[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          49


          Parts 600 to 999

                         Revised as of October 1, 2008


          Transportation
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2008
          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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                            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)                                                 117
          Chapter VIII--National Transportation Safety Board       133
  Finding Aids:
      Table of CFR Titles and Chapters........................     225
      Alphabetical List of Agencies Appearing in the CFR......     245
      List of CFR Sections Affected...........................     255

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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 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
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    To determine whether a Code volume has been amended since its 
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
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Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

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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INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
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    The Federal Register Index is issued monthly in cumulative form. 
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the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    October 1, 2008.







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                               THIS TITLE

    Title 49--Transportation is composed of nine volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-185, parts 186-199, parts 200-299, parts 300-399, 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--Pipeline and Hazardous Materials 
Safety Administration (DOT); the fourth volume (parts 200-299) contains 
the current regulations issued under chapter II--Federal Railroad 
Administration (DOT); the fifth volume (parts 300-399) contains the 
current regulations issued under chapter III--Federal Motor Carrier 
Safety Administration (DOT); the sixth volume (parts 400-599) contains 
the current regulations issued under chapter IV--Coast Guard (DHS), 
chapter V--National Highway Traffic Safety Administration (DOT); the 
seventh 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 eighth volume (parts 1000-
1199) contains the current regulations issued under chapter X--Surface 
Transportation Board and the ninth volume (part 1200 to End) contains 
the current regulations issued under chapter X--Surface Transportation 
Board, chapter XI--Research and Innovative Technology Administration, 
and chapter XII--Transportation Security Administration, Department of 
Transportation. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2008.

    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.

    Redesignation tables for chapter III--Federal Motor Carrier Safety 
Administration, Department of Transportation and chapter XII--
Transportation Security Administration, Department of Transportation 
appear in the Finding Aids section of the fifth and ninth volumes.

    For this volume, Susannah C. Hurley was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


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                        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)

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CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
601             Organization, functions, and procedures.....           7
604             Charter service.............................          15
605             School bus operations.......................          43
609             Transportation for elderly and handicapped 
                    persons.................................          51
611             Major capital investment projects...........          53
613             Planning assistance and standards...........          61
614             Transportation infrastructure management....          61
622             Environmental impact and related procedures.          62
624             Clean Fuels Grant Program...................          62
630             National Transit Database...................          65
633             Project management oversight................          67
639             Capital leases..............................          70
640             Credit assistance for surface transportation 
                    projects................................          74
655             Prevention of alcohol misuse and prohibited 
                    drug use in transit operations..........          74
659             Rail fixed guideway systems; State safety 
                    oversight...............................          87
661             Buy America requirements....................          97
663             Pre-award and post-delivery audits of 
                    rolling stock purchases.................         108
665             Bus testing.................................         111

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




                      Subpart A_General Provisions

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

              Subpart B_Public Availability of Information

601.10 Sources of information.

                     Subpart C_Rulemaking Procedures

601.20 Applicability.
601.21 Definitions.
601.22 General.
601.23 Initiation of rulemaking.
601.24 Contents of notices of proposed rulemaking.
601.25 Participation by interested persons.
601.26 Petitions for extension of time to comment.
601.27 Contents of written comments.
601.28 Consideration of comments received.
601.29 Additional rulemaking proceedings.
601.30 Hearings.
601.31 Adoption of final rules.
601.32 Petitions for rulemaking or exemptions.
601.33 Processing of petition.
601.34 Petitions for reconsideration.
601.35 Proceedings on petitions for reconsideration.
601.36 Procedures for direct final rulemaking.

    Subpart D_Emergency Procedures for Public Transportation Systems

601.40 Applicability.
601.41 Petitions for relief.
601.42 Emergency relief docket.
601.43 Opening the docket.
601.44 Posting to the docket.
601.45 Required information.
601.46 Processing of petitions.
601.47 Review procedures.

    Authority: 5 U.S.C. Sec. 552; 49 U.S.C. 5334; 49 U.S.C. 1657, 1659; 
Reorganization Plan No. 2 of 1968 (82 Stat. 1369); 49 CFR 1.51.

    Source: 70 FR 67318, Nov. 4, 2005, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 601.1  Purpose.

    This part describes the organization of the Federal Transit 
Administration (``FTA''), an operating administration within the U.S. 
Department of Transportation. This part also describes general 
responsibilities of the various offices of which FTA is comprised. In 
addition, this part describes the sources and locations of available FTA 
program information, and provides information regarding FTA's rulemaking 
procedures.



Sec. 601.2  Organization of the administration.

    (a) The headquarters organization of FTA is comprised of eight 
principal offices which function under the overall direction of the 
Federal Transit Administrator (``the Administrator'') and Deputy 
Administrator. These offices are:
    (1) Office of Administration.
    (2) Office of Budget and Policy.
    (3) Office of Chief Counsel.
    (4) Office of Civil Rights.
    (5) Office of Communications and Congressional Affairs.
    (6) Office of Planning and Environment.
    (7) Office of Program Management.
    (8) Office of Research, Demonstration and Innovation.
    (b) FTA has ten regional offices, each of which function under the 
overall direction of the Administrator and Deputy Administrator, and 
under the general direction of a Regional Administrator. In addition, 
FTA has established a Lower Manhattan Recovery Office, which is under 
the general direction of the Director for this office.

------------------------------------------------------------------------
          Region/States             Office/address       Telephone No.
------------------------------------------------------------------------
I. Connecticut, Maine,            FTA Regional            (617) 494-2055
 Massachusetts, New Hampshire,     Administrator,
 Rhode Island, and Vermont.        Kendall Square,
                                   55 Broadway,
                                   Suite 920,
                                   Cambridge, MA
                                   02142-1093.
II. New York, New Jersey, and     FTA Regional            (212) 668-2170
 U.S. Virgin Islands.              Administrator,
                                   One Bowling
                                   Green, Room 429,
                                   New York, NY
                                   10014-1415.
III. Delaware, District of        FTA Regional            (215) 656-7100
 Columbia, Maryland,               Administrator,
 Pennsylvania, Virginia, and       1760 Market
 West Virginia.                    Street, Suite
                                   500,
                                   Philadelphia, PA
                                   19103-4124.
IV. Alabama, Florida, Georgia,    FTA Regional            (404) 562-3500
 Kentucky, Mississippi, North      Administrator,
 Carolina, Puerto Rico, South      Atlanta Federal
 Carolina, and Tennessee.          Center, Suite
                                   17T50, 61 Forsyth
                                   Street, SW.,
                                   Atlanta, GA 30303.

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V. Illinois, Indiana, Minnesota,  FTA Regional            (312) 353-2789
 Michigan, Ohio, and Wisconsin.    Administrator,
                                   200 West Adams
                                   Street, Suite
                                   320, Chicago, IL
                                   60606.
VI. Arkansas, Louisiana, New      FTA Regional            (817) 978-0550
 Mexico, Oklahoma, and Texas.      Administrator,
                                   819 Taylor
                                   Street, Room
                                   8A36, Fort Worth,
                                   TX 76102.
VII. Iowa, Kansas, Missouri, and  FTA Regional            (816) 329-3920
 Nebraska.                         Administrator,
                                   901 Locust
                                   Street, Suite
                                   404, Kansas City,
                                   MO 64106.
VIII. Colorado, Montana, North    FTA Regional            (720) 963-3300
 Dakota, South Dakota, Utah, and   Administrator,
 Wyoming.                          Dept. of
                                   Transportation,
                                   FTA, 12300 W.
                                   Dakota Ave.,
                                   Suite 310,
                                   Lakewood, CO
                                   80228-2583.
IX. Arizona, California, Hawaii,  FTA Regional            (415) 744-3133
 Nevada, Guam, American Samoa,     Administrator,
 and Northern Mariana Islands.     201 Mission
                                   Street, Suite
                                   310, San
                                   Francisco, CA
                                   94105.
X. Alaska, Idaho, Oregon, and     FTA Regional            (206) 220-7954
 Washington.                       Administrator,
                                   Jackson Federal
                                   Building, 915
                                   Second Avenue,
                                   Suite 3142,
                                   Seattle, WA 98174-
                                   1002.
Lower Manhattan Recovery Office.  FTA LMRO Director,      (212) 668-1770
                                   One Bowling
                                   Green, Room 436,
                                   New York, NY
                                   10004.
------------------------------------------------------------------------



Sec. 601.3  General responsibilities.

    The general responsibilities of each of the offices which comprise 
the headquarters organization of FTA are:
    (a) Office of Administration. Directed by an Associate Administrator 
for Administration, this office develops and administers comprehensive 
programs to meet FTA's resource management and administrative support 
requirements in the following areas: Organization and management 
planning, information resources management, human resources, contracting 
and procurement, and administrative services.
    (b) Office of Budget and Policy. Directed by an Associate 
Administrator for Budget and Policy, this office is responsible for 
policy development and performance measurement, strategic and program 
planning, program evaluation, budgeting, and accounting. The office 
provides policy direction on legislative proposals and coordinates the 
development of regulations. The office formulates and justifies FTA 
budgets within the Department of Transportation, to the Office of 
Management and Budget, and Congress. The office establishes 
apportionments and allotments for program and administrative funds, 
ensures that all funds are expended in accordance with Administration 
and congressional intent, and prepares and coordinates statutory reports 
to Congress. The office coordinates with and supports the Department of 
Transportation Chief Financial Officer on all FTA accounting and 
financial management matters. This office also serves as the audit 
liaison in responding to the Office of the Inspector General and the 
Government Accountability Office.
    (c) Office of Chief Counsel. Directed by a Chief Counsel, this 
office provides legal advice and support to the Administrator and FTA 
management. The office is responsible for reviewing development and 
management of FTA-sponsored projects; representing the Administration 
before civil courts and administrative agencies; drafting and reviewing 
legislation and regulations to implement the Administration's programs; 
and working to ensure that the agency upholds the highest ethical 
standards. The office coordinates with and supports the U.S. Department 
of Transportation's General Counsel on FTA legal matters.
    (d) The Office of Civil Rights. Directed by a Director for Civil 
Rights, this office ensures full implementation of civil rights and 
equal opportunity initiatives by all recipients of FTA assistance, and 
ensures nondiscrimination in the receipt of FTA benefits, employment, 
and business opportunities. The office advises and assists the 
Administrator and other FTA officials in ensuring compliance with 
applicable civil rights regulations, statutes and directives, including 
but not limited to the Americans with Disabilities Act of 1990 (ADA), 
the Civil Rights Act of 1964, Disadvantaged Business Enterprise (DBE) 
participation, and Equal Employment Opportunity, within FTA and in the 
conduct of Federally-assisted public transportation projects and 
programs. The office monitors the implementation of and compliance with 
civil

[[Page 9]]

rights requirements, investigates complaints, conducts compliance 
reviews, and provides technical assistance to recipients of FTA 
assistance and members of the public.
    (e) Office of Communications and Congressional Affairs. Directed by 
an Associate Administrator for Communications and Congressional Affairs, 
this office is the agency's lead office for media relations, public 
affairs, and Congressional relations, providing quick response support 
to the agency, the public, and Members of Congress on a daily basis. The 
office distributes information about FTA programs and policies to the 
public, the transit industry, and other interested parties through a 
variety of media. This office also coordinates the Administrator's 
public appearances and is responsible for managing correspondence and 
other information directed to and issued by the Administrator and Deputy 
Administrator.
    (f) Office of Planning and Environment. Directed by an Associate 
Administrator for Planning and Development, this office administers a 
national program of planning assistance that provides funding, guidance, 
and technical support to State and local transportation agencies. In 
partnership with the Federal Highway Administration (FHWA), this office 
oversees a national program of planning assistance and certification of 
metropolitan and statewide planning organizations, implemented by FTA 
Regional Offices and FHWA Divisional Offices. The office provides 
national guidance and technical support in emphasis areas including 
planning capacity building, financial planning, transit oriented 
development, joint development, project cost estimation, travel demand 
forecasting, and other technical areas. This office also oversees the 
Federal environmental review process as it applies to transit projects 
throughout the country, including implementation of the National 
Environmental Policy Act (NEPA), the Clean Air Act, and related laws and 
regulations. The office provides national guidance and oversight of 
planning and project development for proposed major transit capital 
fixed guideway projects, commonly referred to as the New Starts program. 
In addition, this office is responsible for the evaluation and rating of 
proposed projects based on a set of statutory criteria, and applies 
these ratings as input to the Annual New Starts Report and funding 
recommendations submitted to Congress, as well as for FTA approval 
required for projects to advance into preliminary engineering, final 
design, and full funding grant agreements.
    (g) Office of Program Management. Directed by an Associate 
Administrator for Program Management, this office administers a national 
program of capital and operating assistance by managing financial and 
technical resources and by directing program implementation. The office 
coordinates all grantee directed guidance, in the form of circulars and 
other communications, develops and distributes procedures and program 
guidance to assist the field staff in grant program administration and 
fosters responsible stewardship of Federal transit resources by 
facilitating and assuring consistent grant development and 
implementation nationwide (Statutory, Formula, Discretionary and 
Earmarks). This office manages the oversight program for agency formula 
grant programs and provides national expertise and direction in the 
areas of capital construction, rolling stock, and risk assessment 
techniques. It also assists the transit industry and State and local 
authorities in providing high levels of safety and security for transit 
passengers and employees through technical assistance, training, public 
awareness, drug and alcohol testing and state safety oversight.
    (h) Office of Research, Demonstration, and Innovation. Directed by 
an Associate Administrator for Research, Demonstration and Innovation, 
this office provides transit industry leadership in delivery of 
solutions that improve public transportation. The office undertakes 
research, development, and demonstration projects that help to increase 
ridership; improve capital and operating efficiencies; enhance safety 
and emergency preparedness; and better protect the environment and 
promote energy independence. The office leads FTA programmatic efforts 
under the National Research Programs (49 U.S.C. 5314).

[[Page 10]]



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 Federal 
transit 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.



              Subpart B_Public Availability of Information



Sec. 601.10  Sources of information.

    (a) FTA guidance documents. (1) Circulars and other guidance/policy 
information are available on FTA's Web site: http://www.fta.dot.gov.
    (2) Single copies of any guidance document may be obtained without 
charge by calling FTA's Administrative Services Help Desk, at (202) 366-
4865.
    (3) Single copies of any guidance document may also be obtained 
without charge upon written request to the Associate Administrator for 
Administration, Federal Transit Administration, 400 7th Street SW., Room 
9107, Washington, DC, 20590, or to any FTA regional office listed in 
Sec. 601.2.
    (b) DOT Docket Management System. Unless a particular document says 
otherwise, the following rulemaking documents in proceedings started 
after February 1, 1997, are available for public review and copying at 
the Department of Transportation's Docket Management System, Room PL 
401, 400 7th Street SW., Washington, DC 20590, or for review and 
downloading through the Internet at http://dms.dot.gov:
    (1) Advance notices of proposed rulemaking;
    (2) Notices of proposed rulemaking;
    (3) Comments received in response to notices;
    (4) Petitions for rulemaking and reconsideration;
    (5) Denials of petitions for rulemaking and reconsideration; and
    (6) Final rules.
    (c) Any person may examine docketed material, at any time during 
regular business hours after the docket is established, and may obtain a 
copy of such material upon payment of a fee, except material ordered 
withheld from the public under section 552(b) of Title 5 of the United 
States Code.
    (d) Any person seeking documents not described above may submit a 
request under the Freedom of Information Act (FOIA) by following the 
procedures outlined in 49 CFR Part 7.



                     Subpart C_Rulemaking Procedures



Sec. 601.20  Applicability.

    This part prescribes rulemaking procedures that apply to the 
issuance, amendment and revocation of rules under an Act.



Sec. 601.21  Definitions.

    Act means statutes granting the Secretary authority to regulate 
public transportation.
    Administrator means the Federal Transit Administrator, the Deputy 
Administrator or the delegate of either of them.



Sec. 601.22  General.

    (a) Unless the Administrator, for good cause, finds a notice is 
impractical, unnecessary, or contrary to the public interest, and 
incorporates such a finding and a brief statement of the reasons for it 
in the rule, a notice of proposed rulemaking must be issued, and 
interested persons are invited to participate in the rulemaking 
proceedings involving rules under an Act.
    (b) For rules for which the Administrator determines that notice is 
unnecessary because no adverse public comment is anticipated, the direct 
final rulemaking procedure described in Sec. 601.36 of this subpart may 
be followed.

[[Page 11]]



Sec. 601.23  Initiation of rulemaking.

    The Administrator initiates rulemaking on his/her own motion. 
However, in so doing, he/she may, in his/her discretion, consider the 
recommendations of his/her staff or other agencies of the United States 
or of other interested persons.



Sec. 601.24  Contents of notices of proposed rulemaking.

    (a) Each notice of proposed rulemaking is published in the Federal 
Register, unless all persons subject to it are named and are personally 
served with a copy of it.
    (b) Each notice, whether published in the Federal Register or 
personally served, includes:
    (1) A statement of the time, place, and nature of the proposed 
rulemaking proceeding;
    (2) A reference to the authority under which it is issued;
    (3) A description of the subjects and issues involved or the 
substance and terms of the proposed rule;
    (4) A statement of the time within which written comments must be 
submitted; and
    (5) A statement of how and to what extent interested persons may 
participate in the proceeding.



Sec. 601.25  Participation by interested persons.

    (a) Any interested person may participate in rulemaking proceedings 
by submitting comments in writing containing information, views, or 
arguments.
    (b) In his/her discretion, the Administrator may invite any 
interested person to participate in the rulemaking procedures described 
in Sec. 601.29.



Sec. 601.26  Petitions for extension of time to comment.

    A petition for extension of the time to submit comments must be 
received not later than three (3) days before expiration of the time 
stated in the notice. The filing of the petition does not automatically 
extend the time for petitioner's comments. Such a petition is granted 
only if the petitioner shows good cause for the extension, and if the 
extension is consistent with the public interest. If an extension is 
granted, it is granted to all persons, and it is published in the 
Federal Register.



Sec. 601.27  Contents of written comments.

    All written comments must be in English and submitted in five (5) 
legible copies, unless the number of copies is specified in the notice. 
Any interested person must submit as part of his/her written comments 
all material that he/she considers relevant to any statement of fact 
made by him/her. Incorporation of material by reference is to be 
avoided. However, if such incorporation is necessary, the incorporated 
material shall be identified with respect to document and page.



Sec. 601.28  Consideration of comments received.

    All timely comments are considered before final action is taken on a 
rulemaking proposal. Late filed comments may be considered so far as 
practicable.



Sec. 601.29  Additional rulemaking proceedings.

    The Administrator may initiate any further rulemaking proceedings 
that he/she finds necessary or desirable. For example, interested 
persons may be invited to make oral arguments, to participate in 
conferences between the Administrator or his/her representative at which 
minutes of the conference are kept, to appear at informal hearings 
presided over by officials designated by the Administrator at which a 
transcript or minutes are kept, or participate in any other proceeding 
to assure informed administrative action and to protect the public 
interest.



Sec. 601.30  Hearings.

    (a) Sections 556 and 557 of Title 5, United States Code, do not 
apply to hearings held under this part. Unless otherwise specified, 
hearings held under this part are informal, non-adversary, fact-finding 
procedures at which there are no formal pleadings or adverse parties. 
Any rule issued in a case in which an informal hearing is held is not 
necessarily based exclusively on the record of the hearing.
    (b) The Administrator designates a representative to conduct any 
hearing held under this part. The Chief Counsel

[[Page 12]]

of the Federal Transit Administration designates a member of his/her 
staff to serve as legal officer at the hearing.



Sec. 601.31  Adoption of final rules.

    Final rules are prepared by representatives of the office concerned 
and the Office of Chief Counsel. The rule is then submitted to the 
Administrator for his/her consideration. If the Administrator adopts the 
rule, it is published in the Federal Register, unless all persons 
subject to it are named and are personally served a copy of it.



Sec. 601.32  Petitions for rulemaking or exemptions.

    (a) Any interested person may petition the Administrator to 
establish, amend, or repeal a rule, or for a permanent or temporary 
exemption from FTA rules as allowed by law.
    (b) Each petition filed under this section must:
    (1) Be submitted in duplicate to the Administrator, Federal Transit 
Administration, 400 Seventh Street, SW., Washington, DC 20590;
    (2) State the name, street and mailing addresses, and telephone 
number of the petitioner; if the petitioner is not an individual, state 
the name, street and mailing addresses and telephone number of an 
individual designated as an agent of the petitioner for all purposes 
related to the petition;
    (3) Set forth the text or substance of the rule or amendment 
proposed, or of the rule from which the exemption is sought, or specify 
the rule that the petitioner seeks to have repealed, as the case may be;
    (4) Explain the interest of the petitioner in the action requested, 
including, in the case of a petition for an exemption, the nature and 
extent of the relief sought and a description of the persons to be 
covered by the exemption;
    (5) Contain any information and arguments available to the 
petitioner to support the action sought; and
    (6) In the case of a petition for exemption, except in cases in 
which good cause is shown, the petition must be submitted at least 120 
days before the requested effective date of the exemption.



Sec. 601.33  Processing of petitions.

    (a) Each petition received under Sec. 601.32 of this part is 
referred to the head of the office responsible for the subject matter of 
that petition. Unless the Administrator otherwise specifies, no public 
hearing, argument or other proceeding is held directly on a petition 
before its disposition under this section.
    (b) Grants. If the Administrator determines the petition contains 
adequate justification, he/she initiates rulemaking action under this 
Subpart C or grants the exemption, as the case may be.
    (c) Denials. If the Administrator determines the petition does not 
justify rulemaking or granting the exemption, he/she denies the 
petition.
    (d) Notification. Whenever the Administrator determines that a 
petition should be granted or denied, the office concerned and the 
Office of Chief Counsel prepare a notice of that grant or denial for 
issuance to the petitioner, and the Administrator issues it to the 
petitioner.



Sec. 601.34  Petitions for reconsideration.

    (a) Any interested person may petition the Administrator for 
reconsideration of a final rule issued under this part. The petition 
must be in English and submitted in duplicate to the Administrator, 
Federal Transit Administration, 400 Seventh Street, SW., Washington, DC, 
20590, and received not later than thirty (30) days after publication of 
the final rule in the Federal Register. Petitions filed after that time 
will be considered as petitions filed under Sec. 601.32. The petition 
must contain a brief statement of the complaint and an explanation as to 
why compliance with the final rule is not practicable, is unreasonable, 
or is not in the public interest.
    (b) If the petitioner requests the consideration of additional 
facts, he/she must state the reason the facts were not presented to the 
Administrator within the prescribed comment period of the rulemaking.
    (c) The Administrator does not consider repetitious petitions.
    (d) Unless the Administrator otherwise provides, the filing of a 
petition

[[Page 13]]

under this section does not stay the effectiveness of the final rule.



Sec. 601.35  Proceedings on petitions for reconsideration.

    The Administrator may grant or deny, in whole or in part, any 
petition for reconsideration without further proceedings. In the event 
he/she determines to reconsider any rule, he/she may issue a final 
decision on reconsideration without further proceedings, or he/she may 
provide such opportunity to submit comment or information and data as 
he/she deems appropriate. Whenever the Administrator determines that a 
petition should be granted or denied, he/she prepares a notice of the 
grant or denial of a petition for reconsideration and issues it to the 
petitioner. The Administrator may consolidate petitions relating to the 
same rule.



Sec. 601.36  Procedures for direct final rulemaking.

    (a) Rules the Administrator judges to be non-controversial and 
unlikely to result in adverse public comment may be published as direct 
final rules. These include non-controversial rules that:
    (1) Affect internal procedures of FTA, such as filing requirements 
and rules governing inspection and copying of documents;
    (2) Are non-substantive clarifications or corrections to existing 
rules;
    (3) Update existing forms;
    (4) Make minor changes in the substantive rule regarding statistics 
and reporting requirements;
    (5) Make changes to the rule implementing the Privacy Act; and
    (6) Adopt technical standards set by outside organizations.
    (b) The Federal Register document will state that any adverse 
comment or notice of intent to submit adverse comment must be received 
in writing by FTA within the specified time after the date of 
publication and that, if no written adverse comment or written notice of 
intent to submit adverse comment is received, the rule will become 
effective a specified number of days after the date of publication.
    (c) If no written adverse comment or written notice of intent to 
submit adverse comment is received by FTA within the specified time of 
publication in the Federal Register, FTA will publish a notice in the 
Federal Register indicating that no adverse comment was received and 
confirming that the rule will become effective on the date that was 
indicated in the direct final rule.
    (d) If FTA receives any written adverse comment or written notice of 
intent to submit adverse comment within the specified time of 
publication in the Federal Register, a notice withdrawing the direct 
final rule will be published in the final rule section of the Federal 
Register and, if FTA decides a rulemaking is warranted, a notice of 
proposed rulemaking will be published in the proposed rule section of 
the Federal Register.
    (e) An ``adverse'' comment for the purpose of this subpart means any 
comment that FTA determines is critical of the rule, suggests that the 
rule should not be adopted, or suggests a change that should be made in 
the rule. A comment suggesting that the policy or requirements of the 
rule should or should not also be extended to other Departmental 
programs outside the scope of the rule is not adverse.



    Subpart D_Emergency Procedures for Public Transportation Systems

    Authority: 49 U.S.C. 5141 and 5334; 49 CFR 1.51.

    Source: 72 FR 912, Jan. 9, 2007, unless otherwise noted.



Sec. 601.40  Applicability.

    This part prescribes procedures that apply to FTA grantees and 
subgrantees when the President has declared a national or regional 
emergency, when a State Governor has declared a state of emergency, when 
the Mayor of the District of Columbia has declared a state of emergency, 
or in anticipation of such declarations.



Sec. 601.41  Petitions for relief.

    In the case of a national or regional emergency or disaster, or in 
anticipation of such a disaster, any FTA grantee or subgrantee may 
petition the Administrator for temporary relief from

[[Page 14]]

the provisions of any policy statement, circular, guidance document or 
rule.



Sec. 601.42  Emergency relief docket.

    (a) By January 31st of each year, FTA shall establish an Emergency 
Relief Docket in the publicly accessible DOT Docket Management System 
(DMS) (http://dms.dot.gov).
    (b) FTA shall publish a notice in the Federal Register identifying, 
by docket number, the Emergency Relief Docket for that calendar year. A 
notice shall also be published in the previous year's Emergency Relief 
Docket identifying the new docket number.
    (c) If the Administrator, or his/her designee, determines that an 
emergency event has occurred, or in anticipation of such an event, FTA 
shall place a message on its web page (http://www.fta.dot.gov) 
indicating the Emergency Relief Docket has been opened and including the 
docket number.



Sec. 601.43  Opening the docket.

    (a) The Emergency Relief Docket shall be opened within two business 
days of an emergency or disaster declaration in which it appears FTA 
grantees or subgrantees are or will be impacted.
    (b) In cases in which emergencies can be anticipated, such as 
hurricanes, FTA shall open the docket and place the message on the FTA 
web page in advance of the event.
    (c) In the event a grantee or subgrantee believes the Emergency 
Relief Docket should be opened and it has not been opened, that grantee 
or subgrantee may submit a petition in duplicate to the Administrator, 
via U.S. mail, to: Federal Transit Administration, 400 Seventh Street, 
SW., Washington, DC 20590; via telephone, at: (202) 366-4043; or via 
fax, at (202) 366-3472, requesting opening of the Docket for that 
emergency and including the information in Sec. 601.45. The 
Administrator in his/her sole discretion shall determine the need for 
opening the Emergency Relief Docket.



Sec. 601.44  Posting to the docket.

    (a) All petitions for relief must be posted in the docket in order 
to receive consideration by FTA.
    (b) The docket is publicly accessible and can be accessed 24 hours a 
day, seven days a week, via the Internet at the docket facility's Web 
site at http://dms.dot.gov. Petitions may also be submitted by U.S. mail 
or by hand delivery to the DOT Docket Management Facility, Room PL-401 
(Plaza Level), 400 7th Street, SW, Washington, DC 20590.
    (c) In the event a grantee or subgrantee needs to request immediate 
relief and does not have access to electronic means to request that 
relief, the grantee or subgrantee may contact any FTA regional office or 
FTA headquarters and request that FTA staff submit the petition on their 
behalf.
    (d) Any grantee or subgrantee submitting petitions for relief or 
comments to the docket must include the agency name (Federal Transit 
Administration) and that calendar year's docket number. Grantees and 
subgrantees making submissions by mail or hand delivery should submit 
two copies.



Sec. 601.45  Required information.

    A petition for relief under this section shall:
    (a) Identify the grantee or subgrantee and its geographic location;
    (b) Specifically address how an FTA requirement in a policy 
statement, circular, or agency guidance will limit a grantee's or 
subgrantee's ability to respond to an emergency or disaster;
    (c) Identify the policy statement, circular, guidance document and/
or rule from which the grantee or subgrantee seeks relief; and
    (d) Specify if the petition for relief is one-time or ongoing, and 
if ongoing identify the time period for which the relief is requested. 
The time period may not exceed three months; however, additional time 
may be requested through a second petition for relief.



