation and related 
enterprises.

    (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.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 805.735-9  Use of Government property.

    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.

[[Page 140]]



Sec. 805.735-10  Member and employee indebtedness.

    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.



Sec. 805.735-11  Gambling, betting, and lotteries.

    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.



Sec. 805.735-12  Coercion.

    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.



Sec. 805.735-13  Conduct prejudicial to the Government.

    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.



Sec. 805.735-14  Specific regulations for special Government employees.

    (a) Use of Board affiliation. A special Government employee of the 
Board shall not use his Government employment for a purpose that is, or 
gives the appearance of being, motivated by the desire for private gain 
for himself or another person, particularly one with whom he has family, 
business, or financial ties.
    (b) Use of inside information. (1) A special Government employee 
shall not use inside information obtained as a result of his employment 
by the Board for private gain for himself or another person, either by 
direct action on his part or by counsel, recommendation, or suggestion 
to another person, particularly one with whom he has family, business, 
or financial ties. For this purpose of this section, ``inside 
information'' means information obtained under Government authority 
which has not become part of the body of public information.
    (2) Special Government employees may teach, lecture, or write in a 
manner not inconsistent with Sec. 805.735-7(c) for employees.
    (c) Receipt of gifts, entertainment, and favors. (1) A special 
Government employee, while employed by the Board or in connection with 
his employment, shall not receive or solicit from a person having 
business with the Board, anything of value such as a gift, gratuity, 
loan, entertainment, or favor for himself or another person, 
particularly one with whom he has family, business, or financial ties.
    (2) The exception as set forth in Sec. 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) Applicability of other provisions. The provisions of Sec. 
805.735-9 (Use of Government property), Sec. 805.735-11 (Gambling, 
betting, and lotteries), Sec. 805.735-12 (Coercion), Sec. 805.735-13 
(Conduct prejudicial to the Government) and Sec. 805.735-15 
(Miscellaneous statutory provisions) apply to special Government 
employees in the same manner as to employees.



Sec. 805.735-15  Miscellaneous statutory provisions.

    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

[[Page 141]]

Member and employee of the Board and the Government.



Sec. 805.735-16  Statements of employment and financial interests.

    (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.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 805.735-17  Supplementary statements.

    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.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 805.735-18  Interests of employees' relatives.

    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.



Sec. 805.735-19  Information not known by employees.

    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.



Sec. 805.735-20  Information not required of employees.

    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.



Sec. 805.735-21  Confidentiality of statements.

    Subject to the provisions of Sec. 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

[[Page 142]]

Commission or the Chairman may determine for good cause shown.



Sec. 805.735-22  Effect of statements on other requirements.

    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.



Sec. 805.735-23  Submission of statements by special Government employees.

    (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.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 805.735-24  Review of financial statements.

    (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 Sec. 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

[[Page 143]]

the stages of review, the reviewing official shall sign and date a copy 
of the employee's statement to evidence his clearance, and this 
statement shall thereafter be kept as provided in Sec. 805.735-21.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]



Sec. 805.735-25  Publication and interpretation.

    (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.



Sec. 805.735-26  Employee's complaint on filing requirements.

    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.



Sec. 805.735-27  Disciplinary or remedial action.

    (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.

[40 FR 30239, July 17, 1975, as amended at 41 FR 39758, Sept. 16, 1976]

       Appendix I to Part 805--Miscellaneous Statutory Provisions

    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

[[Page 144]]

and employee and each special Government employee shall acquaint himself 
with the following statutory and nonstatutory provisions which relate to 
his ethical and other conduct:
    (a) House Concurrent Resolution 175, 85th Congress, 2d Session (72 
Stat. B12), the ``Code of Ethics for Government Service.''
    (b) Chapter 11 of Title 18, United States Code, relating to bribery, 
graft, and conflicts of interest (18 U.S.C. 201 through 209).
    (c) The prohibition against lobbying with appropriate funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918).
    (e) The prohibition against the employment of a member of a 
Communist organization (50 U.S.C. 784).
    (f) The prohibition against:
    (1) The disclosure of classified information (18 U.S.C. 798, 50 
U.S.C. 783); and
    (2) The disclosure of confidential information (18 U.S.C. 1905, 49 
U.S.C. 1472(f)).
    (g) The provision relating to the habitual use of intoxicants to 
excess (5 U.S.C. 8352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001).
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).
    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibition against:
    (1) Embezzlement of Government money or property (18 U.S.C. 641);
    (2) Failing to account for public money (18 U.S.C. 643); and
    (3) Embezzlement of the money or property of another person in the 
possession of an employee by reason of his employment (18 U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285).
    (p) The prohibition against political activities in subchapter III 
of chapter 73 of title 5, U.S.C., and 18 U.S.C. 602, 603, 607, and 608.
    (q) The prohibition against an employee's acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).

    Appendix II to Part 805--Employees Required to Submit Statements

    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.

[41 FR 39758, Sept. 16, 1976]
    Note: 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.



PART 806_NATIONAL SECURITY INFORMATION POLICY AND GUIDELINES, IMPLEMENTING 
REGULATIONS--Table of Contents




Sec.
806.1 General policy.
806.2 Applicability.
806.3 Definitions.
806.4 Mandatory review for declassification.

    Authority: 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.

    Source: 45 FR 20104, Mar. 27, 1980, unless otherwise noted.



Sec. 806.1  General policy.

    (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

[[Page 145]]

material which, because it bears directly on the effectiveness of our 
national defense and the conduct of our foreign relations, must be 
subject to some constraints for the security of our Nation and the 
safety of our people and our allies. To protect against actions hostile 
to the United States, of both an overt and covert nature, it is 
essential that such official information and material be given only 
limited dissemination.



Sec. 806.2  Applicability.

    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.



Sec. 806.3  Definitions.

    (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) Top secret means information, the unauthorized disclosure of 
which reasonably could be expected to cause exceptionally grave damage 
to the national security.
    (2) Secret means information, the unauthorized disclosure of which 
reasonably could be expected to cause serious damage to national 
security.
    (3) Confidential means information, the unauthorized disclosure of 
which reasonably could be expected to cause identifiable damage to the 
national security.
    (b) Foreign government information means either: (1) Information 
provided to the United States by a foreign government or international 
organization of governments in the expectation, express or implied, that 
the information is to be kept in confidence; or (2) information produced 
by the United States pursuant to a written joint arrangement with a 
foreign government or international organization of governments 
requiring that either the information or the arrangements or both, be 
kept in confidence.
    (c) National security means the national defense and foreign 
relations of the United States.
    (d) Declassification event means an event which would eliminate the 
need for continued classification.



Sec. 806.4  Mandatory review for declassification.

    (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.

[[Page 146]]



PART 807_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL TRANSPORTATION SAFETY 
BOARD--Table of Contents




Sec.
807.101 Purpose.
807.102 Application.
807.103 Definitions.
807.104-807.109 [Reserved]
807.110 Self-evaluation.
807.111 Notice.
807.112-807.129 [Reserved]
807.130 General prohibitions against discrimination.
807.131-807.139 [Reserved]
807.140 Employment.
807.141-807.148 [Reserved]
807.149 Program accessibility: Discrimination prohibited.
807.150 Program accessibility: Existing facilities.
807.151 Program accessibility: New construction and alterations.
807.152-807.159 [Reserved]
807.160 Communications.
807.161-807.169 [Reserved]
807.170 Compliance procedures.

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4578, Feb. 5, 1986, unless otherwise noted.



Sec. 807.101  Purpose.

    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.



Sec. 807.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 807.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (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 physical or mental impairment 
includes, but is not limited

[[Page 147]]

to, such diseases and conditions as orthopedic, visual, speech, and 
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (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.
    Qualified handicapped person means--
    (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) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 807.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. Sec. 807.104-807.109  [Reserved]



Sec. 807.110  Self-evaluation.

    (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.



Sec. 807.111  Notice.

    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.

[[Page 148]]



Sec. Sec. 807.112-807.129  [Reserved]



Sec. 807.130  General prohibitions against discrimination.

    (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.



Sec. Sec. 807.131-807.139  [Reserved]



Sec. 807.140  Employment.

    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.

[[Page 149]]



Sec. Sec. 807.141-807.148  [Reserved]



Sec. 807.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 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.



Sec. 807.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (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 Sec. 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) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is nor required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;

[[Page 150]]

    (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.

[51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. 807.151  Program accessibility: New construction and alterations.

    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.



Sec. Sec. 807.152-807.159  [Reserved]



Sec. 807.160  Communications.

    (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 Sec. 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.



Sec. Sec. 807.161-807.169  [Reserved]



Sec. 807.170  Compliance procedures.

    (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

[[Page 151]]

Commission in 29 CFR part 1613 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Director, Bureau of Administration shall be responsible for 
coordinating implementation of this section. Complaints may be sent to 
Director, Bureau of Administration, 800 Independence Ave., SW., Room 
802, Washington, DC 20594.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 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.

[51 FR 4579, Feb. 5, 1986, as amended at 51 FR 4579, Feb. 5, 1986]



PART 821_RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS--Table of Contents




                      Subpart A_General Provisions

Sec.
821.1 Definitions.
821.2 Applicability and description of part.
821.3 Description of docket numbering system.

 Subpart B_General Rules Applicable to Petitions for Review, Appeals to 
the Board, and Appeals from Law Judges' Initial Decisions and Appealable 
                                 Orders

821.6 Appearances and rights of witnesses.
821.7 Filing of documents with the Board.
821.8 Service of documents.
821.9 Intervention and amicus appearance.
821.10 Computation of time.
821.11 Extensions of time.
821.12 Amendment and withdrawal of pleadings.
821.13 Waivers.
821.14 Motions.
821.15 Motion to disqualify a Board Member.
821.16 Interlocutory appeals from law judges' rulings on motions.
821.17 Motions to dismiss, for judgment on the pleadings and for summary 
          judgment.
821.18 Motion for a more definite statement.
821.19 Depositions and other discovery.
821.20 Subpoenas, witness fees, and appearances of Board Members, 
          officers and employees.
821.21 Official notice.

 Subpart C_Special Rules Applicable to Proceedings Under 49 U.S.C. 44703

821.24 Initiation of proceeding.
821.25 Burden of proof.
821.26 Motion to dismiss petition for review for lack of standing.

[[Page 152]]

 Subpart D_Special Rules Applicable to Proceedings Under 49 U.S.C. 44709

821.30 Initiation of proceeding.
821.31 Complaint procedure.
821.32 Burden of proof.
821.33 Motion to dismiss stale complaint.

                          Subpart E_Law Judges

821.35 Assignment, duties and powers.

                            Subpart F_Hearing

821.37 Notice of hearing.
821.38 Evidence.
821.39 Argument and submissions.
821.40 Record.

                       Subpart G_Initial Decision

821.42 Initial decision by law judge.
821.43 Effect of law judge's initial decision or appealable order and 
          appeal therefrom.

                 Subpart H_Appeal from Initial Decision

821.47 Notice of appeal.
821.48 Briefs and oral argument.
821.49 Issues on appeal.
821.50 Petition for rehearing, reargument, reconsideration or 
          modification of an order of the Board.

 Subpart I_Special Rules Applicable to Proceedings Involving Emergency 
                 and Other Immediately Effective Orders

821.52 General.
821.53 Appeal.
821.54 Petition for review of Administrator's determination of 
          emergency.
821.55 Complaint, answer to complaint, motions and discovery.
821.56 Hearing and initial decision or appealable order of law judge.
821.57 Procedure on appeal.

                    Subpart J_Ex Parte Communications

821.60 Definitions.
821.61 Prohibited ex parte communications.
821.62 Procedures for handling ex parte communications.
821.63 Requirement to show cause and imposition of sanction.

                Subpart K_Judicial Review of Board Orders

821.64 Judicial review.

    Authority: 49 U.S.C. 1101-1155, 44701-44723, 46301; unless otherwise 
noted.

    Source: 68 FR 22625, Apr. 29, 2003, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 821.1  Definitions.

