[Federal Register Volume 60, Number 151 (Monday, August 7, 1995)]
[Rules and Regulations]
[Pages 40111-40113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19356]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Parts 800, 830, and 831
Reporting of Public Aircraft Accidents
AGENCY: National Transportation Safety Board.
ACTION: Final rules.
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SUMMARY: Following review of the comments received, the NTSB is
adopting revisions to its rules to implement Public Law 103-411, which
expands the scope of its jurisdiction to include investigations of
certain public aircraft accidents.
DATES: The rules are effective September 6, 1995.
FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 382-6540.
SUPPLEMENTARY INFORMATION: On October 25, 1994, President Clinton
signed H.R. 2440, the Independent Safety Board Act Amendments of 1994.
Codified as Public Law 103-411 (the Act), it was effective on April 23,
1995, and directly affects aircraft operated by and for Federal, State
and local governments. In addition to expanding the Federal Aviation
Administration's (FAA) safety regulation to previously exempt
``public'' aircraft, the Act expanded the jurisdiction of the National
Transportation Safety Board (NTSB or Safety Board) to encompass the
investigation of all public aircraft other than those operated by the
Armed Forces or by a United States intelligence agency.
By notice of proposed rulemaking (NPR) published in the Federal
Register March 15, 1995 (60 FR 13948), we proposed and sought comment
on rules to implement this new authority. We received 14
comments.1 The States welcome the Board's investigation, in the
unfortunate event that a State aircraft is involved in an accident, and
either support or have no comment on the proposed rules themselves.
ALPA favors this expansion of the Board's authority, but urges that
funding levels be adequate for the Board to continue to investigate
thoroughly public and civil aircraft accidents.
\1\ We received comments from 10 States (Alaska, Connecticut,
Hawaii, Iowa, Maine, Maryland, Mississippi, Montana, Pennsylvania,
and Wisconsin), three associations (the Air Line Pilots Association
(ALPA), the Helicopter Association International, and the National
Business Aircraft Association, Inc.), one government agency (the
Department of Agriculture, Forest Service), and one individual
(Joseph D. Kuchta).
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The Forest Service and Helicopter Association International are
concerned that the exception for aircraft operated by the Armed Forces
and U.S. intelligence agency aircraft not be read too broadly. The
Forest Service's letter notes:
The Forest Service supplements its aerial firefighting resources
during times of extreme fire activity with aircraft and flight crews
from the Armed Forces. These resources are furnished to us by active
military, Reserve, and National Guard units. The Forest Service pays
the Armed Forces an hourly rate for this service, has operational
control over their movement, and uses them for the same missions as
civil and other public aircraft which includes the transportation of
passengers. In the case of Reserve and National Guard units, the
flight crews are often pilots that normally fly commercial aircraft,
including airliners, and fly the Armed Forces aircraft on a part-
time basis.
The Forest Service considers these flights to be under its auspices
and control and therefore ``public'' for investigation purposes. It
objects to the proposal in the NPR to define ``operated by the Armed
Forces'' only with reference to the actual, physical manipulation of
the controls. The Forest Service requests that we reconsider this
approach and interpret the Armed Forces exception narrowly and exclude
aircraft from Reserve and National Guard units that are under the
operational control of non-defense agencies (that is, to define control
not in a physical sense but in a sense of directing the use to which
the aircraft is put).
Mr. Kuchta argues that the Armed Forces/intelligence agency
exception, as we have proposed to interpret it, is too narrow. He cites
the Federal Aviation Act's definition of ``operation of aircraft,''
``operate aircraft'' and ``operation of aircraft'' mean using
aircraft for the purposes of air navigation, including--
(A) the navigation of aircraft; and
(B) causing or authorizing the operation of aircraft with or
without the right of legal control of the aircraft.2
\2\ 49 U.S.C. 40102(a)(32), as recodified.
Thus, the definition includes both types of control we have
discussed. Mr. Kuchta also notes that, in its adjudication of FAA-
instituted certificate actions (the so-called enforcement docket), the
Board interprets the term ``operation'' expansively to include other
than actual physical manipulation of the controls.