Sec. 601.46  Processing of petitions.

    (a) A petition for relief will be conditionally granted for a period 
of three (3) business days from the date it is submitted to the 
Emergency Relief Docket.
    (b) FTA will review the petition after the expiration of the three 
business

[[Page 15]]

days and review any comments submitted thereto. FTA may contact the 
grantee or subgrantee that submitted the request for relief, or any 
party that submits comments to the docket, to obtain more information 
prior to making a decision.
    (c) FTA shall then post a decision to the Emergency Relief Docket. 
FTA's decision will be based on whether the petition meets the criteria 
for use of these emergency procedures, the substance of the request, and 
the comments submitted regarding the petition.
    (d) If FTA fails to post a response to the request for relief to the 
docket within three business days, the grantee or subgrantee may assume 
its petition is granted until and unless FTA states otherwise.



Sec. 601.47  Review Procedures.

    (a) FTA reserves the right to reopen any docket and reconsider any 
decision made pursuant to these emergency procedures based upon its own 
initiative, based upon information or comments received subsequent to 
the three business day comment period, or at the request of a grantee or 
subgrantee upon denial of a request for relief. FTA shall notify the 
grantee or subgrantee if it plans to reconsider a decision.
    (b) FTA decision letters, either granting or denying a petition, 
shall be posted in the appropriate Emergency Relief Docket and shall 
reference the document number of the petition to which it relates.



PART 604_CHARTER SERVICE--Table of Contents




                      Subpart A_General Provisions

Sec.
604.1 Purpose.
604.2 Applicability.
604.3 Definitions.
604.4 Charter service agreement.

                          Subpart B_Exceptions

604.5 Purpose.
604.6 Government officials on official government business.
604.7 Qualified human service organizations.
604.8 Leasing FTA funded equipment and drivers.
604.9 When no registered charter provider responds to notice from a 
          recipient.
604.10 Agreement with registered charter providers.
604.11 Petitions to the administrator.
604.12 Reporting requirements for all exceptions.

         Subpart C_Procedures for Registration and Notification

604.13 Registration of private charter operators.
604.14 Recipient's notification to registered charter providers.

  Subpart D_Registration of Qualified Human Service Organizations and 
   Duties for Recipients With Respect to Charter Registration Web Site

604.15 Registration of qualified human services organizations.
604.16 Duties for recipients with respect to Charter Registration Web 
          site.

         Subpart E_Advisor Opinions and Cease and Desist Orders

604.17 Purpose.
604.18 Request for an advisory opinion.
604.19 Processing of advisory opinions.
604.20 Effect of an advisory opinion.
604.21 Special considerations for advisory opinions.
604.22 Request for a cease and desist order.
604.23 Effect of a cease and desist order.
604.24 Decisions by the Chief Counsel regarding cease and desist orders.

                          Subpart F_Complaints

604.25 Purpose.
604.26 Complaints and decisions regarding removal of private charter 
          operators or qualified human service organizations from 
          registration list.
604.27 Complaints, answers, replies, and other documents.
604.28 Dismissals.
604.29 Incomplete complaints.
604.30 Filing complaints.
604.31 Service.

                        Subpart G_Investigations

604.32 Investigation of complaint.
604.33 Agency initiation of investigation.

 Subpart H_Decisions by FTA and Appointment of a Presiding Official (PO)

604.34 Chief Counsel decisions and appointment of a PO.
604.35 Separation of functions.

                           Subpart I_Hearings

604.36 Powers of a PO.

[[Page 16]]

604.37 Appearances, parties, and rights of parties.
604.38 Discovery.
604.39 Deposition.
604.40 Public disclosure of evidence.
604.41 Standard of proof.
604.42 Burden of proof.
604.43 Offer of proof.
604.44 Record.
604.45 Waiver of procedures.
604.46 Recommended decision by a PO.
604.47 Remedies.

        Subpart J_Appeal to Administrator and Final Agency Orders

604.48 Appeal from Chief Counsel decision.
604.49 Administrator's discretionary review of the Chief Counsel's 
          decision.

                        Subpart K_Judicial Review

604.50 Judicial review of a final decision and order.

Appendix A to Part 604 --Listing of Human Service Federal Financial 
          Assistance Programs
Appendix B to Part 604--Reasons for Removal
Appendix C to Part 604--Frequently Asked Questions
Appendix D to Part 604--Table of Potential Remedies

    Authority: 49 U.S.C. 5323(d): 3023(d), Pub. L. 109-59; 49 CFR 1.51.

    Source: 73 FR 2345, Jan. 14, 2008, unless otherwise noted.



                      Subpart A_General provisions.



Sec. 604.1  Purpose.

    (a) The purpose of this part is to implement 49 U.S.C. 5323(d), 
which protects private charter operators from unauthorized competition 
from recipients of Federal financial assistance under the Federal 
Transit Laws.
    (b) This subpart specifies which entities shall comply with the 
charter service regulations; defines terms used in this part; explains 
procedures for an exemption from this part; and sets out the contents of 
a charter service agreement.



Sec. 604.2  Applicability.

    (a) The requirements of this part shall apply to recipients of 
Federal financial assistance under the Federal Transit Laws, except as 
otherwise provided in paragraphs (b) through (g) of this section.
    (b) The requirements of this part shall not apply to a recipient 
transporting its employees, other transit system employees, transit 
management officials, transit contractors and bidders, government 
officials and their contractors and official guests, to or from transit 
facilities or projects within its geographic service area or proposed 
geographic service area for the purpose of conducting oversight 
functions such as inspection, evaluation, or review.
    (c) The requirements of this part shall not apply to private charter 
operators that receive, directly or indirectly, Federal financial 
assistance under section 3038 of the Transportation Equity Act for the 
21st Century, as amended, or to the non-FTA funded activities of private 
charter operators that receive, directly or indirectly, FTA financial 
assistance under any of the following programs: 49 U.S.C. 5307, 49 
U.S.C. 5309, 49 U.S.C. 5310, 49 U.S.C. 5311, 49 U.S.C. 5316, or 49 
U.S.C. 5317.
    (d) The requirements of this part shall not apply to a recipient 
transporting its employees, other transit system employees, transit 
management officials, transit contractors and bidders, government 
officials and their contractors and official guests, for emergency 
preparedness planning and operations.
    (e) The requirements of this part shall not apply to a recipient 
that uses Federal financial assistance from FTA, for program purposes 
only, under 49 U.S.C. 5310, 49 U.S.C. 5311, 49 U.S.C. 5316, or 49 U.S.C. 
5317.
    (f) The requirements of this part shall not apply to a recipient, 
for actions directly responding to an emergency declared by the 
President, governor, or mayor or in an emergency requiring immediate 
action prior to a formal declaration. If the emergency lasts more than 
45 days, the recipient shall follow the procedures set out in subpart D 
of 49 CFR 601.
    (g) The requirements of this part shall not apply to a recipient in 
a non-urbanized area transporting its employees, other transit system 
employees, transit management officials, and transit contractors and 
bidders to or from transit training outside its geographic service area.

[[Page 17]]



Sec. 604.3  Definitions.

    All terms defined in 49 U.S.C. 5301 et seq. are used in their 
statutory meaning in this part. Other terms used in this part are 
defined as follows:
    (a) ``Federal Transit Laws'' means 49 U.S.C. 5301 et seq., and 
includes 23 U.S.C. 103(e)(4), 142(a), and 142(c), when used to provide 
assistance to public transit agencies for purchasing buses and vans.
    (b) ``Administrator'' means the Administrator of the Federal Transit 
Administration or his or her designee.
    (c) ``Charter service'' means, but does not include demand response 
service to individuals:
    (1) Transportation provided by a recipient at the request of a third 
party for the exclusive use of a bus or van for a negotiated price. The 
following features may be characteristic of charter service:
    (i) A third party pays the transit provider a negotiated price for 
the group;
    (ii) Any fares charged to individual members of the group are 
collected by a third party;
    (iii) The service is not part of the transit provider's regularly 
scheduled service, or is offered for a limited period of time; or
    (iv) A third party determines the origin and destination of the trip 
as well as scheduling; or
    (2) Transportation provided by a recipient to the public for events 
or functions that occur on an irregular basis or for a limited duration 
and:
    (i) A premium fare is charged that is greater than the usual or 
customary fixed route fare; or
    (ii) The service is paid for in whole or in part by a third party.
    (d) ``Charter service hours'' means total hours operated by buses or 
vans while in charter service including:
    (1) Hours operated while carrying passengers for hire, plus
    (2) Associated deadhead hours.
    (e) ``Chief Counsel'' means the Chief Counsel of FTA and his or her 
designated employees.
    (f) ``Days'' means calendar days. The last day of a time period is 
included in the computation of time unless the last day is a Saturday, 
Sunday, or legal holiday, in which case, the time period runs until the 
end of the next day that is not a Saturday, Sunday, or legal holiday.
    (g) ``Demand response'' means any non-fixed route system of 
transporting individuals that requires advanced scheduling by the 
customer, including services provided by public entities, nonprofits, 
and private providers.
    (h) ``Exclusive'' means service that a reasonable person would 
conclude is intended to exclude members of the public.
    (i) ``FTA'' means the Federal Transit Administration.
    (j) ``Geographic service area'' means the entire area in which a 
recipient is authorized to provide public transportation service under 
appropriate local, state, and Federal law.
    (k) ``Government official'' means an individual elected or appointed 
at the local, state, or Federal level.
    (l) ``Interested party'' means an individual, partnership, 
corporation, association, or other organization that has a financial 
interest that is affected by the actions of a recipient providing 
charter service under the Federal Transit Laws. This term includes 
states, counties, cities, and their subdivisions, and tribal nations.
    (m) ``Pattern of violations'' means more than one finding of 
unauthorized charter service under this part by FTA beginning with the 
most recent finding of unauthorized charter service and looking back 
over a period not to exceed 72 months.
    (n) ``Presiding Official'' means an official or agency 
representative who conducts a hearing at the request of the Chief 
Counsel and who has had no previous contact with the parties concerning 
the issue in the proceeding.
    (o) ``Program purposes'' means transportation that serves the needs 
of either human service agencies or targeted populations (elderly, 
individuals with disabilities, and or low income individuals); this does 
not include exclusive service for other groups formed for purposes 
unrelated to the special needs of the targeted populations identified 
herein.
    (p) ``Public transportation'' has the meaning set forth in 49 U.S.C. 
5302(a)(10).
    (q) ``Qualified human service organization'' means an organization 
that

[[Page 18]]

serves persons who qualify for human service or transportation-related 
programs or services due to disability, income, or advanced age. This 
term is used consistent with the President's Executive Order on Human 
Service Transportation Coordination (February 24, 2004).
    (r) ``Recipient'' means an agency or entity that receives Federal 
financial assistance, either directly or indirectly, including 
subrecipients, under the Federal Transit Laws. This term does not 
include third-party contractors who use non-FTA funded vehicles.
    (s) ``Registered charter provider'' means a private charter operator 
that wants to receive notice of charter service requests directed to 
recipients and has registered on FTA's charter registration Web site.
    (t) ``Registration list'' means the current list of registered 
charter providers and qualified human service organizations maintained 
on FTA's charter registration Web site.
    (u) ``Special transportation'' means demand response or paratransit 
service that is regular and continuous and is a type of ``public 
transportation.''
    (v) ``Violation'' means a finding by FTA of a failure to comply with 
one of the requirements of this Part.



Sec. 604.4  Charter service agreement.

    (a) A recipient seeking Federal assistance under the Federal Transit 
Laws to acquire or operate any public transportation equipment or 
facilities shall enter into a ``Charter Service Agreement'' as set out 
in paragraph (b) of this section.
    (b) A recipient shall enter into a Charter Service Agreement if it 
receives Federal funds for equipment or facilities under the Federal 
Transit Laws. The terms of the Charter Service Agreement are as follows: 
``The recipient agrees that it, and each of its subrecipients, and third 
party contractors at any level who use FTA-funded vehicles, may provide 
charter service using equipment or facilities acquired with Federal 
assistance authorized under the Federal Transit Laws only in compliance 
with the regulations set out in 49 CFR 604, the terms and conditions of 
which are incorporated herein by reference.''
    (c) The Charter Service Agreement is contained in the Certifications 
and Assurances published annually by FTA for applicants for Federal 
financial assistance. Once a recipient receives Federal funds, the 
Certifications and Assurances become part of its Grant Agreement or 
Cooperative Agreement for Federal financial assistance.



                          Subpart B_Exceptions



Sec. 604.5  Purpose.

    The purpose of this subpart is to identify the limited exceptions 
under which recipients may provide community-based charter services.



Sec. 604.6  Government officials on official government business.

    (a) A recipient may provide charter service to government officials 
(Federal, State, and local) for official government business, which can 
include non-transit related purposes, if the recipient:
    (1) Provides the service in its geographic service area;
    (2) Does not generate revenue from the charter service, except as 
required by law; and
    (3) After providing such service, records the following:
    (i) The government organization's name, address, phone number, and 
e-mail address;
    (ii) The date and time of service;
    (iii) The number of passengers (specifically noting the number of 
government officials on the trip);
    (iv) The origin, destination, and trip length (miles and hours);
    (v) The fee collected, if any; and
    (vi) The vehicle number for the vehicle used to provide the service.
    (b) A recipient that provides charter service under this section 
shall be limited annually to 80 charter service hours for providing 
trips to government officials for official government business.
    (c) A recipient may petition the Administrator for additional 
charter service hours only if the petition contains the following 
information:
    (1) Date and description of the official government event and the 
number of charter service hours requested;

[[Page 19]]

    (2) Explanation of why registered charter providers in the 
geographic service area cannot perform the service (e.g., equipment, 
time constraints, or other extenuating circumstances); and
    (3) Evidence that the recipient has sent the request for additional 
hours to registered charter providers in its geographic service area.
    (d) FTA shall post the request for additional charter service hours 
under this exception in the Government Officials Exception docket, 
docket number FTA-2007-0020 at http://www.regulations.gov. Interested 
parties may review the contents of this docket and bring questions or 
concerns to the attention of the Ombudsman for Charter Services. The 
written decision of the Administrator regarding the request for 
additional charter service hours shall be posted in the Government 
Officials Exception docket and sent to the recipient.



Sec. 604.7  Qualified human service organizations.

    (a) A recipient may provide charter service to a qualified human 
service organization (QHSO) for the purpose of serving persons:
    (1) With mobility limitations related to advanced age;
    (2) With disabilities; or
    (3) With low income.
    (b) If an organization serving persons described in paragraph (a) of 
this section receives funding, directly or indirectly, from the programs 
listed in Appendix A of this part, the QHSO shall not be required to 
register on the FTA charter registration Web site.
    (c) If a QHSO serving persons described in paragraph (a) of this 
section does not receive funding from any of the programs listed in 
Appendix A of this part, the QHSO shall register on the FTA charter 
registration Web site in accordance with Sec. 604.15.
    (d) A recipient providing charter service under this exception, 
whether or not the QHSO receives funding from Appendix A programs, and 
after providing such charter service, shall record:
    (1) The QHSO's name, address, phone number, and e-mail address;
    (2) The date and time of service;
    (3) The number of passengers;
    (4) The origin, destination, and trip length (miles and hours);
    (5) The fee collected, if any; and
    (6) The vehicle number for the vehicle used to provide the service.



Sec. 604.8  Leasing FTA funded equipment and drivers.

    (a) A recipient may lease its FTA-funded equipment and drivers to 
registered charter providers for charter service only if the following 
conditions exist:
    (1) The private charter operator is registered on the FTA charter 
registration Web site;
    (2) The registered charter provider owns and operates buses or vans 
in a charter service business;
    (3) The registered charter provider received a request for charter 
service that exceeds its available capacity either of the number of 
vehicles operated by the registered charter provider or the number of 
accessible vehicles operated by the registered charter provider; and
    (4) The registered charter provider has exhausted all of the 
available vehicles of all registered charter providers in the 
recipient's geographic service area.
    (b) A recipient leasing vehicles and drivers to a registered charter 
provider under this provision shall record:
    (1) The registered charter provider's name, address, telephone 
number, and e-mail address;
    (2) The number of vehicles leased, types of vehicles leased, and 
vehicle identification numbers; and
    (3) The documentation presented by the registered charter provider 
in support of paragraphs (a)(1) through (4) of this section.
    (c) In accordance with Sec. 604.26, if a registered charter 
provider seeking to lease vehicles has filed a complaint requesting that 
another registered charter provider be removed from the FTA charter 
registration Web site, then the registered charter provider seeking to 
lease vehicles is not required to exhaust the vehicles from that 
registered charter provider while the complaint is pending before 
leasing vehicles from a recipient.

[[Page 20]]



Sec. 604.9  When no registered charter provider responds to notice from a 

recipient.

    (a) A recipient may provide charter service, on its own initiative 
or at the request of a third party, if no registered charter provider 
responds to the notice issued in Sec. 604.14:
    (1) Within 72 hours for charter service requested to be provided in 
less than 30 days; or
    (2) Within 14 calendar days for charter service requested to be 
provided in 30 days or more.
    (b) A recipient shall not provide charter service under this section 
if a registered charter provider indicates an interest in providing the 
charter service set out in the notice issued pursuant to Sec. 604.14 
and the registered charter provider has informed the recipient of its 
interest in providing the service.
    (c) After providing the service, a recipient shall record:
    (1) The group's name, address, phone number, and e-mail address;
    (2) The date and time of service;
    (3) The number of passengers;
    (4) The origin, destination, and trip length (miles and hours);
    (5) The fee collected, if any; and
    (6) The vehicle number for the vehicle used to provide the service.



Sec. 604.10  Agreement with registered charter providers.

    (a) A recipient may provide charter service directly to a customer 
consistent with an agreement entered into with all registered charter 
providers in the recipient's geographic service area.
    (b) If a new charter provider registers in the geographic service 
area subsequent to the initial agreement, the recipient may continue to 
provide charter service under the previous agreement with the other 
charter providers up to 90 days without an agreement with the newly 
registered charter provider.
    (c) Any of the parties to an agreement may cancel the agreement at 
any time after providing the recipient a 90-day notice.



Sec. 604.11  Petitions to the Administrator.

    (a) A recipient may petition the Administrator for an exception to 
the charter service regulations to provide charter service directly to a 
customer for:
    (1) Events of regional or national significance;
    (2) Hardship (only for non-urbanized areas under 50,000 in 
population or small urbanized areas under 200,000 in population); or
    (3) Unique and time sensitive events (e.g., funerals of local, 
regional, or national significance) that are in the public's interest.
    (b) The petition to the Administrator shall include the following 
information:
    (1) The date and description of the event;
    (2) The type of service requested and the type of equipment;
    (3) The anticipated number of charter service hours needed for the 
event;
    (4) The anticipated number of vehicles and duration of the event; 
and
    (i) For an event of regional or national significance, the petition 
shall include a description of how registered charter providers were 
consulted, how registered charter providers will be utilized in 
providing the charter service, a certification that the recipient has 
exhausted all of the registered charter providers in its geographic 
service area, and submit the petition at least 90 days before the first 
day of the event described in paragraph (b)(1) of this section;
    (ii) For a hardship request, a petition is only available if the 
registered charter provider has deadhead time that exceeds total trip 
time from initial pick-up to final drop-off, including wait time. The 
petition shall describe how the registered charter provider's minimum 
duration would create a hardship on the group requesting the charter 
service; or
    (iii) For unique and time sensitive events, the petition shall 
describe why the event is unique or time sensitive and how providing the 
charter service would be in the public's interest.
    (c) Upon receipt of a petition that meets the requirements set forth 
in paragraph (b) of this section, the Administrator shall review the 
materials and issue a written decision denying or granting the request 
in whole or in part. In making this decision, the Administrator may seek 
such additional

[[Page 21]]

information as the Administrator deems necessary. The Administrator's 
decision shall be filed in the Petitions to the Administrator docket, 
number FTA-2007-0022 at http://www.regulations.gov and sent to the 
recipient.
    (d) Any exception granted by the Administrator under this section 
shall be effective only for the event identified in paragraph (b)(1) of 
this section.
    (e) A recipient shall send its petition to the Administrator by 
facsimile to (202) 366-3809 or by e-mail to 
[email protected].
    (f) A recipient shall retain a copy of the Administrator's approval 
for a period of at least three years and shall include it in the 
recipient's quarterly report posted on the charter registration Web 
site.



Sec. 604.12  Reporting requirements for all exceptions.

    (a) A recipient that provides charter service in accordance with one 
or more of the exceptions contained in this subpart shall maintain the 
required notice and records in an electronic format for a period of at 
least three years from the date of the service or lease. A recipient may 
maintain the required records in other formats in addition to the 
electronic format.
    (b) In addition to the requirements identified in paragraph (a) of 
this section, the records required under this subpart shall include a 
clear statement identifying which exception the recipient relied upon 
when it provided the charter service.
    (c) Beginning on July 30, 2008, a recipient providing charter 
service under these exceptions shall post the records required under 
this subpart on the FTA charter registration Web site 30 days after the 
end of each calendar quarter (i.e., January 30th, April 30th, July 30th, 
and October 30th). A single document or charter log may include all 
charter service trips provided during the quarter.
    (d) A recipient may exclude specific origin and destination 
information for safety and security reasons. If a recipient excludes 
such information, the record of the service shall describe the reason 
why such information was excluded and provide generalized information 
instead of providing specific origin and destination information.



         Subpart C_Procedures for Registration and Notification



Sec. 604.13  Registration of private charter operators.

    (a) Private charter operators shall provide the following 
information at http://www.fta.dot.gov/laws/leg--reg--179.html to be 
considered a registered charter provider:
    (1) Company name, address, phone number, e-mail address, and 
facsimile number;
    (2) Federal and, if available, state motor carrier identifying 
number;
    (3) The geographic service areas of public transit agencies, as 
identified by the transit agency's zip code, in which the private 
charter operator intends to provide charter service;
    (4) The number of buses or vans the private charter operator owns;
    (5) A certification that the private charter operator has valid 
insurance; and
    (6) Whether willing to provide free or reduced rate charter services 
to registered qualified human service organizations.
    (b) A private charter operator that provides valid information in 
this subpart is a ``registered charter provider'' for purposes of this 
part and shall have standing to file a complaint consistent with subpart 
F.
    (c) A recipient, a registered charter provider, or their duly 
authorized representative, may challenge a registered charter provider's 
registration and request removal of the private charter operator from 
FTA's charter registration Web site by filing a complaint consistent 
with subpart F.
    (d) FTA may refuse to post a private charter operator's information 
if the private charter operator fails to provide all of the required 
information as indicated on the FTA charter registration Web site.
    (e) A registered charter provider shall provide current and accurate 
information on FTA's charter registration Web site, and shall update 
that information no less frequently than every two years.

[[Page 22]]



Sec. 604.14  Recipient's notification to registered charter providers.

    (a) Upon receiving a request for charter service, a recipient may:
    (1) Decline to provide the service, with or without referring the 
requestor to FTA's charter registration Web site (http://
www.fta.dot.gov/laws/leg--reg--179.html);
    (2) Provide the service under an exception provided in subpart B of 
this part; or
    (3) Provide notice to registered charter providers as provided in 
this section and provide the service pursuant to Sec. 604.9.
    (b) If a recipient is interested in providing charter service under 
the exception contained in Sec. 604.9, then upon receipt of a request 
for charter service, the recipient shall provide e-mail notice to 
registered charter providers in the recipient's geographic service area 
in the following manner:
    (1) E-mail notice of the request shall be sent by the close of 
business on the day the recipient receives the request unless the 
recipient received the request after 2 p.m., in which case the recipient 
shall send the notice by the close of business the next business day;
    (2) E-mail notice sent to the list of registered charter providers 
shall include:
    (i) Customer name, address, phone number, and e-mail address (if 
available);
    (ii) Requested date of service;
    (iii) Approximate number of passengers;
    (iv) Whether the type of equipment requested is (are) bus(es) or 
van(s); and
    (v) Trip itinerary and approximate duration; and
    (3) If the recipient intends to provide service that meets the 
definition of charter service under Sec. 604.3(c)(2), the e-mail notice 
must include the fare the recipient intends to charge for the service.
    (c) A recipient shall retain an electronic copy of the e-mail notice 
and the list of registered charter providers that were sent e-mail 
notice of the requested charter service for a period of at least three 
years from the date the e-mail notice was sent.
    (d) If a recipient receives an ``undeliverable'' notice in response 
to its e-mail notice, the recipient shall send the notice via facsimile. 
The recipient shall maintain the record of the undeliverable e-mail 
notice and the facsimile sent confirmation for a period of three years.



  Subpart D_Registration of Qualified Human Service Organizations and 

   Duties for Recipients With Respect to Charter Registration Web site



Sec. 604.15  Registration of qualified human service organizations.

    (a) Qualified human service organizations (QHSO) that seek free or 
reduced rate services from recipients, and do not receive funds from 
Federal programs listed in Appendix A, but serve individuals described 
in Sec. 604.7 (i.e., individuals with low income, advanced age, or with 
disabilities), shall register on FTA's charter registration Web site by 
submitting the following information:
    (1) Name of organization, address, phone number, e-mail address, and 
facsimile number;
    (2) The geographic service area of the recipient in which the 
qualified human service organization resides;
    (3) Basic financial information regarding the qualified human 
service organization and whether the qualified human service 
organization is exempt from taxation under sections 501(c) (1), (3), 
(4), or (19) of the Internal Revenue Code, and whether it is a unit of 
Federal, State or local government;
    (4) Whether the qualified human service organization receives funds 
directly or indirectly from a State or local program, and if so, which 
program(s); and
    (5) A narrative statement describing the types of charter service 
trips the qualified human service organization may request from a 
recipient and how that service is consistent with the mission of the 
qualified human service organization.
    (b) A qualified human service organization is eligible to receive 
charter services from a recipient if it:
    (1) Registers on the FTA Web site in accordance with paragraph (a) 
of this section at least 60 days before the date of the requested 
charter service; and

[[Page 23]]

    (2) Verifies FTA's receipt of its registration by viewing its 
information on the FTA charter registration Web site (http://
www.fta.dot.gov/laws/leg--reg--179.html).
    (c) A registered charter provider may challenge a QHSO's status to 
receive charter services from a recipient by requesting removal of the 
QHSO from FTA's charter registration Web site by filing a complaint 
consistent with subpart F.
    (d) A QHSO shall provide current and accurate information on FTA's 
charter registration Web site, and shall update that information no less 
frequently than every two years.



Sec. 604.16  Duties for recipients with respect to charter registration Web 

site.

    Each recipient shall ensure that its affected employees and 
contractors have the necessary competency to effectively use the FTA 
charter registration Web site.



         Subpart E_Advisory Opinions and Cease and Desist Orders



Sec. 604.17  Purpose.

    The purpose of this subpart is to set out the requirements for 
requesting an advisory opinion from the Chief Counsel's Office. An 
advisory opinion may also request that the Chief Counsel issue a cease 
and desist order, which would be an order to refrain from doing an act 
which, if done, would be a violation of this part.



Sec. 604.18  Request for an advisory opinion.

    (a) An interested party may request an advisory opinion from the 
Chief Counsel on a matter regarding specific factual events only.
    (b) A request for an advisory opinion shall be submitted in the 
following form:

[Date]
Chief Counsel, Federal Transit Administration, 1200 New Jersey Ave. SE., 
Room E55-302, Washington, DC 20590
Re: Request for Advisory Opinion
The undersigned submits this request for an advisory opinion from the 
FTA Chief Counsel with respect to [the general nature of the matter 
involved].
A. A full statement of all facts and legal points relevant to the 
request
B. An affirmation that the undersigned swears, to the best of his/her 
knowledge and belief, this request includes all data, information, and 
views relevant to the matter, whether favorable or unfavorable to the 
position of the undersigned, which is the subject of the request.
C. The following certification: ``I hereby certify that I have this day 
served the foregoing [name of document] on the following interested 
party(ies) at the following addresses and e-mail or facsimile numbers 
(if also served by e-mail or facsimile) by [specify method of service]:
[list persons, addresses, and e-mail or facsimile numbers]''
 Dated this -------- day of ---- , 20----.
 [Signature]
 [Printed name]
 [Title of person making request]
 [Mailing address]
 [Telephone number]
 [e-mail address]

    (c) The Chief Counsel may request additional information, as 
necessary, from the party submitting the request for an advisory 
opinion.
    (d) A request for an advisory opinion may be denied if:
    (1) The request contains incomplete information on which to base an 
informed advisory opinion;
    (2) The Chief Counsel concludes that an advisory opinion cannot 
reasonably be given on the matter involved;
    (3) The matter is adequately covered by a prior advisory opinion or 
a regulation;
    (4) The Chief Counsel otherwise concludes that an advisory opinion 
would not be in the public interest.