    (a) As used in this part:
    Administrator means the Administrator of the Federal Aviation 
Administration (FAA);
    Airman certificate means any certificate issued by the FAA to an 
airman, and shall include medical certificates required for airmen;
    Appeal from an initial decision means a request to the Board to 
review a law judge's decision;
    Appeal to the Board means a request to the Board for the review by a 
law judge of an order of the Administrator;
    Appealable order means an order of a law judge that has the effect 
of terminating the proceeding, such as one granting a motion to dismiss 
in lieu of an answer, as provided in Sec. 821.17, or one granting a 
motion for judgment on the pleadings or summary judgment. Appealable 
order does not include an order granting in part a motion to dismiss and 
requiring an answer to any remaining allegation or allegations, an order 
granting in part judgment on the pleadings or summary judgment, or a 
ruling on an interlocutory matter;
    Board means the National Transportation Safety Board;
    Case Manager means the officer of the Board's Office of 
Administrative Law Judges responsible for the processing of cases within 
that office;
    Certificate means any certificate issued by the Administrator under 
49 U.S.C. Chapter 447;
    Chief Law Judge means the administrative law judge in charge of the 
adjudicative function of the Board's Office of Administrative Law 
Judges;
    Complaint means an order of the Administrator, reissued for pleading 
purposes, from which an appeal to the Board has been taken pursuant to 
sections 49 U.S.C. 44106, 44709 or 46301;
    Emergency order means an order of the Administrator issued pursuant 
to 49 U.S.C. 44709, which recites that an emergency exists and that 
safety in air commerce or air transportation and the public interest 
require the immediate effectiveness of such order;
    Flight engineer means a person who holds a flight engineer 
certificate

[[Page 153]]

issued under Part 63 of Title 14 of the Code of Federal Regulations;
    Initial decision means the law judge's decision on the issue or 
issues remaining for disposition at the close of a hearing;
    Law judge means the administrative law judge assigned to hear and 
preside over the respective proceeding;
    Mechanic means a person who holds a mechanic certificate issued 
under Part 65 of Title 14 of the Code of Federal Regulations;
    Order means the document (sometimes also termed the complaint) by 
which the Administrator seeks to amend, modify, suspend or revoke a 
certificate, or impose a civil penalty;
    Petition for review means a petition filed pursuant to 49 U.S.C. 
44703 for review of the Administrator's denial of an application for 
issuance or renewal of an airman certificate;
    Petitioner means a person who has filed a petition for review;
    Pilot means a person who holds a pilot certificate issued under Part 
61 of Title 14 of the Code of Federal Regulations;
    Repairman means a person who holds a repairman certificate issued 
under Part 65 of Title 14 of the Code of Federal Regulations;
    Respondent means the holder of a certificate who has appealed to the 
Board from an order of the Administrator amending, modifying, suspending 
or revoking a certificate, or imposing a civil penalty.
    (b) Terms defined in 49 U.S.C. Chapters 11, 447 and 463 are used as 
so defined.



Sec. 821.2  Applicability and description of part.

    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.



Sec. 821.3  Description of docket numbering system.

    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 et seq.; ``CP'' for 
cases involving the imposition of civil penalties; ``NA'' for cases in 
which a petition for review or appeal is not accepted because of a 
patent procedural deficiency; and ``EAJA'' for cases involving 
applications for fees and expenses under the Equal Access to Justice 
Act, governed by Part 826.



Subpart B_General Rules Applicable to Petitions for Review, Appeals to 

the Board, and Appeals From Law Judges Initial Decisions and Appealable 
                                 Orders



Sec. 821.6  Appearances and rights of witnesses.

    (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

[[Page 154]]

the law judge or the Board, upon substitution of a copy thereof.
    (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 Sec. 821.7) and the other parties to the proceeding (pursuant to 
Sec. 821.8) before the new attorney or representative may participate 
in the proceeding in any way.



Sec. 821.7  Filing of documents with the Board.

    (a) Filing address, method and date of filing. (1) Except as 
provided in paragraph (a)(2) of this section, documents are to be filed 
with the Office of Administrative Law Judges, National Transportation 
Safety Board, 490 L'Enfant Plaza East, SW., Room 4704, Washington, DC 
20594, and addressed to the assigned law judge, if any. If the 
proceeding has not yet been assigned to a law judge, documents shall be 
addressed to the Case Manager.
    (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) Number of copies. Service on the Board of petitions for review, 
appeals from orders of the Administrator, and notices of appeal from law 
judges' initial decisions and appealable orders shall be by executed 
original and 3 copies. Service of all other documents shall be by 
executed original and one copy. Copies need not be signed, but the name 
of the person signing the original shall be shown thereon.
    (c) Form. (1) Petitions for review, appeals to the Board from orders 
of the Administrator, and notices of appeal from law judges' initial 
decisions and appealable orders may be in the form of a letter signed by 
the petitioner or appealing party, and shall be typewritten or in 
legible handwriting.
    (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) Content. Each document filed with the Board shall contain a 
concise and complete statement of the facts relied upon, and the relief 
sought, by the filing party.
    (e) Subscription. The original of every document filed shall be 
signed by the filing party, or by that party's attorney or other 
representative.
    (f) Designation of person to receive service. The initial document 
filed by a party in a proceeding governed by this

[[Page 155]]

part shall show on the first page the name, address and telephone number 
of the person or persons who may be served with documents on that 
party's behalf.
    (g) To whom directed. All motions, requests and documents submitted 
in connection with petitions for review and appeals to the Board from 
orders of the Administrator shall designate, and be addressed to, the 
law judge to whom the proceeding has been assigned, if any. If the 
proceeding has not yet been assigned to a law judge, the document shall 
bear the designation ``unassigned,'' and shall be addressed to the Case 
Manager. All motions, requests and documents submitted subsequent to the 
filing of a notice of appeal from a law judge's initial decision or 
appealable order, or a decision permitting an interlocutory appeal, or 
after the expiration of the period within which an appeal from the law 
judge's initial decision or appealable order may be filed, shall be 
addressed to the Board's General Counsel.



Sec. 821.8  Service of documents.

    (a) Who must be served. (1) Copies of all documents filed with the 
Board must be served on (i.e., sent to) all other parties to the 
proceeding, on the date of filing, by the person filing them. A 
certificate of service shall be a part of each document and any copy or 
copies thereof tendered for filing, and shall certify concurrent service 
on the Board and the parties. A certificate of service shall be in 
substantially the following form:

    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 (e.g., first-class mail, 
personal service, etc.)]

[List names and addresses of all persons served]
Dated at ----, this --------day of ---- 20----
 (Signature)____________________________________________________________
 For (on behalf of)_____________________________________________________

    (2) Service shall be made on the person designated in accordance 
with Sec. 821.7(f) to receive service. If no such person has been 
designated, service shall be made directly on the party.
    (b) Method of service. (1) Service of documents by any party on any 
other party shall be accomplished by the method prescribed in Sec. 
821.7(a)(3) for the filing of documents with the Board.
    (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) Where service shall be made. Except for personal service, 
parties shall be served at the address appearing in the official record. 
If no address for service on the Administrator is designated in the 
record, documents shall be addressed for service to the Office of Chief 
Counsel, 800 Independence Avenue, SW., Washington, DC 20591. In the case 
of an agent designated by an air carrier under 49 U.S.C. 46103, service 
may be accomplished only at the agent's office or usual place of 
residence.
    (d) Presumption of service. There shall be a presumption of lawful 
service:
    (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 Sec. 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) Date of service. The date of service shall be determined in the 
same manner as the filing date is determined under Sec. 821.7(a)(4).



Sec. 821.9  Intervention and amicus appearance.

    (a) Intervention. Any person may move for leave to intervene in a 
proceeding, and may become a party thereto, if it is found that such 
person has a property, financial or other legitimate interest that will 
not be adequately represented by the existing parties, and that such 
intervention will not unduly broaden the issues or delay

[[Page 156]]

the proceeding. Except for good cause shown, no motion for leave to 
intervene will be entertained if filed less than 15 days prior to the 
hearing. The extent to which an intervenor may participate in the 
proceeding is wholly within the law judge's discretion.
    (b) Amicus curiae briefs. A brief of amicus curiae in a matter on 
appeal from a law judge's initial decision or appealable order may be 
filed, if accompanied by written consent of all the parties, or by leave 
of the General Counsel if, in his or her opinion, the brief will not 
unduly broaden the matters at issue or prejudice any party to the 
proceeding. A brief may be conditionally filed with motion for leave. 
The motion for leave shall identify the interest of the movant and shall 
state the reasons why a brief of amicus curiae is desirable. Such brief 
and motion shall be filed within the briefing time allowed the party 
whose position the brief would support, unless good cause for late 
filing is shown, in which event the General Counsel may provide an 
opportunity for response in determining whether to accept the amicus 
brief.



Sec. 821.10  Computation of time.

    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 Sec. 821.54.



Sec. 821.11  Extensions of time.

    (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.



Sec. 821.12  Amendment and withdrawal of pleadings.

    (a) Amendment. At any time more than 15 days prior to the hearing, a 
party may amend its pleadings by filing an amended pleading with the 
Board and serving copies thereof on all other parties. After that time, 
amendment shall be allowed only at the discretion of the law judge. In 
the case of amendment of an answerable pleading, the law judge shall 
allow any adverse party a reasonable time to object or answer. 
Amendments to complaints shall be consistent with the requirements of 49 
U.S.C. 44709(c) and 44710(c).
    (b) Withdrawal. Except in the case of a petition for review, an 
appeal to the Board, a complaint, or an appeal from a law judge's 
initial decision or appealable order, pleadings may be withdrawn only 
upon approval of the law judge or the Board.



Sec. 821.13  Waivers.

    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.



Sec. 821.14  Motions.

    (a) General. Any application to a law judge or to the Board for an 
order or

[[Page 157]]

ruling not otherwise provided for in this part shall be by motion. Prior 
to the assignment of the proceeding to a law judge, all motions shall be 
addressed to the Case Manager. Thereafter, and prior to the expiration 
of the period within which an appeal from the law judge's initial 
decision may be filed, all motions shall be addressed to the law judge. 
At all other times, motions shall be addressed to the General Counsel.
    (b) Form and content. Unless made during a hearing, motions shall be 
made in writing, shall state with particularity the grounds for the 
relief requested, and shall be accompanied by affidavits or other 
evidence relied upon. Motions introduced during a hearing may be made 
orally on the record, unless the law judge directs otherwise.
    (c) Replies to motions. Except when a motion is made during a 
hearing, any party may file a reply, accompanied by such affidavits or 
other evidence as that party desires to rely upon, within 15 days after 
the date of service of the motion on that party. Upon notice to the 
parties, the law judge or the Board may, where appropriate, set a 
shorter time for filing a reply. Where a motion is made during a 
hearing, the reply may be made at the hearing, or orally or in writing 
within such time as the law judge may fix.
    (d) Oral argument; briefs. No oral argument will be heard on a 
motion unless the law judge or the Board directs otherwise.
    (e) Effect of pendency of motions. Except as provided in Sec. Sec. 
821.17(a) and 821.18(a), the filing or pendency of a motion shall not 
automatically alter or extend the time fixed in this part (or any 
extension thereof previously granted) for the parties to take any 
actions.



Sec. 821.15  Motion to disqualify a Board Member.

    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.



Sec. 821.16  Interlocutory appeals from law judges' rulings on motions.

    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.



Sec. 821.17  Motions to dismiss, for judgment on the pleadings and for 
summary judgment.

    (a) Motions to dismiss petition for review or complaint. A motion to 
dismiss a petition for review or a complaint may be filed in lieu of an 
answer, within the time limit for filing an answer set forth in Sec. 
821.24(c) or Sec. 821.31(b). If such motion is not granted in its 
entirety, the answer shall be filed within 10 days after service of the 
law judge's order on the motion.
    (b) Motions to dismiss for lack of jurisdiction. A motion to dismiss 
on the ground that the Board lacks jurisdiction may be made by any party 
at any time.
    (c) Motions for judgment on the pleadings. A party may file a motion 
for judgment on the pleadings on the basis that no answer has been 
filed, or that the pleadings disclose that there are no material issues 
of fact to be resolved and that party is entitled to judgment as a 
matter of law.
    (d) Motions for summary judgment. A party may file a motion for 
summary judgment on the basis that the pleadings and other supporting 
documentation establish that there are no material issues of fact to be 
resolved and that party is entitled to judgment as a matter of law.

[[Page 158]]

    (e) Appeals of dismissal, judgment on the pleadings and summary 
judgment orders. When a law judge grants a motion to dismiss, a motion 
for judgment on the pleadings or a motion for summary judgment, and 
terminates the proceeding without a hearing, an appeal of such order to 
the Board may be filed pursuant to the provisions of Sec. 821.47. When 
a motion to dismiss, a motion for judgment on the pleadings or a motion 
for summary judgment is granted in part, Sec. 821.16 applies.



Sec. 821.18  Motion for a more definite statement.

    (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.



Sec. 821.19  Depositions and other discovery.

    (a) Depositions. After a petition for review or a complaint is 
filed, any party may take the testimony of any person, including a 
party, by deposition, upon oral examination or written questions, 
without seeking prior Board approval. Reasonable notice shall be given 
in writing to the other parties, stating the name of the witness and the 
time and place of the taking of the deposition. A copy of any notice of 
deposition shall be served on the law judge to whom the proceeding has 
been assigned or, if no law judge has been assigned, on the Case 
Manager. In other respects, the taking of any deposition shall be in 
compliance with the provisions of 49 U.S.C. 46104(c).
    (b) Exchange of information by the parties. At any time before the 
hearing, at the request of any party, the parties may exchange 
information, such as witness lists, exhibit lists, curricula vitae and 
bibliographies of expert witnesses, and other pertinent data. Any party 
may also use written interrogatories, requests for admissions and other 
discovery tools. The requesting party shall set the time for compliance 
with the request, which shall be reasonable and give due consideration 
to the closeness of the hearing, especially in emergency proceedings 
governed by Subpart I. Copies of discovery requests and responses shall 
be served on the law judge to whom the proceeding has been assigned or, 
if no law judge has been assigned, on the Case Manager. In the event of 
a dispute, either the assigned law judge or another law judge delegated 
this responsibility (if a law judge has not yet been assigned or if the 
assigned law judge is unavailable) may issue an appropriate order, 
including an order directing compliance with any ruling previously made 
with respect to discovery.
    (c) Use of the Federal Rules of Civil Procedure. Those portions of 
the Federal Rules of Civil Procedure that pertain to depositions and 
discovery may be used as a general guide for discovery practice in 
proceedings before the Board, where appropriate. The Federal Rules and 
the case law that construes them shall be considered by the Board and 
its law judges as instructive, rather than controlling.
    (d) Failure to provide or preserve evidence. The failure of any 
party to comply with a law judge's order compelling discovery, or to 
cooperate with a timely request for the preservation of evidence, may 
result in a negative inference against that party with respect to the 
matter sought and not provided or preserved, a preclusion order, 
dismissal or other relief deemed appropriate by the law judge.



Sec. 821.20  Subpoenas, witness fees, and appearances of Board Members, 
officers and employees.

    (a) Subpoenas. Except as provided in paragraph (c) of this section, 
subpoenas requiring the attendance of witnesses, or the production of 
documentary or

[[Page 159]]

tangible evidence, for the purpose of taking depositions or at a 
hearing, may be issued by the presiding law judge (or the chief law 
judge, if the proceeding has not been assigned to a law judge) upon 
application by any party. The application shall show the general 
relevance and reasonable scope of the evidence sought. Any person upon 
whom a subpoena is served may, within 7 days after service of the 
subpoena, but in any event prior to the return date thereof, file with 
the law judge who issued the subpoena a motion to quash or modify the 
subpoena, and such filing shall stay the effectiveness of the subpoena 
pending final action by the law judge on the motion.
    (b) Witness fees. Witnesses shall be entitled to the same fees and 
expenses for mileage as are paid to witnesses in the courts of the 
United States. The fees and expenses shall be paid by the party at whose 
request the witness is subpoenaed or appears. The Board may decline to 
process a proceeding further should a party fail to compensate a witness 
pursuant to this paragraph.
    (c) Board Members, officers and employees. In order to encourage a 
free flow of information to the Board's accident investigators, the 
Board disfavors the use of its personnel in enforcement proceedings. 
Therefore, the provisions of paragraph (a) of this section are not 
applicable to Board Members, officers and employees, or the production 
of documents in their custody. Applications for subpoenas requiring the 
attendance of such persons, or the production of such documents, must be 
addressed to the General Counsel, and shall set forth the need of the 
moving party for the testimony or documents sought, and a showing that 
such material is not now, and was not otherwise, reasonably available 
from other sources. Only upon the General Counsel's written approval for 
the issuance of a subpoena requiring a Board Member, officer or employee 
to provide testimony and/or to produce documents in connection with 
discovery or at a hearing may a law judge issue such a subpoena. The law 
judge shall not permit the testimony or documentary evidence provided by 
a Board Member, officer or employee to include any expression of 
opinion, or any account of statements of a party made during the Board's 
investigation of any accident.



Sec. 821.21  Official notice.

    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.



 Subpart C_Special Rules Applicable to Proceedings Under 49 U.S.C. 44703



Sec. 821.24  Initiation of proceeding.

    (a) Petition for review. Where the Administrator has denied an 
application for the issuance or renewal of an airman certificate, the 
applicant may file with the Board a petition for review of the 
Administrator's denial. The petition must be filed with the Board within 
60 days after the date on which notice of the Administrator's denial was 
served on the petitioner.
    (b) Form and content of petition. The petition may be in letter 
form. It shall identify the Administrator's certificate denial action, 
and contain a complete but concise statement of the reasons why the 
petitioner believes the certificate denial was erroneous.
    (c) Answer to petition. The Administrator shall file an answer to 
the petition for review within 20 days after the date of service of the 
petition. The answer shall specifically address each of the reasons set 
forth in the petition as to why the petitioner believes the certificate 
denial was erroneous.
    (d) Stay of proceeding pending request for special issuance 
(restricted) medical certificate. The Board lacks the authority to 
review requests for special issuance (restricted) medical certificates, 
or to direct that they be issued. Where a request for a special issuance 
certificate has been filed with the Administrator pursuant to the 
Federal Aviation Regulations, the Board will, upon the petitioner's 
written request, hold a petition for review of a denial of an 
unrestricted medical certificate in abeyance pending final action by the 
Administrator on the special issuance request, but for no longer than 
180 days

[[Page 160]]

after the date on which the unrestricted medical certificate denial was 
issued.
    (e) New evidence. Where review of a denial of an unrestricted 
medical certificate is at issue, if the petitioner has undergone medical 
testing or evaluation in addition to that already submitted or known to 
the Administrator, and wishes to introduce the results into the record, 
such new medical evidence must be served on the Administrator at least 
30 days prior to the hearing. Absent good cause, failure to so timely 
serve the new medical evidence on the Administrator will result in the 
exclusion of such evidence from the record. The Administrator may amend 
his or her answer to respond to such new medical evidence within 10 days 
after the date on which he or she was served therewith.



Sec. 821.25  Burden of proof.

    In proceedings under 49 U.S.C. 44703, the burden of proof shall be 
upon the petitioner.



Sec. 821.26  Motion to dismiss petition for review for lack of standing.

    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.



 Subpart D_Special Rules Applicable to Proceedings Under 49 U.S.C. 44709



Sec. 821.30  Initiation of proceeding.

    (a) Appeal. Where the Administrator has issued an order amending, 
modifying, suspending or revoking a certificate, the affected 
certificate holder (respondent) may file with the Board an appeal from 
the Administrator's order. The respondent shall simultaneously serve a 
copy of the appeal on the Administrator. The appeal must be filed with 
the Board within 20 days after the date on which the Administrator's 
order was served on the respondent, except as provided with respect to 
emergency and other immediately effective orders under Sec. 821.53(a).
    (b) Form and content of appeal. The appeal may be in letter form. It 
shall identify the certificate or certificates affected and the 
Administrator's action from which the appeal is sought.
    (c) Effect of filing timely appeal with the Board. Timely filing 
with the Board of an appeal from an order of the Administrator shall 
postpone the effective date of the order until final disposition of the 
appeal by the law judge or the Board, except where the order appealed 
from is an emergency or other immediately effective order, in which case 
the effectiveness of the order will not be so stayed during the pendency 
of the appeal.



Sec. 821.31  Complaint procedure.

    (a) Filing, time of filing and service on respondent. The order of 
the Administrator from which an appeal has been taken shall serve as the 
complaint. The Administrator shall (except as provided in Sec. 
821.55(a) with respect to emergency proceedings) file the complaint with 
the Board within 10 days after the date on which he or she was served 
with the appeal by the respondent, and shall simultaneously serve a copy 
of the complaint on the respondent. If the Administrator has determined 
that the respondent lacks qualification to be a certificate holder, the 
order filed as the complaint, or an accompanying statement, shall 
identify the pleaded factual allegations on which this determination is 
based.
    (b) Answer to complaint. The respondent shall (except as provided in 
Sec. 821.55(b) with respect to emergency proceedings) file with the 
Board an answer to the complaint within 20 days after the date on which 
the complaint was served by the Administrator, and shall simultaneously 
serve a copy of the answer on the Administrator. Failure by the 
respondent to deny the truth of any allegation or allegations in the 
complaint may be deemed an admission of the truth of the allegation

[[Page 161]]

or allegations not answered. The answer shall also identify any 
affirmative defenses that the respondent intends to raise at the 
hearing. The answer may be amended to include affirmative defenses in 
accordance with the provisions of Sec. 821.12(a).



Sec. 821.32  Burden of proof.

    In proceedings under 49 U.S.C. 44709, the burden of proof shall be 
upon the Administrator.



Sec. 821.33  Motion to dismiss stale complaint.

    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.



                          Subpart E_Law Judges



Sec. 821.35  Assignment, duties and powers.

    (a) Assignment of law judge and duration of assignment. The chief 
law judge shall assign a law judge to preside over each proceeding. 
Until such assignment, motions, requests and documents shall be 
addressed to the Case Manager for handling by the chief law judge, who 
may handle these matters personally or delegate them to other law judges 
for decision. After assignment of a proceeding to a law judge, all 
motions, requests and documents shall be addressed to that law judge. 
The authority of the assigned law judge shall terminate upon the 
expiration of the period within which appeals from initial decisions or 
appealable orders may be filed, or upon the law judge's withdrawal from 
the proceeding.
    (b) Powers of law judge. Law judges shall have the following powers:
    (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) Disqualification. A law judge shall withdraw from a proceeding 
if, at any time, he or she deems himself or herself disqualified. If the 
law judge does not withdraw, and if an appeal from the law judge's 
initial decision is filed, the Board will, on motion of a party, 
determine whether the law judge should have withdrawn and, if so, order 
appropriate relief.

[[Page 162]]



                            Subpart F_Hearing



Sec. 821.37  Notice of hearing.

    (a) Time and location of hearing. The law judge to whom the 
proceeding is assigned (or the chief judge) shall set a reasonable date, 
time and place for the hearing. Except as provided with respect to 
emergency proceedings in Sec. 821.56(a), a written notice of hearing 
shall be served on the parties at least 30 days in advance of the 
hearing. The law judge may set the hearing for a date fewer than 30 days 
after the date of the issuance of the notice of hearing if all of the 
parties consent to an earlier hearing date. In setting the date of the 
hearing, due regard shall be given to the parties' discovery needs. In 
setting the place of the hearing, due regard shall be given to the 
location of the subject incident, the convenience of the parties and 
their witnesses, and the conservation of Board funds. Another relevant 
factor in determining the place of the hearing is the convenience of the 
hearing site to scheduled transportation service. Only in the most 
extraordinary circumstances may consideration be given to locating a 
hearing in a foreign country.
    (b) Hearing in several sessions. Where appropriate, the law judge 
may hold a hearing in more than one session, at the same or different 
locations.



Sec. 821.38  Evidence.

    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.



Sec. 821.39  Argument and submissions.

    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.



Sec. 821.40  Record.

    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.



                       Subpart G_Initial Decision



Sec. 821.42  Initial decision by law judge.

    (a) Written or oral decision. The law judge may render his or her 
initial decision orally at the close of the hearing, or in writing at a 
later date, except as provided with respect to emergency proceedings in 
Sec. 821.56(c).
    (b) Content. The initial decision shall include findings and 
conclusions upon all material issues of fact, credibility of witnesses, 
law and discretion presented on the record, together with a statement of 
the reasons therefor.
    (c) Furnishing parties with, and issuance date of, oral decision. If 
the initial decision is rendered orally, a copy thereof, excerpted from 
the hearing transcript, shall be furnished to the parties by the Office 
of Administrative Law Judges. Irrespective of the date on which the copy 
of the decision is transmitted to the parties, the issuance date of the 
decision shall be the date on which it was orally rendered.



Sec. 821.43  Effect of law judge's initial decision or appealable order and 
appeal therefrom.

    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

[[Page 163]]

the basis for the decision or order is that the Board lacks 
jurisdiction.



                 Subpart H_Appeal From Initial Decision



Sec. 821.47  Notice of appeal.

    (a) Time within which to file notice of appeal. A party may appeal 
from a law judge's initial decision or appealable order by filing with 
the Board, and simultaneously serving on the other parties, a notice of 
appeal, within 10 days after the date on which the oral initial decision 
was rendered or the written initial decision or appealable order was 
served (except as provided in Sec. 821.57(a) with respect to emergency 
proceedings). At any time before the time limit for filing an appeal 
from an initial decision or appealable order has passed, the law judge 
may, for good cause, reopen the matter on notice to the parties.
    (b) Request for reconsideration of law judge's initial decision or 
order. A law judge may not reconsider an initial decision or appealable 
order after the time for appealing to the Board from the decision or 
order has expired, or after an appeal has been filed with the Board. 
However, a timely request for reconsideration by the law judge of the 
initial decision or appealable order, filed before an appeal to the 
Board is taken, will stay the deadline for filing an appeal until 10 
days after the date on which the law judge serves his or her decision on 
the reconsideration request. For the purpose of this paragraph, if a 
request for reconsideration and a notice of appeal are filed on the same 
day, the reconsideration request will be deemed to have been filed 
first.