Sec. 604.19  Processing of advisory opinions.

    (a) A request for an advisory opinion shall be sent to the Chief 
Counsel at [email protected], and filed electronically in 
the Charter Service Advisory Opinion/Cease and Desist Order docket 
number FTA-2007-0023 at http://www.regulations.gov or sent to the 
dockets office located at 1200 New Jersey Ave., SE., West Building 
Ground Floor, Room W12-140, Washington, DC 20590, for submission to that 
docket.
    (b) The Chief Counsel shall make every effort to respond to a 
request for an advisory opinion within ten days of receipt of a request 
that complies with

[[Page 24]]

Sec. 604.18(b). The Chief Counsel shall send his or her decision to the 
interested party, the docket, and the recipient, if appropriate.



Sec. 604.20  Effect of an advisory opinion.

    (a) An advisory opinion represents the formal position of FTA on a 
matter, and except as provided in Sec. 604.25 of this subpart, 
obligates the agency to follow it until it is amended or revoked.
    (b) An advisory opinion may be used in administrative or court 
proceedings to illustrate acceptable and unacceptable procedures or 
standards, but not as a legal requirement and is limited to the factual 
circumstances described in the request for an advisory opinion. The 
Chief Counsel's advisory opinion shall not be binding upon a Presiding 
Official conducting a proceeding under subpart I of this part.
    (c) A statement made or advice provided by an FTA employee 
constitutes an advisory opinion only if it is issued in writing under 
this section. A statement or advice given by an FTA employee orally, or 
given in writing, but not under this section, is an informal 
communication that represents the best judgment of that employee at the 
time but does not constitute an advisory opinion, does not necessarily 
represent the formal position of FTA, and does not bind or otherwise 
obligate or commit the agency to the views expressed.



Sec. 604.21  Special considerations for advisory opinions.

    Based on new facts involving significant financial considerations, 
the Chief Counsel may take appropriate enforcement action contrary to an 
advisory opinion before amending or revoking the opinion. This action 
shall be taken only with the approval of the Administrator.



Sec. 604.22  Request for a cease and desist order.

    (a) An interested party may also request a cease and desist order as 
part of its request for an advisory opinion. A request for a cease and 
desist order shall contain the following information in addition to the 
information required for an advisory opinion:
    (1) A description of the need for the cease and desist order, a 
detailed description of the lost business opportunity the interested 
party is likely to suffer if the recipient performs the charter service 
in question, and how the public interest will be served by avoiding or 
ameliorating the lost business opportunity. A registered charter 
provider must distinguish its loss from that of other registered charter 
providers in the geographic service area.
    (2) A detailed description of the efforts made to notify the 
recipient of the potential violation of the charter service regulations. 
Include names, titles, phone numbers or e-mail addresses of persons 
contacted, date and times contact was made, and the response received, 
if any.
    (b) A request for a cease and desist order may be denied if:
    (1) The request contains incomplete information on which to base an 
informed a cease and desist order;
    (2) The Chief Counsel concludes that a cease and desist order cannot 
reasonably be given on the matter involved;
    (3) The matter is adequately covered by a prior a cease and desist 
order; or
    (4) The Chief Counsel otherwise concludes that a cease and desist 
order would not be in the public interest.
    (c) A recipient who is the subject of a request for a cease and 
desist order shall have three business days to respond to the request. 
The response shall include a point-by-point rebuttal to the information 
included in the request for a cease and desist order.
    (d) The time period for a response by the recipient begins once a 
registered charter provider files a request in the Advisory Opinion/
Cease and Desist Order docket (FTA-2007-0023 at http://
www.regulations.gov) or with the FTA Chief Counsel's Office, whichever 
date is sooner.



Sec. 604.23  Effect of a cease and desist order.

    (a) Issuance of a cease and desist order against a recipient shall 
be considered as an aggravating factor in determining the remedy to 
impose against the recipient in future findings of noncompliance with 
this part, if the recipient provides the service described

[[Page 25]]

in the cease and desist order issued by the Chief Counsel.
    (b) In determining whether to grant the request for a cease and 
desist order, the Chief Counsel shall consider the specific facts shown 
in the signed, sworn request for a cease and desist order, applicable 
statutes and regulations, and any other information that is relevant to 
the request.



Sec. 604.24  Decisions by the Chief Counsel regarding cease and desist orders.

    (a) The Chief Counsel may grant a request for a cease and desist 
order if the interested party demonstrates, by a preponderance of the 
evidence, that the planned provision of charter service by a recipient 
would violate this part.
    (b) In determining whether to grant the request for a cease and 
desist order, the Chief Counsel shall consider the specific facts shown 
in the signed, sworn request for a cease and desist order, applicable 
statutes, regulations, agreements, and any other information that is 
relevant to the request.



                          Subpart F_Complaints



Sec. 604.25  Purpose.

    This subpart describes the requirements for filing a complaint 
challenging the registration of a private charter operator or qualified 
human service organization on the FTA charter registration Web site and 
filing a complaint regarding the provision of charter service by a 
recipient. Note: To save time and expense for all concerned, FTA expects 
all parties to attempt to resolve matters informally before beginning 
the official complaint process.



Sec. 604.26  Complaints and decisions regarding removal of private charter 

operators or qualified human service organizations from registration list.

    (a) A recipient, a registered charter provider, or its duly 
authorized representative, may challenge the listing of a registered 
charter provider or qualified human service organization on FTA's 
charter registration Web site by filing a complaint that meets the 
following:
    (1) States the name and address of each entity who is the subject of 
the complaint;
    (2) Provides a concise but complete statement of the facts relied 
upon to substantiate the reason why the private charter operator or 
qualified human service organization should not be listed on the FTA 
charter registration Web site;
    (3) Files electronically by submitting it to the Charter Service 
Removal Complaint docket number FTA-2007-0024 at http://
www.regulations.gov;
    (4) Serves by e-mail or facsimile if no e-mail address is available, 
or by overnight mail service with receipt confirmation, and attaches 
documents offered in support of the complaint upon all entities named in 
the complaint;
    (5) Files within 90 days of discovering facts that merit removal of 
the registered charter provider or qualified human service organization 
from the FTA Charter Registration Web site; and
    (6) Contains the following certification:

I hereby certify that I have this day served the foregoing [name of 
document] on the following persons at the following addresses and e-mail 
or facsimile numbers (if also served by e-mail or facsimile) by [specify 
method of service]:
[list persons, addresses, and e-mail or facsimile numbers]
Dated this -------- day of --------, 20----.
 [signature], for [party].

    (b) The registered charter provider or qualified human service 
organization shall have 15 days to answer the complaint and shall file 
such answer, and all supporting documentation, in the Charter Service 
Removal Complaint docket number FTA-2007-0024 at http://
www.regulations.gov and e-mail such answer to 
[email protected].
    (c) A recipient, qualified human service organization, or a 
registered charter provider, or its duly authorized representative, 
shall not file a reply to the answer.
    (d) FTA shall determine whether to remove the registered charter 
provider or qualified human service organization from the FTA charter 
registration Web site based on a preponderance of

[[Page 26]]

the evidence of one or more of the following:
    (1) Bad faith;
    (2) Fraud;
    (3) Lapse of insurance;
    (4) Lapse of other documentation; or
    (5) The filing of more than one complaint, which on its face, does 
not state a claim that warrants an investigation or further action by 
FTA.
    (e) FTA's determination whether or not to remove a registered 
charter provider or qualified human service organization from the 
registration list shall be sent to the parties within 30 days of the 
date of the response required in paragraph (b) of this section and shall 
state:
    (1) Reasons for allowing the continued listing or removal of the 
registered charter provider or qualified human service organization from 
the registration list;
    (2) If removal is ordered, the length of time (not to exceed three 
years) the private charter operator or qualified human service 
organization shall be barred from the registration list; and
    (3) The date by which the private charter operator or qualified 
human service organization may re-apply for registration on the FTA 
charter registration Web site.



Sec. 604.27  Complaints, answers, replies, and other documents.

    (a) A registered charter provider, or its duly authorized 
representative (``complainant''), affected by an alleged noncompliance 
of this part may file a complaint with the Office of the Chief Counsel.
    (b) Complaints filed under this subpart shall:
    (1) Be titled ``Notice of Charter Service Complaint'';
    (2) State the name and address of each recipient that is the subject 
of the complaint and, with respect to each recipient, the specific 
provisions of this part that the complainant believes were violated;
    (2) Be served in accordance with Sec. 604.31, along with all 
documents then available in the exercise of reasonable diligence, 
offered in support of the complaint, upon all recipients named in the 
complaint as being responsible for the alleged action(s) or omission(s) 
upon which the complaint is based;
    (3) Provide a concise but complete statement of the facts relied 
upon to substantiate each allegation (complainant must show by a 
preponderance of the evidence that the recipient provided charter 
service and that such service did not fall within one of the exemptions 
or exceptions set out in this part);
    (4) Describe how the complainant was directly and substantially 
affected by the things done or omitted by the recipients;
    (5) Identify each registered charter provider associated with the 
complaint; and
    (6) Be filed within 90 days after the alleged event giving rise to 
the complaint occurred.
    (c) Unless the complaint is dismissed pursuant to Sec. 604.28 or 
Sec. 604.29, FTA shall notify the complainant, respondent, and state 
recipient, if applicable, within 30 days after the date FTA receives the 
complaint that the complaint has been docketed. Respondent shall have 30 
days from the date of service of the FTA notification to file an answer.
    (d) The complainant may file a reply within 20 days of the date of 
service of the respondent's answer.
    (e) The respondent may file a rebuttal within 10 days of the date of 
service of the reply.
    (f) The answer, reply, and rebuttal shall, like the complaint, be 
accompanied by the supporting documentation upon which the submitter 
relies.
    (g) The answer shall deny or admit the allegations made in the 
complaint or state that the entity filing the document is without 
sufficient knowledge or information to admit or deny an allegation, and 
shall assert any affirmative defense.
    (h) The answer, reply, and rebuttal shall each contain a concise but 
complete statement of the facts relied upon to substantiate the answers, 
admissions, denials, or averments made.
    (i) The respondent's answer may include a motion to dismiss the 
complaint, or any portion thereof, with a supporting memorandum of 
points and authorities.

[[Page 27]]

    (j) The complainant may withdraw a complaint at any time after 
filing by serving a ``Notification of Withdrawal'' on the Chief Counsel 
and the respondent.



Sec. 604.28  Dismissals.

    (a) Within 20 days after the receipt of a complaint described in 
Sec. 604.27, the Office of the Chief Counsel shall provide reasons for 
dismissing a complaint, or any claim in the complaint, with prejudice, 
under this section if:
    (1) It appears on its face to be outside the jurisdiction of FTA 
under the Federal Transit Laws;
    (2) On its face it does not state a claim that warrants an 
investigation or further action by FTA; or
    (3) The complainant lacks standing to file a complaint under 
subparts B, C, or D of this part.
    (b) [Reserved]



Sec. 604.29  Incomplete complaints.

    If a complaint is not dismissed under Sec. 604.28, but is deficient 
as to one or more of the requirements set forth in Sec. 604.27, the 
Office of the Chief Counsel may dismiss the complaint within 20 days 
after receiving it. Dismissal shall be without prejudice and the 
complainant may re-file after amendment to correct the deficiency. The 
Chief Counsel's dismissal shall include the reasons for the dismissal 
without prejudice.



Sec. 604.30  Filing complaints.

    (a) Filing address. Unless provided otherwise, the complainant shall 
file the complaint with the Office of the Chief Counsel, 1200 New Jersey 
Ave., SE., Room E55-302, Washington, DC 20590 and file it electronically 
in the Charter Service Complaint docket number FTA-2007-0025 at http://
www.regulations.gov or mail it to the docket by sending the complaint to 
1200 New Jersey Ave., SE., West Building Ground Floor, Room W12-140, 
Washington, DC 20590.
    (b) Date and method of filing. Filing of any document shall be by 
personal delivery, U.S. mail, or overnight delivery with receipt 
confirmation. Unless the date is shown to be inaccurate, documents to be 
filed with FTA shall be deemed filed, on the earliest of:
    (1) The date of personal delivery;
    (2) The mailing date shown on the certificate of service;
    (3) The date shown on the postmark if there is no certificate of 
service; or
    (4) The mailing date shown by other evidence if there is no 
certificate of service and no postmark.
    (c) E-mail or fax. A document sent by facsimile or e-mail shall not 
constitute service as described in Sec. 604.31.
    (d) Number of copies. Unless otherwise specified, an executed 
original shall be filed with FTA.
    (e) Form. Documents filed with FTA shall be typewritten or legibly 
printed. In the case of docketed proceedings, the document shall include 
a title and the docket number, as established by the Chief Counsel or 
Presiding Official, of the proceeding on the front page.
    (f) Signing of documents and other papers. The original of every 
document filed shall be signed by the person filing it or the person's 
duly authorized representative. Subject to the enforcement provisions 
contained in this subpart, the signature shall serve as a certification 
that the signer has read the document and, based on reasonable inquiry, 
to the best of the signer's knowledge, information, and belief, the 
document is:
    (1) Consistent with this part;
    (2) Warranted by existing law or that a good faith argument exists 
for extension, modification, or reversal of existing law; and
    (3) Not interposed for any improper purpose, such as to harass or to 
cause unnecessary delay or needless increase in the cost of the 
administrative process.



Sec. 604.31  Service.

    (a) Designation of person to receive service. The initial document 
filed by the complainant shall state on the first page of the document 
for all parties to be served:
    (1) The title of the document;
    (2) The name, post office address, telephone number; and
    (3) The facsimile number, if any, and e-mail address(es), if any.
    If any of the above items change during the proceeding, the person 
shall promptly file notice of the change with

[[Page 28]]

FTA and the Presiding Official, if appropriate, and shall serve the 
notice on all other parties to the proceeding.
    (b) Docket numbers. Each submission identified as a complaint under 
this part by the submitting party shall be filed in the Charter Service 
Complaint docket FTA-2007-0025.
    (c) Who must be served. Copies of all documents filed with FTA shall 
be served by the entity filing them on all parties to the proceeding. A 
certificate of service shall accompany all documents when they are 
tendered for filing and shall certify concurrent service on FTA and all 
parties. Certificates of service shall be in substantially the following 
form:

I hereby certify that I have this day served the foregoing [name of 
document] on the following persons at the following addresses and e-mail 
or facsimile numbers (if also served by e-mail or facsimile) by [specify 
method of service]:
[list persons, addresses, and e-mail or facsimile numbers]
Dated this -------- day of --------, 20----.
[signature], for [party]

    (d) Method of service. Except as otherwise provided in Sec. 604.26, 
or agreed by the parties and the Presiding Official, as appropriate, the 
method of service is personal delivery or U.S. mail.
    (e) Presumption of service. There shall be a presumption of lawful 
service:
    (1) When acknowledgment of receipt is by a person who customarily or 
in the ordinary course of business receives mail at the address of the 
party or of the person designated under this section; or
    (2) When a properly addressed envelope, sent to the last known 
address has been returned as undeliverable, unclaimed, or refused.



                        Subpart G_Investigations



Sec. 604.32  Investigation of complaint.

    (a) If, based on the pleadings, there appears to be a reasonable 
basis for investigation, FTA shall investigate the subject matter of the 
complaint.
    (b) The investigation may include a review of written submissions or 
pleadings of the parties, as supplemented by any informal investigation 
FTA considers necessary and by additional information furnished by the 
parties at FTA request. Each party shall file documents that it 
considers sufficient to present all relevant facts and argument 
necessary for FTA to determine whether the recipient is in compliance.
    (c) The Chief Counsel shall send a notice to complainant(s) and 
respondent(s) once an investigation is complete, but not later than 90 
days after receipt of the last pleading specified in Sec. 604.27 was 
due to FTA.



Sec. 604.33  Agency initiation of investigation.

    (a) Notwithstanding any other provision under these regulations, FTA 
may initiate its own investigation of any matter within the 
applicability of this Part without having received a complaint. The 
investigation may include, without limitation, any of the actions 
described in Sec. 604.32.
    (b) Following the initiation of an investigation under this section, 
FTA sends a notice to the entities subject to investigation. The notice 
will set forth the areas of FTA's concern and the reasons; request a 
response to the notice within 30 days of the date of service; and inform 
the respondent that FTA will, in its discretion, invite good faith 
efforts to resolve the matter.
    (c) If the matters addressed in the FTA notice are not resolved 
informally, the Chief Counsel may refer the matter to a Presiding 
Official.



 Subpart H_Decisions by FTA and Appointment of a Presiding Official (PO)



Sec. 604.34  Chief Counsel decisions and appointment of a PO.

    (a) After receiving a complaint consistent with Sec. 604.27, and 
conducting an investigation, the Chief Counsel may:
    (1) Issue a decision based on the pleadings filed to date;
    (2) Appoint a PO to review the matter; or
    (3) Dismiss the complaint pursuant to Sec. 604.28.
    (b) If the Chief Counsel appoints a PO to review the matter, the 
Chief Counsel shall send out a hearing order that sets forth the 
following:
    (1) The allegations in the complaint, or notice of investigation, 
and the

[[Page 29]]

chronology and results of the investigation preliminary to the hearing;
    (2) The relevant statutory, judicial, regulatory, and other 
authorities;
    (3) The issues to be decided;
    (4) Such rules of procedure as may be necessary to supplement the 
provisions of this Part;
    (5) The name and address of the PO, and the assignment of authority 
to the PO to conduct the hearing in accordance with the procedures set 
forth in this Part; and
    (6) The date by which the PO is directed to issue a recommended 
decision.



Sec. 604.35  Separation of functions.

    (a) Proceedings under this part shall be handled by an FTA attorney, 
except that the Chief Counsel may appoint a PO, who may not be an FTA 
attorney.
    (b) After issuance of an initial decision by the Chief Counsel, the 
FTA employee or contractor engaged in the performance of investigative 
or prosecutorial functions in a proceeding under this part shall not, in 
that case or a factually related case, participate or give advice in a 
final decision by the Administrator or his or her designee on written 
appeal, and shall not, except as counsel or as witness in the public 
proceedings, engage in any substantive communication regarding that case 
or a related case with the Administrator on written appeal.



                           Subpart I_Hearings.



Sec. 604.36  Powers of a PO.

    A PO may:
    (a) Give notice of, and hold, pre-hearing conferences and hearings;
    (b) Administer oaths and affirmations;
    (c) Issue notices of deposition requested by the parties;
    (d) Limit the frequency and extent of discovery;
    (e) Rule on offers of proof;
    (f) Receive relevant and material evidence;
    (g) Regulate the course of the hearing in accordance with the rules 
of this part to avoid unnecessary and duplicative proceedings in the 
interest of prompt and fair resolution of the matters at issue;
    (h) Hold conferences to settle or to simplify the issues by consent 
of the parties;
    (i) Dispose of procedural motions and requests;
    (j) Examine witnesses; and
    (k) Make findings of fact and conclusions of law and issue a 
recommended decision.



Sec. 604.37  Appearances, parties, and rights of parties.

    (a) Any party to the hearing may appear and be heard in person and 
any party to the hearing may be accompanied, represented, or advised by 
an attorney licensed by a State, the District of Columbia, or a 
territory of the United States to practice law or appear before the 
courts of that State or territory, or by another duly authorized 
representative. An attorney, or other duly authorized representative, 
who represents a party shall file according to the filing and service 
procedures contained in Sec. 604.30 and Sec. 604.31.
    (b) The parties to the hearing are the respondent(s) named in the 
hearing order, the complainant(s), and FTA, as represented by the PO.
    (c) The parties to the hearing may agree to extend for a reasonable 
period of time the time for filing a document under this part. If the 
parties agree, the PO shall grant one extension of time to each party. 
The party seeking the extension of time shall submit a draft order to 
the PO to be signed by the PO and filed with the hearing docket. The PO 
may grant additional oral requests for an extension of time where the 
parties agree to the extension.
    (d) An extension of time granted by the PO for any reason extends 
the due date for the PO's recommended decision and for the final agency 
decision by the length of time in the PO's extension.



Sec. 604.38  Discovery.

    (a) Permissible forms of discovery shall be within the discretion of 
the PO.
    (b) The PO shall limit the frequency and extent of discovery 
permitted by this section if a party shows that:
    (1) The information requested is cumulative or repetitious;

[[Page 30]]

    (2) The information requested may be obtained from another less 
burdensome and more convenient source;
    (3) The party requesting the information has had ample opportunity 
to obtain the information through other discovery methods permitted 
under this section; or
    (4) The method or scope of discovery requested by the party is 
unduly burdensome or expensive.



Sec. 604.39  Depositions.

    (a) For good cause shown, the PO may order that the testimony of a 
witness may be taken by deposition and that the witness produce 
documentary evidence in connection with such testimony. Generally, an 
order to take the deposition of a witness is entered only if:
    (1) The person whose deposition is to be taken would be unavailable 
at the hearing;
    (2) The deposition is deemed necessary to perpetuate the testimony 
of the witness; or
    (3) The taking of the deposition is necessary to prevent undue and 
excessive expense to a party and will not result in undue burden to 
other parties or in undue delay.
    (b) Any party to the hearing desiring to take the deposition of a 
witness according to the terms set out in this subpart, shall file a 
motion with the PO, with a copy of the motion served on each party. The 
motion shall include:
    (1) The name and residence of the witness;
    (2) The time and place for the taking of the proposed deposition;
    (3) The reasons why such deposition should be taken; and
    (4) A general description of the matters concerning which the 
witness will be asked to testify.
    (c) If good cause is shown in the motion, the PO in his or her 
discretion, issues an order authorizing the deposition and specifying 
the name of the witness to be deposed, the location and time of the 
deposition and the general scope and subject matter of the testimony to 
be taken.
    (d) Witnesses whose testimony is taken by deposition shall be sworn 
or shall affirm before any questions are put to them. Each question 
propounded shall be recorded and the answers of the witness transcribed 
verbatim. The written transcript shall be subscribed by the witness, 
unless the parties by stipulation waive the signing, or the witness is 
ill, cannot be found, or refuses to sign. The reporter shall note the 
reason for failure to sign.



Sec. 604.40  Public disclosure of evidence.

    (a) Except as provided in this section, the hearing shall be open to 
the public.
    (b) The PO may order that any information contained in the record be 
withheld from public disclosure. Any person may object to disclosure of 
information in the record by filing a written motion to withhold 
specific information with the PO. The person shall state specific 
grounds for nondisclosure in the motion.
    (c) The PO shall grant the motion to withhold information from 
public disclosure if the PO determines that disclosure would be in 
violation of the Privacy Act, would reveal trade secrets or privileged 
or confidential commercial or financial information, or is otherwise 
prohibited by law.



Sec. 604.41  Standard of proof.

    The PO shall issue a recommended decision or shall rule in a party's 
favor only if the decision or ruling is supported by a preponderance of 
the evidence.



Sec. 604.42  Burden of proof.

    (a) The burden of proof of noncompliance with this part, 
determination, or agreement issued under the authority of the Federal 
Transit Laws is on the registered charter provider.
    (b) Except as otherwise provided by statute or rule, the proponent 
of a motion, request, or order has the burden of proof.



Sec. 604.43  Offer of proof.

    A party whose evidence has been excluded by a ruling of the PO, 
during a hearing in which the respondent had an opportunity to respond 
to the offer of proof, may offer the evidence on the record when filing 
an appeal.

[[Page 31]]



Sec. 604.44  Record.

    (a) The transcript of all testimony in the hearing, all exhibits 
received into evidence, all motions, applications requests and rulings, 
and all documents included in the hearing record shall constitute the 
exclusive record for decision in the proceedings and the basis for the 
issuance of any orders.
    (b) Any interested person may examine the record by entering the 
docket number at http://www.regulations.gov or after payment of 
reasonable costs for search and reproduction of the record.



Sec. 604.45  Waiver of procedures.

    (a) The PO shall waive such procedural steps as all parties to the 
hearing agree to waive before issuance of an initial decision.
    (b) Consent to a waiver of any procedural step bars the raising of 
this issue on appeal.
    (c) The parties may not by consent waive the obligation of the PO to 
enter a recommended decision on the record.



Sec. 604.46  Recommended decision by a PO.

    (a) The PO shall issue a recommended decision based on the record 
developed during the proceeding and shall send the recommended decision 
to the Chief Counsel for ratification or modification not later than 110 
days after the referral from the Chief Counsel.
    (b) The Chief Counsel shall ratify or modify the PO's recommended 
decision within 30 days of receiving the recommended decision. The Chief 
Counsel shall serve his or her decision, which is capable of being 
appealed to the Administrator, on all parties to the proceeding.



Sec. 604.47  Remedies.

    (a) If the Chief Counsel determines that a violation of this part 
occurred, he or she may take one or more of the following actions:
    (1) Bar the recipient from receiving future Federal financial 
assistance from FTA;
    (2) Order the withholding of a reasonable percentage of available 
Federal financial assistance; or
    (3) Pursue suspension and debarment of the recipient, its employees, 
or its contractors.
    (b) In determining the type and amount of remedy, the Chief Counsel 
shall consider the following factors:
    (1) The nature and circumstances of the violation;
    (2) The extent and gravity of the violation (``extent of deviation 
from regulatory requirements'');
    (3) The revenue earned (``economic benefit'') by providing the 
charter service;
    (4) The operating budget of the recipient;
    (5) Such other matters as justice may require; and
    (6) Whether a recipient provided service described in a cease and 
desist order after issuance of such order by the Chief Counsel.
    (c) The Chief Counsel office may mitigate the remedy when the 
recipient can document corrective action of alleged violation. The Chief 
Counsel's decision to mitigate a remedy shall be determined on the basis 
of how much corrective action was taken by the recipient and when it was 
taken. Systemic action to prevent future violations will be given 
greater consideration than action simply to remedy violations identified 
during FTA's inspection or identified in a complaint.
    (d) In the event the Chief Counsel finds a pattern of violations, 
the remedy ordered shall bar a recipient from receiving Federal transit 
assistance in an amount that the Chief Counsel considers appropriate.
    (e) The Chief Counsel may make a decision to withhold Federal 
financial assistance in a lump sum or over a period of time not to 
exceed five years.



        Subpart J_Appeal to Administrator and Final Agency Orders



Sec. 604.48  Appeal from Chief Counsel decision.

    (a) Each party adversely affected by the Chief Counsel's office 
decision may file an appeal with the Administrator within 21 days of the 
date of the Chief Counsel's issued his or her decision. Each party may 
file a reply to an appeal within 21 days after it is served on

[[Page 32]]

the party. Filing and service of appeals and replies shall be by 
personal delivery consistent with Sec. Sec. 604.30 and 604.31.
    (b) If an appeal is filed, the Administrator reviews the entire 
record and issues a final agency decision based on the record that 
either accepts, rejects, or modifies the Chief Counsel's decision within 
30 days of the due date of the reply. If no appeal is filed, the 
Administrator may take review of the case on his or her own motion. If 
the Administrator finds that the respondent is not in compliance with 
this part, the final agency order shall include a statement of 
corrective action, if appropriate, and identify remedies.
    (c) If no appeal is filed, and the Administrator does not take 
review of the decision by the office on the Administrator's own motion, 
the Chief Counsel's decision shall take effect as the final agency 
decision and order on the twenty-first day after the actual date the 
Chief Counsel's decision was issued.
    (d) The failure to file an appeal is deemed a waiver of any rights 
to seek judicial review of the Chief Counsel's decision that becomes a 
final agency decision by operation of paragraph (c) of this section.



Sec. 604.49  Administrator's discretionary review of the Chief Counsel's 

decision.

    (a) If the Administrator takes review on the Administrator's own 
motion, the Administrator shall issue a notice of review by the twenty-
first day after the actual date of the Chief Counsel's decision that 
contains the following information:
    (1) The notice sets forth the specific findings of fact and 
conclusions of law in the decision subject to review by the 
Administrator.
    (2) Parties may file one brief on review to the Administrator or 
rely on their post-hearing briefs to the Chief Counsel's office. Briefs 
on review shall be filed not later than 10 days after service of the 
notice of review. Filing and service of briefs on review shall be by 
personal delivery consistent with Sec. 604.30 and Sec. 604.31.
    (3) The Administrator issues a final agency decision and order 
within 30 days of the due date of the briefs on review. If the 
Administrator finds that the respondent is not in compliance with this 
part, the final agency order shall include a statement of corrective 
action, if appropriate, and identify remedies.
    (b) If the Administrator takes review on the Administrator's own 
motion, the decision of the Chief Counsel is stayed pending a final 
decision by the Administrator.



                        Subpart K_Judicial Review



Sec. 604.50  Judicial review of a final decision and order.