Sec. 821.48  Briefs and oral argument.

    (a) Appeal brief. Except as provided in Sec. 821.57(b) with respect 
to emergency proceedings, each appeal must be perfected, within 50 days 
after the date on which the oral initial decision was rendered, or 30 
days after the date on which the written initial decision or appealable 
order was served, by the filing, and simultaneous service on the other 
parties, of a brief in support of the appeal. An appeal may be dismissed 
by the Board, either on its own initiative or on motion of another 
party, where a party who has filed a notice of appeal fails to perfect 
the appeal by filing a timely appeal brief.
    (b) Form and content of appeal brief. (1) In addition to the general 
form requirements for documents set forth in Sec. 821.7(c)(2), the 
appeal brief must be typewritten, double-spaced, on 8\1/2\-by-11 inch 
paper. The appeal brief shall set forth the name, address and telephone 
number of the party, or the attorney or other representative filing the 
brief on the party's behalf. No appeal brief may contain more than 35 
pages of text without prior leave of the General Counsel, upon a showing 
of good cause.
    (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) Reply brief. Any other party to the proceeding may file a brief 
in reply to the appeal brief within 30 days after the date on which the 
appeal brief was served on that party (except as provided in Sec. 
821.57(b) with respect to emergency proceedings). A copy of the reply 
brief shall simultaneously be served on the appealing party and any 
other parties to the proceeding. The form requirements governing the 
appeal brief set forth in paragraph (b)(1) also apply to the reply 
brief.
    (d) Other filings. Subsequent to the filing of the appeal and reply 
briefs, the parties may file citations to supplemental authorities. This 
procedure may be used only for identifying new and relevant legal 
authority, and not to correct omissions in briefing or to respond to a 
reply brief. No argument may be included with such a filing. Such filing 
shall include a reference to the page of the brief to which the cited 
legal authority pertains. Any response shall be filed within 10 days of 
the date of service of the supplemental filing, and shall be similarly 
limited in scope. With these exceptions, the parties may make no other 
submissions, except by leave of the Board, upon on a showing of good 
cause.

[[Page 164]]

    (e) Oral argument. Oral argument before the Board will not be held 
in proceedings under this part unless the Board, on motion of a party or 
on its own initiative, determines that oral argument is needed.



Sec. 821.49  Issues on appeal.

    (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.



Sec. 821.50  Petition for rehearing, reargument, reconsideration or 
modification of an order of the Board.

    (a) General. Any party to a proceeding may petition the Board for 
rehearing, reargument, reconsideration or modification of a Board order 
on appeal from a law judge's initial decision or order. An initial 
decision or appealable order of a law judge that has become final 
because no timely appeal was taken therefrom may not be the subject of a 
petition under this section.
    (b) Timing and service. The petition must be filed with the Board, 
and simultaneously served on the other parties, within 30 days after the 
date of service of the Board's order on appeal from the law judge's 
initial decision or order.
    (c) Content. The petition shall state briefly and specifically the 
matters of record alleged to have been erroneously decided, and the 
ground or grounds relied upon. If the petition is based, in whole or in 
part, upon new matter, it shall set forth such new matter and shall 
contain affidavits of prospective witnesses, authenticated documents, or 
both, or an explanation of why such substantiation is unavailable, and 
shall explain 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.
    (d) Repetitious petitions. Repetitious petitions will not be 
entertained by the Board, and will be summarily dismissed.
    (e) Reply to petition. Any other party to the proceeding may file a 
reply to the petition within 15 days after the date on which the 
petition was served on that party. A copy of such reply shall 
simultaneously be served on the petitioner and any other parties to the 
proceeding.
    (f) Stay of effective date of Board's order. The filing of a 
petition under this section shall operate to stay the effective date of 
the Board's order, unless the Board directs otherwise.



 Subpart I_Special Rules Applicable to Proceedings Involving Emergency 
                 and Other Immediately Effective Orders



Sec. 821.52  General.

    (a) Applicability. This subpart shall apply to any order issued by 
the Administrator under 49 U.S.C. 44709 as an emergency order, as an 
order not designated as an emergency order but later amended to be an 
emergency order, and any order designated as immediately effective or 
effective immediately.
    (b) Effective date of emergency. The procedure set forth herein 
shall apply as of the date on which written advice of the emergency 
character of the Administrator's order is received and docketed by the 
Board.
    (c) Computation of time. Time shall be computed in accordance with 
the provisions of Sec. 821.10.
    (d) Waiver. Except as provided in Sec. 821.54(f), or where the law 
judge or the Board determines that it would unduly burden another party 
or the Board, a certificate holder (respondent) affected by an emergency 
or other immediately effective order of the Administrator may, at any 
time after filing an appeal from such an order, waive the applicability 
of the accelerated time limits of this subpart; however, such a waiver

[[Page 165]]

shall not serve to lengthen any period of time for doing an act 
prescribed by this subpart which expired before the date on which the 
waiver was made.



Sec. 821.53  Appeal.

    (a) Time within which to file appeal. An appeal from an emergency or 
other immediately effective order of the Administrator must be filed 
within 10 days after the date on which the Administrator's order was 
served on the respondent. The respondent shall simultaneously serve a 
copy of the appeal on the Administrator.
    (b) Form and content of appeal. The appeal may be in letter form. It 
shall identify the certificate or certificates affected and indicate 
that an emergency or other immediately effective order of the 
Administrator is being appealed.



Sec. 821.54  Petition for review of Administrator's determination of 
emergency.

    (a) Time within which to file petition. A respondent may, within 2 
days after the date of receipt of an emergency or other immediately 
effective order of the Administrator, file with the Board a petition for 
review of the Administrator's determination that an emergency, requiring 
the order to be effective immediately, exists. This 2-day time limit is 
statutory and the Board has no authority to extend it. If the respondent 
has not previously filed an appeal from the Administrator's emergency or 
other immediately effective order, the petition shall also be considered 
a simultaneously filed appeal from the order under Sec. 821.53.
    (b) Form, content and service of petition. The petition may be in 
letter form. A copy of the Administrator's order, from which review of 
the emergency determination is sought, must be attached to the petition. 
If a copy of the order is not attached, the petition will be dismissed. 
While the petition need only request that the Board review the 
Administrator's determination as to the existence of an emergency 
requiring the order be effective immediately, it may also enumerate the 
respondent's reasons for believing that the Administrator's emergency 
determination is not warranted in the interest of aviation safety. The 
petition must be filed with the Board by overnight delivery service or 
facsimile and simultaneously served on the Administrator by the same 
means.
    (c) Reply to petition. If the petition enumerates the respondent's 
reasons for believing that the Administrator's emergency determination 
is unwarranted, the Administrator may, within 2 days after the date of 
service of the petition, file a reply, which shall be strictly limited 
to matters of rebuttal. Such reply must be filed with the Board by 
overnight delivery service or facsimile and simultaneously served on the 
respondent by the same means. No submissions other than the respondent's 
petition and the Administrator's reply in rebuttal will be accepted, 
except in accordance with paragraph (d) of this section.
    (d) Hearing. No hearing shall be held on a petition for review of an 
emergency determination. However, the law judge may, on his or her own 
initiative, and strictly in keeping with the prohibition on ex parte 
communications set forth in Sec. 821.61, solicit from the parties 
additional information to supplement that previously provided by the 
parties.
    (e) Disposition. Within 5 days after the Board's receipt of the 
petition, the chief law judge (or, if the case has been assigned to a 
law judge, the law judge to whom the case is assigned) shall dispose of 
the petition by written order, and, in so doing, shall consider whether, 
based on the acts and omissions alleged in the Administrator's order, 
and assuming the truth of such factual allegations, the Administrator's 
emergency determination was appropriate under the circumstances, in that 
it supports a finding that aviation safety would likely be compromised 
by a stay of the effectiveness of the order during the pendency of the 
respondent's appeal.
    (f) Effect of law judge's ruling. If the law judge grants the 
petition, the effectiveness of the Administrator's order shall be stayed 
until final disposition of the respondent's appeal by a law judge or by 
the Board. In such cases, the remaining provisions of this subpart 
(Sec. Sec. 821.55-821.57) shall continue to apply, unless the 
respondent, with the

[[Page 166]]

Administrator's consent, waives their applicability. If the petition is 
denied, the Administrator's order shall remain in effect, and the 
remaining provisions of this subpart shall continue to apply, unless 
their applicability is waived by the respondent. The law judge's ruling 
on the petition shall be final, and is not appealable to the Board. 
However, in the event of an appeal to the Board from a law judge's 
decision on the merits of the emergency or other immediately effective 
order, the Board may, at its discretion, note, in its order disposing of 
the appeal, its views on the law judge's ruling on the petition, and 
such views shall serve as binding precedent in all future cases.



Sec. 821.55  Complaint, answer to complaint, motions and discovery.

    (a) Complaint. In proceedings governed by this subpart, the 
Administrator's complaint shall be filed by overnight delivery service 
or facsimile, and simultaneously served on the respondent by the same 
means, within 3 days after the date on which the Administrator received 
the respondent's appeal, or within 3 days after the date of service of 
an order disposing of a petition for review of an emergency 
determination, whichever is later.
    (b) Answer to complaint. The respondent shall file with the Board an 
answer to the complaint within 5 days after the date on which the 
complaint was served by the Administrator, and shall simultaneously 
serve a copy of the answer on the Administrator. Failure by the 
respondent to deny the truth of any allegation or allegations in the 
complaint may be deemed an admission of the truth of the allegation or 
allegations not answered. The answer shall also identify any affirmative 
defenses that the respondent intends to raise at the hearing.
    (c) Motion to dismiss and motion for more definite statement. In 
proceedings governed by this subpart, no motion to dismiss the complaint 
or for a more definite statement of the complaint's allegations shall be 
made, but the substance thereof may be stated in the respondent's 
answer. The law judge may permit or require a more definite statement or 
other amendment to any pleading at the hearing, upon good cause shown 
and upon just and reasonable terms.
    (d) Discovery. Discovery is authorized in proceedings governed by 
this subpart. Given the short time available for discovery, the parties 
shall cooperate to ensure timely completion of the discovery process 
prior to the hearing. Discovery requests shall be served by the parties 
as soon as possible. A motion to compel discovery should be 
expeditiously filed where any dispute arises, and the law judge shall 
promptly rule on such a motion. Time limits for compliance with 
discovery requests shall be set by the parties so as to accommodate, and 
not conflict with, the accelerated adjudication schedule set forth in 
this subpart. The provisions of Sec. 821.19 shall apply, modified as 
necessary to meet the exigencies of this subpart's accelerated 
timeframes.



Sec. 821.56  Hearing and initial decision or appealable order of law judge.

    (a) Notice of hearing. Within 3 days after the date on which the 
Board receives the Administrator's complaint, or immediately upon the 
issuance of a law judge's order disposing of a petition for review of 
the Administrator's emergency determination, if later, the parties shall 
be served with a written notice of hearing, setting forth the date, time 
and place of the hearing. The hearing shall be set for a date no later 
than 30 days after the date on which the respondent's appeal was 
received and docketed. To the extent that they are not inconsistent with 
this section, the provisions of Sec. 821.37(a) shall also apply.
    (b) Conduct of hearing. The provisions of Sec. Sec. 821.38, 821.39 
and 821.40, concerning the taking of evidence, argument and submissions 
by the parties, and the composition of the hearing record, shall apply 
to proceedings governed by this subpart.
    (c) Initial decision and effect of initial decision or appealable 
order. The law judge's initial decision shall be made orally on the 
record at the termination of the hearing. The provisions of Sec. 
821.42, concerning the content of the initial decision, the furnishing 
of copies of the initial decision to the parties and the issuance date 
of the initial decision, and the provisions of Sec. 821.43,

[[Page 167]]

concerning the effect of the law judge's initial decision or appealable 
order and any appeal therefrom, shall apply to proceedings governed by 
this subpart.



Sec. 821.57  Procedure on appeal.