    (a) A person may seek judicial review in an appropriate United 
States District Court of a final decision and order of the Administrator 
as provided in 5 U.S.C. 701-706. A party seeking judicial review of a 
final decision and order shall file a petition for review with the Court 
not later than 60 days after a final decision and order is effective.
    (b) The following do not constitute final decisions and orders 
subject to judicial review:
    (1) FTA's decision to dismiss a complaint as set forth in Sec. 
604.29;
    (2) A recommended decision issued by a PO at the conclusion of a 
hearing; or
    (3) A Chief Counsel decision that becomes the final decision of the 
Administrator because it was not appealed within the stated timeframes.



Sec. Appendix A to Part 604--Listing of Human Service Federal Financial 
                           Assistance Programs

          Federal Programs Providing Transportation Assistance
------------------------------------------------------------------------
 
------------------------------------------------------------------------
1........  Food Stamp,          Food and Nutrition   Department of
            Employment and       Service.             Agriculture.
            Training Program.
2........  Voluntary Public     Office of            Department of
            School Choice.       Innovation and       Education.
                                 Improvement.
3........  Assistance for       Office of Special    Department of
            Education of All     Education and        Education.
            Children with        Rehabilitative
            Disabilities--IDEA.  Services.

[[Page 33]]

 
4........  Centers for          Office of Special    Department of
            Independent Living.  Education and        Education.
                                 Rehabilitative
                                 Services.
5........  Independent Living   Office of Special    Department of
            for Older            Education and        Education.
            Individuals Who      Rehabilitative
            Are Blind.           Services.
6........  Independent Living   Office of Special    Department of
            State Grants.        Education and        Education.
                                 Rehabilitative
                                 Services.
7........  Supported            Office of Special    Department of
            Employment           Education and        Education.
            Services for         Rehabilitative
            Individuals with     Services.
            Most Significant
            Disabilities.
8........  Vocational           Office of Special    Department of
            Rehabilitative       Education and        Education.
            Grants.              Rehabilitative
                                 Services.
9........  Social Service       Administration for   Department of
            Block Grant.         Children and         Health and Human
                                 Families.            Services.
10.......  Child Care and       Administration for   Department of
            Development Fund.    Children and         Health and Human
                                 Families.            Services.
11.......  Head Start.........  Administration for   Department of
                                 Children and         Health and Human
                                 Families.            Services.
12.......  Refugee and Entrant  Administration for   Department of
            Assistance           Children and         Health and Human
            Discretionary        Families.            Services.
            Grants.
13.......  Refugee and Entrant  Administration for   Department of
            Assistance State     Children and         Health and Human
            Administered         Families.            Services.
            Programs.
14.......  Refugee and Entrant  Administration for   Department of
            Targeted             Children and         Health and Human
            Assistance.          Families.            Services.
15.......  Refugee and Entrant  Administration for   Department of
            Assistance           Children and         Health and Human
            Voluntary Agency     Families.            Services.
            Programs.
16.......  State Development    Administration for   Department of
            Disabilities         Children and         Health and Human
            Council and          Families.            Services.
            Protection &
            Advocacy.
17.......  Temporary            Administration for   Department of
            Assistance to        Children and         Health and Human
            Needy Families.      Families.            Services.
18.......  Community Services   Administration for   Department of
            Block Grant.         Children and         Health and Human
                                 Families.            Services.
19.......  Promoting Safe and   Administration for   Department of
            Stable Families.     Children and         Health and Human
                                 Families.            Services.
20.......  Developmental        Administration for   Department of
            Disabilities         Children and         Health and Human
            Projects of          Families.            Services.
            National
            Significance.
21.......  Grants for           Administration on    Department of
            Supportive           Aging.               Health and Human
            Services and                              Services.
            Senior Centers.
22.......  Programs for         Administration on    Department of
            American Indian,     Aging.               Health and Human
            Alaskan Native and                        Services.
            Native Hawaii
            Elders.
23.......  Medicaid...........  Centers for          Department of
                                 Medicaid and         Health and Human
                                 Medicare.            Services.
24.......  State Health         Centers for          Department of
            Insurance Program.   Medicaid and         Health and Human
                                 Medicare.            Services.
25.......  Home and Community   Centers for          Department of
            Base Waiver.         Medicaid and         Health and Human
                                 Medicare.            Services.
26.......  Community Health     Health Resources     Department of
            Centers.             and Services         Health and Human
                                 Administration.      Services.

[[Page 34]]

 
27.......  Healthy Communities  Health Resources     Department of
                                 and Services         Health and Human
                                 Administration.      Services.
28.......  HIV Care Formula     Health Resources     Department of
            Program.             and Services         Health and Human
                                 Administration.      Services.
29.......  Maternal and Child   Health Resources     Department of
            Health Block Grant.  and Services         Health and Human
                                 Administration.      Services.
30.......  Rural Health Care    Health Resources     Department of
            Network.             and Services         Health and Human
                                 Administration.      Services.
31.......  Rural Health Care    Health Resources     Department of
            Outreach Program.    and Services         Health and Human
                                 Administration.      Services.
32.......  Health Start         Health Resources     Department of
            Initiative.          and Services         Health and Human
                                 Administration.      Services.
33.......  Ryan White Care Act  Health Resources     Department of
            Programs.            and Services         Health and Human
                                 Administration.      Services.
34.......  Substance Abuse      Substance Abuse and  Department of
            Prevention and       Mental Health        Health and Human
            Treatment Block      Services             Services.
            Grant.               Administration.
35.......  Prevention and       Substance Abuse and  Department of
            Texas Block Grant.   Mental Health        Health and Human
                                 Services             Services.
                                 Administration.
36.......  Community            Community Planning   Department of
            Development Block    and Development.     Housing and Urban
            Grant.                                    Development.
37.......  Housing              Community Planning   Department of
            Opportunities for    and Development.     Housing and Urban
            Persons with AIDS.                        Development.
38.......  Supportive Housing   Community Planning   Department of
            Program.             and Development.     Housing and Urban
                                                      Development.
39.......  Revitalization of    Public and Indian    Department of
            Severely             Housing.             Housing and Urban
            Distressed Public                         Development.
            Housing.
40.......  Indian Employment    Bureau of Indian     Department of the
            Assistance.          Affairs.             Interior.
41.......  Indian Employment,   Bureau of Indian     Department of the
            Training, and        Affairs.             Interior.
            Related Services.
42.......  Black Lung Benefits  Employment           Department of
                                 Standards            Labor.
                                 Administration.
43.......  Senior Community     Employment           Department of
            Services             Standards            Labor.
            Employment Program.  Administration.
44.......  Job Corps..........  Employment and       Department of
                                 Training             Labor.
                                 Administration.
45.......  Migrant and          Employment and       Department of
            Seasonal Farm        Training             Labor.
            Worker.              Administration.
46.......  Native American      Employment and       Department of
            Employment and       Training             Labor.
            Training.            Administration.
47.......  Welfare to Work      Employment and       Department of
            Grants for Tribes.   Training             Labor.
                                 Administration.
48.......  Welfare to Work for  Employment and       Department of
            States and Locals.   Training             Labor.
                                 Administration.
49.......  Work Incentive       Employment and       Department of
            Grants.              Training             Labor.
                                 Administration.
50.......  Workforce            Employment and       Department of
            Investment Act       Training             Labor.
            Adult Services       Administration.
            Program.
51.......  Workforce            Employment and       Department of
            Investment Act       Training             Labor.
            Adult Dislocated     Administration.
            Worker Program.
52.......  Workforce            Employment and       Department of
            Investment Act       Training             Labor.
            Youth Activities     Administration.
            Program.

[[Page 35]]

 
53.......  Homeless Veterans    Veterans Employment  Department of
            Reintegration        & Training Service.  Labor.
            Program.
54.......  Veterans Employment  Veterans Employment  Department of
            Program.             & Training Service.  Labor.
55.......  Elderly and Persons  Federal Transit      Department of
            with Disability.     Administration.      Transportation.
56.......  New Freedom Program  Federal Transit      Department of
                                 Administration.      Transportation.
57.......  Job Access and       Federal Transit      Department of
            Reverse Commute      Administration.      Transportation.
            Program.
58.......  Non-Urbanized Area   Federal Transit      Department of
            Program.             Administration.      Transportation.
59.......  Capital              Federal Transit      Department of
            Discretionary        Administration.      Transportation.
            Program.
60.......  Urbanized Area       Federal Transit      Department of
            Formula Program.     Administration.      Transportation.
61.......  Automobiles and      Veterans Benefits    Department of
            Adaptive Equipment.  Administration.      Veterans Affairs.
62.......  Homeless Provider    Veterans Health      Department of
            Grants.              Administration.      Veterans Affairs.
63.......  Veterans Medical     Veterans Health      Department of
            Care Benefits.       Administration.      Veterans Affairs.
64.......  Ticket to Work       Social Security      Department of
            Program.             Administration.      Veterans Affairs.
------------------------------------------------------------------------



            Sec. Appendix B to Part 604--Reasons for Removal

    The following is guidance on the terms contained in section 
604.26(d) concerning reasons for which FTA may remove a registered 
charter provider or a qualified human service organization from the FTA 
charter registration Web site.

                           What is bad faith?

    Bad faith is the actual or constructive fraud or a design to mislead 
or deceive another or a neglect or refusal to fulfill a duty or 
contractual obligation. It is not an honest mistake. Black's Law 
Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul, 
Minn., 1968.
    For example, it would be bad faith for a registered charter provider 
to respond to a recipient's notification to registered charter providers 
of a charter service opportunity stating that it would provide the 
service with no actual intent to perform the charter service. It would 
also be bad faith if the registered charter provider fails to contact 
the customer or provide a quote for charter service within a reasonable 
time. Typically, if a registered charter provider fails to contact a 
customer or fails to provide a price quote to the customer at least 14 
business days before an event, then FTA may remove the registered 
charter provider from the registration Web site, which would allow a 
transit agency to step back in to provide the service because the 
registered charter provider's response to the email would no longer be 
effective because it is not registered.
    Further, it would be bad faith for a registered charter provider to 
submit a quote for charter services knowing that the price is three to 
four times higher because of the distance the registered charter 
provider must travel (deadhead time). In those situations, FTA may 
interpret such quotes as bad faith because they appear to be designed to 
prevent the local transit agency from providing the service.
    On the other hand, FTA would not interpret an honest mistake of fact 
as bad faith. For example, if a registered charter provider fails to 
provide charter service in response to a recipient's notification when 
it honestly mistook the date, place or time the service was to be 
provided. It would not be bad faith if the registered charter provider 
responded affirmatively to the email notification sent by the public 
transit agency, but then later learned it could not perform the service 
and provided the transit agency reasonable notice of its changed 
circumstances.

                             What is fraud?

    Fraud is the suggestion or assertion of a fact that is not true, by 
one who has no reasonable ground for believing it to be true; the 
suppression of a fact by one who is bound to disclose it; one who gives 
information of

[[Page 36]]

other facts which are likely to mislead; or a promise made without any 
intention of performing it. Black's Law Dictionary, Revised Fourth 
Edition, West Publishing Company, St. Paul, Minn., 1968.
    Examples of fraud include but are not limited to: (1) A registered 
charter provider indicates that it has a current state or Federal safety 
certification when it knows that it does not in fact have one; (2) a 
broker that owns no charter vehicles registers as a registered charter 
provider; or (3) a qualified human service organization represents that 
its serves the needs of the elderly, persons with disabilities, or 
lower-income individuals, but, in fact, only serves those populations 
tangentially.

                      What is a lapse of insurance?

    A lapse of insurance occurs when there is no policy of insurance is 
in place. This may occur when there has been default in payment of 
premiums on an insurance policy and the policy is no longer in force. In 
addition, no other policy of insurance has taken its place. Black's Law 
Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul, 
Minn., 1968.

                 What is a lapse of other documentation?

    A lapse of other documentation means for example, but is not limited 
to, failure to have or loss or revocation of business license, operating 
authority, failure to notify of current company name, address, phone 
number, email address and facsimile number, failure to have a current 
state or Federal safety certification, or failure to provide accurate 
Federal or state motor carrier identifying number. Black's Law 
Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul, 
Minn., 1968.

    What is a complaint that does not state a claim that warrants an 
                 investigation or further action by FTA?

    A complaint is a document describing a specific instance that 
allegedly constitutes a violation of the charter service regulations set 
forth in 49 CFR 604.28. More than one complaint may be contained in the 
same document. A complaint does not state a claim that warrants 
investigation when the allegations made in the complaint, without 
considering any extraneous material or matter, do not raise a genuine 
issue as to any material question of fact, and based on the undisputed 
facts stated in the complaint, there is no violation of the charter 
service statute or regulation as a matter of law. Based on Federal Rules 
of Civil Procedure, Rule 56(c).
    Examples of complaints that would not warrant an investigation or 
further action by FTA include but are not limited to: (1) A complaint 
against a public transit agency that does not receive FTA funding; (2) a 
complaint brought against a public transit agency by a private charter 
operator that is neither a registered charter provider nor its duly 
authorized representative; (3) a complaint that gives no information as 
to when or where the alleged prohibited charter service took place; or 
(4) a complaint filed solely for the purpose of harassing the public 
transit agency.

[73 FR 44931, Aug. 1, 2008]



         Sec. Appendix C to Part 604--Frequently Asked Questions

                (a) Applicability (49 CFR Section 604.2)

    (1) Q: If the requirements of the charter rule are not applicable to 
me for a particular service I provide, do I have to report that service 
in my quarterly report?
    A: No. If the service you propose to provide meets one of the 
exemptions contained in this section, you do not have to report the 
service in your quarterly report.
    (2) Q: If I receive funds under 49 U.S.C. Sections 5310, 5311, 5316, 
or 5317, may I provide charter service for any purpose?
    A: No. You may only provide charter service for ``program 
purposes,'' which is defined in this regulation as ``transportation that 
serves the needs of either human service agencies or targeted 
populations (elderly, individuals with disabilities, and/or low income 
individuals) * * *'' 49 CFR Section 604.2(e). Thus, your service only 
qualifies for the exemption contained in this section if the service is 
designed to serve the needs of targeted populations. Charter service 
provided to a group, however, that includes individuals who are only 
incidentally members of those targeted populations, is not ``for program 
purposes'' and must meet the requirements of the rule (for example, an 
individual chartering a vehicle to take his relatives including elderly 
aunts and a cousin who is a disabled veteran to a family reunion).
    (3) Q: If I am providing service for program purposes under one of 
the FTA programs listed in 604.2.(e), do the human service organizations 
have to register on the FTA Charter Registration Web site?
    A: No. Because the service is exempt from the charter regulations, 
the organization does not have to register on the FTA Charter 
Registration Web site.
    (4) Q: What if there is an emergency such as an apartment fire or 
tanker truck spill that requires an immediate evacuation, but the 
President, Governor, or Mayor never declares it as an emergency? Can a 
transit agency still assist in the evacuation efforts?
    A: Yes. One part of the emergency exemption is designed to allow 
transit agencies to participate in emergency situations without worrying 
about complying with the charter

[[Page 37]]

regulations. Since transit agencies are often uniquely positioned to 
respond to such emergencies, the charter regulations do not apply. This 
is true whether or not the emergency is officially declared.
    (5) Q: Do emergency situations involve requests from the Secret 
Service or the police department to transport its employees?
    A. Generally no. Transporting the Secret Service or police officers 
for non-emergency preparedness or planning exercises does not qualify 
for the exemption under this section. In addition, if the Secret Service 
or the police department requests that a transit agency provide service 
when there is no immediate emergency, then the transit agency must 
comply with the charter service regulations.
    (6) Q: Can a transit agency provide transportation to transit 
employees for an event such as the funeral of a transit employee or the 
transit agency's annual picnic?
    A: Yes. These events do not fall within the definition of charter, 
because while the service is exclusive, it is not provided at the 
request of a third party and it is not at a negotiated price. 
Furthermore, a transit agency transporting its own employees to events 
sponsored by the transit agency for employee morale purposes or to 
events directly related to internal employee relations such as a funeral 
of an employee, or to the transit agency's picnic, is paying for these 
services as part of the transit agency's own administrative overhead.
    (7) Q: Is sightseeing service considered to be charter?
    A: ``Sightseeing'' is a different type of service than charter 
service. ``Sightseeing'' service is regularly scheduled round trip 
service to see the sights, which is often accompanied by a narrative 
guide and is open to the public for a set price. Public transit agencies 
may not provide sightseeing service with federally funded assets or 
assistance because it falls outside the definition of ``public 
transportation'' under 49 U.S.C. Section 5302(a) (10), unless FTA 
provides written concurrence for that service as an approved incidental 
use. While, in general, ``sightseeing'' service does not constitute 
charter service, ``sightseeing'' service that also meets the definition 
of charter service would be prohibited, even as an incidental use.
    (8) Q: If a private provider receives Federal funds from one of the 
listed programs in this section, does that mean the private provider 
cannot use its privately owned equipment to provide charter service?
    A: No. A private provider may still provide charter services even 
though it receives Federal funds under one of the programs listed in 
this section. The charter regulations only apply to a private provider 
during the time period when it is providing public transportation 
services under contract with a public transit agency.
    (9) Q: What does FTA mean by the phrase ``non-FTA funded 
activities''?
    A: Non-FTA funded activities are those activities that are not 
provided under contract or other arrangement with a public transit 
agency using FTA funds.
    (10) Q: How does a private provider know whether an activity is FTA-
funded or not?
    A: The private provider should refer to the contract with the public 
transit agency to understand the services that are funded with Federal 
dollars.
    (11) Q: What if the service is being provided under a capital cost 
of contracting scenario?
    A: When a private operator receives FTA funds through capital cost 
of contracting, the only expenses attributed to FTA are those related to 
the transit service provided. The principle of capital cost of 
contracting is to pay for the capital portion of the privately owned 
assets used in public transportation (including a share of preventive 
maintenance costs attributable to the use of the vehicle in the 
contracted transit service). When a private operator uses that same 
privately owed vehicle in non-FTA funded service, such as charter 
service, the preventive maintenance and capital depreciation are not 
paid by FTA, so the charter rule does not apply.
    (12) Q: What if the service is provided under a turn-key scenario?
    A: To the extent the private charter provider is standing in the 
shoes of the public transit agency, the charter rules apply. Under a 
turn-key contract, where the private operator provides and operates a 
dedicated transit fleet, then the private provider must abide by the 
charter regulations for the transit part of its business. The charter 
rule would not apply, however, to other aspects of that private 
provider's business. FTA also recognizes that a private operator may use 
vehicles in its fleet interchangeably. So long as the operator is 
providing the number, type, and quality of vehicles contractually 
required to be provided exclusively for transit use and is not using FTA 
funds to cross-subsidize private charter service, the private operator 
may manage its fleet according to best business practice.
    (13) Q: Does FTA's rule prohibit a private provider from providing 
charter service when its privately owned vehicles are not engaged in 
providing public transportation?
    A: No. The charter rule is only applicable to the actual public 
transit service provided by the private operator. As stated in 49 CFR 
604.2(c), the rule does not apply to the non-FTA funded activities of 
private charter operators. The intent of this provision was to isolate 
the impacts of the charter rule on private operators to those instances 
where they stood in the shoes of a transit agency.
    (14) Q: May a private provider use vehicles whose acquisition was 
federally funded to provide private charter services?

[[Page 38]]

    A: It depends. A private provider, who is a sub-recipient or sub-
grantee, when not engaged in providing public transit using federally 
funded vehicles, may provide charter services using federally funded 
vehicles only in conformance with the charter regulations. Vehicles, 
whose only federal funding was for accessibility equipment, are not 
considered to be federally funded vehicles in this context. In other 
words, vehicles, whose lifts are only funded under FTA programs, may be 
used in charter service.
    (15) Q: May a public transit agency provide ``seasonal service'' 
(e.g., service May through September for the summer beach season)?
    A: ``Seasonal service'' that is regular and continuing, available to 
the public, and controlled by the public transit agency meets the 
definition of public transportation and is not charter service. The 
service should have a regular schedule and be planned in the same manner 
as all the other routes, except that it is run only during the periods 
when there is sufficient demand to justify public transit service; for 
example, the winter ski season or summer beach season. ``Seasonal 
service'' is distinguishable from charter service provided for a special 
event or function that occurs on an irregular basis or for a limited 
duration, because the seasonal transit service is regular and continuing 
and the demand for service is not triggered by an event or function. In 
addition, ``seasonal service'' is generally more than a month or two, 
and the schedule is consistent from year to year, based on calendar or 
climate, rather than being scheduled around a specific event.

                 (b) Definitions (49 CFR Section 604.3)

    (16) Q: The definition of charter service does not include demand 
response services, but what happens if a group of individuals request 
demand response service?
    A: Demand response trips provide service from multiple origins to a 
single destination, a single origin to multiple destinations, or even 
multiple origins to multiple destinations. These types of trips are 
considered demand response transit service, not charter service, because 
even though a human service agency pays for the transportation of its 
clients, trips are scheduled and routed for the individuals in the 
group. Service to individuals can be identified by vehicle routing that 
includes multiple origins, multiple destinations, or both, based on the 
needs of individual members of the group, rather than the group as a 
whole. For example, demand response service that takes all of the 
members of a group home on an annual excursion to a baseball game. Some 
sponsored trips carried out as part of a Coordinated Human Services 
Transportation Plan, such as trips for Head Start, assisted living 
centers, or sheltered workshops may even be provided on an exclusive 
basis where clients of a particular agency cannot be mixed with members 
of the general public or clients of other agencies for safety or other 
reasons specific to the needs of the human service clients.
    (17) Q: Is it charter if a demand response transit service carries a 
group of individuals with disabilities from a single origin to a single 
destination on a regular basis?
    A: No. Daily subscription trips between a group living facility for 
persons with developmental disabilities to a sheltered workshop where 
the individuals work, or weekly trips from the group home to a 
recreation center is ``special transportation'' and not considered 
charter service. These trips are regular and continuous and do not meet 
the definition of charter.
    (18) Q: If a third party requests charter service for the exclusive 
use of a bus or van, but the transit agency provides the service free of 
charge, is it charter?
    A: No. The definition of charter service under 49 CFR Section 
604.3(c) (1), requires a negotiated price, which implies an exchange of 
money. Thus, free service does not meet the negotiated price 
requirement. Transit agencies should note, however, that a negotiated 
price could be the regular fixed route fare or when a third party 
indirectly pays for the regular fare.
    (19) Q: If a transit agency accepts a subsidy for providing shuttle 
service for an entire baseball season, is that charter?
    A: Yes. Even though there are many baseball games over several 
months, the service is still to an event or function on an irregular 
basis or for a limited duration for which a third party pays in whole or 
in part. In order to provide the service, a transit agency must first 
provide notice to registered charter providers.
    (20) Q: If a transit agency contracts with a third party to provide 
free shuttle service during football games for persons with 
disabilities, is that charter?
    A: Yes. Even though the service is for persons with disabilities, 
the transit agency receives payment from a third party for an event or 
function that occurs on an irregular basis or for a limited duration. In 
order for a transit agency to provide the service, it must provide 
notice to the list of registered charter providers first.
    (21) Q: What if a business park pays the transit agency to add an 
additional stop on its fixed route to include the business park, is that 
charter?
    A: No. The service is not to an event or function and it does not 
occur on an irregular basis or for a limited duration.
    (22) Q: What if a university pays the transit agency to expand its 
regular fixed route to include stops on the campus, is that charter?
    A: No. The service is not to an event or function and it does not 
occur on an irregular basis or for a limited duration.
    (23) Q: What if a university pays the transit agency to provide 
shuttle service that does

[[Page 39]]

not connect to the transit agency's regular routes, is that charter?
    A: Yes. The service is provided at the request of a third party, the 
university, for the exclusive use of a bus or van by the university 
students and faculty for a negotiated price.
    (24) Q: What if the university pays the transit agency to provide 
shuttle service to football games and graduation, is that charter?
    A: Yes. The service is to an event or function that occurs on an 
irregular basis or for a limited duration. As such, in order to provide 
the service, a transit agency must provide notice to the list of 
registered charter providers.
    (25) Q: What happens if a transit agency does not have fixed route 
service to determine whether the fare charged is a premium fare?
    A: A transit agency should compare the proposed fare to what it 
might charge for a similar trip under a demand response scenario.
    (26) Q: How can a transit agency tell if the fare is ``premium''?
    A: The transit agency should analyze its regular fares to determine 
whether the fare charged is higher than its regular fare for comparable 
services. For example, if the transit agency proposes to provide an 
express shuttle service to football games, it should look at the regular 
fares charged for express shuttles of similar distance elsewhere in the 
transit system. In addition, the service may be charter if the transit 
agency charges a lower fare or no fare because of a third party subsidy.
    (27) Q: What if a transit agency charges a customer an up front 
special event fare that includes the outbound and inbound trips, is that 
a premium fare?
    A: It depends. If the transit agency charges the outbound and 
inbound fares up front, but many customers don't travel both directions, 
then the fare may be premium. This would not be true generally for park 
and ride lots, where the customer parks his or her car, and, would most 
likely use transit to return to the same lot. Under that scenario, the 
transit agency may collect the regular outbound and inbound fare up 
front.
    (28) Q: What if a transit agency wishes to create a special pass for 
an event or function on an irregular basis or for a limited duration 
that allows a customer to ride the transit system several times for the 
duration of the event, is that charter?
    A: It depends. If the special pass costs more than the fare for a 
reasonable number of expected individual trips during the event, then 
the special pass represents a premium fare. FTA will also consider 
whether a third party provides a subsidy for the service.
    (29) Q: Is it a third party subsidy if a third party collects the 
regular fixed route fare for the transit agency?
    A. Generally no. If the service provided is not at the request of a 
third party for the exclusive use of a bus or van, then a third party 
collecting the fare would not qualify the service as charter. But, a 
transit agency has to consider carefully whether the service is at the 
request of an event planner. For example, a group offers to make 
``passes'' for its organization and then later work out the payment to 
the transit agency. The transit agency can only collect the regular fare 
for each passenger.
    (30) Q: If the transit agency is part of the local government and an 
agency within the local government pays for service to an event or 
function of limited duration or that occurs on an irregular basis, is 
that charter?
    A: Yes. Since the agency pays for the charter service, whether by 
direct payment or transfer of funds through internal local government 
accounts, it represents a third party payment for charter service. Thus, 
the service would meet the definition of charter service under 49 CFR 
Section 604.3(c) (1).
    (31) Q: What if an organization requests and pays for service 
through an in-kind payment such as paying for a new bus shelter or 
providing advertising, is that charter?
    A: Yes. The service is provided at the request of a third party for 
a negotiated price, which would be the cost of a new bus shelter or 
advertising. The key here is the direct payment for service to an event 
or function. For instance, advertising that appears on buses for regular 
service does not make it charter.
    (32) Q: Under the definition of ``Government Officials,'' does the 
government official have to currently hold an office in government?
    A: Yes. In order to take advantage of the Government Official 
exception, the individual must hold currently a government position that 
is elected or appointed through a political process.
    (33) Q: Does a university qualify as a QHSO?
    A: No. Most universities do not have a mission of serving the needs 
of the elderly, persons with disabilities, or low income individuals.
    (34) Q: Do the Boy Scouts of America qualify as a QHSO?
    A: No. The Boy Scouts of America's mission is not to serve the needs 
of the elderly, persons with disabilities, or low income individuals.
    (35) Q: What qualifies as indirect financial assistance?
    A: The inclusion of ``indirect'' financial assistance as part of the 
definition of ``recipient'' covers ``subrecipients.'' In other words, 
``subrecipients'' are subject to the charter regulation. FTA modified 
the definition of

[[Page 40]]

recipient in the final rule to clarify this point.

                    (c) Exceptions (49 CFR Subpart B)

    (36) Q: In order to take advantage of the Government Officials 
exception, does a transit agency have to transport only elected or 
appointed government officials?
    A: No, but there has to be at least one elected or appointed 
government official on the trip.
    (37) Q: If a transit agency provides notice regarding a season's 
worth of service and some of the service will occur in less than 30 
days, does a registered charter provider have to respond within 72 hours 
or 14 days?
    A: A transit agency should provide as much notice as possible for 
service that occurs over several months. Thus, a transit agency should 
provide notice to registered charter providers more than 30 days in 
advance of the service, which would give registered charter provider 14 
days to respond to the notice. Under pressure to begin the service 
sooner, the transit agency could provide a separate notice for only that 
portion of the service occurring in less than 30 days.
    (38) Q: Does a transit agency have to contact registered charter 
providers in order to petition the Administrator for an event of 
regional or national significance?
    A: Yes. A petition for an event of regional or national significance 
must demonstrate that not only has the public transit agency contacted 
registered charter providers, but also demonstrate how the transit 
agency will include registered charter providers in providing the 
service to the event of regional or national significance.
    (39) Q: Where does a transit agency have to file its petition?
    A: A transit agency must file the petition with the ombudsman at 
[email protected]. FTA will file all petitions in the 
Petitions to the Administrator docket (FTA-2007-0022) at http://
www.regulations.gov.
    (40) Q: What qualifies as a unique and time sensitive event?
    A: In order to petition the Administrator for a discretionary 
exception, a public transit agency must demonstrate that the event is 
unique or that circumstances are such that there is not enough time to 
check with registered charter providers. Events that occur on an annual 
basis are generally not considered unique or time sensitive.
    (41) Q: Is there any particular format for quarterly reports for 
exceptions?
    A: No. The report must contain the information required by the 
regulations and clearly identify the exception under which the transit 
agency performed the service.
    (42) Q: May a transit agency lease its vehicles to one registered 
charter provider if there is another registered charter provider that 
can perform all of the requested service with private charter vehicles?
    A: No. A transit agency may not lease its vehicles to one registered 
charter provider when there is another registered charter provider that 
can perform all of the requested service. In that case, the transit 
vehicles would enable the first registered charter provider to charge 
less for the service than the second registered charter provider that 
uses all private charter vehicles.
    (43) Q: Where do I submit my reports?
    A: FTA has adapted its electronic grants making system, TEAM, to 
include charter rule reporting. Grantees should file the required 
reports through TEAM. These reports will be available to the public 
through FTA's charter bus service Web page at: http://
ftateamweb.fta.dot.gov/Teamweb/CharterRegistration/
QueryCharterReport.aspx. State Departments of Transportation are 
responsible for filing charter reports on behalf of its subrecipients 
that do not have access to TEAM.

          (d) Registration and Notification (49 CFR Subpart C)

    (44) Q: May a private provider register to receive notice of charter 
service requests from all 50 States?
    A: Yes. A private provider may register to receive notice from all 
50 States; however, a private provider should only register for those 
states for which it can realistically originate service.
    (45) Q: May a registered charter provider select which portions of 
the service it would like to provide?
    A: No. A registered charter provider may not ``cherry pick'' the 
service described in the notice. In other words, if the e-mail 
notification describes service for an entire football season, then a 
registered charter provider that responds to the notice indicating it 
can provide only a couple of weekends of service would be non-responsive 
to the e-mail notice. Public transit agencies may, however, include 
several individual charter events in the e-mail notification. Under 
those circumstances, a registered charter provider may select from those 
individual events to provide service.
    (46) Q: May a transit agency include information on ``special 
requests'' from the customer in the notice to registered charter 
providers?
    A: No. A transit agency must strictly follow the requirements of 49 
CFR Section 604.14, otherwise the notice is void. A transit agency may, 
however, provide a generalized statement such as ``Please do not respond 
to this notice if you are not interested or cannot perform the service 
in its entirety.''
    (47) Q: What happens if a transit agency sends out a notice 
regarding charter service, but later decides to perform the service free 
of charge and without a third party subsidy?

[[Page 41]]

    A: If a transit agency believes it may receive the authority to 
provide the service free of charge, with no third party subsidy, then it 
should send out a new e-mail notice stating that it intends to provide 
the service free of charge.
    (48) Q: What happens if a registered charter provider initially 
indicates interest in providing the service described in a notice, but 
then later is unable to perform the service?
    A: If the registered charter provider acts in good faith by 
providing reasonable notice to the transit agency of its changed 
circumstances, and that registered charter provider was the only one to 
respond to the notice, then the transit agency may step back in and 
provide the service.
    (49) Q: What happens if a registered charter provider indicates 
interest in providing the service, but then does not contact the 
customer?
    A: A transit agency may step back in and provide the service if the 
registered charter provider was the only one to respond affirmatively to 
the notice.
    (50) Q: What happens if a registered charter provider indicates 
interest in providing the service, contacts the customer, and then fails 
to provide a price quote to the customer?
    A: If the requested service is 14 days or less away, a transit 
agency may step back in and provide the service if the registered 
charter provider was the only one to respond affirmatively to the notice 
upon filing a complaint with FTA to remove the registered charter 
provider from the FTA Charter Registration Web site. If the complaint of 
``bad faith'' negotiations is not sustained by FTA, the transit agency 
may face a penalty, as determined by FTA. If the requested service is 
more than 14 days away, and the transit agency desires to step back in, 
then upon filing a complaint alleging ``bad faith'' negotiations that is 
sustained by FTA, the transit agency may step back in.
    (51) Q: What happens if a transit agency entered into a contract to 
perform charter service before the effective date of the final rule?
    A: If the service described in the contract occurs after the 
effective date of the final rule, the service must be in conformance 
with the new charter regulation.
    (52) Q: What if the service described in the notice requires the use 
of park and ride lots owned by the transit agency?
    A: If the transit agency received Federal funds for those park and 
ride lots, then the transit agency should allow a registered charter 
provider to use those lots upon a showing of an acceptable incidental 
use (the transit agency retains satisfactory continuing control over the 
park and ride lot and the use does not interfere with the provision of 
public transportation) and if the registered charter provider signs an 
appropriate use and indemnification agreement.
    (53) Q: What if the registered charter provider does not provide 
quality charter service to the customer?
    A: If a registered charter provider does not provide service to the 
satisfaction of the customer, the customer may pursue a civil action 
against the registered charter provider in a court of law. If the 
registered charter provider also demonstrated bad faith or fraud, it can 
be removed from the FTA Charter Registration Web site.

                  (e) Complaint & Investigation Process

    (54) Q: May a trade association or other operators that are unable 
to provide requested charter service have the right to file a complaint 
against the transit agency?
    A: Yes. A registered charter operator or its duly authorized 
representative, which can include a trade association, may file a 
complaint under section 604.26(a). Under the new rule, a private charter 
operator that is not registered with FTA's charter registration Web site 
may not file a complaint.
    (55) Q: Is there a time limit for making complaints?
    A: Yes. Complaints must be filed within 90 days of the alleged 
unauthorized charter service.
    (56) Q: Are there examples of the likely remedies FTA may impose for 
a violation of the charter service regulations?
    A: Yes. Appendix D contains a matrix of likely remedies that FTA may 
impose for a violation of the charter service regulations.
    (57) Q: When a complaint is filed, who is responsible for 
arbitration or litigation costs?
    A: FTA will pay for the presiding official and the facility for the 
hearing, if necessary. Each party involved in the litigation is 
responsible for its own litigation costs.
    (58) Q: What affirmative defenses might be available in the 
complaint process?
    A: An affirmative defense to a complaint could state the 
applicability of one of the exceptions such as 49 CFR Section 604.6, 
which states that the service that was provided was within the allowable 
80 hours of government official service.
    (59) Q: What can a transit agency do if it believes that a 
registered charter provider is not bargaining in good faith with a 
customer?
    A: If a transit agency believes that a registered charter provider 
is not bargaining in good faith with the customer, the transit agency 
may file a complaint to remove the registered charter provider from 
FTA's Charter Registration Web site.
    (60) Q: Does a registered charter provider have to charge the same 
fare or rate as a public transit agency?
    A: No. A registered charter provider is not under an obligation to 
charge the same fare or rate as public transit agency. A registered

[[Page 42]]

charter provider, however, must charge commercially reasonable rates.
    (61) Q: What actions can a private charter operator take when it 
becomes aware of a transit agency's plan to engage in charter service 
just before the date of the charter?
    A: As soon as a registered charter provider becomes aware of an 
upcoming charter event that it was not contacted about, then it should 
request an advisory opinion and cease and desist order. If the service 
has already occurred, then the registered charter provider may file a 
complaint.
    (62) Q: When a registered charter provider indicates that there are 
no privately owned vehicles available for lease, must the public transit 
agency investigate independently whether the representation by the 
registered charter provider is accurate?
    A: No. The public transit agency is not required to investigate 
independently whether the registered charter provider's representation 
is accurate unless there is reason to suspect that the registered 
charter provider is committing fraud. Rather, the public transit agency 
need only confirm that the number of vehicles owned by all registered 
charter providers in the geographic service area is consistent with the 
registered charter provider's representation.
    (63) Q: How will FTA determine the remedy for a violation of the 
charter regulations?
    A: Remedies will be based upon the facts of the situation, including 
but not limited to, the extent of deviation from the regulations and the 
economic benefit from providing the charter service. See section 604.47 
and Appendix D for more details.
    (64) Q: Can multiple violations in a single finding stemming from a 
single complaint constitute a pattern of violations?
    A: Yes. A pattern of violations is defined as more than one finding 
of unauthorized charter service under this part by FTA beginning with 
the most recent finding of unauthorized charter service and looking back 
over a period not to exceed 72 months. While a single complaint may 
contain several allegations, the complaint must allege more than a 
single event that included unauthorized charter service in order to 
establish a pattern of violations.

                            (f) Miscellaneous

    (65) Q: If a grantee operates assets that are locally funded are 
such assets subject to the charter regulations?
    A: It depends. If a recipient receives FTA funds for operating 
assistance or stores its vehicles in a FTA-funded facility or receives 
indirect FTA assistance, then the charter regulations apply. The fact 
that the vehicle was locally funded does not make the recipient exempt 
from the charter regulations. If both operating and capital funds are 
locally supplied, then the vehicle is not subject to the charter service 
regulations.
    (66) Q: What can a public transit agency do if there is a time 
sensitive event, such as a presidential inauguration, for which the 
transit agency does not have time to consult with all the private 
charter operators in its area?
    A: 49 Section 604.11 provides a process to petition the FTA 
Administrator for permission to provide service for a unique and time 
sensitive event. A presidential inauguration, however, is not a good 
example of a unique and time sensitive event. A presidential 
inauguration is an event with substantial advance planning and a transit 
agency should have time to contact private operators. If the 
inauguration also includes ancillary events, the public transit agency 
should refer the customer to the registration list.
    (67) Q: Are body-on-van-chassis vehicles classified as buses or vans 
under the charter regulation?
    A: Body-on-van-chassis vehicles are treated as vans under the 
charter regulation.
    (68) Q: When a new operator registers, may recipients continue under 
existing contractual agreements for charter service?
    A: Yes. If the contract was signed before the new private operator 
registered, the arrangement can continue for up to 90 days. During that 
90 day period, however, the public transit agency must enter into an 
agreement with the new registrant. If not, the transit agency must 
terminate the existing agreement for all registered charter providers.
    (69) Q: Must a public transit agency continue to serve as the lead 
for events of regional or national significance, if after consultation 
with all registered charter providers, registered charter providers have 
enough vehicles to provide all of the service to the event?
    A. No. If after consultation with registered charter providers, 
there is no need for the public transit vehicles, then the public 
transit agency may decline to serve as the lead and allow the registered 
charter providers to work directly with event organizers. Alternatively, 
the public transit entity may retain the lead and continue to coordinate 
with event organizers and registered charter providers.
    (70) Q: What happens if a customer specifically requests a trolley 
from a transit agency and there are no registered charter providers that 
have a trolley?
    A: FTA views trolleys as buses. Thus, all the privately owned buses 
must be engaged in service and unavailable before a transit agency may 
lease its trolley. Alternatively, the transit agency could enter into an 
agreement with all registered charter providers in its geographic 
service area to allow it to provide trolley charter services.
    (71) Q: How does a transit agency enter into an agreement with all 
registered charter providers in its geographic service area?

[[Page 43]]

    A: A public transit agency should send an email notice to all 
registered charter providers of its intent to provide charter service. A 
registered charter provider must respond to the email notice either 
affirmatively or negatively. The transit agency should also indicate in 
the email notification that failure to respond to the email notice 
results in concurrence with the notification.
    (72) Q: Can a registered charter provider rescind its affirmative 
response to an email notification?
    A: Yes. If after further consideration or a change in circumstances 
for the registered charter provider, a registered charter provider may 
notify the customer and the transit agency that it is no longer 
interested in providing the requested charter service. At that point, 
the transit agency may make the decision to step back in to provide the 
service.
    (73) Q: What happens after a registered charter provider submits a 
quote for charter services to a customer? Does the transit agency have 
to review the quote?
    A: Once a registered charter provider responds affirmatively to an 
email notification and provides the customer a commercially reasonable 
quote, then the transit agency may not step back in to perform the 
service. A transit agency is not responsible for reviewing the quote 
submitted by a registered charter provider. FTA recommends that a 
registered charter provider include in the quote an expiration date for 
the offer.

[73 FR 44931, Aug. 1, 2008]



        Sec. Appendix D to Part 604--Table of Potential Remedies

    Remedy Assessment Matrix:
    [GRAPHIC] [TIFF OMITTED] TR11AU08.015
    
                           FTA's Remedy Policy

-- This remedy policy applies to decisions by the Chief Counsel, 
Presiding Officials, and final determinations by the Administrator.

-- Remedy calculation is based on the following elements:

    (1) The nature and circumstances of the violation;
    (2) The extent and gravity of the violation (``extent of deviation 
from regulatory requirements'');
    (3) The revenue earned (``economic benefit'') by providing the 
charter service;
    (4) The operating budget of the recipient;
    (5) Such other matters as justice may require; and
    (6) Whether a recipient provided service described in a cease and 
desist order after issuance of such order by the Chief Counsel.

[73 FR 44935, Aug. 1, 2008; 73 FR 46554, Aug. 11, 2008]



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.

[[Page 44]]

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).
    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.

[[Page 45]]

    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.



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

[[Page 46]]

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 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

[[Page 47]]

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 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

[[Page 48]]

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 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

[[Page 49]]

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.



                       Sec. 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 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

[[Page 50]]

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 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.

[[Page 51]]

    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 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

[[Page 52]]

another entity under lease or otherwise.

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



          Sec. 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)?
    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

[[Page 53]]

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.
    (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

[[Page 54]]

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.
    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.

[[Page 55]]

    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.
    (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.

[[Page 56]]

    (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 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;

[[Page 57]]

    (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.''
    (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

[[Page 58]]

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 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;

[[Page 59]]

    (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.



 Sec. 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, 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.

[[Page 60]]

    (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.

                       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:

[[Page 61]]

    (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 450, subpart C, shall be followed in 
complying with the requirements of this subpart. The definitions in 23 
CFR 450, subpart A, shall apply.

[72 FR 7285, Feb. 14, 2007]



       Subpart B_Statewide Transportation Planning and Programming



Sec. 613.200  Statewide transportation planning and programming.

    The regulations in 23 CFR 450, subpart B, shall be followed in 
complying with the requirements of this subpart. The definitions in 23 
CFR 450, subpart A, shall apply.

[72 FR 7285, Feb. 14, 2007]



 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.

[[Page 62]]



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. 303, 5301(e), 5323(b), 
and 5324; Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 
40 CFR parts 1500 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. The procedures for complying with 49 U.S.C. 
303, commonly known as ``Section 4(f),'' are set forth in part 774 of 
title 23 of the Code of Federal Regulations.

[73 FR 13401, Mar. 12, 2008]

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:
    (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 GRANT PROGRAM--Table of Contents




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

    Authority: 49 U.S.C. 5308; 49 U.S.C. 5334(a); 49 CFR 1.51.

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

[[Page 63]]



Sec. 624.1  Eligible applicant.

    (a) An eligible applicant is:
    (1) A designated recipient (designated recipient has the same 
meaning as in 49 U.S.C. 5307(a)(2)); or
    (2) A recipient for an urbanized area with a population of less than 
200,000 (smaller urbanized area). The State in which the smaller 
urbanized area is located shall act as the recipient.
    (b) An eligible applicant, as defined in paragraph (a) of this 
section, shall operate in an area that is either:
    (1) An ozone or carbon monoxide nonattainment area as specified 
under section 107(d) of the Clean Air Act (42 U.S.C. 7407(d)); or
    (2) A maintenance area for ozone or carbon monoxide.

[72 FR 15052, Mar. 30, 2007]



Sec. 624.3  Eligible activities.

    (a) Eligible activities include purchasing or leasing clean fuel 
buses and constructing new or improving existing public transportation 
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) At the discretion of the Administrator, projects relating to 
clean fuel, biodiesel, hybrid electric, or zero emissions technology 
buses that exhibit equivalent or superior emissions reductions to 
existing clean fuel or hybrid electric technologies.
    (4) The Federal share for eligible activities undertaken for the 
purpose of complying with or maintaining compliance with the Clean Air 
Act under this program shall be limited to 90 percent of the net 
(incremental) cost of the activity.
    (i) The Administrator may exercise discretion and determine the 
percentage of the Federal share for eligible activities to be less than 
90 percent.
    (ii) An administrative determination per this subsection will be 
published in accordance with Sec. 624.5(a).
    (5) Funding for clean diesel buses shall be limited to not more than 
25 percent of the amount made available each fiscal year to carry out 
the program.
    (6) Any amount made available for this section shall remain 
available to an eligible activity for two years after the fiscal year 
for which the amount is provided. Any amount that remains unobligated at 
the end of the three-year-period shall be added to the amount made 
available to carry out the program in the following fiscal year.

[67 FR 40104, June 11, 2002, as amended at 72 FR 15053, Mar. 30, 2007]



Sec. 624.5  Application process.

    (a) FTA shall publish a Notice of Funding Availability in the 
Federal Register each fiscal year that funding is made available for the 
Clean Fuels program. The notice shall provide the criteria by which the 
eligible projects will be evaluated for selection and the 
Administrator's determination of the net Federal share for projects 
funded under this Part.
    (b) The Administrator shall determine the criteria for selecting 
proposed projects for funding, which may include, but are not limited to 
the following factors:
    (1) Whether the proposed project is a transportation control measure 
in an approved State Implementation Plan;

[[Page 64]]

    (2) The benefits of the proposed project in reducing transportation-
related pollutants;
    (3) Consistency with the recipient's fleet management plan;
    (4) The applicant's ability to implement the project and facilities 
to maintain and fuel the proposed vehicles;
    (5) The applicant's coordination of the proposed project with other 
public transportation entities or other related projects within the 
applicant's Metropolitan Planning Organization or the geographic region 
within which the proposed project will operate.
    (6) The proposed project's ability to support emerging clean fuels 
technologies or advanced technologies for transit buses.

[72 FR 15053, Mar. 30, 2007]



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  Grant requirements.

    A grant under this section shall be subject to the following 
requirements of 49 U.S.C. 5307(d):
    (a) General. All recipients shall maintain and report financial and 
operating information on an annual basis, as prescribed in 49 CFR part 
630, and the most recent National Transit Database Reporting Manual.
    (b) Labor standards. As a condition of financial assistance under 49 
U.S.C. 5308, the interests of employees affected by the assistance shall 
be protected under arrangements that the Secretary of Labor concludes 
are fair and equitable.
    (c) Satisfactory continuing control. An FTA grantee shall:
    (1) Maintain control over federally funded property;
    (i) Ensure that it is used in transit service; and
    (ii) Dispose of it in accordance with Federal requirements.
    (2) Under this paragraph (c), if the grantee leases federally funded 
property to another party, the lease must provide the grantee 
satisfactory continuing control over the use of that property as 
determined in two areas: real property (land) and facilities; and 
personal property (equipment and rolling stock, both revenue and non-
revenue).
    (d) Maintenance. The grant applicant shall certify annually that 
pursuant to 49 U.S.C. 5307(d)(1)(C), it will maintain (federally funded) 
facilities and equipment. In addition, the grantee shall keep equipment 
and facilities acquired with Federal assistance in good operating order, 
which includes maintenance of rolling stock (revenue and non-revenue), 
machinery and equipment, and facilities.
    (e) Rates charged elderly and persons with disabilities during 
nonpeak hours. In accordance with 49 U.S.C. 5307(d)(1)(D), the grant 
applicant shall certify that the rates charged the elderly and persons 
with disabilities during nonpeak hours for fixed-route transportation 
using facilities and equipment financed with Federal assistance from FTA 
will not exceed one-half of the rates generally applicable to other 
persons at peak hours, whether the operation is by the applicant or by 
another entity under lease or otherwise.
    (f) Use of competitive procurements. Pursuant to 49 U.S.C. 
5307(d)(1)(E), the grant applicant shall certify that it will use 
competitive procurements and will not use procurements employing 
exclusionary or discriminatory specifications.
    (g) Compliance with Buy America provisions. The grant applicant 
shall certify that in carrying out a procurement authorized for this 
program, the applicant will comply with applicable Buy America laws.
    (h) Certification that local funds are available for the project. 
The grant applicant shall certify that the local funds are or will be 
available to carry out the project.
    (i) Compliance with national policy concerning elderly persons and 
individuals with disabilities. The grant applicant shall certify that it 
will comply with the requirements of 49 U.S.C. 5301(d) concerning the 
rights of elderly persons and persons with disabilities.
    (j) FTA Master Agreement. The grant applicant shall comply with 
applicable

[[Page 65]]

provisions of the FTA Master Agreement which is incorporated by 
reference in the grant agreement.

[72 FR 15053, Mar. 30, 2007]



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 shall report semiannually the following information to the 
appropriate FTA Regional Office for the first three years of the useful 
life of the vehicle:
    (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 that 
purchase or lease clean diesel vehicles are not required to report 
information beyond FTA grant reporting requirements for capital 
projects.

[67 FR 40104, June 11, 2002, as amended at 72 FR 15053, Mar. 30, 2007]



PART 630_NATIONAL TRANSIT DATABASE--Table of Contents




                            Subpart A_General

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.

    Authority: 49 U.S.C. 5307, 5311, 5335, and 49 CFR 1.51.

    Source: 72 FR 68761, Dec. 6, 2007, unless otherwise noted.



Sec. 630.1  Purpose.

    The purpose of this part is to prescribe requirements and procedures 
necessary for compliance with the National Transit Database Reporting 
System and Uniform System of Accounts, as mandated by 49 U.S.C. 5335, 
and to set forth the procedures for addressing a reporting entity's 
failure to comply with these requirements.



Sec. 630.2  Scope.

    This part applies to all applicants for, and any person that 
receives benefits directly from, a grant under 49 U.S.C. 5307 or 5311.



Sec. 630.3  Definitions.

    (a) Except as otherwise provided, terms defined in 49 U.S.C. 5302 et 
seq. apply to this part.
    (b) Except as otherwise provided, terms defined in the current 
editions of the National Transit Database Reporting Manuals and the NTD 
Uniform System of Accounts 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 49 U.S.C. 5307 or 
5311.
    Assistance means Federal financial assistance for the planning, 
acquisition, construction, or operation of public transportation 
services.
    Beneficiary means any entity that receives benefits from assistance 
under 49 U.S.C. 5307 or 5311.
    Current edition of the National Transit Database Reporting Manuals 
and Uniform System of Accounts means the most recently issued editions 
of the reference documents.
    Days mean calendar days.
    Reference Document(s) means the current editions of the National 
Transit Database Reporting Manuals and Uniform System of Accounts. These 
documents are subject to periodic revision. Beneficiaries and applicants 
are responsible for using the current editions of the reference 
documents.

[[Page 66]]

    Reporting entity means a transit agency, a State Department of 
Transportation that is a recipient of grants under 49 U.S.C. 5311, or a 
Federally-recognized Indian Tribe that is a direct recipient of grants 
under 49 U.S.C. 5311.
    State Department of Transportation means the Department of 
Transportation of a State of the United States, the District of 
Columbia, Puerto Rico, the Northern Mariana Islands, Guam, American 
Samoa, or the U.S. Virgin Islands.
    Transit agency means an entity providing public transportation as 
defined in 49 U.S.C. 5302.



Sec. 630.4  Requirements.

    (a) National Transit Database Reporting System. Each applicant for 
and beneficiary of Federal financial assistance under 49 U.S.C. 5307 or 
5311 must comply with the applicable requirements of 49 U.S.C. 5335, as 
set forth in the reference documents. State Departments of 
Transportation shall provide reports on behalf of their subrecipients of 
grants under 49 U.S.C. 5311 as specified in the reference documents. 
Transit agencies that are beneficiaries of grants under both 49 U.S.C. 
5307 and 5311 must file an individual report as an urbanized area 
transit agency. Federally-recognized Indian Tribes that are direct 
beneficiaries of grants under 49 U.S.C. 5311 must file an individual 
report. State Departments of Transportation should not report on behalf 
of transit agencies that have filed individual reports as urbanized area 
transit agencies nor on behalf of Indian Tribes that are required to 
file an individual report.
    (b) Copies. Copies of reference documents are available from the 
National Transit Database Web site located at http://www.ntdprogram.gov. 
These reference documents are subject to periodic revision. Revisions of 
reference documents will be posted on the National Transit Database Web 
site and a notice of any significant changes to the reporting 
requirements specified in these reference documents will be published in 
the Federal Register.



Sec. 630.5  Failure to report data.

    Failure to report data in accordance with this part will result in 
the noncompliant reporting entity being ineligible to receive any 
Section 5307 or 5311 grants directly or indirectly until such time as a 
report is filed in accordance with this part.



Sec. 630.6  Late and incomplete reports.

    (a) Late reports. Each reporting entity shall ensure that FTA 
receives its report by the due dates prescribed in the reference 
documents. A reporting entity may request a 30 day extension to submit 
its report. FTA will treat a failure to submit the required report by 
the due date or the extension date as failure to report data under Sec. 
630.5.
    (b) Incomplete reports. FTA will treat an NTD submission that does 
not contain all of the required data; or does not contain the required 
certifications, where applicable; or that is not in substantial 
conformance with the definitions, procedures, and format requirements 
set out in the reference documents as a failure to report data under 
Sec. 630.5, unless the reporting entity has exhausted all possibilities 
for obtaining this information.



Sec. 630.7  Failure to respond to questions.

    FTA will review each NTD submission to verify the reasonableness of 
the data submitted. If any of the data do not appear reasonable, FTA 
will notify the reporting entity of this fact in writing, and request 
written justification from the reporting entity to either document the 
accuracy of the questioned data, or to revise the questioned data with a 
more accurate submission. Failure of a reporting entity to make a good-
faith written response to this request will be treated as a failure to 
report data under Sec. 630.5.



Sec. 630.8  Questionable data items.

    FTA may enter a zero, or adjust any questionable data item(s), in 
any reporting entity's NTD submission that is used in computing the 
Section 5307 apportionment. These adjustments may be made if any data 
appears to be inaccurate, have not been collected and reported in 
accordance with FTA reference documents, or if there is not adequate 
documentation and a reliable recordkeeping system.

[[Page 67]]



Sec. 630.9  Notice of FTA action.

    Before taking final action under Sec. Sec. 630.5 or 630.8, FTA will 
transmit a written request to the reporting entity to provide the 
necessary information within a specified reasonable period of time. FTA 
will advise the reporting entity of its final decision.



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 Section 5307 apportionment may 
be discovered after any particular year's apportionment is completed. If 
so, FTA shall make adjustments to correct these errors in a subsequent 
year's apportionment to the extent feasible.



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.



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,

[[Page 68]]

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.



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

[[Page 69]]

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;
    (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.

[[Page 70]]

    (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 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]

[[Page 71]]



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.
    (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

[[Page 72]]

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.
    (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.

[[Page 73]]

    (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 
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.

[[Page 74]]



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]

              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

[[Page 75]]

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 paragraphs (b), and (c) 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.
    (c) A recipient operating a ferryboat regulated by the United States 
Coast Guard (USCG) that satisfactorily complies with the testing 
requirements of 46 CFR Parts 4 and 16, and 33 CFR Part 95 shall be in 
concurrent compliance with the testing requirements of this part. This 
exception shall not apply to the provisions of section 655.45, or 
subparts G, or H of this part.

[66 FR 42002, Aug. 9, 2001, as amended at 71 FR 69198, Nov. 30, 2006]



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
    (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.)

[[Page 76]]

    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 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

[[Page 77]]

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.



                     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.

[[Page 78]]

    (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 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.

[[Page 79]]



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.



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

[[Page 80]]

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 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

[[Page 81]]

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 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,

[[Page 82]]

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 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

[[Page 83]]

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.



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-

[[Page 84]]

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.
    (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.

[[Page 85]]



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.



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

[[Page 86]]

(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 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.

[[Page 87]]

    (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.
    (d) FTA may determine that a recipient, who fails to comply with the 
USCG chemical and alcohol testing requirements, shall be in 
noncompliance with the alcohol misuse and controlled substances testing 
requirements of this part. A finding of noncompliance by FTA may lead to 
the suspension of eligibility for Federal public transportation funding.

[66 FR 42002, Aug. 9, 2001, as amended at 71 FR 69198, Nov. 30, 2006]



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.