    (a) Time within which to file notice of appeal. A party may appeal 
from a law judge's initial decision or appealable order by filing with 
the Board, and simultaneously serving on the other parties, a notice of 
appeal, within 2 days after the date on which the initial decision was 
orally rendered or the appealable order was served. The time limitations 
for the filing of documents respecting appeals governed by this subpart 
will not be extended by reason of the unavailability of the hearing 
transcript.
    (b) Briefs and oral argument. Each appeal in proceedings governed by 
this subpart must be perfected, within 5 days after the date on which 
the notice of appeal was filed, by the filing, and simultaneous service 
on the other parties, of a brief in support of the appeal. Any other 
party to the proceeding may file a brief in reply to the appeal brief 
within 7 days after the date on which the appeal brief was served on 
that party. A copy of the reply brief shall simultaneously be served on 
the appealing party and any other parties to the proceeding. Unless 
otherwise authorized by the Board, all briefs in connection with appeals 
governed by this subpart must be filed and served by overnight delivery 
service, or by facsimile confirmed by personal or first-class mail 
delivery of the original. Aside from the time limits and methods of 
filing and service specifically mandated by this paragraph, the 
provisions of Sec. 821.48 shall apply.
    (c) Issues on appeal. The provisions of Sec. 821.49(a) shall apply 
in proceedings governed by this subpart.
    (d) Petition for rehearing, reargument, reconsideration or 
modification of order. The only petitions for rehearing, reargument, 
reconsideration or modification of an order which the Board will 
entertain in proceedings governed by this subpart are those based on the 
ground that new matter has been discovered. Such petitions must:
    (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.



                    Subpart J_Ex Parte Communications

    Authority: Sec. 4, Pub. L. 94-409, 5 U.S.C. 556(d) and 557; 49 
U.S.C. 1101-1155, 44701-44723, 46301.



Sec. 821.60  Definitions.

    As used in this subpart:
    Board decisional employee means a Board Member, law judge or other 
employee who is, or who may reasonably be expected to be, involved in 
the decisional process of the proceeding;
    Ex parte communication means an oral or written communication not on 
the public record with respect to which reasonable prior notice to all 
parties is not given, but does not include requests for status reports 
on any matter or proceeding covered by this part.



Sec. 821.61  Prohibited ex parte communications.

    (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

[[Page 168]]

made to any interested person outside the Board an ex parte 
communication relevant to the merits of the proceeding. Ex parte 
communications solely relating to matters of Board procedure or practice 
are not prohibited by this section.



Sec. 821.62  Procedures for handling ex parte communications.

    A Board decisional employee who receives, makes or knowingly causes 
to be made a communication prohibited by Sec. 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.



Sec. 821.63  Requirement to show cause and imposition of sanction.

    (a) Upon receipt of a communication made or knowingly caused to be 
made by a party in violation of Sec. 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 Sec. 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.



                Subpart K_Judicial Review of Board Orders



Sec. 821.64  Judicial review.

    (a) General. Judicial review of a final order of the Board may be 
sought as provided in 49 U.S.C. 1153 and 46110 by the filing of a 
petition for review with the appropriate United States Court of Appeals 
within 60 days of the date of entry (i.e., service date) of the Board's 
order. Under the applicable statutes, any party may appeal the Board's 
decision. The Board is not a party in interest in such appellate 
proceedings and, accordingly, does not typically participate in the 
judicial review of its decisions. In matters appealed by the 
Administrator, the other parties should anticipate the need to make 
their own defense.
    (b) Stay pending judicial review. No request for a stay pending 
judicial review will be entertained if it is received by the Board after 
the effective date of the Board's order (see Sec. 821.50(b)). If a stay 
action is to be timely, any request must be filed sufficiently in 
advance of the effective date of the Board's order to allow for a reply 
and Board review.



PART 825_RULES OF PROCEDURE FOR MERCHANT MARINE APPEALS FROM DECISIONS 
OF THE COMMANDANT, U.S. COAST GUARD--Table of Contents




Sec.
825.1 Applicability.
825.5 Notice of appeal.
825.10 Referral of record.
825.15 Issues on appeal.
825.20 Briefs in support of appeal.
825.25 Oral argument.
825.30 Action by the Board.
825.35 Action after remand.
825.40 Ex parte communications.

    Authority: 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)).

    Source: 40 FR 30248, July 17, 1975, unless otherwise noted.



Sec. 825.1  Applicability.

    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.

[[Page 169]]

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)).



Sec. 825.5  Notice of appeal.

    (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 Sec. 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.



Sec. 825.10  Referral of record.

    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.



Sec. 825.15  Issues on appeal.

    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.



Sec. 825.20  Briefs in support of appeal.

    (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 
Sec. 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.



Sec. 825.25  Oral argument.

    (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 Sec. 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.

[[Page 170]]



Sec. 825.30  Action by the Board.

    (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.



Sec. 825.35  Action after remand.

    When a case has been remanded under Sec. 825.30, a party shall 
retain all rights of review under 46 CFR part 5 and this part, as 
applicable.



Sec. 825.40  Ex parte communications.

    (a) As used in this section:
    Board decisional employee means a Board Member or employee who is or 
who may reasonably be expected to be involved in the decisional process 
of the proceeding;
    Ex parte communication means an oral or written communication not on 
the public record with respect to which reasonable prior notice to all 
parties is not given, but it shall not include requests for status 
reports on any matter or proceeding covered by this part.
    (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.

Ex parte communications regarding solely matters of Board procedure or 
practice are not prohibited by this paragraph.
    (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.

(Authority: Sec. 4, Government in the Sunshine Act, Pub. L. 94-409, 
amending 5 U.S.C. 556 (d) and 5 U.S.C. 557; Independent Safety Board Act 
of 1974, Pub. L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.))

[42 FR 21614, Apr. 28, 1977]

[[Page 171]]



PART 826_RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980
--Table of Contents




                      Subpart A_General Provisions

Sec.
826.1 Purpose of these rules.
826.2 When the Act applies.
826.3 Proceedings covered.
826.4 Eligibility of applicants.
826.5 Standards for awards.
826.6 Allowable fees and expenses.
826.7 Rulemaking on maximum rates for attorney fees.
826.8 Awards against the Federal Aviation Administration.

             Subpart B_Information Required From Applicants

826.21 Contents of application.
826.22 Net worth exhibit.
826.23 Documentation of fees and expenses.
826.24 When an application may be filed.

            Subpart C_Procedures for Considering Applications

826.31 Filing and service of documents and general procedures.
826.32 Answer to application.
826.33 Reply.
826.34 Comments by other parties.
826.35 Settlement.
826.36 Further proceedings.
826.37 Decision.
826.38 Board review.
826.39 Judicial review.
826.40 Payment of award.

    Authority: Section 203(a)(1) Pub. L. 99-80, 99 Stat. 186 (5 U.S.C. 
504).

    Source: 46 FR 48209, Oct. 1, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 826.1  Purpose of these rules.

    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.



Sec. 826.2  When the Act applies.

    The Act applies to any adversary adjudication identified in Sec. 
826.3 as covered under the Act.

[59 FR 30531, June 14, 1994]



Sec. 826.3  Proceedings covered.

    (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 et seq., 44720-44711, 44715, 46301).
    (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,

[[Page 172]]

any award made will include only fees and expenses related to covered 
issues.

[46 FR 48209, Oct. 1, 1981, as amended at 59 FR 59054, Nov. 15, 1994]



Sec. 826.4  Eligibility of applicants.

    (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.

[46 FR 48209, Oct. 1, 1981, as amended at 54 FR 10332, Mar. 13, 1989]



Sec. 826.5  Standards for awards.

    (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.



Sec. 826.6  Allowable fees and expenses.

    (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.

[[Page 173]]

    (b)(1) No award for the fee of an attorney or agent under these 
rules may exceed $75 indexed as follows: 
[GRAPHIC] [TIFF OMITTED] TR14JN94.001


The CPI to be used is the annual average CPI, All Urban Consumers, U.S. 
City Average, All Items, except where a local, All Item index is 
available. Where a local index is available, but results in a manifest 
inequity vis-a-vis the U.S. City Average, the U.S. City Average may be 
used. The numerator of that equation is the yearly average for the 
year(s) the services were provided, with each year calculated 
separately. If an annual average CPI for a particular year is not yet 
available, the prior year's annual average CPI shall be used. This 
formula increases the $75 statutory cap by indexing it to reflect cost 
of living increases, as authorized in 5 U.S.C. 504(b)(1)(A)(ii). 
Application of these increased rate caps requires affirmative findings 
under Sec. 821.6(c) of this chapter. For ease of application, available 
U.S. City figures are reproduced as follows:

1981.........................................................       90.9
1982.........................................................       96.5
1983.........................................................       99.6
1984.........................................................      103.9
1985.........................................................      107.6
1986.........................................................      109.6
1987.........................................................      113.6
1988.........................................................      118.3
1989.........................................................      124.0
1990.........................................................      130.7
1991.........................................................      136.2
1992.........................................................      140.3
1993.........................................................      144.5
 

    (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.

[46 FR 48209, Oct. 1, 1981, as amended at 58 FR 21544, Apr. 22, 1993; 59 
FR 30531, June 14, 1994]



Sec. 826.7  Rulemaking on maximum rates for attorney fees.

    (a) In addition to increases based on cost of living (see Sec. 
826.6), attorney fees in some or all of the proceedings covered by this 
part may also be increased beyond the statutory cap of $75 if warranted 
by special factors (such as limited availability of attorneys qualified 
to handle certain types of proceedings). The Board will conduct any 
rulemaking proceedings for this purpose under the informal rulemaking 
procedures of the Administrative Procedure Act.
    (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,

[[Page 174]]

denying the petition, or taking other appropriate action.

[58 FR 21545, Apr. 22, 1993]



Sec. 826.8  Awards against the Federal Aviation Administration.

    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.



             Subpart B_Information Required From Applicants



Sec. 826.21  Contents of application.

    (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.

[46 FR 48209, Oct. 1, 1981, as amended at 59 FR 30532, June 14, 1994]



Sec. 826.22  Net worth exhibit.

    (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 Sec. 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

[[Page 175]]

against which the applicant seeks an award, but need not be served on 
any other party to the proceeding. If the administrative law judge finds 
that the information should not be withheld from disclosure, it shall be 
placed in the public record of the proceeding. Otherwise, any request to 
inspect or copy the exhibit shall be disposed of in accordance with the 
Board's established procedures under the Freedom of Information Act as 
inplemented by Part 801 of the Board's rules.



Sec. 826.23  Documentation of fees and expenses.

    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.



Sec. 826.24  When an application may be filed.

    (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.

[46 FR 48209, Oct. 1, 1981, as amended at 59 FR 30532, June 14, 1994]



            Subpart C_Procedures for Considering Applications



Sec. 826.31  Filing and service of documents and general procedures.

    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.

[59 FR 30532, June 14, 1994]



Sec. 826.32  Answer to application.

    (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

[[Page 176]]

with the answer either supporting affidavits or a request for further 
proceedings under Sec. 826.36.



Sec. 826.33  Reply.

    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 
Sec. 826.36.



Sec. 826.34  Comments by other parties.

    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.



Sec. 826.35  Settlement.

    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.



Sec. 826.36  Further proceedings.

    (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.



Sec. 826.37  Decision.

    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.



Sec. 826.38  Board review.

    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.



Sec. 826.39  Judicial review.

    Judicial review of final Board decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).



Sec. 826.40  Payment of award.

    An applicant seeking payment of an award shall submit to the 
disbursing

[[Page 177]]

official of the FAA a copy of the Board's final decision granting the 
award, accompanied by a statement that the applicant will not seek 
review of the decision in the United States courts. Applications for 
award grants in cases involving the FAA shall be sent to: The Office of 
Accounting and Audit, AAA-1, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591. The agency will pay the 
amount awarded to the applicant within 60 days, unless judicial review 
of the award or of the underlying decision of the adversary adjudication 
has been sought by the applicant or any other party to the proceeding.



PART 830_NOTIFICATION AND REPORTING OF AIRCRAFT ACCIDENTS OR INCIDENTS 

AND OVERDUE AIRCRAFT, AND PRESERVATION OF AIRCRAFT WRECKAGE, MAIL, CARGO, 
AND RECORDS--Table of Contents




                            Subpart A_General

Sec.
830.1 Applicability.
830.2 Definitions.

  Subpart B_Initial Notification of Aircraft Accidents, Incidents, and 
                            Overdue Aircraft

830.5 Immediate notification.
830.6 Information to be given in notification.

  Subpart C_Preservation of Aircraft Wreckage, Mail, Cargo, and Records

830.10 Preservation of aircraft wreckage, mail, cargo, and records.

   Subpart D_Reporting of Aircraft Accidents, Incidents, and Overdue 
                                Aircraft

830.15 Reports and statements to be filed.

    Authority: Federal Aviation Act of 1958, as amended (49 U.S.C. 40101 
et seq.), and the Independent Safety Board Act of 1974, as amended (49 
U.S.C. 1101 et seq.).