                       Subpart B_Role of the State

659.7 Withholding of funds for noncompliance.

[[Page 88]]

659.9 Designation of oversight agency.
659.11 Confidentiality of investigation reports and security plans.

              Subpart C_Role of the State Oversight Agency

659.13 Overview.
659.15 System safety program standard.
659.17 System safety program plan: general requirements.
659.19 System safety program plan: contents.
659.21 System security plan: general requirements.
659.23 System security plan: contents.
659.25 Annual review of system safety program plan and system security 
          plan.
659.27 Internal safety and security reviews.
659.29 Oversight agency safety and security reviews.
659.31 Hazard management process.
659.33 Accident notification.
659.35 Investigations.
659.37 Corrective action plans.
659.39 Oversight agency reporting to the Federal Transit Administration.
659.41 Conflict of interest.
659.43 Certification of compliance.

    Authority: 49 U.S.C. 5330.

    Source: 70 FR 22578, Apr. 29, 2005, 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 and security of rail fixed guideway systems through a 
designated oversight agency.



Sec. 659.3  Scope.

    This part applies only to states with rail fixed guideway systems, 
as defined in this part.



Sec. 659.5  Definitions.

    Contractor means an entity that performs tasks required on behalf of 
the oversight or rail transit agency. The rail transit agency may not be 
a contractor for the oversight agency.
    Corrective action plan means a plan developed by the rail transit 
agency that describes the actions the rail transit agency will take to 
minimize, control, correct, or eliminate hazards, and the schedule for 
implementing those actions.
    FRA means the Federal Railroad Administration, an agency within the 
U.S. Department of Transportation.
    FTA means the Federal Transit Administration, an agency within the 
U.S. Department of Transportation.
    Hazard means any real or potential condition (as defined in the rail 
transit agency's hazard management process) that can cause injury, 
illness, or death; damage to or loss of a system, equipment or property; 
or damage to the environment.
    Individual means a passenger; employee; contractor; other rail 
transit facility worker; pedestrian; trespasser; or any person on rail 
transit-controlled property.
    Investigation means the process used to determine the causal and 
contributing factors of an accident or hazard, so that actions can be 
identified to prevent recurrence.
    New Starts Project means any rail fixed guideway system funded under 
FTA's 49 U.S.C. 5309 discretionary construction program.
    Oversight Agency means the entity, other than the rail transit 
agency, designated by the state or several states to implement this 
part.
    Passenger means a person who is on board, boarding, or alighting 
from a rail transit vehicle for the purpose of travel.
    Passenger Operations means the period of time when any aspect of 
rail transit agency operations are initiated with the intent to carry 
passengers.
    Program Standard means a written document developed and adopted by 
the oversight agency, that describes the policies, objectives, 
responsibilities, and procedures used to provide rail transit agency 
safety and security oversight.
    Rail Fixed Guideway System means any light, heavy, or rapid rail 
system, monorail, inclined plane, funicular, trolley, or automated 
guideway that:
    (1) Is not regulated by the Federal Railroad Administration; and
    (2) Is included in FTA's calculation of fixed guideway route miles 
or receives funding under FTA's formula program for urbanized areas (49 
U.S.C. 5336); or
    (3) Has submitted documentation to FTA indicating its intent to be 
included in FTA's calculation of fixed

[[Page 89]]

guideway route miles to receive funding under FTA's formula program for 
urbanized areas (49 U.S.C. 5336).
    Rail Transit Agency means an entity that operates a rail fixed 
guideway system.
    Rail Transit-Controlled Property means property that is used by the 
rail transit agency and may be owned, leased, or maintained by the rail 
transit agency.
    Rail Transit Vehicle means the rail transit agency's rolling stock, 
including but not limited to passenger and maintenance vehicles.
    Safety means freedom from harm resulting from unintentional acts or 
circumstances.
    Security means freedom from harm resulting from intentional acts or 
circumstances.
    State means a State of the United States, the District of Columbia, 
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and the 
Virgin Islands.
    System Safety Program Plan means a document developed and adopted by 
the rail transit agency, describing its safety policies, objectives, 
responsibilities, and procedures.
    System Security Plan means a document developed and adopted by the 
rail transit agency describing its security policies, objectives, 
responsibilities, and procedures.



                       Subpart B_Role of the State



Sec. 659.7  Withholding of funds for noncompliance.

    (a) The Administrator of the FTA may withhold up to five percent of 
the amount required to be distributed to any state or affected urbanized 
area in such state under FTA's formula program for urbanized areas, if:
    (1) The state in the previous fiscal year has not met the 
requirements of this part; and
    (2) The Administrator determines that the state is not making 
adequate efforts to comply with this part.
    (b) The Administrator may agree to restore withheld formula funds, 
if compliance is achieved within two years (See 49 U.S.C. 5330).



Sec. 659.9  Designation of oversight agency.

    (a) General requirement. Each state with an existing or anticipated 
rail fixed guideway system regulated by this part shall designate an 
oversight agency consistent with the provisions of this section. For a 
rail fixed guideway system that will operate in only one state, the 
state must designate an agency of the state, other than the rail transit 
agency, as the oversight agency to implement the requirements in this 
part. The state's designation or re-designation of its oversight agency 
and submission of required information as specified in this section, are 
subject to review by FTA.
    (b) Exception. States which have designated oversight agencies for 
purposes of this part before May 31, 2005 are not required to re-
designate to FTA.
    (c) Timing. The state designation of the oversight agency shall:
    (1) Coincide with the execution of any grant agreement for a New 
Starts project between FTA and a rail transit agency within the state's 
jurisdiction; or
    (2) Occur before the application by a rail transit agency for 
funding under FTA's formula program for urbanized areas (49 U.S.C. 
5336).
    (d) Notification to FTA. Within (60) days of designation of the 
oversight agency, the state must submit to FTA the following:
    (1) The name of the oversight agency designated to implement 
requirements in this part;
    (2) Documentation of the oversight agency's authority to provide 
state oversight;
    (3) Contact information for the representative identified by the 
designated oversight agency with responsibility for oversight 
activities;
    (4) A description of the organizational and financial relationship 
between the designated oversight agency and the rail transit agency; and
    (5) A schedule for the designated agency's development of its State 
Safety Oversight Program, including the projected date of its initial 
submission, as required in Sec. 659.39(a).

[[Page 90]]

    (e) Multiple states. In cases of a rail fixed guideway system that 
will operate in more than one state, each affected state must designate 
an agency of the state, other than the rail transit agency, as the 
oversight agency to implement the requirements in this part. To fulfill 
this requirement, the affected states:
    (1) May agree to designate one agency of one state, or an agency 
representative of all states, to implement the requirements in this 
part; and
    (2) In the event multiple states share oversight responsibility for 
a rail fixed guideway system, the states must ensure that the rail fixed 
guideway system is subject to a single program standard, adopted by all 
affected states.
    (f) Change of designation. Should a state change its designated 
oversight agency, it shall submit the information required under 
paragraph (d) of this section to FTA within (30) days of its change. In 
addition, the new oversight agency must submit a new initial submission, 
consistent with Sec. 659.39(b), within (30) days of its designation.



Sec. 659.11  Confidentiality of investigation reports and security plans.

    (a) A state may withhold an investigation report that may have been 
prepared or adopted by the oversight agency from being admitted as 
evidence or used in a civil action for damages resulting from a matter 
mentioned in the report.
    (b) This part does not require public availability of the rail 
transit agency's security plan and any referenced procedures.



              Subpart C_Role of the State Oversight Agency



Sec. 659.13  Overview.

    The state oversight agency is responsible for establishing standards 
for rail safety and security practices and procedures to be used by rail 
transit agencies within its purview. In addition, the state oversight 
agency must oversee the execution of these practices and procedures, to 
ensure compliance with the provisions of this part. This subpart 
identifies and describes the various requirements for the state 
oversight agency.



Sec. 659.15  System safety program standard.

    (a) General requirement. Each state oversight agency shall develop 
and distribute a program standard. The program standard is a compilation 
of processes and procedures that governs the conduct of the oversight 
program at the state oversight agency level, and provides guidance to 
the regulated rail transit properties concerning processes and 
procedures they must have in place to be in compliance with the state 
safety oversight program. The program standard and any referenced 
program procedures must be submitted to FTA as part of the initial 
submission. Subsequent revisions and updates must be submitted to FTA as 
part of the oversight agency's annual submission.
    (b) Contents. Each oversight agency shall develop a written program 
standard that meets the requirements specified in this part and 
includes, at a minimum, the areas identified in this section.
    (1) Program management section. This section shall include an 
explanation of the oversight agency's authority, policies, and roles and 
responsibilities for providing safety and security oversight of the rail 
transit agencies within its jurisdiction. This section shall provide an 
overview of planned activities to ensure on-going communication with 
each affected rail transit agency relating to safety and security 
information, as well as FTA reporting requirements, including initial, 
annual and periodic submissions.
    (2) Program standard development section. This section shall include 
a description of the oversight agency's process for the development, 
review, and adoption of the program standard, the modification and/or 
update of the program standard, and the process by which the program 
standard and any subsequent revisions are distributed to each affected 
rail transit agency.
    (3) Oversight of rail transit agency internal safety and security 
reviews. This section shall specify the role of the oversight agency in 
overseeing the rail transit agency internal safety and security review 
process. This includes a

[[Page 91]]

description of the process used by the oversight agency to receive rail 
transit agency checklists and procedures and approve the rail transit 
agency's annual reports on findings, which must be submitted under the 
signature of the rail transit agency's top management.
    (4) Oversight agency safety and security review section. This 
section shall lay out the process and criteria to be used at least every 
three years in conducting a complete review of each affected rail 
transit agency's implementation of its system safety program plan and 
system security plan. This section includes the process to be used by 
the affected rail transit agency and the oversight agency to manage 
findings and recommendations from this review. This also includes 
procedures for notifying the oversight agency before the rail transit 
agency conducts an internal review.
    (5) Accident notification section. This section shall include the 
specific requirements for the rail transit agency to notify the 
oversight agency of accidents. This section shall also include required 
timeframes, methods of notification, and the information to be submitted 
by the rail transit agency. Additional detail on this portion is 
included in Sec. 659.33 of this part.
    (6) Investigations section. This section contains the oversight 
agency identification of the thresholds for incidents that require an 
oversight agency investigation. The roles and responsibilities for 
conducting investigations shall include: coordination with the rail 
transit agency investigation process, the role of the oversight agency 
in supporting investigations and findings conducted by the NTSB, review 
and concurrence of investigation report findings, and procedures for 
protecting the confidentiality of investigation reports.
    (7) Corrective actions section. This section shall specify oversight 
agency criteria for the development of corrective action plan(s) and the 
process for the review and approval of a corrective action plan 
developed by the rail transit agency. This section shall also identify 
the oversight agency's policies for the verification and tracking of 
corrective action plan implementation, and its process for managing 
conflicts with the rail transit agency relating to investigation 
findings and corrective action plan development.
    (8) System safety program plan section. This section shall specify 
the minimum requirements to be contained in the rail transit agency's 
system safety program plan. The contents of the system safety plan are 
discussed in more detail in Sec. 659.19 of this part. This section 
shall also specify information to be included in the affected rail 
transit agency's system safety program plan relating to the hazard 
management process, including requirements for on-going communication 
and coordination relating to the identification, categorization, 
resolution, and reporting of hazards to the oversight agency. More 
details on the hazard management process are contained in Sec. 659.31 
of this part. This section shall also describe the process and timeframe 
through which the oversight agency must receive, review, and approve the 
rail transit agency system safety program plan.
    (9) System security plan section. This section shall specify the 
minimum requirements to be included in the rail transit agency's system 
security plan. More details about the system security plan are contained 
in Sec. Sec. 659.21 through 659.23 of this part. This section shall 
also describe the process by which the oversight agency will review and 
approve the rail transit agency system security program plan. This 
section also shall identify how the state will prevent the system 
security plan from public disclosure.



Sec. 659.17  System safety program plan: general requirements.

    (a) The oversight agency shall require the rail transit agency to 
develop and implement a written system safety program plan that complies 
with requirements in this part and the oversight agency's program 
standard.
    (b) The oversight agency shall review and approve the rail transit 
agency system safety program plan.
    (c) After approval, the oversight agency shall issue a formal letter 
of approval to the rail transit agency, including the checklist used to 
conduct the review.

[[Page 92]]



Sec. 659.19  System safety program plan: contents.

    The system safety plan shall include, at a minimum:
    (a) A policy statement signed by the agency's chief executive that 
endorses the safety program and describes the authority that establishes 
the system safety program plan.
    (b) A clear definition of the goals and objectives for the safety 
program and stated management responsibilities to ensure they are 
achieved.
    (c) An overview of the management structure of the rail transit 
agency, including:
    (1) An organization chart;
    (2) A description of how the safety function is integrated into the 
rest of the rail transit organization; and
    (3) Clear identification of the lines of authority used by the rail 
transit agency to manage safety issues.
    (d) The process used to control changes to the system safety program 
plan, including:
    (1) Specifying an annual assessment of whether the system safety 
program plan should be updated; and
    (2) Required coordination with the oversight agency, including 
timeframes for submission, revision, and approval.
    (e) A description of the specific activities required to implement 
the system safety program, including:
    (1) Tasks to be performed by the rail transit safety function, by 
position and management accountability, specified in matrices and/or 
narrative format; and
    (2) Safety-related tasks to be performed by other rail transit 
departments, by position and management accountability, specified in 
matrices and/or narrative format.
    (f) A description of the process used by the rail transit agency to 
implement its hazard management program, including activities for:
    (1) Hazard identification;
    (2) Hazard investigation, evaluation and analysis;
    (3) Hazard control and elimination;
    (4) Hazard tracking; and
    (5) Requirements for on-going reporting to the oversight agency 
relating to hazard management activities and status.
    (g) A description of the process used by the rail transit agency to 
ensure that safety concerns are addressed in modifications to existing 
systems, vehicles, and equipment, which do not require formal safety 
certification but which may have safety impacts.
    (h) A description of the safety certification process required by 
the rail transit agency to ensure that safety concerns and hazards are 
adequately addressed prior to the initiation of passenger operations for 
New Starts and subsequent major projects to extend, rehabilitate, or 
modify an existing system, or to replace vehicles and equipment.
    (i) A description of the process used to collect, maintain, analyze, 
and distribute safety data, to ensure that the safety function within 
the rail transit organization receives the necessary information to 
support implementation of the system safety program.
    (j) A description of the process used by the rail transit agency to 
perform accident notification, investigation and reporting, including:
    (1) Notification thresholds for internal and external organizations;
    (2) Accident investigation process and references to procedures;
    (3) The process used to develop, implement, and track corrective 
actions that address investigation findings;
    (4) Reporting to internal and external organizations; and
    (5) Coordination with the oversight agency.
    (k) A description of the process used by the rail transit agency to 
develop an approved, coordinated schedule for all emergency management 
program activities, which include:
    (1) Meetings with external agencies;
    (2) Emergency planning responsibilities and requirements;
    (3) Process used to evaluate emergency preparedness, such as annual 
emergency field exercises;
    (4) After action reports and implementation of findings;
    (5) Revision and distribution of emergency response procedures;
    (6) Familiarization training for public safety organizations; and
    (7) Employee training.
    (l) A description of the process used by the rail transit agency to 
ensure

[[Page 93]]

that planned and scheduled internal safety reviews are performed to 
evaluate compliance with the system safety program plan, including:
    (1) Identification of departments and functions subject to review;
    (2) Responsibility for scheduling reviews;
    (3) Process for conducting reviews, including the development of 
checklists and procedures and the issuing of findings;
    (4) Review of reporting requirements;
    (5) Tracking the status of implemented recommendations; and
    (6) Coordination with the oversight agency.
    (m) A description of the process used by the rail transit agency to 
develop, maintain, and ensure compliance with rules and procedures 
having a safety impact, including:
    (1) Identification of operating and maintenance rules and procedures 
subject to review;
    (2) Techniques used to assess the implementation of operating and 
maintenance rules and procedures by employees, such as performance 
testing;
    (3) Techniques used to assess the effectiveness of supervision 
relating to the implementation of operating and maintenance rules; and
    (4) Process for documenting results and incorporating them into the 
hazard management program.
    (n) A description of the process used for facilities and equipment 
safety inspections, including:
    (1) Identification of the facilities and equipment subject to 
regular safety-related inspection and testing;
    (2) Techniques used to conduct inspections and testing;
    (3) Inspection schedules and procedures; and
    (4) Description of how results are entered into the hazard 
management process.
    (o) A description of the maintenance audits and inspections program, 
including identification of the affected facilities and equipment, 
maintenance cycles, documentation required, and the process for 
integrating identified problems into the hazard management process.
    (p) A description of the training and certification program for 
employees and contractors, including:
    (1) Categories of safety-related work requiring training and 
certification;
    (2) A description of the training and certification program for 
employees and contractors in safety-related positions;
    (3) Process used to maintain and access employee and contractor 
training records; and
    (4) Process used to assess compliance with training and 
certification requirements.
    (q) A description of the configuration management control process, 
including:
    (1) The authority to make configuration changes;
    (2) Process for making changes; and
    (3) Assurances necessary for formally notifying all involved 
departments.
    (r) A description of the safety program for employees and 
contractors that incorporates the applicable local, state, and federal 
requirements, including:
    (1) Safety requirements that employees and contractors must follow 
when working on, or in close proximity to, rail transit agency property; 
and
    (2) Processes for ensuring the employees and contractors know and 
follow the requirements.
    (s) A description of the hazardous materials program, including the 
process used to ensure knowledge of and compliance with program 
requirements.
    (t) A description of the drug and alcohol program and the process 
used to ensure knowledge of and compliance with program requirements.
    (u) A description of the measures, controls, and assurances in place 
to ensure that safety principles, requirements and representatives are 
included in the rail transit agency's procurement process.



Sec. 659.21  System security plan: general requirements.

    (a) The oversight agency shall require the rail transit agency to 
implement a system security plan that, at a minimum, complies with 
requirements in this part and the oversight agency's program standard. 
The system security

[[Page 94]]

plan must be developed and maintained as a separate document and may not 
be part of the rail transit agency's system safety program plan.
    (b) The oversight agency may prohibit a rail transit agency from 
publicly disclosing the system security plan.
    (c) After approving the system security plan, the oversight agency 
shall issue a formal letter of approval, including the checklist used to 
conduct the review, to the rail transit agency.



Sec. 659.23  System security plan: contents.

    The system security plan must, at a minimum address the following:
    (a) Identify the policies, goals, and objectives for the security 
program endorsed by the agency's chief executive.
    (b) Document the rail transit agency's process for managing threats 
and vulnerabilities during operations, and for major projects, 
extensions, new vehicles and equipment, including integration with the 
safety certification process;
    (c) Identify controls in place that address the personal security of 
passengers and employees;
    (d) Document the rail transit agency's process for conducting 
internal security reviews to evaluate compliance and measure the 
effectiveness of the system security plan; and
    (e) Document the rail transit agency's process for making its system 
security plan and accompanying procedures available to the oversight 
agency for review and approval.



Sec. 659.25  Annual review of system safety program plan and system security 

plan.

    (a) The oversight agency shall require the rail transit agency to 
conduct an annual review of its system safety program plan and system 
security plan.
    (b) In the event the rail transit agency's system safety program 
plan is modified, the rail transit agency must submit the modified plan 
and any subsequently modified procedures to the oversight agency for 
review and approval. After the plan is approved, the oversight agency 
must issue a formal letter of approval to the rail transit agency.
    (c) In the event the rail transit agency's system security plan is 
modified, the rail transit agency must make the modified system security 
plan and accompanying procedures available to the oversight agency for 
review, consistent with requirements specified in Sec. 659.23(e) of 
this part. After the plan is approved, the oversight agency shall issue 
a formal letter of approval to the rail transit agency.



Sec. 659.27  Internal safety and security reviews.

    (a) The oversight agency shall require the rail transit agency to 
develop and document a process for the performance of on-going internal 
safety and security reviews in its system safety program plan.
    (b) The internal safety and security review process must, at a 
minimum:
    (1) Describe the process used by the rail transit agency to 
determine if all identified elements of its system safety program plan 
and system security plan are performing as intended; and
    (2) Ensure that all elements of the system safety program plan and 
system security plan are reviewed in an on-going manner and completed 
over a three-year cycle.
    (c) The rail transit agency must notify the oversight agency at 
least thirty (30) days before the conduct of scheduled internal safety 
and security reviews.
    (d) The rail transit agency shall submit to the oversight agency any 
checklists or procedures it will use during the safety portion of its 
review.
    (e) The rail transit agency shall make available to the oversight 
agency any checklists or procedures subject to the security portion of 
its review, consistent with Sec. 659.23(e).
    (f) The oversight agency shall require the rail transit agency to 
annually submit a report documenting internal safety and security review 
activities and the status of subsequent findings and corrective actions. 
The security part of this report must be made available for oversight 
agency review, consistent with Sec. 659.23(e).

[[Page 95]]

    (g) The annual report must be accompanied by a formal letter of 
certification signed by the rail transit agency's chief executive, 
indicating that the rail transit agency is in compliance with its system 
safety program plan and system security plan.
    (h) If the rail transit agency determines that findings from its 
internal safety and security reviews indicate that the rail transit 
agency is not in compliance with its system safety program plan or 
system security plan, the chief executive must identify the activities 
the rail transit agency will take to achieve compliance.
    (i) The oversight agency must formally review and approve the annual 
report.



Sec. 659.29  Oversight agency safety and security reviews.

    At least every three (3) years, beginning with the initiation of 
rail transit agency passenger operations, the oversight agency must 
conduct an on-site review of the rail transit agency's implementation of 
its system safety program plan and system security plan. Alternatively, 
the on-site review may be conducted in an on-going manner over the three 
year timeframe. At the conclusion of the review cycle, the oversight 
agency must prepare and issue a report containing findings and 
recommendations resulting from that review, which, at a minimum, must 
include an analysis of the effectiveness of the system safety program 
plan and the security plan and a determination of whether either should 
be updated.



Sec. 659.31  Hazard management process.

    (a) The oversight agency must require the rail transit agency to 
develop and document in its system safety program plan a process to 
identify and resolve hazards during its operation, including any hazards 
resulting from subsequent system extensions or modifications, 
operational changes, or other changes within the rail transit 
environment.
    (b) The hazard management process must, at a minimum:
    (1) Define the rail transit agency's approach to hazard management 
and the implementation of an integrated system-wide hazard resolution 
process;
    (2) Specify the sources of, and the mechanisms to support, the on-
going identification of hazards;
    (3) Define the process by which identified hazards will be evaluated 
and prioritized for elimination or control;
    (4) Identify the mechanism used to track through resolution the 
identified hazard(s);
    (5) Define minimum thresholds for the notification and reporting of 
hazard(s) to oversight agencies; and
    (6) Specify the process by which the rail transit agency will 
provide on-going reporting of hazard resolution activities to the 
oversight agency.



Sec. 659.33  Accident notification.

    (a) The oversight agency must require the rail transit agency to 
notify the oversight agency within two (2) hours of any incident 
involving a rail transit vehicle or taking place on rail transit-
controlled property where one or more of the following occurs:
    (1) A fatality at the scene; or where an individual is confirmed 
dead within thirty (30) days of a rail transit-related incident;
    (2) Injuries requiring immediate medical attention away from the 
scene for two or more individuals;
    (3) Property damage to rail transit vehicles, non-rail transit 
vehicles, other rail transit property or facilities and non-transit 
property that equals or exceeds $25,000;
    (4) An evacuation due to life safety reasons;
    (5) A collision at a grade crossing;
    (6) A main-line derailment;
    (7) A collision with an individual on a rail right of way; or
    (8) A collision between a rail transit vehicle and a second rail 
transit vehicle, or a rail transit non-revenue vehicle.
    (b) The oversight agency shall require rail transit agencies that 
share track with the general railroad system and are subject to the 
Federal Railroad Administration notification requirements, to notify the 
oversight agency within two (2) hours of an incident for which the rail 
transit agency must also notify the Federal Railroad Administration.

[[Page 96]]

    (c) The oversight agency shall identify in its program standard the 
method of notification and the information to be provided by the rail 
transit agency



Sec. 659.35  Investigations.

    (a) The oversight agency must investigate, or cause to be 
investigated, at a minimum, any incident involving a rail transit 
vehicle or taking place on rail transit-controlled property meeting the 
notification thresholds identified in Sec. 659.33(a).
    (b) The oversight agency must use its own investigation procedures 
or those that have been formally adopted from the rail transit agency 
and that have been submitted to FTA.
    (c) In the event the oversight agency authorizes the rail transit 
agency to conduct investigations on its behalf, it must do so formally 
and require the rail transit agency to use investigation procedures that 
have been formally approved by the oversight agency.
    (d) Each investigation must be documented in a final report that 
includes a description of investigation activities, identified causal 
and contributing factors, and a corrective action plan.
    (e) A final investigation report must be formally adopted by the 
oversight agency for each accident investigation.
    (1) If the oversight agency has conducted the investigation, it must 
formally transmit its final investigation report to the rail transit 
agency.
    (2) If the oversight agency has authorized an entity other than 
itself (including the rail transit agency) to conduct the accident 
investigation on its behalf, the oversight agency must review and 
formally adopt the final investigation report.
    (3) If the oversight agency does not concur with the findings of the 
rail transit agency investigation report, it must either:
    (i) Conduct its own investigation according to paragraphs (b), (d) 
and (e)(1) of this section; or
    (ii) Formally transmit its dissent to the findings of the accident 
investigation, report its dissent to the rail transit agency, and 
negotiate with the rail transit agency until a resolution on the 
findings is reached.
    (f) The oversight agency shall have the authority to require 
periodic status reports that document investigation activities and 
findings in a time frame determined by the oversight agency.



Sec. 659.37  Corrective action plans.

    (a) The oversight agency must, at a minimum, require the development 
of a corrective action plan for the following:
    (1) Results from investigations, in which identified causal and 
contributing factors are determined by the rail transit agency or 
oversight agency as requiring corrective actions; and
    (2) Findings from safety and security reviews performed by the 
oversight agency.
    (b) Each corrective action plan should identify the action to be 
taken by the rail transit agency, an implementation schedule, and the 
individual or department responsible for the implementation.
    (c) The corrective action plan must be reviewed and formally 
approved by the oversight agency.
    (d) The oversight agency must establish a process to resolve 
disputes between itself and the rail transit agency resulting from the 
development or enforcement of a corrective action plan.
    (e) The oversight agency must identify the process by which findings 
from an NTSB accident investigation will be evaluated to determine 
whether or not a corrective action plan should be developed by either 
the oversight agency or rail transit agency to address NTSB findings.
    (f) The rail transit agency must provide the oversight agency:
    (1) Verification that the corrective action(s) has been implemented 
as described in the corrective action plan, or that a proposed alternate 
action(s) has been implemented subject to oversight agency review and 
approval; and
    (2) Periodic reports requested by the oversight agency, describing 
the status of each corrective action(s) not completely implemented, as 
described in the corrective action plan.
    (g) The oversight agency must monitor and track the implementation 
of each approved corrective action plan.

[[Page 97]]



Sec. 659.39  Oversight agency reporting to the Federal Transit Administration.

    (a) Initial submission. Each designated oversight agency with a rail 
fixed guideway system that is in passenger operations as of April 29, 
2005 or will begin passenger operations by May 1, 2006, must make its 
initial submission to FTA by May 1, 2006. In states with rail fixed 
guideway systems initiating passenger operations after May 1, 2006, the 
designated oversight agency must make its initial submission within the 
time frame specified by the state in its designation submission, but not 
later than at least sixty (60) days prior to initiation of passenger 
operations. Any time a state changes its designated oversight agency to 
carry out the requirements identified in this part, the new oversight 
agency must make a new initial submission to FTA within thirty (30) days 
of the designation.
    (b) An initial submission must include the following:
    (1) Oversight agency program standard and referenced procedures; and
    (2) Certification that the system safety program plan and the system 
security plan have been developed, reviewed, and approved.
    (c) Annual submission. Before March 15 of each year, the oversight 
agency must submit the following to FTA:
    (1) A publicly available annual report summarizing its oversight 
activities for the preceding twelve months, including a description of 
the causal factors of investigated accidents, status of corrective 
actions, updates and modifications to rail transit agency program 
documentation, and the level of effort used by the oversight agency to 
carry out its oversight activities.
    (2) A report documenting and tracking findings from three-year 
safety review activities, and whether a three-year safety review has 
been completed since the last annual report was submitted.
    (3) Program standard and supporting procedures that have changed 
during the preceding year.
    (4) Certification that any changes or modifications to the rail 
transit agency system safety program plan or system security plan have 
been reviewed and approved by the oversight agency.
    (d) Periodic submission. FTA retains the authority to periodically 
request program information.
    (e) Electronic reporting. All submissions to FTA required in this 
part must be submitted electronically using a reporting system specified 
by FTA.



Sec. 659.41  Conflict of interest.

    The oversight agency shall prohibit a party or entity from providing 
services to both the oversight agency and rail transit agency when there 
is a conflict of interest, as defined by the state.



Sec. 659.43  Certification of compliance.

    (a) Annually, the oversight agency must certify to the FTA that it 
has complied with the requirements of this part.
    (b) The oversight agency must submit each certification 
electronically to FTA using a reporting system specified by FTA.
    (c) The oversight agency must maintain a signed copy of each annual 
certification to FTA, subject to audit by FTA.



PART 661_BUY AMERICA REQUIREMENTS--Table of Contents




Sec.
661.1 Applicability.
661.3 Definitions.
661.5 General requirements.
661.6 Certification requirements 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 parties.
661.21 State Buy America provisions.

    Authority: 49 U.S.C. 5323(j) (formerly sec. 165 of the Surface 
Transportation Assistance Act of 1982 (Pub. L. 97-424); as amended by 
sec. 337, Pub. L. 100-17; sec. 1048, Pub. L. 102-240; sec. 3020(b), Pub. 
L. 105-178; and sec. 3023(i) and (k), Pub. L. 109-59); 49 CFR 1.51.

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

[[Page 98]]



Sec. 661.1  Applicability.

    Unless otherwise noted, this part applies to all federally assisted 
procurements using funds authorized by 49 U.S.C. 5323(j); 23 U.S.C. 
103(e)(4); and section 14 of the National Capital Transportation Act of 
1969, as amended.

[56 FR 932, Jan. 9, 1991, as amended at 72 FR 53696, Sept. 20, 2007]



Sec. 661.3  Definitions.

    As used in this part:
    Act means the Federal Public Transportation Law (49 U.S.C. Chapter 
53).
    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.
    Contractor means a party to a third party contract other than the 
grantee.
    End product means any vehicle, structure, product, article, 
material, supply, or system, which directly incorporates constituent 
components at the final assembly location, that is acquired for public 
use under a federally-funded third-party contract, and which is ready to 
provide its intended end function or use without any further 
manufacturing or assembly change(s). A list of representative end 
products is included at Appendix A to this section.
    FTA means the Federal Transit Administration.
    Grantee means any entity that is a recipient of FTA funds.
    Manufactured product means an item produced as a result of the 
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.
    Negotiated procurement means a contract awarded using other than 
sealed bidding procedures.
    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.
    System means a machine, product, or device, or a combination of such 
equipment, consisting of individual components, whether separate or 
interconnected by piping, transmission devices, electrical cables or 
circuitry, or by other devices, which are intended to contribute 
together to a clearly defined function. Factors to consider in 
determining whether a system constitutes an end product include: Whether 
performance warranties apply to an integrated system (regardless of 
whether components are separately warranteed); whether products perform 
on an integrated basis with other products in a system, or are operated 
independently of associated products in the system; or whether transit 
agencies routinely procure a product separately (other than as 
replacement or spare parts).
    United States means the several States, the Commonwealth of Puerto 
Rico, the District of Columbia, Guam, American Samoa, the U.S. Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands.

                 Appendix A to Sec. 661.3--End Products

    The following is a list of representative end products that are 
subject to the requirements of Buy America. This list is representative, 
not exhaustive.
    (1) Rolling stock end products: All individual items identified as 
rolling stock in Sec. 661.3 (e.g., buses, vans, cars, railcars, 
locomotives, trolley cars and buses, ferry boats, as well as vehicles 
used for support services); train control, communication, and traction 
power equipment that meets the definition of end product at Sec. 661.3 
(e.g., a communication or traction power system).
    (2) Steel and iron end products: Items made primarily of steel or 
iron such as structures, bridges, and track work, including running 
rail, contact rail, and turnouts.
    (3) Manufactured end products: Infrastructure projects not made 
primarily of steel or iron, including structures (terminals, depots, 
garages, and bus shelters), ties and ballast; contact rail not made 
primarily of steel or iron;

[[Page 99]]

fare collection systems; computers; information systems; security 
systems; data processing systems; and mobile lifts, hoists, and 
elevators.

[72 FR 53696, Sept. 20, 2007]



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 requirements for procurement of steel or 

manufactured products.

    If steel, iron, 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 or offeror in accordance with the requirement contained in Sec. 
661.13(b) of this part.

         Certificate of Compliance with Buy America Requirements

    The bidder or offeror hereby certifies that it will comply with the 
requirements of 49 U.S.C. 5323(j)(1), and the applicable regulations in 
49 CFR part 661.

 Date___________________________________________________________________
 Signature______________________________________________________________
 Company________________________________________________________________
 Name___________________________________________________________________
 Title__________________________________________________________________

       Certificate of Non-Compliance with Buy America Requirements

    The bidder or offeror hereby certifies that it cannot comply with 
the requirements of 49 U.S.C. 5323(j), but it may qualify for an 
exception to the requirement pursuant to 49 U.S.C. 5323(j)(2), as 
amended, and the applicable regulations in 49 CFR 661.7.

 Date___________________________________________________________________
 Signature______________________________________________________________
 Company________________________________________________________________
 Name___________________________________________________________________
 Title__________________________________________________________________

[71 FR 14117, Mar. 21, 2006, as amended at 72 FR 53696, Sept. 20, 2007]



Sec. 661.7  Waivers.

    (a) Section 5323(j)(2) of Title 49 United States Code provides that 
the general requirements of 49 U.S.C. 5323(j)(1) 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 49 U.S.C. 5323(j)(2)(A), the 
Administrator may waive the general requirements of 49 U.S.C. 5323(j)(1) 
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. When granting a public interest 
waiver, the Administrator shall issue a detailed written statement 
justifying why the waiver is in the public interest. The

[[Page 100]]

Administrator shall publish this justification in the Federal Register, 
providing the public with a reasonable time for notice and comment of 
not more than seven calendar days.
    (c) Under the provision of 49 U.S.C. 5323(j)(2), the Administrator 
may waive the general requirements of 49 U.S.C. 5323(j) 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.
    (3) After contract award, the Administrator may grant a non-
availability waiver under this paragraph, in any case in which a bidder 
or offeror originally certified compliance with the Buy America 
requirements in good faith, but can no longer comply with its 
certification. The Administrator will grant a non-availability waiver 
only if the grantee provides sufficient evidence that the original 
certification was made in good faith and that the item to be procured 
cannot now be obtained domestically due to commercial impossibility or 
impracticability. In determining whether the conditions exist to grant a 
post-award non-availability waiver, the Administrator will consider all 
appropriate factors on a case-by-case basis.
    (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 49 U.S.C. 5323(j)(2) 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 49 U.S.C. 5323(j)(2)(C) 
(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 101]]

    (b) Under the provisions of Sec. 661.7 (b) and (c) of this part, a 
general public interest waiver from the Buy America requirements applies 
to microprocessors, computers, microcomputers, or software, or other 
such devices, which are used solely for the purpose of processing or 
storing data. This general waiver does not extend to a product or device 
which merely contains a microprocessor or microcomputer and is not used 
solely for the purpose of processing or storing data.

[56 FR 932, Jan. 9, 1991, as amended at 60 FR 37928, July 24, 1995, 61 
FR 6302, Feb. 16, 1996; 71 FR 14117, Mar. 21, 2006; 72 FR 53697, Sept. 
20, 2007]



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 49 
U.S.C. 5323(j)(2)(C). The procedures for obtaining an exception covered 
by 49 U.S.C. 5323(j)(2)(C) are set forth in Sec. 661.11 of this part.
    (b) A bidder or offeror who seeks to establish grounds for an 
exception must seek the exception, in a timely manner, through the 
grantee.
    (c) Except as provided in paragraph (d) of this section, only a 
grantee may request a waiver. The request must be in writing, include 
facts and justification to support the waiver, and be submitted to the 
Administrator through the appropriate Regional Office.
    (d) FTA will consider a request for a waiver from a potential 
bidder, offeror, or supplier only if the waiver is being sought under 
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.

[56 FR 932, Jan. 9, 1991, as amended at 71 FR 14117, Mar. 21, 2006; 72 
FR 53697, Sept. 20, 2007]



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.
    (i) If a subcomponent manufactured in the United States is exported 
for inclusion in a component that is manufactured outside the United 
States and

[[Page 102]]

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) [Reserved]
    (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
    (14) Cab Signaling;
    (15) ATO Equipment;
    (16) ATP Equipment;
    (17) Wayside Transponders;
    (18) Trip Stop Equipment;
    (19) Wayside Magnets;
    (20) Speed Measuring Devices;
    (21) Car Axle Counters;
    (22) Communication Based Train Control (CBTC).

[[Page 103]]

    (u) Communication equipment includes, but is not limited to, the 
following equipment:
    (1) Radios
    (2) Space station transmitter and receivers
    (3) Vehicular and hand-held radios
    (4) PABX telephone switching equipment
    (5) PABX telephone instruments
    (6) Public address amplifiers
    (7) Public address speakers
    (8) Cable transmission system cable
    (9) Cable transmission system multiplex equipment
    (10) Communication console at central control
    (11) Uninterruptible power supply inverters/rectifiers
    (12) Uninterruptible power supply batteries
    (13) Data transmission system central processors
    (14) Data transmission system remote terminals
    (15) Line printers for data transmission system
    (16) Communication system monitor test panel
    (17) Security console at central control
    (18) Antennas;
    (19) Wireless Telemetry Equipment;
    (20) Passenger Information Displays;
    (21) Communications Control Units;
    (22) Communication Control Heads;
    (23) Wireless Intercar Transceivers;
    (24) Multiplexers;
    (25) SCADA Systems;
    (26) LED Arrays;
    (27) Screen Displays such as LEDs and LCDs for communication 
systems;
    (28) Fiber-optic transmission equipment;
    (29) Fiber-optic transmission equipment;
    (30) Frame or cell based multiplexing equipment; 13) Communication 
system network elements.
    (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
    (28) Propulsion Control Systems;
    (29) Surge Arrestors;
    (30) Protective Relaying.
    (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]

[[Page 104]]

         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.
    Car body shells, egines, 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.

    Car shells, engines, 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, wheelchair lifts and ramps to make 
the vehicle accessible to persons with disabilities, couplers and draft 
gear, trucks, journal bearings, axles, diagnostic equipment, and third 
rail pick-up equipment.

   Appendix D to Sec. 661.11--Minimum Requirements for Final Assembly

    (a) Rail Cars: In the case of the manufacture of a new rail car, 
final assembly would typically include, as a minimum, the following 
operations: installation and interconnection of propulsion control 
equipment, propulsion cooling equipment, brake equipment, energy sources 
for auxiliaries and controls, heating and air conditioning, 
communications equipment, motors, wheels and axles, suspensions and 
frames; the inspection and verification of all installation and 
interconnection work; and the in-plant testing of the stationary product 
to verify all functions.
    (b) Buses: In the case of a new bus, final assembly would typically 
include, at a minimum, the installation and interconnection of the 
engine, transmission, axles, including the cooling and braking systems; 
the installation and interconnection of the heating and air conditioning 
equipment; the installation of pneumatic and electrical systems, door 
systems, passenger seats, passenger grab rails, destination signs, 
wheelchair lifts; and road testing, final inspection, repairs and 
preparation of the vehicles for delivery.
    (c) If a manufacturer's final assembly processes do not include all 
the activities that are typically considered the minimum requirements, 
it can request a Federal Transit Administration (FTA) determination of 
compliance. FTA will review these requests on a case-by-case basis to 
determine compliance with Buy America.

[61 FR 6302, Feb. 16, 1996, as amended at 62 FR 40954, July 31, 1997; 72 
FR 53697, Sept. 20, 2007; 72 FR 55103, Sept. 28, 2007]



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.

[[Page 105]]

  Certificate of Compliance with Buy America Rolling Stock Requirements

    The bidder or offeror hereby certifies that it will comply with the 
requirements of 49 U.S.C. 5323(j), and the applicable regulations of 49 
CFR 661.11.

 Date___________________________________________________________________
 Signature______________________________________________________________
 Company________________________________________________________________
 Name___________________________________________________________________
 Title__________________________________________________________________

      Certificate of Non-Compliance with Buy America Rolling Stock 
                              Requirements

    The bidder or offeror hereby certifies that it cannot comply with 
the requirements of 49 U.S.C. 5323(j), but may qualify for an exception 
to the requirement consistent with section 165(b)(2) or (b)(4) of the 
Surface Transportation Assistance Act, as amended, and the applicable 
regulations in 49 CFR 661.7.

 Date___________________________________________________________________
 Signature______________________________________________________________
 Company________________________________________________________________
 Name___________________________________________________________________
 Title__________________________________________________________________

[71 FR 14117, Mar. 21, 2006, as amended at 72 FR 53698, Sept. 20, 2007]

    Editorial Note: At 72 FR 53698, Sept. 20, 2007, Sec. 661.12 was 
amended. However, removing ``section 165(b)(2) or (b)(4) of the Surface 
Transportation Assistance Act of 1982'' and adding in its place ``49 
U.S.C. 5323(j)(2)(C)'' of this amendment could not be incorporated 
because of inaccurate amendatory language.



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 or request for proposal 
(RFP) specification for procurement within the scope of this part an 
appropriate notice of the Buy America provision. Such specifications 
shall require, as a condition of responsiveness, that the bidder or 
offeror submit with the bid or offer a completed Buy America certificate 
in accordance with Sec. Sec. 661.6 or 661.12 of this part, as 
appropriate.
    (1) A bidder or offeror who has submitted an incomplete Buy America 
certificate or an incorrect certificate of noncompliance through 
inadvertent or clerical error (but not including failure to sign the 
certificate, submission of certificates of both compliance and non-
compliance, or failure to submit any certification), may submit to the 
FTA Chief Counsel within ten (10) days of bid opening of submission or a 
final offer, a written explanation of the circumstances surrounding the 
submission of the incomplete or incorrect certification in accordance 
with 28 U.S.C. 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.
    (i) The FTA Chief Counsel may request additional information from 
the bidder or offeror, if necessary. The grantee may not make a contract 
award until the FTA Chief Counsel issues his/her determination, except 
as provided in Sec. 661.15(m).
    (ii) [Reserved]
    (2) For negotiated procurements, compliance with the Buy America 
requirements shall be determined on the basis of the certification 
submitted with the final offer or final revised proposal. However, where 
a grantee awards on the basis of initial proposals without discussion, 
the certification submitted with the initial proposal shall control.
    (3) Certification based on ignorance of the proper application of 
the Buy America requirements is not an inadvertent or clerical error.
    (c) Whether or not a bidder or offeror certifies that it will comply 
with the applicable requirement, such bidder or offeror is bound by its 
original certification (in the case of a sealed bidding procurement) or 
its certification submitted with its final offer (in the case of a 
negotiated procurement) and is not permitted to change its certification 
after bid opening or submission of a final offer. Where a bidder or 
offeror certifies that it will comply with the applicable Buy America 
requirements, the bidder, offeror, or grantee is not eligible for a 
waiver of those requirements.

[56 FR 932, Jan. 9, 1991, as amended at 68 FR 9799, Feb. 28, 2003; 71 FR 
14117, Mar. 21, 2006]

[[Page 106]]



Sec. 661.15  Investigation procedures.

    (a) It is presumed that a bidder or offeror who has submitted the 
required Buy America certificate is complying with the Buy America 
provision. A false certification is a criminal act in violation of 18 
U.S.C. 1001.
    (b) Any party may petition FTA to investigate the compliance of a 
successful bidder or offeror with the bidder's or offeror's 
certification. That party (``the petitioner'') must include in the 
petition a statement of the grounds of the petition and any supporting 
documentation. If FTA determines that the information presented in the 
petition indicates that the presumption in paragraph (a) of this section 
has been overcome, FTA will initiate an investigation.
    (c) In appropriate circumstances, FTA may determine on its own to 
initiate an investigation without receiving a petition from a third 
party.
    (d) When FTA determines under paragraph (b) or (c) of this section 
to conduct an investigation, it requests that the grantee require the 
successful bidder or offeror to document its compliance with its Buy 
America certificate. The successful bidder or offeror has the burden of 
proof to establish that it is in compliance. Documentation of compliance 
is based on the specific circumstances of each investigation, and FTA 
will specify the documentation required in each case.
    (e) The grantee shall reply to the request under paragraph (d) of 
this section within 15 working days of the request. The investigated 
party may correspond directly with FTA during the course of 
investigation, if it informs the grantee that it intends to do so, and 
if the grantee agrees to such action in writing. The grantee must inform 
FTA, in writing, that the investigated party will respond directly to 
FTA. An investigated party may provide confidential or proprietary 
information (see paragraph (l) of this section) directly to FTA while 
providing other information required to be submitted as part of the 
investigation through the grantee.
    (f) Any additional information requested or required by FTA must be 
submitted within 5 working days after the receipt of such request unless 
specifically exempted by FTA.
    (g) The grantee's reply (or that of the bidder or offeror) will be 
transmitted to the petitioner. The petitioner may submit comments on the 
reply to FTA within 10 working days after receipt of the reply. The 
grantee and the low bidder or offeror 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;

[[Page 107]]

    (2) Delivery of performance will be unduly delayed by failure to 
make the award promptly; or
    (3) Failure to make prompt award will otherwise cause undue harm to 
the grantee or the Federal Government.
    (n) In the event that the grantee determines that the award is to be 
made during the pendency of an investigation, the grantee will notify 
FTA before to making such award. FTA reserves the right not to 
participate in the funding of any contract awarded during the pendency 
of an investigation.
    (o) Initial decisions by FTA will be in written form. 
Reconsideration of an initial decision of FTA may be requested by any 
party involved in an investigation. FTA will only reconsider a decision 
only if the party requesting reconsideration submits new matters of fact 
or points of law that were not known or available to the party during 
the investigation. A request for reconsideration of a decision of FTA 
shall be filed not later than ten (10) working days after the initial 
written decision. A request for reconsideration will be subject to the 
procedures in this section consistent with the need for prompt 
resolution of the matter.

[56 FR 932, Jan. 9, 1991, as amended at 71 FR 14118, Mar. 21, 2006]



Sec. 661.17  Failure to comply with certification.

    If a successful bidder or offeror fails to demonstrate that it is in 
compliance with its certification, it will be required to take the 
necessary steps in order to achieve compliance. If a bidder or offeror 
takes these necessary steps, it will not be allowed to change its 
original bid price or the price of its final offer. If a bidder or 
offeror does not take the necessary steps, it will not be awarded the 
contract if the contract has not yet been awarded, and it is in breach 
of contract if a contract has been awarded.

[71 FR 14118, Mar. 21, 2006]



Sec. 661.18  Intentional violations.

    A person shall be ineligible to receive any contract or subcontract 
made with funds authorized under the Federal Public Transportation Act 
of 2005 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, as amended at 72 FR 53698, Sept. 20, 2007]



Sec. 661.19  Sanctions.

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

[71 FR 14118, Mar. 21, 2006]



Sec. 661.20  Rights of parties.

    (a) A party adversely affected by an FTA action under this 
subsection shall have the right to seek review under the Administrative 
Procedure Act (APA), 5 U.S.C. 702 et seq.
    (b) Except as provided in paragraph (a) of this section, the sole 
right of any third party under the Buy America provision is to petition 
FTA under the provisions of 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.

[71 FR 14118, Mar. 21, 2006]



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

[[Page 108]]

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.
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)(f); Pub. L. 96-184, 
93 Stat. 1320; Pub. L. 101-551, 104 Stat. 2733; sec. 3023(m), Pub. L. 
109-59; 49 CFR 1.51.

    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.

[[Page 109]]



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
    (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

[[Page 110]]

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
    (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:
    (1) Ten or fewer buses; or
    (2) Procurements of twenty vehicles or fewer serving rural (other 
than urbanized) areas, or urbanized areas of 200,000 people or fewer; or

[[Page 111]]

    (3) Any number of primary manufacturer standard production and 
unmodified vans, after visually inspecting and road testing the 
vehicles, the vehicles meet the contract specifications.

[56 FR 48395, Sept. 24, 1991, as amended at 71 FR 14118, Mar. 21, 2006]



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.



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;

[[Page 112]]

    (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]



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

[[Page 113]]

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 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.

[[Page 114]]

    (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.
    (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.

[[Page 115]]

    (d) The manufacturer may observe all tests. The manufacturer may not 
provide maintenance or service unless requested to do so by the 
operator.



 Sec. 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 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.

[[Page 116]]

    (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 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 117]]



      CHAPTER VII--NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)




  --------------------------------------------------------------------
Part                                                                Page
700             Organization, functioning and available 
                    information.............................         119
701             Amtrak Freedom of Information Act program...         121

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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-

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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

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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.

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    (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

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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

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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.

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    (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

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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;

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    (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;

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    (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.

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    (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

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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

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not be charged for a quarter-hour 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 132]]

    (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 133]]



           CHAPTER VIII--NATIONAL TRANSPORTATION SAFETY BOARD




  --------------------------------------------------------------------
Part                                                                Page
800             Organization and functions of the Board and 
                    delegations of authority................         135
801             Public availability of information..........         141
802             Rules implementing the Privacy Act of 1974..         150
803             Official seal...............................         157
804             Rules implementing the Government in the 
                    Sunshine Act............................         158
805             Employee responsibilities and conduct.......         161
806             National security information policy and 
                    guidelines, implementing regulations....         170
807             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the National 
                    Transportation Safety Board.............         171
821             Rules of practice in air safety proceedings.         177
825             Rules of procedure for merchant marine 
                    appeals from decisions of the 
                    Commandant, U.S. Coast Guard............         194
826             Rules implementing the Equal Access to 
                    Justice Act of 1980.....................         196
830             Notification and reporting of aircraft 
                    accidents or incidents and overdue 
                    aircraft, and preservation of aircraft 
                    wreckage, mail, cargo, and records......         202
831             Accident/incident investigation procedures..         205
835             Testimony of Board employees................         210
837             Production of records in legal proceedings..         213
840             Rules pertaining to notification of railroad 
                    accidents...............................         215
845             Rules of practice in transportation; 
                    accident/incident hearings and reports..         216
850             Coast Guard--National Transportation Safety 
                    Board marine casualty investigations....         220
851-999         [Reserved]

[[Page 135]]



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 136]]

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 137]]

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 138]]

    (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 139]]

    (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 140]]



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]



Sec. 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 141]]



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 Processing of records.
801.21 Initial determination.
801.22 Final determination.
801.23 Extension.

                Subpart D_Accident Investigation Records

801.30 Records from accident investigations.
801.31 Public hearings regarding investigations.
801.32 Accident reports.

                     Subpart E_Other Board Documents

801.40 The Board's rules.
801.41 Reports to Congress.

               Subpart F_Exemption from Public Disclosure

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

                         Subpart G_Fee Schedule

801.60 Fee schedule.
801.61 Appeals of fee determinations.

    Authority: Independent Safety Board Act of 1974, as amended (49 
U.S.C. 1101-1155); 5 U.S.C. 551(2); Freedom of Information Act (5 U.S.C. 
552); 18 U.S.C. 641 and 2071; 31 U.S.C. 3717 and 9701; Federal Records 
Act, 44 U.S.C. Chapters 21, 29, 31, and 33.

    Source: 72 FR 18915, Apr. 16, 2007, unless otherwise noted.



                   Subpart A_Applicability and Policy



Sec. 801.1  Applicability.

    (a) This part contains the rules that the National Transportation 
Safety Board (NTSB) follows in processing requests for records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be 
read together with the FOIA, which provides additional information about 
public access to records maintained by the NTSB.
    (b) This part also provides for document services and the fees for 
such services, pursuant to 31 U.S.C. 9701.
    (c) This part applies only to records existing when the request for 
the information is made. The NTSB is not required to create records for 
the sole purpose of responding to a FOIA request.
    (d) Sections 801.51 through 801.59 of this chapter describe records 
that are exempt from public disclosure.



Sec. 801.2  Policy.

    (a) In implementing 5 U.S.C. 552, it is the policy of the NTSB to 
make information available to the public to the greatest extent 
possible, consistent with the mission of the NTSB. Information the NTSB 
routinely provides to the public as part of a regular NTSB activity 
(such as press releases and information disclosed on the NTSB's public 
Web site) may be provided to the public without compliance with this 
part. In addition, as a matter of policy, the NTSB may make 
discretionary disclosures of records or information otherwise exempt 
from disclosure under the FOIA whenever disclosure would not foreseeably 
harm an interest protected by a FOIA exemption; however, this policy 
does not create any right enforceable in court.
    (b) Given the NTSB's stated policy of providing as much information 
as possible regarding general NTSB operations and releasing documents 
involving investigations, the NTSB strongly encourages requesters 
seeking information to check the NTSB's Web site for such information 
before submitting a FOIA request. For every investigation

[[Page 142]]

in which the NTSB has determined the probable cause of an accident, the 
NTSB's docket management system will include a ``public docket'' 
containing documentation that the investigator-in-charge deemed 
pertinent to the investigation. Requesters may obtain these public 
dockets without submitting a FOIA request. The NTSB encourages all 
requesters to review the public docket materials before submitting a 
FOIA request.



Sec. 801.3  Definitions.

    The following definitions shall apply in this part:
    (a) ``Record'' includes any writing, drawing, map, recording, tape, 
film, photo, or other documentary material by which information is 
preserved. In this part, ``document'' and ``record'' shall have the same 
meaning.
    (b) ``Redact'' refers to the act of making a portion of text 
illegible by placing a black mark on top of the text.
    (c) ``Public Docket'' includes a collection of records from an 
accident investigation that the investigator who oversaw the 
investigation of that accident has deemed pertinent to determining the 
probable cause of the accident.
    (d) ``Non-docket'' items include other records from an accident that 
the investigator who oversaw the investigation of that accident has 
deemed irrelevant or not directly pertinent to determining the probable 
cause of the accident.
    (e) ``Chairman'' means the Chairman of the NTSB.
    (f) ``Managing Director'' means the Managing Director of the NTSB.
    (g) ``Requester'' means any person, as defined in 5 U.S.C. 551(2), 
who submits a request pursuant to the FOIA.



                        Subpart B_Administration



Sec. 801.10  General.

    (a) The NTSB's Chief, Records Management Division, is responsible 
for the custody and control of all NTSB records required to be preserved 
under the Federal Records Act, 44 U.S.C. Chapters 21, 29, 31, and 33.
    (b) The NTSB's FOIA Officer shall be responsible for the initial 
determination of whether to release records within the 20-working-day 
time limit, or the extension specified in the Freedom of Information 
Act.
    (c) The NTSB's Chief, Records Management Division, shall:
    (1) Maintain for public access and commercial reproduction all 
accident files containing aviation and surface investigators' reports, 
factual accident reports or group chairman reports, documentation and 
accident correspondence files, transcripts of public hearings, if any, 
and exhibits; and
    (2) Maintain a public reference room, also known as a ``Reading 
Room,'' in accordance with 5 U.S.C. 552(a)(2). The NTSB's public 
reference room is located at 490 East L'Enfant Plaza, SW., Washington, 
DC. Other records may be available in the NTSB's Electronic Reading 
Room, which is located on the NTSB's Web site, found at http://
www.ntsb.gov.
    (d) Requests for documents must be made in writing to: National 
Transportation Safety Board, Attention: FOIA Officer CIO-40, 490 
L'Enfant Plaza, SW., Washington, DC 20594-2000. All requests:
    (1) Must reasonably identify the record requested. For requests 
regarding an investigation of a particular accident, requesters should 
include the date and location of the accident, as well as the NTSB 
investigation number. In response to broad requests for records 
regarding a particular investigation, the FOIA Office will notify the 
requester of the existence of a public docket, and state that other non-
docket items may be available, or may become available, at a later date. 
After receiving this letter and reviewing the items in the public 
docket, requesters should notify the FOIA office if the items contained 
in the public docket suffice to fulfill their request.
    (2) Must be accompanied by the fee or agreement (if any) to pay the 
reproduction costs shown in the fee schedule at Sec. 801.60 of this 
title, and
    (3) Must contain the name, address, and telephone number of the 
person making the request. Requesters must update their address and 
telephone number in writing should this information change.

[[Page 143]]

    (e) The envelope in which the requester submits the request should 
be marked prominently with the letters ``FOIA.'' If a request fails to 
include a citation to the FOIA, the NTSB FOIA Office will attempt to 
contact the requester immediately to rectify the omission and/or clarify 
the request. However, the 20-working-day time limit for processing shall 
not commence until the FOIA Office receives a complete request.
    (f) The field offices of the NTSB shall not maintain, for public 
access, records maintained by the Chief, Records Management Division. 
Requests mailed to NTSB field offices will not satisfy the NTSB's 
requirements for submitting a FOIA request.
    (g) The NTSB may work with a commercial reproduction firm to 
accommodate requests for reproduction of accident records from the 
public docket. The reproduction charges may be subject to change. The 
NTSB will update its FOIA Web site to reflect any such changes. Section 
801.60 of this title contains a current fee schedule.
    (h) The NTSB will not release records originally generated by other 
agencies or entities. Instead, the NTSB will refer such requests for 
other agencies' records to the appropriate agency, which will make a 
release determination upon receiving and processing the referred 
request.
    (i) Where a requester seeks a record on behalf of another person, 
and the record contains that person's personal information protected by 
Exemption 6 of the FOIA (see section 801.56 of this title), the NTSB 
requires the requester to submit a notarized statement of consent from 
the person whose personal information is contained in the record, before 
the NTSB releases the record.
    (j) In general, the NTSB will deny requests for records concerning a 
pending investigation, pursuant to appropriate exemptions under the 
FOIA. The FOIA Office will notify the requester of this denial, and will 
provide the requester with information regarding how the requester may 
receive information on the investigation once the investigation is 
complete. The NTSB discourages requesters from submitting multiple FOIA 
requests in a continuing effort to obtain records before an 
investigation is complete.