    Source: 53 FR 36982, Sept. 23, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 830.1  Applicability.

    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.

[60 FR 40112, Aug. 7, 1995]



Sec. 830.2  Definitions.

    As used in this part the following words or phrases are defined as 
follows:
    Aircraft accident means an occurrence associated with the operation 
of an aircraft which takes place between the time any person boards the 
aircraft with the intention of flight and all such persons have 
disembarked, and in which any person suffers death or serious injury, or 
in which the aircraft receives substantial damage.
    Civil aircraft means any aircraft other than a public aircraft.
    Fatal injury means any injury which results in death within 30 days 
of the accident.
    Incident means an occurrence other than an accident, associated with 
the operation of an aircraft, which affects or could affect the safety 
of operations.
    Operator means any person who causes or authorizes the operation of 
an aircraft, such as the owner, lessee, or bailee of an aircraft.
    Public aircraft means an aircraft used only for the United States 
Government, or an aircraft owned and operated (except for commercial 
purposes) or exclusively leased for at least 90 continuous days by a 
government other

[[Page 178]]

than the United States Government, including a State, the District of 
Columbia, a territory or possession of the United States, or a political 
subdivision of that government. ``Public aircraft'' does not include a 
government-owned aircraft transporting property for commercial purposes 
and does not include a government-owned aircraft transporting passengers 
other than: transporting (for other than commercial purposes) 
crewmembers or other persons aboard the aircraft whose presence is 
required to perform, or is associated with the performance of, a 
governmental function such as firefighting, search and rescue, law 
enforcement, aeronautical research, or biological or geological resource 
management; or transporting (for other than commercial purposes) persons 
aboard the aircraft if the aircraft is operated by the Armed Forces or 
an intelligence agency of the United States. Notwithstanding any 
limitation relating to use of the aircraft for commercial purposes, an 
aircraft shall be considered to be a public aircraft without regard to 
whether it is operated by a unit of government on behalf of another unit 
of government pursuant to a cost reimbursement agreement, if the unit of 
government on whose behalf the operation is conducted certifies to the 
Administrator of the Federal Aviation Administration that the operation 
was necessary to respond to a significant and imminent threat to life or 
property (including natural resources) and that no service by a private 
operator was reasonably available to meet the threat.
    Serious injury means any injury which: (1) Requires hospitalization 
for more than 48 hours, commencing within 7 days from the date of the 
injury was received; (2) results in a fracture of any bone (except 
simple fractures of fingers, toes, or nose); (3) causes severe 
hemorrhages, nerve, muscle, or tendon damage; (4) involves any internal 
organ; or (5) involves second- or third-degree burns, or any burns 
affecting more than 5 percent of the body surface.
    Substantial damage means damage or failure which adversely affects 
the structural strength, performance, or flight characteristics of the 
aircraft, and which would normally require major repair or replacement 
of the affected component. Engine failure or damage limited to an engine 
if only one engine fails or is damaged, bent fairings or cowling, dented 
skin, small punctured holes in the skin or fabric, ground damage to 
rotor or propeller blades, and damage to landing gear, wheels, tires, 
flaps, engine accessories, brakes, or wingtips are not considered 
``substantial damage'' for the purpose of this part.

[53 FR 36982, Sept. 23, 1988, as amended at 60 FR 40112, Aug. 7, 1995]



  Subpart B_Initial Notification of Aircraft Accidents, Incidents, and 
                            Overdue Aircraft



Sec. 830.5  Immediate notification.

    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 \1\ when:
---------------------------------------------------------------------------

    \1\ The Board field offices are listed under U.S. Government in the 
telephone directories of the following cities: Anchorage, AK, Atlanta, 
GA, West Chicago, IL, Denver, CO, Arlington, TX, Gardena (Los Angeles), 
CA, Miami, FL, Parsippany, NJ (metropolitan New York, NY), Seattle, WA, 
and Washington, DC.
---------------------------------------------------------------------------

    (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):

[[Page 179]]

    (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.

[53 FR 36982, Sept. 23, 1988, as amended at 60 FR 40113, Aug. 7, 1995]



Sec. 830.6  Information to be given in notification.

    The notification required in Sec. 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.



  Subpart C_Preservation of Aircraft Wreckage, Mail, Cargo, and Records



Sec. 830.10  Preservation of aircraft wreckage, mail, cargo, and records.

    (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 Sec. 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.



   Subpart D_Reporting of Aircraft Accidents, Incidents, and Overdue 
                                Aircraft



Sec. 830.15  Reports and statements to be filed.

    (a) Reports. The operator of a civil, public (as specified in Sec. 
830.5), or foreign aircraft shall file a report on Board Form 6120.\1/2\ 
(OMB No. 3147-0001) \2\ within 10 days after an accident, or after 7 
days if an overdue aircraft is still missing. A report on an incident 
for which immediate notification is required by Sec. 830.5(a) shall be 
filed only as requested by an authorized representative of the Board.
---------------------------------------------------------------------------

    \2\ Forms are available from the Board field offices (see footnote 
1), from Board headquarters in Washington, DC, and from the Federal 
Aviation Administration Flight Standards District Offices.

---------------------------------------------------------------------------

[[Page 180]]

    (b) Crewmember statement. Each crewmember, if physically able at the 
time the report is submitted, shall attach a statement setting forth the 
facts, conditions, and circumstances relating to the accident or 
incident as they appear to him. If the crewmember is incapacitated, he 
shall submit the statement as soon as he is physically able.
    (c) Where to file the reports. The operator of an aircraft shall 
file any report with the field office of the Board nearest the accident 
or incident.

[53 FR 36982, Sept. 23, 1988, as amended at 60 FR 40113, Aug. 7, 1995]



PART 831_ACCIDENT/INCIDENT INVESTIGATION PROCEDURES--Table of Contents




Sec.
831.1 Applicability of part.
831.2 Responsibility of Board.
831.3 Authority of Directors.
831.4 Nature of investigation.
831.5 Priority of Board investigations.
831.6 Request to withhold information.
831.7 Right to representation.
831.8 Investigator-in-charge.
831.9 Authority of Board representatives.
831.10 Autopsies.
831.11 Parties to the investigation.
831.12 Access to and release of wreckage, records, mail, and cargo.
831.13 Flow and dissemination of accident or incident information.
831.14 Proposed findings.

    Authority: Independent Safety Board Act of 1974, as amended (49 
U.S.C. 1101 et seq.); Federal Aviation Act of 1958, as amended (49 
U.S.C. 40101 et seq.).

    Source: 53 FR 15847, May 4, 1988, unless otherwise noted.



Sec. 831.1  Applicability of part.

    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.



Sec. 831.2  Responsibility of Board.

    (a) Aviation. (1) The Board is responsible for the organization, 
conduct, and control of all accident and incident investigations (see 
Sec. 830.2 of this chapter) within the Untied States, its territories 
and possessions, where the accident or incident involves any civil 
aircraft or certain public aircraft (as specified in Sec. 830.5 of this 
chapter), including an investigation involving civil or public aircraft 
(as specified in Sec. 830.5) on the one hand, and an Armed Forces or 
intelligence agency aircraft on the other hand. It is also responsible 
for investigating accidents/incidents that occur outside the United 
States, and which involve civil aircraft and/or certain public aircraft, 
when the accident/incident is not in the territory of another country 
(i.e., in international waters).
    (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. \1\ Under 
no circumstances are aviation investigations where the portion of the 
investigation is so delegated to the FAA by the Board considered to be 
joint investigations in the sense of sharing responsibility. These 
investigations remain NTSB investigations.
---------------------------------------------------------------------------

    \1\ The authority of a representative of the FAA during such 
investigations is the same as that of a Board investigator under this 
part.
---------------------------------------------------------------------------

    (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

[[Page 181]]

Aviation Organization, the state of occurrence is responsible for the 
investigation. If the accident or incident occurs in a foreign state not 
bound by the provisions of Annex 13 to the Chicago Convention, or if the 
accident or incident involves a public aircraft (Annex 13 applies only 
to civil aircraft), the conduct of the investigation shall be in 
consonance with any agreement entered into between the United States and 
the foreign state.
    (b) Surface. The Board is responsible for the investigation of: 
railroad accidents in which there is a fatality, substantial property 
damage, or which involve a passenger train (see part 840 of this 
chapter); major marine casualties and marine accidents involving a 
public and non-public vessel or involving Coast Guard functions (see 
part 850 of this chapter \2\); highway accidents, including railroad 
grade-crossing accidents, the investigation of which is selected in 
cooperation with the States; and pipeline accidents in which there is a 
fatality, significant injury to the environment, or substantial property 
damage.
---------------------------------------------------------------------------

    \2\ Part 850 also governs the conduct of certain investigations in 
which the Board and the Coast Guard participate jointly.
---------------------------------------------------------------------------

    (c) Other accidents/incidents. The Board is also responsible for the 
investigation of an accident/incident that occurs in connection with the 
transportation of people or property which, in the judgment of the 
Board, is catastrophic, involves problems of a recurring character, or 
would otherwise carry out the policy of the Independent Safety Board Act 
of 1974. This authority includes, but is not limited to, marine and 
boating accidents and incidents not covered by part 850 of this chapter, 
and accidents/incidents selected by the Board involving transportation 
and/or release of hazardous materials.

[62 FR 3806, Jan. 27, 1997]



Sec. 831.3  Authority of Directors.

    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 
Sec. 831.2 and part 800 of this chapter, may order an investigation 
into any accident or incident.

[63 FR 71606, Dec. 29, 1998]



Sec. 831.4  Nature of investigation.

    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 et seq.), and are not 
conducted for the purpose of determining the rights or liabilities of 
any person.

[62 FR 3806, Jan. 27, 1997]



Sec. 831.5  Priority of Board investigations.

    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

[[Page 182]]

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.

[62 FR 3807, Jan. 27, 1997]



Sec. 831.6  Request to withhold information.

    (a) Trade Secrets Act (18 U.S.C. 1905), Exemption 4 of the Freedom 
of Information Act (5 U.S.C. 552) (FOIA), and The Independent Safety 
Board Act of 1974, as amended.
    (1) General. The Trade Secrets Act provides criminal penalties for 
unauthorized government disclosure of trade secrets and other specified 
confidential commercial information. The Freedom of Information Act 
authorizes withholding of such information; however, the Independent 
Safety Board Act, at 49 U.S.C. 1114(b), provides that the Board may, 
under certain circumstances, disclose information related to trade 
secrets.
    (2) Procedures. Information submitted to the Board that the 
submitter believes qualifies as a trade secret or confidential 
commercial information subject either to the Trade Secrets Act or FOIA 
Exemption 4 shall be so identified by the submitter on each and every 
page of such document. The Board shall give the submitter of any 
information so identified, or information the Board has substantial 
reason to believe qualifies as a trade secret or confidential commercial 
information subject either to the Trade Secrets Act or FOIA Exemption 4, 
the opportunity to comment on any contemplated disclosure, pursuant to 
49 U.S.C. 1114(b). In all instances where the Board determines to 
disclose pursuant to 49 U.S.C. 1114(b) and/or 5 U.S.C. 552, at least 10 
days' notice will be provided the submitter. Notice may not be provided 
the submitter when disclosure is required by a law other than FOIA if 
the information is not identified by the submitter as qualifying for 
withholding, as is required by this paragraph, unless the Board has 
substantial reason to believe that disclosure would result in 
competitive harm.
    (3) Voluntarily-provided safety information. It is the policy of the 
Safety Board that commercial, safety-related information provided to it 
voluntarily and not in the context of particular accident/incident 
investigations will not be disclosed. Reference to such information for 
the purposes of safety recommendations will be undertaken with 
consideration for the confidential nature of the underlying database(s).
    (b) Other. Any person may make written objection to the public 
disclosure of any other information contained in any report or document 
filed, or otherwise obtained by the Board, stating the grounds for such 
objection. The Board, on its own initiative or if such objection is 
made, may order such information withheld from public disclosure when, 
in its judgment, the information may be withheld under the provisions of 
an exemption to the Freedom of Information Act (5 U.S.C. 552, see part 
801 of this chapter), and its release is found not to be in the public 
interest.

[62 FR 3807, Jan. 27, 1997]



Sec. 831.7  Right to representation.

    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.

[62 FR 3807, Jan. 27, 1997]



Sec. 831.8  Investigator-in-charge.

    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

[[Page 183]]

Board consideration and adoption of a report or brief of probable 
cause(s).

[62 FR 3807, Jan. 27, 1997]



Sec. 831.9  Authority of Board representatives.