Sec. 801.11  Segregability of records.

    The initial decision of the FOIA Officer will include a 
determination of segregability. If it is reasonable to do so, the exempt 
portions of a record will be segregated and, where necessary, redacted, 
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 made available any record made available for inspection or copying 
under Sec. 801.10(c)(2) of this part. Stealing, altering, mutilating, 
obliterating, or destroying, in whole or in part, such a record shall be 
deemed a criminal offense.
    (b) Section 641 of title 18 of the United States Code 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 under this title or 
imprisoned not more than ten years, or both; but if the value of such 
property in the aggregate, combining amounts from all the counts for 
which the defendant is convicted in a single case, does not exceed the 
sum of $1,000, he shall be fined under this title or imprisoned not more 
than one year, or both.''

    (c) Section 2071(a) of title 18 of the United States Code provides, 
in pertinent part, as follows:

    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 thing, filed or deposited * * * in any public office, 
or with any * * * public officer of the United States, shall be fined 
under this title or imprisoned not more than three years, or both.



                          Subpart C_Time Limits



Sec. 801.20  Processing of requests.

    (a) The NTSB processes FOIA requests upon receipt. The NTSB FOIA 
Office may notify the requester that the NTSB has received the request. 
The

[[Page 144]]

FOIA Office will then place each request on one of three tracks:
    (1) Track 1: Requests for which there are no records, requests that 
meet the criteria for expedited processing, or requests that seek 
records that have been produced in response to a prior request.
    (2) Track 2: Requests that do not involve voluminous records or 
lengthy consultations with other entities.
    (3) Track 3: Requests that involve voluminous records and for which 
lengthy or numerous consultations are required, or those requests which 
may involve sensitive records.
    (b) Regarding expedited processing, if a requester states that he or 
she has a compelling need for the expedited treatment of their request, 
then the NTSB FOIA Office will determine whether to expedite the request 
and, where appropriate, do so.



Sec. 801.21  Initial determination.

    The NTSB FOIA Officer will make an initial determination as to 
whether to release a record within 20 working days (excluding Saturdays, 
Sundays, and legal public holidays) after the request is received. This 
time limit may be extended up to 10 additional working days in 
accordance with Sec. 801.23 of this part. The person making the request 
will be notified immediately in writing of such determination. If a 
determination is made to release the requested record(s), such record(s) 
will be made available promptly. If the FOIA Officer determines not to 
release the record(s), the person making the request will, when he or 
she 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. 801.22  Final determination.

    Requesters seeking an appeal of the FOIA Officer's initial 
determination must send a written appeal to the NTSB's Managing Director 
within 20 days. The NTSB's Managing Director will determine whether to 
grant or deny any appeal made pursuant to Sec. 801.21 within 20 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. 801.23.



Sec. 801.23  Extension.

    In unusual circumstances as specified in this section, the time 
limits prescribed in either Sec. 801.21 or Sec. 801.22, 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 will not specify 
a date that would result in an extension for more than 10 working days. 
As used in this paragraph, ``unusual circumstances,'' as they relate to 
any delay that is 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;
    (b) The need to search for, collect, and appropriately examine and 
process a voluminous amount of records which are the subject of a single 
request; or
    (c) The need to consult with another agency that 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  Records from accident investigations.

    Upon completion of an accident investigation, each NTSB investigator 
(or ``group chairman,'' depending on the investigation) shall complete a 
factual report with supporting documentation and include these items in 
the public docket for the investigation. The Chief, Records Management 
Division, will then make the records available to the public for 
inspection or production by an order for commercial copying.

[[Page 145]]



Sec. 801.31  Public hearings regarding investigations.

    Within approximately four (4) weeks after a public hearing 
concerning an investigation, the Chief, Records Management Division, 
will make available to the public the hearing transcript. On or before 
the date of the hearing, the Chief, Records Management Division, will 
make the exhibits introduced at the hearing available to the public for 
inspection or commercial copy order.



Sec. 801.32  Accident reports.

    (a) The NTSB will report the facts, conditions, and circumstances, 
and its determination of the probable causes of U.S. civil 
transportation accidents, in accordance with 49 U.S.C. 1131(e).
    (b) These reports may be made available for public inspection in the 
NTSB's public reference room and/or on the NTSB's Web site, at http://
www.ntsb.gov.



                     Subpart E_Other Board Documents



Sec. 801.40  The Board's rules.

    The NTSB's rules are published in the Code of Federal Regulations as 
Parts 800 through 850 of Title 49.



Sec. 801.41  Reports to Congress.

    The NTSB submits its annual report to Congress each year, in 
accordance with 49 U.S.C. 1117. The report will be available on the 
NTSB's Web site, found at http://www.ntsb.gov. Interested parties may 
purchase the report from the Government Printing Office or review it in 
the NTSB's public reference room. All other reports or comments to 
Congress will be available in the NTSB's public reference room for 
inspection or by ordering a copy after issuance.



               Subpart F_Exemption From Public Disclosure



Sec. 801.50  Exemptions from disclosure.

    Title 5, United States Code section 552(a) and (b) exempt certain 
records from public disclosure. As stated in Sec. 801.2 of this title, 
the NTSB may choose to make a discretionary release of a record that is 
authorized to be withheld under 5 U.S.C. 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 
applicable exemption.



Sec. 801.51  National defense and foreign policy secrets.

    Pursuant to 5 U.S.C. 552(b)(1), national defense and foreign policy 
secrets established by Executive Order, as well as properly classified 
documents, are exempt from public disclosure. Requests to the NTSB for 
such records will be transferred to the source agency as appropriate, 
where such classified records are identified. (See, e.g., Executive 
Order 12,958, as amended on March 25, 2003.)



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

    Pursuant to 5 U.S.C. 552(b)(2), the following records are exempt 
from disclosure under FOIA:
    (a) Records relating solely to internal personnel rules and 
practices, including 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) Records regarding:
    (1) Internal matters of a relatively trivial nature that have no 
significant public interest, and
    (2) Predominantly internal matters, the release of which would risk 
circumvention of a statute or agency regulation.



Sec. 801.53  Records exempt by statute from disclosure.

    Pursuant to 5 U.S.C. 552(b)(3), the NTSB will not disclose records 
specifically exempted from disclosure by statute (other than 5 U.S.C. 
552(b)), 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

[[Page 146]]

    (b) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.



Sec. 801.54  Trade secrets and commercial or financial information.

    Pursuant to 5 U.S.C. 552(b)(4), trade secrets and items containing 
commercial or financial information that are obtained from a person and 
are privileged or confidential are exempt from public disclosure.



Sec. 801.55  Interagency and intra-agency exchanges.

    (a) Pursuant to 5 U.S.C. 552(b)(5), any record prepared by an NTSB 
employee for internal Government use is exempt from public disclosure to 
the extent that it contains--
    (1) Opinions made in the course of developing official action by the 
NTSB but not actually made a part of that official action, or
    (2) Information concerning any pending NTSB 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 NTSB. These resources must be fully and readily 
available to those officials upon whom the responsibility rests to take 
official NTSB 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, but are 
not limited to, staff papers containing advice, opinions, or suggestions 
preliminary to a decision or action; preliminary notes; advance 
information on such things as proposed plans to procure, lease, or 
otherwise hire and dispose of materials, real estate, or facilities; 
documents exchanged in preparation for anticipated legal proceedings; 
material intended for public release at a specified future time, if 
premature disclosure would be detrimental to orderly processes of the 
NTSB; records of inspections, investigations, and surveys pertaining to 
internal management of the NTSB; and matters that would not be routinely 
disclosed in litigation but which are likely to be the subject of 
litigation.



Sec. 801.56  Unwarranted invasion of personal privacy.

    Pursuant to 5 U.S.C. 552(b)(6), any personal, medical, or similar 
file is exempt from public disclosure if its disclosure would harm the 
individual concerned or would be a clearly unwarranted invasion of the 
person's personal privacy.



Sec. 801.57  Records compiled for law enforcement purposes.

    Pursuant to 5 U.S.C. 552(b)(7), any records compiled for law or 
regulatory enforcement are exempt from public disclosure 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. 801.58  Records for regulation of financial institutions.

    Pursuant to 5 U.S.C. 552(b)(8), records compiled for agencies 
regulating or supervising financial institutions are exempt from public 
disclosure.



Sec. 801.59  Geological records.

    Pursuant to 5 U.S.C. 552(b)(9), records concerning geological wells 
are exempt from public disclosure.



                         Subpart G_Fee Schedule



Sec. 801.60  Fee schedule.

    (a) Authority. Pursuant to 5 U.S.C. 552(a)(4)(i) and 52 FR 10,012 
(Mar. 27, 1987), the NTSB may charge certain fees for processing 
requests under the FOIA in accordance with paragraph (c) of this 
section, except where fees are limited under paragraph (d) of this 
section, or where a waiver or reduction of fees is granted under 
paragraph (e) of

[[Page 147]]

this section. The NTSB may collect all applicable fees before sending 
copies of requested records to a requester. A requester must pay fees in 
accordance with the instructions provided on the invoice the FOIA Office 
sends to the requester.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests. This includes the 
furtherance of commercial interests through litigation. When it appears 
that the requester will use the requested records for a commercial 
purpose, either because of the nature of the request or because the NTSB 
has reasonable cause to doubt a requester's stated use, the NTSB shall 
provide the requester with a reasonable opportunity to submit further 
clarification.
    (2) Direct costs means those expenses that an agency actually incurs 
in searching for, reviewing, and duplicating records in response to a 
FOIA request. This includes the salaries of employees performing the 
work, as listed below, but does not include overhead expenses such as 
the costs of office space.
    (3) Duplication means the copying of a record, or of the information 
contained in a record, in response to a FOIA request.
    (4) Educational institution means 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. In order for a requester 
to demonstrate that their request falls within the category of an 
``educational institution,'' the requester must show that the request is 
authorized by the qualifying institution and that the requester does not 
seek the records for commercial use, but only to further scholarly 
research.
    (5) Representative of the news media or ``news media requester'' 
means any person actively gathering news for an entity that is organized 
and operated to publish or broadcast news to the public. For 
``freelance'' journalists to be regarded as working for a news 
organization, they must demonstrate a solid basis for expecting 
publication through that organization (for example, a journalist may 
submit a copy of a publication contract for which the journalist needs 
NTSB records).
    (6) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. ``Review'' also includes processing the record(s) for 
disclosure, which includes redacting and otherwise preparing releasable 
records for disclosure. The NTSB may require review costs even if the 
NTSB ultimately does not release the record(s).
    (7) Search means the process of looking for and retrieving records 
or information within the scope of a request. ``Search'' 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. The NTSB will make an 
effort to conduct such searches in the least expensive manner.
    (c) Fees. In responding to FOIA requests, the NTSB will charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (d) of this section:
    (1) Search. (i) The NTSB will charge search fees for all requests, 
unless an educational institution, a noncommercial scientific 
institution, or a news media representative submits a request containing 
adequate justification for obtaining a fee waiver. These fees, however, 
are subject to the limitations of paragraph (d) of this section. The 
NTSB may charge for time spent searching even if the NTSB does not 
locate any responsive record or if the NTSB withholds the record(s) 
located because such record(s) are exempt from disclosure.
    (ii) The NTSB will charge $4.00 for each quarter of an hour spent by 
clerical personnel in searching for and retrieving a requested record. 
Where clerical personnel cannot entirely perform a search and retrieval 
(for example, where the identification of records within the scope of a 
request requires

[[Page 148]]

the assistance of professional personnel), the applicable fee will 
instead be $7.00 for each quarter hour of search time spent by 
professional personnel. Where a request requires the time of managerial 
personnel, the fee will be $10.25 for each quarter hour of time spent by 
these personnel.
    (2) Duplication. The NTSB will charge duplication fees, subject to 
the limitations of paragraph (d) of this section.
    (i) The NTSB utilizes the services of a commercial reproduction 
facility for requests for duplicates of NTSB public dockets and 
publications.
    (ii) Regarding the reproduction of non-public records in response to 
a FOIA request, the NTSB will charge $0.10 per page for the duplication 
of a standard-size paper record. For other forms of duplication, the 
NTSB will charge the direct costs of the duplication.
    (iii) Where the NTSB certifies records upon request, the NTSB will 
charge the direct cost of certification.
    (3) Review. The NTSB will charge fees for the initial review of a 
record to determine whether the record falls within the scope of a 
request, or whether the record is exempt from disclosure. Such fees will 
be charged to requesters who make a request for commercial purposes. The 
NTSB will not charge for subsequent review of the request and responsive 
record; for example, in general, the NTSB will not charge additional 
fees for review at the administrative appeal level when the NTSB has 
already applied an exemption. The NTSB will charge review fees at the 
same rate as those charged for a search under paragraph (c)(1)(ii), 
above.
    (c) Limitations on charging fees. For purposes of this section:
    (1) The NTSB will not charge a fee for notices, decisions, orders, 
etc. provided to persons acting as parties in the investigation, or 
where required by law to be served on a party to any proceeding or 
matter before the NTSB. Likewise, the NTSB will not charge fees for 
requests made by family members of accident victims, when the NTSB has 
investigated the accident that is the subject of the FOIA request.
    (2) The NTSB will not charge a search fee for requests from 
educational institutions or representatives of the news media.
    (3) The NTSB will not charge a search fee or review fee for a 
quarter-hour period unless more than half of that period is required for 
search or review.
    (4) Except for requesters seeking records for commercial use, the 
NTSB will provide the following items without charge:
    (i) The first 100 pages of duplication (or the cost equivalent) of a 
record; and
    (ii) The first two hours of search (or the cost equivalent) for a 
record.
    (5) Whenever the total fee calculated under paragraph (c) of this 
section is $14.00 or less for any request, the NTSB will not charge a 
fee.
    (6) When the NTSB's FOIA Office determines or estimates that fees to 
be charged under this section will amount to more than $25.00, the 
Office will notify the requester of the actual or estimated amount of 
the fees, unless the requester has indicated a willingness to pay fees 
as high as those anticipated. If the FOIA Office is able to estimate 
only a portion of the expected fee, the FOIA Office will advise the 
requester that the estimated fee may be only a portion of the total fee. 
Where the FOIA Office notifies a requester that the actual or estimated 
fees will exceed $25.00, the NTSB will not expend additional agency 
resources on the request until the requester agrees in writing to pay 
the anticipated total fee. In circumstances involving a total fee that 
will exceed $250.00, the NTSB may require the requester to make an 
advance payment or deposit of a specific amount before beginning to 
process the request.
    (7) The NTSB may charge interest on any unpaid bill starting on the 
31st day following the date of billing the requester. Interest charges 
will be assessed at the rate provided at 31 U.S.C. 3717 and will accrue 
from the date of the billing until the NTSB receives payment. The NTSB 
shall follow the provisions of the Debt Collection Act of 1982 (Pub. L. 
97-365, 96 Stat. 1749), as amended, and its administrative procedures, 
including the use of consumer reporting agencies, collection agencies, 
and offset.

[[Page 149]]

    (8) Where a requester has previously failed to pay a properly 
charged FOIA fee to the NTSB within 30 days of the date of billing, the 
NTSB may require the requester to pay the full amount due, plus any 
applicable interest, and to make an advance payment of the full amount 
of any anticipated fee, before the NTSB begins to process a new request 
or continues to process a pending request from that requester.
    (9) Where the NTSB reasonably believes that a requester or group of 
requesters acting together is attempting to divide a request into 
multiple series of requests for the purpose of avoiding fees, the NTSB 
may aggregate those requests and charge accordingly.
    (d) Requirements for waiver or reduction of fees. For fee purposes, 
the NTSB will determine, whenever reasonably possible, the use to which 
a requester will put the requested records.
    (1) The NTSB will furnish records responsive to a request without 
charge, or at a reduced charge, where the NTSB determines, based on all 
available information, that the requester has shown that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations of activities of the government, and
    (ii) Disclosure of the requested information is not primarily in the 
commercial interest or for the commercial use of the requester.
    (2) In determining whether disclosure of the requested information 
is in the public interest, the NTSB will consider the following factors:
    (i) Whether the subject of the requested records concerns 
identifiable operations or activities of the federal government, with a 
connection that is direct and clear, and not remote or attenuated. In 
this regard, the NTSB will consider whether a requester's use of the 
documents would enhance transportation safety or contribute to the 
NTSB's programs.
    (ii) Whether the portions of a record subject to disclosure are 
meaningfully informative about government operations or activities. The 
disclosure of information already in the public domain, in either a 
duplicative or substantially identical form, would not be as likely to 
contribute to such understanding where nothing new would be added to the 
public's understanding.
    (iii) Whether disclosure of the requested information would 
contribute to the understanding of a reasonably broad audience of 
persons interested in the subject, as opposed to the individual 
understanding of the requester. The NTSB will consider a requester's 
expertise in the subject area and ability to effectively convey 
information to the public.
    (iv) Whether the disclosure is likely to enhance the public's 
understanding of government operations or activities.
    (3) In determining whether the requester is primarily in the 
commercial interest of the requester, the NTSB will consider the 
following factors:
    (i) The existence and magnitude of any commercial interest the 
requester may have, or of any person on whose behalf the requester may 
be acting. The NTSB will provide requesters with an opportunity in the 
administrative process to submit explanatory information regarding this 
consideration.
    (ii) Whether the commercial interest is greater in magnitude than 
any public interest in disclosure.
    (4) Additionally, the NTSB may, at its discretion, waive 
publication, reproduction, and search fees for qualifying foreign 
countries, international organizations, nonprofit public safety 
entities, State and Federal transportation agencies, and colleges and 
universities, after approval by the Chief, Records Management Division.
    (5) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, the NTSB will grant a waiver for 
those particular records.
    (6) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (e)(2) and (e)(3) of this section, insofar 
as they apply to each request. The NTSB will exercise its discretion to 
consider the cost-effectiveness of its use of administrative resources 
in determining whether to grant waivers or reductions of fees.
    (e) Services available free of charge.
    (1) The following documents are available without commercial 
reproduction cost until limited supplies are exhausted:

[[Page 150]]

    (i) Press releases;
    (ii) Safety Board regulations (Chapter VIII of Title 49, Code of 
Federal Regulations);
    (iii) Indexes to initial decisions, Board orders, opinion and 
orders, and staff manuals and instructions;
    (iv) Safety recommendations; and
    (v) NTSB Annual Reports.
    (2) The NTSB public Web site, located at http://www.ntsb.gov, also 
includes an e-mail subscription service for press releases, safety 
recommendations, and other announcements.



Sec. 801.61  Appeals of fee determinations.

    Requesters seeking an appeal of the FOIA Officer's fee or fee waiver 
determination must send a written appeal to the NTSB's Managing Director 
within 20 days. The NTSB's Managing Director will determine whether to 
grant or deny any appeal made pursuant to Sec. 801.21 within 20 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. 801.23.



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.
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;

[[Page 151]]

    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.



              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

[[Page 152]]

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 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

[[Page 153]]

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;
    (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]

[[Page 154]]



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.



            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

[[Page 155]]

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.
    (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

[[Page 156]]

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 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

[[Page 157]]

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 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

[[Page 158]]

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.
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.

[[Page 159]]

    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 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.

[[Page 160]]



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, 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

[[Page 161]]

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 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).

[[Page 162]]



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 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

[[Page 163]]

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 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.

[[Page 164]]



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 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,

[[Page 165]]

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.



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

[[Page 166]]

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 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.

[[Page 167]]



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 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]

[[Page 168]]



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 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

[[Page 169]]

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]



     Sec. 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 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).



  Sec. 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.

[[Page 170]]

    (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 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.

[[Page 171]]

    (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.



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,

[[Page 172]]

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 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]

[[Page 173]]



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.



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

[[Page 174]]

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.



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

[[Page 175]]

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;
    (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

[[Page 176]]

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 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]

[[Page 177]]



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.

 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;

[[Page 178]]

    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 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

[[Page 179]]

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 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

[[Page 180]]

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 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

[[Page 181]]

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 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

[[Page 182]]

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 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

[[Page 183]]

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.
    (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

[[Page 184]]

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 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

[[Page 185]]

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 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

[[Page 186]]

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 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:

[[Page 187]]

    (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.



                            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.

[[Page 188]]



                       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 
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

[[Page 189]]

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.
    (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

[[Page 190]]

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 
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

[[Page 191]]

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 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

[[Page 192]]

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, 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:

[[Page 193]]

    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 
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

[[Page 194]]

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. 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;

[[Page 195]]

    (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.



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;

[[Page 196]]

    (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]



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

[[Page 197]]

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, 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

[[Page 198]]

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.
    (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

[[Page 199]]

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, 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

[[Page 200]]

convenient to the applicant that provides full disclosure of the 
applicant's and its affiliates' assets and liabilities and is sufficient 
to determine whether the applicant qualifies under the standards in this 
part. The administrative law judge may require an applicant to file 
additional information to determine the eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the administrative law judge in 
a sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b) (1) through (9), why public disclosure 
of the information would adversely affect the applicant, and why 
disclosure is not required in the public interest. The material in 
question shall be served on counsel representing the agency against 
which the applicant seeks an award, but need not be served on any other 
party to the proceeding. If the administrative law judge finds that the 
information should not be withheld from disclosure, it shall be placed 
in the public record of the proceeding. Otherwise, any request to 
inspect or copy the exhibit shall be disposed of in accordance with the 
Board's established procedures under the Freedom of Information Act as 
inplemented by Part 801 of the Board's rules.



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,

[[Page 201]]

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 
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

[[Page 202]]

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 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

[[Page 203]]

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 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

[[Page 204]]

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):
    (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,

[[Page 205]]

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.
---------------------------------------------------------------------------

    (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,''

[[Page 206]]

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 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

[[Page 207]]

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 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,

[[Page 208]]

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 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

[[Page 209]]

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 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

[[Page 210]]

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 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)

[[Page 211]]

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 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

[[Page 212]]

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, 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

[[Page 213]]

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 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:

[[Page 214]]

    (1) Conserve the time of employees for conducting official business;
    (2) Minimize the possibility of involving the NTSB in controversial 
issues not related to its mission;
    (3) Maintain the impartiality of the Board among private litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information, and the 
deliberative processes of the Board.



Sec. 837.2  Applicability.

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



Sec. 837.3  Published reports, material contained in the public accident 

investigation dockets, and accident database data.

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



Sec. 837.4  Other material.

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

[[Page 215]]



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 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).

[[Page 216]]

    (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 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

[[Page 217]]

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]



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:

[[Page 218]]

    (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]



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.

[[Page 219]]



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.



                         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

[[Page 220]]

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 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--

[[Page 221]]

    (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.
    (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.

[[Page 222]]

    (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 223]]



                              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 225]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2008)

                      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  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

[[Page 226]]

                        Title 3--The President

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

                           Title 4--Accounts

         I  Government Accountability 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 (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        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 (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      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 (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)

[[Page 227]]

       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         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)

[[Page 228]]

       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)
      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 Policy and New Uses, 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)

[[Page 229]]

      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)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      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)

[[Page 230]]

       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)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       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)
       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)

[[Page 231]]

        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)

          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)

[[Page 232]]

        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 Service, 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)
        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 (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)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)

[[Page 233]]

       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 
                HousingCommissioner, 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]
       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)

[[Page 234]]

         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 (Parts 1200--1299)

                      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)

                   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)

[[Page 235]]

      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)
        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)

[[Page 236]]

            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)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     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)
        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)

[[Page 237]]

            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)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             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)
        VI  [Reserved]
       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 (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             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)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)

[[Page 238]]

        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 Regulatory 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)
            Chapters 62--100 [Reserved]
            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)
            Chapters 103--104 [Reserved]
       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)
       128  Department of Justice (Parts 128-1--128-99)

[[Page 239]]

            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [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 303-1--303-99)
       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 240]]

        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) 
                [Reserved]
         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 241]]

       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  Defense Acquisition Regulations System, 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  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)
        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 [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)

[[Page 242]]

        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  Pipeline and Hazardous Materials Safety 
                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  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       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)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 243]]

        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 245]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2008)

                                                  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              22, II
  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                               2, IX; 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 246]]

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                       5, LXVIII; 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
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 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 247]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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                   2, XV; 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

[[Page 248]]

  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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 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 Agency                    12, XII
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 Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 249]]

  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 Accountability Office                  4, I
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          2, III; 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
  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      2, XXIV; 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
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII

[[Page 250]]

Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  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            2, XIV; 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                                2, XXVII; 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

[[Page 251]]

  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  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
  Copyright Royalty Board                         37, III
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, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
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     2, XVIII; 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      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
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 Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
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 Intelligence, Office of Director of      32, XVII
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                       2, XXV; 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
[[Page 252]]

National Transportation Safety Board              49, VIII
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
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
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
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory 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
Privacy and Civil Liberties Oversight Board       6, X
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
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
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                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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                                  2, VI; 22, I; 28, XI

[[Page 253]]

  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
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                     2, XII; 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
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  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 Claims Collection Standards             31, IX
  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                       2, VIII; 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 255]]



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 CFR
                                                                   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

49 CFR
                                                                   69 FR
                                                                    Page
Title 49 Nomenclature change.......................................18803

                                  2005

49 CFR
                                                                   70 FR
                                                                    Page
Chapter VI
601 Revised........................................................67318
622 Authority citation revised.....................................24470
659 Revised........................................................22578

                                  2006

49 CFR
                                                                   71 FR
                                                                    Page
Chapter VI
655.3 (a) introductory text revised; (c) added.....................69198
655.83 (d) added...................................................69198
661 Authority citation revised.....................................14117
661.3 Revised......................................................14117
661.6 Revised......................................................14117
661.7 Appendix A amended...........................................14117

[[Page 256]]

661.9 (b) and (d) revised..........................................14117
661.12 Revised.....................................................14117
661.13 (b) introductory text, (1), (2) and (c) revised; (b)(1)(i) 
        and (ii) added.............................................14117
661.15 (a), (b), (d) and (g) revised...............................14118
661.17 Revised.....................................................14118
661.19 Revised.....................................................14118
661.20 Revised.....................................................14118
663 Authority citation revised.....................................14118
663.37 (c) revised.................................................14118

                                  2007

49 CFR
                                                                   72 FR
                                                                    Page
Chapter VI
601.40--601.47 (Subpart D) Added.....................................912
613.100 (Subpart A) Revised.........................................7285
613.200 (Subpart B) Revised.........................................7285
624 Authority citation and heading revised.........................15052
624.1 Revised......................................................15052
624.3 (a) and (c)(3) through (6) revised...........................15053
624.5 Revised......................................................15053
624.9 Revised......................................................15053
624.11 (a) introductory text and (c) revised.......................15053
624 Appendix A removed.............................................15054
630 Revised........................................................68761
661 Authority citation amended.....................................53696
661 Heading revised; eff. 10-22-07.................................53696
661.1 Amended; eff. 10-22-07.......................................53696
661.3 Revised; eff. 10-22-07.......................................53696
661.6 Amended; eff. 10-22-07.......................................53696
661.7 (a), (c), (e), (f) and Appendix A amended; (b) revised; 
        (c)(3) added; eff. 10-22-07................................53697
661.9 (a) amended; eff. 10-22-07...................................53697
661.11 (s) removed; (t)(14) through (22), (u)(18) through (30), 
        (v)(28), (29), (30) and Appendix D added; Appendices B and 
        C amended; eff. 10-22-07...................................53697
    Appendix D corrected; eff. 10-22-07............................55103
661.12 Amended; eff. 10-22-07......................................53698
661.18 Introductory text amended; eff. 10-22-07....................53698
Chapter VIII
801 Revised........................................................18915

                                  2008

  (Regulations published from January 1, 2008, through October 1, 2008)

49 CFR
                                                                   73 FR
                                                                    Page
Chapter VI
604 Revised.........................................................2345
    Authority citation added.......................................44931
604 Appendices B and C revised.....................................44931
    Appendix D revised.............................................44935
    Appendix D correctly amended...................................46554
605 Policy statement...............................................53384
622.101 (Subpart A) Authority citation revised.....................13401
622.101 Revised....................................................13401


                                  [all]