    (a) General. Any employee of the Board, upon presenting appropriate 
credentials, is authorized to enter any property where an accident/
incident subject to the Board's jurisdiction has occurred, or wreckage 
from any such accident/incident is located, and do all things considered 
necessary for proper investigation. Further, upon demand of an 
authorized representative of the Board and presentation of credentials, 
any Government agency, or person having possession or control of any 
transportation vehicle or component thereof, any facility, equipment, 
process or controls relevant to the investigation, or any pertinent 
records or memoranda, including all files, hospital records, and 
correspondence then or thereafter existing, and kept or required to be 
kept, shall forthwith permit inspection, photographing, or copying 
thereof by such authorized representative for the purpose of 
investigating an accident or incident, or preparing a study, or related 
to any special investigation pertaining to safety or the prevention of 
accidents. The Safety Board may issue a subpoena, enforceable in Federal 
district court, to obtain testimony or other evidence. Authorized 
representatives of the Board may question any person having knowledge 
relevant to an accident/incident, study, or special investigation. 
Authorized representatives of the Board also have exclusive authority, 
on behalf of the Board, to decide the way in which any testing will be 
conducted, including decisions on the person that will conduct the test, 
the type of test that will be conducted, and any individual who will 
witness the test.
    (b) Aviation. Any employee of the Board, upon presenting appropriate 
credentials, is authorized to examine and test to the extent necessary 
any civil or public aircraft (as specified in Sec. 830.5), aircraft 
engine, propeller, appliance, or property aboard such aircraft involved 
in an accident in air commerce.
    (c) Surface. (1) Any employee of the Board, upon presenting 
appropriate credentials, is authorized to test or examine any vehicle, 
vessel, rolling stock, track, pipeline component, or any part of any 
such item when such examination or testing is determined to be required 
for purposes of such investigation.
    (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.

[53 FR 15847, May 4, 1988, as amended at 60 FR 40113, Aug. 7, 1995; 62 
FR 3807, Jan. 27, 1997]



Sec. 831.10  Autopsies.

    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.



Sec. 831.11  Parties to the investigation.

    (a) All Investigations, regardless of mode. (1) The investigator-in-
charge designates parties to participate in the investigation. Parties 
shall be limited to those persons, government agencies, companies, and 
associations whose employees, functions, activities, or products were 
involved in the accident or incident and who can provide suitable 
qualified technical personnel actively to assist in the investigation. 
Other than the FAA in aviation cases, no

[[Page 184]]

other entity is afforded the right to participate in Board 
investigations.
    (2) Participants in the investigation (i.e., party representatives, 
party coordinators, and/or the larger party organization) shall be 
responsive to the direction of Board representatives and may lose party 
status if they do not comply with their assigned duties and activity 
proscriptions or instructions, or if they conduct themselves in a manner 
prejudicial to 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 Sec. 
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 Sec. 1132 provides for the 
appropriate participation of the FAA in Board investigations, and Sec. 
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) Aviation investigations. In addition to compliance with the 
provisions of paragraph (a) of this section, and to assist in ensuring 
complete understanding of the requirements and limitations of party 
status, all party representatives in aviation investigations shall sign 
``Statement of Party Representatives to NTSB Investigation'' immediately 
upon attaining party representative status. Failure timely to sign that 
statement may result in sanctions, including loss of status as a party.

[62 FR 3808, Jan. 27, 1997, as amended at 63 FR 71606, Dec. 29, 1998]



Sec. 831.12  Access to and release of wreckage, records, mail, and cargo.

    (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, 
``Release of Wreckage,'' will be completed, acknowledging receipt.

[62 FR 3808, Jan. 27, 1997]



Sec. 831.13  Flow and dissemination of accident or incident information.

    (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.

[53 FR 15847, May 4, 1988, as amended at 62 FR 3808, Jan. 27, 1997]



Sec. 831.14  Proposed findings.

    (a) General. Any person, government agency, company, or association 
whose employees, functions, activities, or products were involved in an 
accident

[[Page 185]]

or incident under investigation may submit to the Board written proposed 
findings to be drawn from the evidence produced during the course of the 
investigation, a proposed probable cause, and/or proposed safety 
recommendations designed to prevent future accidents.
    (b) Timing of submissions. To be considered, these submissions must 
be received before the matter is calendared for consideration at a Board 
meeting. All written submissions are expected to have been presented to 
staff in advance of the formal scheduling of the meeting. This procedure 
ensures orderly and thorough consideration of all views.
    (c) Exception. This limitation does not apply to safety enforcement 
cases handled by the Board pursuant to part 821 of this chapter. 
Separate ex parte rules, at part 821, subpart J, apply to those 
proceedings.

[62 FR 3808, Jan. 27, 1997]



PART 835_TESTIMONY OF BOARD EMPLOYEES--Table of Contents




Sec.
835.1 Purpose.
835.2 Definitions.
835.3 Scope of permissible testimony.
835.4 Use of reports.
835.5 Manner in which testimony is given in civil litigation.
835.6 Request for testimony in civil litigation.
835.7 Testimony of former Board employees.
835.8 Testimony by current Board employees regarding prior activity.
835.9 Procedure in the event of a subpoena in civil litigation.
835.10 Testimony in Federal, State, or local criminal investigations and 
          other proceedings.
835.11 Obtaining Board accident reports, factual accident reports, and 
          supporting information.

    Authority: 5 U.S.C. 301; Independent Safety Board Act of 1974, as 
amended (49 U.S.C. 1101 et seq.).



Sec. 835.1  Purpose.

    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.

[63 FR 71607, Dec. 29, 1998]



Sec. 835.2  Definitions.

    Accident, for purposes of this part includes ``incident.''
    Board accident report means the report containing the Board's 
determinations, including the probable cause of an accident, issued 
either as a narrative report or in a computer format (``briefs'' of 
accidents). Pursuant to section 701(e) of the Federal Aviation Act of 
1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 
1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident 
report may be admitted as evidence or used in any suit or action for 
damages growing out of any matter mentioned in such reports.
    Factual accident report means the report containing the results of 
the investigator's investigation of the accident. The Board does not 
object to, and there is no statutory bar to, admission in litigation of 
factual accident reports. In the case of a major investigation, group 
chairman factual reports are factual accident reports.

[63 FR 71607, Dec. 29, 1998, as amended at 64 FR 5622, Feb. 4, 1999]



Sec. 835.3  Scope of permissible 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

[[Page 186]]

these sections would be defeated if expert opinion testimony of Board 
employees, which may be reflected in the views of the Board expressed in 
its reports, were admitted in evidence or used in litigation arising out 
of an accident. The Board relies heavily upon its investigators' 
opinions in its deliberations. Furthermore, the use of Board employees 
as experts to give opinion testimony would impose a significant 
administrative burden on the Board's investigative staff. Litigants must 
obtain their expert witnesses from other sources.
    (b) For the reasons stated in paragraph (a) of this section and 
Sec. 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 Sec. 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.

[55 FR 41541, Oct. 12, 1990, as amended at 63 FR 71607, Dec. 29, 1998; 
64 FR 5622, Feb. 4, 1999]



Sec. 835.4  Use of reports.

    (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.

[55 FR 41541, Oct. 12, 1990, as amended at 63 FR 71607, Dec. 29, 1998]



Sec. 835.5  Manner in which testimony is given in civil litigation.

    (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,

[[Page 187]]

at the expense of the party requesting the deposition, to the Board's 
General Counsel at Washington, DC headquarters for the Board's files.

[55 FR 41541, Oct. 12, 1990, as amended at 63 FR 71607, Dec. 29, 1998]



Sec. 835.6  Request for testimony in civil litigation.

    (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 (i.e., in the public docket). In the case of major 
accident investigations where there are multiple factual reports issued 
and testimony of group chairmen is sought, the General Counsel may 
approve depositions regarding completed group factual reports at any 
time after incorporation of the report in the public docket. However, no 
deposition will be approved prior to the Board's public hearing, where 
one is scheduled or contemplated. The General Counsel may approve a 
deposition in the absence of a factual accident report when such a 
report will not be issued but all staff fact-finding is complete.
    (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 Sec. 835.1, will be 
limited to the matters delineated in Sec. 835.3, will not interfere 
with the performance of the duties of the employee as set forth in Sec. 
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.

[63 FR 71607, Dec. 29, 1998]



Sec. 835.7  Testimony of former Board employees.

    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 Sec. 835.3 and Sec. 835.4.

[63 FR 71608, Dec. 29, 1998]



Sec. 835.8  Testimony by current Board employees regarding prior activity.

    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 Sec. 835.1 
and Sec. 835.3, and is subject to whatever conditions the General 
Counsel finds necessary to promote the purposes of this part as set 
forth in Sec. 835.1 and Sec. 835.3.

[63 FR 71608, Dec. 29, 1998]



Sec. 835.9  Procedure in the event of a subpoena in civil litigation.

    (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.

[63 FR 71608, Dec. 29, 1998]



Sec. 835.10  Testimony in Federal, State, or local criminal investigations 
and other proceedings.

    (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

[[Page 188]]

coroner's inquests and grand jury proceedings this may not be possible. 
The Board encourages those seeking testimony of Board employees to 
contact the General Counsel as soon as such testimony is being 
considered. Whenever the intent to seek such testimony is communicated 
to the employee, he shall immediately notify the General Counsel.
    (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 Sec. 835.3. Only factual 
testimony is authorized; no expert or opinion testimony shall be given.

[63 FR 71608, Dec. 29, 1998]



Sec. 835.11  Obtaining Board accident reports, factual accident reports, 
and supporting information.

    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 www.ntsb.gov. Or, you may call our 
Public Inquiries Branch, at (800) 877-6799. Documents will not be 
supplied by witnesses at depositions, nor will copying services be 
provided by deponents.

[63 FR 71608, Dec. 29, 1998]



PART 837_PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS--Table of Contents




Sec.
837.1 Purpose and scope.
837.2 Applicability.
837.3 Published reports, material contained in the public accident 
          investigation dockets, and accident database data.
837.4 Other material.

    Authority: 49 U.S.C. 1101 et seq.; 40101 et seq.; 5 U.S.C. 301.

    Source: 62 FR 27703, May 21, 1997, unless otherwise noted.



Sec. 837.1  Purpose and scope.

    (a) This part sets forth procedures to be followed when requesting 
material for use in legal proceedings (including administrative 
proceedings) in which the National Transportation Safety Board (NTSB or 
Board) is not a party, and procedures to be followed by the employee 
upon receipt of a subpoena, order, or other demand (collectively 
referred to here as a demand) by a court or other competent authority or 
by a private litigant. ``Material,'' as used in this part, means any 
type of physical or documentary evidence, including but not limited to 
paper documents, electronic media, videotapes, audiotapes, etc.
    (b) The purposes of this part are to:
    (1) Conserve the time of employees for conducting official business;
    (2) Minimize the possibility of involving the NTSB in controversial 
issues not related to its mission;
    (3) Maintain the impartiality of the Board among private litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information, and the 
deliberative processes of the Board.



Sec. 837.2  Applicability.

    This part applies to requests to produce material concerning 
information acquired in the course of performing official duties or 
because of the employee's official status. Specifically, this part 
applies to requests for: material contained in NTSB files; and any 
information or material acquired by an employee of the NTSB in the 
performance of official duties or as a result of the employee's status. 
Two sets of procedures are here established, dependent on the type of 
material sought. Rules governing requests for employee testimony, as 
opposed to material production, can be found at 49 CFR part 835. 
Document production shall not accompany employee testimony, absent 
compliance with this part and General Counsel approval.

[[Page 189]]



Sec. 837.3  Published reports, material contained in the public 
accident investigation dockets, and accident database data.

    (a) Demands for material contained in the NTSB's official public 
docket files of its accident investigations, or its computerized 
accident database(s) shall be submitted, in writing, to the Public 
Inquiries Branch. Demands for specific published reports and studies 
should be submitted to the National Technical Information Service. The 
Board does not maintain stock of these items. Demands for information 
collected in particular accident investigations and made a part of the 
public docket should be submitted to the Public Inquiries Branch or, 
directly, to our contractor. For information regarding the types of 
documents routinely issued by the Board, see 49 CFR part 801.
    (b) No subpoena shall be issued to obtain materials subject to this 
paragraph, and any subpoena issued shall be required to be withdrawn 
prior to release of the requested information. Payment of reproduction 
fees may be required in advance.



Sec. 837.4  Other material.

    (a) Production prohibited unless approved. Except in the case of the 
material referenced in Sec. 837.3, no employee or former employee of 
NTSB shall, in response to a demand of a private litigant, court, or 
other authority, produce any material contained in the files of the NTSB 
(whether or not agency records under 5 U.S.C. 552) or produce any 
material acquired as part of the performance of the person's official 
duties or because of the person's official status, without the prior 
written approval of the General Counsel.
    (b) Procedures to be followed for the production of material under 
this paragraph.
    (1) All demands for material shall be submitted to the General 
Counsel at NTSB headquarters, Washington, DC 20594. If an employee 
receives a demand, he shall forward it immediately to the General 
Counsel.
    (2) Each demand must contain an affidavit by the party seeking the 
material or his attorney setting forth the material sought and its 
relevance to the proceeding, and containing a certification, with 
support, that the information is not available from other sources, 
including Board materials described in Sec. Sec. 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.



PART 840_RULES PERTAINING TO NOTIFICATION OF RAILROAD ACCIDENTS
--Table of Contents




Sec.
840.1 Applicability.
840.2 Definitions.
840.3 Notification of railroad accidents.
840.4 Information to be given in notification.
840.5 Inspection, examination and testing of physical evidence.
840.6 Priority of Board investigations.

    Authority: Sec. 304(a)(1)(c), Independent Safety Board Act of 1974, 
as amended (49 U.S.C. 1903).



Sec. 840.1  Applicability.

    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.

[47 FR 49408, Nov. 1, 1982]



Sec. 840.2  Definitions.

    As used in this part, the following words or phrases are defined as 
follows:
    (a) Railroad means any system of surface transportation of persons 
or property over rails. It includes, but is not limited to, line-haul 
freight and passenger-carrying railroads, and rapid

[[Page 190]]

transit, commuter, scenic, subway, and elevated railways.
    (b) Accident means any collision, derailment, or explosion involving 
railroad trains, locomotives, and cars; or any other loss-causing event 
involving the operation of such railroad equipment that results in a 
fatality to a passenger or employee, or the emergency evacuation of 
persons.
    (c) Joint operations means rail operations conducted on a track used 
jointly or in common by two or more railroads subject to this part, or 
operation of a train, locomotive, or car by one railroad over the track 
of another railroad.
    (d) Fatality means the death of a person either at the time an 
accident occurs or within 24 hours thereafter.

[41 FR 13925, Apr. 1, 1976, as amended at 47 FR 49408, Nov. 1, 1982]



Sec. 840.3  Notification of railroad accidents.

    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.

[53 FR 49152, Dec. 6, 1988]



Sec. 840.4  Information to be given in notification.

    The notice required by Sec. 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.

[41 FR 13925, Apr. 1, 1976]



Sec. 840.5  Inspection, examination and testing of physical evidence.

    (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

[[Page 191]]

to the transportation accident, consistent with the needs of the 
investigation and with the cooperation of such owner or operator. The 
employee may inspect, at reasonable times, records, files, papers, 
processes, controls, and facilities relevant to the investigation of 
such accident. Each inspection shall be commenced and completed promptly 
and the results of such inspection, examination, or test made available 
to the parties.

[47 FR 49408, Nov. 1, 1982]



Sec. 840.6  Priority of Board investigations.

    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.

[47 FR 49408, Nov. 1, 1982]



PART 845_RULES OF PRACTICE IN TRANSPORTATION; ACCIDENT/INCIDENT HEARINGS 
AND REPORTS--Table of Contents




Sec.
845.1 Applicability.
845.2 Nature of hearing.
845.3 Sessions open to the public.

                       Subpart A_Initial Procedure

845.10 Determination to hold hearing.
845.11 Board of inquiry.
845.12 Notice of hearing.
845.13 Designation of parties.

                      Subpart B_Conduct of Hearing

845.20 Powers of chairman of board of inquiry.
845.21 Hearing officer.
845.22 Technical panel.
845.23 Prehearing conference.
845.24 Right of representation.
845.25 Examination of witnesses.
845.26 Evidence.
845.27 Proposed findings.
845.28 Stenographic transcript.
845.29 Payment of witnesses.

                         Subpart C_Board Reports

845.40 Accident report.
845.41 Petitions for reconsideration or modification.

                         Subpart D_Public Record

845.50 Public docket.
845.51 Investigation to remain open.

    Authority: Title VII, Federal Aviation Act of 1958, as amended (49 
U.S.C. 1441 et seq.); and the Independent Safety Board Act of 1974, Pub. 
L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.).

    Source: 44 FR 34419, June 14, 1979, unless otherwise noted.



Sec. 845.1  Applicability.

    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.



Sec. 845.2  Nature of hearing.

    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)).

[44 FR 34419, June 14, 1979; 44 FR 39181, July 5, 1979]

[[Page 192]]



Sec. 845.3  Sessions open to the public.

    (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.



                       Subpart A_Initial Procedure



Sec. 845.10  Determination to hold hearing.

    The Board may order a public hearing as part of an accident 
investigation whenever such hearing is deemed necessary in the public 
interest: Provided, that if a quorum of the Board is not immediately 
available in the event of a catastrophic accident, the determination to 
hold a public hearing may be made by the Chairman of the Board.



Sec. 845.11  Board of inquiry.

    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.

[49 FR 32853, Aug. 17, 1984]



Sec. 845.12  Notice of hearing.

    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.



Sec. 845.13  Designation of parties.

    (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.

[44 FR 34419, June 14, 1979, as amended at 51 FR 7278, Mar. 3, 1986]



                      Subpart B_Conduct of Hearing



Sec. 845.20  Powers of chairman of board of inquiry.

    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.

[44 FR 34419, June 14, 1979; 44 FR 39181, July 5, 1979]



Sec. 845.21  Hearing officer.

    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.



Sec. 845.22  Technical panel.

    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.

[49 FR 32853, Aug. 17, 1984]

[[Page 193]]



Sec. 845.23  Prehearing conference.

    (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) Expedited hearings. When time permits, the chairman of the board 
of inquiry may hold a prehearing conference. In the event that an 
expedited hearing is held, the requirements in paragraphs (b) and (c) of 
this section concerning the identification of witnesses, exhibits or 
other evidence may be waived by the chairman of the board of inquiry.



Sec. 845.24  Right of representation.

    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.



Sec. 845.25  Examination of witnesses.

    (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.



Sec. 845.26  Evidence.

    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.



Sec. 845.27  Proposed findings.

    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.

[48 FR 52740, Nov. 22, 1983]



Sec. 845.28  Stenographic transcript.

    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.)



Sec. 845.29  Payment of witnesses.

    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.

[[Page 194]]



                         Subpart C_Board Reports



Sec. 845.40  Accident report.

    (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.



Sec. 845.41  Petitions for reconsideration or modification.

    (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 Sec. 845.27, or 
of positions previously advanced, and petitions filed by a party to the 
hearing who failed to submit proposed findings pursuant to Sec. 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.

[48 FR 52740, Nov. 22, 1983]



                         Subpart D_Public Record



Sec. 845.50  Public docket.

    (a) The public docket shall include all factual information 
concerning the accident. Proposed findings submitted pursuant to Sec. 
831.12 or Sec. 845.27 and petitions for reconsideration and 
modification submitted pursuant to Sec. 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.

[44 FR 34419, June 14, 1979, as amended at 48 FR 52740, Nov. 22, 1983]



Sec. 845.51  Investigation to remain open.

    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

[[Page 195]]

part of the docket and, where appropriate, parties will be given an 
opportunity to examine such evidence and to comment thereon.



PART 850_COAST GUARD_NATIONAL TRANSPORTATION SAFETY BOARD MARINE CASUALTY 
INVESTIGATIONS--Table of Contents




Sec.
850.1 Purpose.
850.3 Relationship to Coast Guard marine investigation regulations and 
          procedures.
850.5 Definitions.
850.10 Preliminary investigation by the Coast Guard.
850.15 Marine casualty investigation by the Board.
850.20 Cause or probable cause determinations from Board investigation.
850.25 Coast Guard marine casualty investigation for the Board.
850.30 Procedures for Coast Guard investigation.
850.35 Records of the Coast Guard and the Board.

    Authority: Sec. 304(a)(1)(E), Independent Safety Board Act of 1974, 
Pub. L. 93-633, 88 Stat. 2168 (49 U.S.C. 1903).

    Source: 42 FR 61204, Dec. 1, 1977, unless otherwise noted.



Sec. 850.1  Purpose.

    This part prescribes the joint regulations of the National 
Transportation Safety Board and the Coast Guard for the investigation of 
marine casualties.

[47 FR 46089, Oct. 15, 1982]



Sec. 850.3  Relationship to Coast Guard marine investigation regulations 
and procedures.

    (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.



Sec. 850.5  Definitions.

    As used in this part:
    (a) Act means Title III of Pub. L. 93-633, the Independent Safety 
Board Act of 1974 (49 U.S.C. 1901, et seq.).
    (b) Board means the National Transportation Safety Board.
    (c) Chairman means the Chairman of the National Transportation 
Safety Board.
    (d) Commandant means the Commandant of the Coast Guard.
    (e) Major marine casualty means a casualty involving a vessel, other 
than a public vessel, that results in--
    (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) Public vessel means a vessel owned by the United States, except 
a vessel to which the Act of October 25, 1919, c. 82 (41 Stat. 305, 46 
U.S.C. 363) applies.
    (g) Vessel of the United States means a vessel--
    (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.



Sec. 850.10  Preliminary investigation by the Coast Guard.

    (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.

[[Page 196]]

    (c) The Commandant notifies the Board of a casualty described in 
paragraph (b) of this section.

[42 FR 61204, Dec. 1, 1977, as amended at 47 FR 46089, Oct. 15, 1982]



Sec. 850.15  Marine casualty investigation by the Board.

    (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.

[47 FR 46090, Oct. 15, 1982]



Sec. 850.20  Cause or probable cause determinations from Board investigation.

    After an investigation conducted by the Board under Sec. 850.15, 
the Board determines cause or probable cause and issues a report of that 
determination.



Sec. 850.25  Coast Guard marine casualty investigation for the Board.

    (a) If the Board does not conduct an investigation under Sec. 
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 Sec. 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.

[47 FR 46090, Oct. 15, 1982]



Sec. 850.30  Procedures for Coast Guard investigation.

    (a) The Coast Guard conducts an investigation under Sec. 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 Sec. 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).



Sec. 850.35  Records of the Coast Guard and the Board.

    (a) Records of the Coast Guard made under Sec. 850.30 are available 
to the public under 49 CFR part 7.
    (b) Records of the Board made under Sec. Sec. 850.20 and 850.30 are 
available to the public under 49 CFR part 801.

                        PARTS 851-999 [RESERVED]


[[Page 197]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 199]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2004)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance 
                [Reserved]
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 200]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)

[[Page 201]]

     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)

[[Page 202]]

      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)

[[Page 203]]

       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)

[[Page 204]]

       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

[[Page 205]]

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)

[[Page 206]]

        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]

[[Page 207]]

       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

[[Page 208]]

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)

[[Page 209]]

        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 210]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 211]]

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)

[[Page 212]]

       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 213]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 214]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)

[[Page 215]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)

[[Page 216]]

         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 217]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2004)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 218]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 219]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 220]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 221]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 222]]

  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 223]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 224]]

Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV

[[Page 225]]

Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 227]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

49 CFR
                                                                   66 FR
                                                                    Page
611 Regulation at 65 FR 76880 eff. date stayed in part to 4-6-01 
                                                                    9677
653 Policy statement...............................................41955
    Removed........................................................42002
654 Policy statement...............................................41955
    Removed........................................................42002
655 Policy statement...............................................41955
    Added..........................................................42002
660 Inseason adjustments...........................................17639
    Temporary regulations..........................................59173

                                  2002

49 CFR
                                                                   67 FR
                                                                    Page
Chapter VI
624 Added..........................................................40104
659.5 Amended......................................................15727
    Regulation at 67 FR 15727 withdrawn............................44091
659.39 Amended.....................................................15727
    Regulation at 67 FR 15727 withdrawn............................44091
659.41 (a) and (b) amended.........................................15727
    Regulation at 67 FR 15727 withdrawn............................44091
659.45 (b) and (c) amended.........................................15727
    Regulation at 67 FR 15727 withdrawn............................44091

                                  2003

49
                                                                   68 FR
                                                                    Page
Chapter VI
655.4 Amended......................................................75462
655.72 (d) through (g) revised.....................................75462
655 Appendixes A through D removed.................................75462
661 Authority citation revised......................................9799
661.13 (b) revised..................................................9799
665.3 Regulation at 58 FR 58733 confirmed..........................15674
665.5 Regulation at 58 FR 58735 confirmed..........................15674
Chapter VIII
821 Revised........................................................22625

                                  2004

  (Regulations published from January 1, 2004, through October 1, 2004)

49
                                                                   69 FR
                                                                    Page
Title 49 Nomenclature change.......................................18803


                                  [all]