The comments of the parties should demonstrate, and have convinced
us, that defining our jurisdiction with regard to the exception is not
as straightforward as we had hoped. At the same time, however, FA Act
definitions, while they may inform the process, do not control the
interpretation of language in our enabling statute, nor does Board
precedent from other contexts. The critical consideration is to ensure
that the exception is not so broad as to unduly limit our investigatory
role, and not so narrow as to intrude improperly in military concerns
that have little or no implication for civilian air safety.
On review of the comments, we will revise our future approach. We
will consider both the physical manipulation of the controls and the
broader operational control concept in determining whether an aircraft
is operated by the Armed Forces or an intelligence agency so as to
remove it from our investigatory responsibility. Using this approach,
we would find, for example, that a cloud-seeding flight using a
National Guard pilot and aircraft, but arranged and contracted for by
the Forest Service, is not a flight ``operated by'' the Armed Forces.
Indeed, such a flight, because cloud seeding is also conducted by
civilian aircraft, has implications for civilian aircraft safety and,
therefore, prompts exercise of our statutory role to promote air
safety. On the other hand, investigations of accidents involving combat
aircraft, combat maneuvers, or military surveillance or air
navigational control are clearly on the other side of the equation and
we believe that it is examples such as these that prompted Congress'
exception.
There may be instances where analysis under the standards of (A)
and (B) above produces opposite conclusions. For example, if the Army
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uses a civilian aircraft and crew to transport troops, application of
(A) would produce a conclusion that the aircraft was a civil aircraft,
not ``operated by'' the Armed Forces, but consideration under (B) would
lead to the conclusion that, because the Army ``caused'' the operation,
it involved aircraft operated by the Armed Forces and not subject to
our investigation jurisdiction. Again, we would resolve the question by
analyzing the circumstances with special reference to our statutory
responsibility: With a civilian aircraft and crew, there are such
implications for civilian air safety that the exception should not
apply. This result is consistent with our discussion in the NPR to
assert jurisdiction in the event that such an aircraft was involved in
an accident.3
\3\ We are confident that, with experience, we will develop a
mutually agreeable understanding with the Armed Forces and Federal
intelligence agencies regarding investigatory roles. We note in this
context that, in the past, interagency agreements and other more
informal processes have led to our participation, despite any
argument that we lacked jurisdiction, in Armed Forces aircraft
investigations, whether because the Armed Forces sought our
assistance in an aspect of the investigation or because we believed
our participation would contribute to furthering our statutory role.
We expect this spirit of cooperation will continue and that
jurisdictional disputes will be rare.
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We received no comment on the other issues we raised. Therefore, we
adopt our proposal to consider the National Guard, and the Coast Guard
within the definition of Armed Forces and to construe the term
``intelligence agency'' only to apply to those Federal agencies that
are so named or categorized (for example, in their enabling statutes).
We remind all those now required to report accidents and incidents
to us immediately that the scope of reportable events is quite broad
and that all personnel involved in aviation matters should be familiar
with Title 49 of the Code of Federal Regulations, part 800, which
identifies all the instances we investigate and sets forth rules (at
part 830) for notifying us of what are termed ``accidents or
incidents.''
This amendment of our interpretation does not translate into any
change in the rules we proposed. Those rules will be adopted, with one
minor editorial change.4 Accordingly, 49 CFR parts 800, 830, and
831 are amended as set forth below.5
\4\ In Sec. 831.2(a)(1), the phrase ``where the accident
involves civil aircraft and certain public aircraft'' is, for
clarity, changed to read ``where the accident involves any civil
aircraft or certain public aircraft.''
\5\ As we noted in the NPR, various rules in these parts require
changes to reflect current organization at the Safety Board or
recent legislative change. Other rulemakings will shortly be
conducted to update these provisions. This proceeding proposes only
the changes needed to implement Pub. L. No. 103-411.
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List of Subjects
49 CFR part 800
Authority delegations--Government agencies, Organization and
functions--Government agencies.
49 CFR Part 830
Aviation safety, Reporting and recordkeeping requirements.
49 CFR Part 831
Aviation safety, Highway safety, Investigations, Marine safety,
Pipeline safety, Railroad safety.
PART 800--ORGANIZATION AND FUNCTIONS OF THE BOARD AND DELEGATIONS
OF AUTHORITY
1. The authority citation for part 800 is revised to read as
follows:
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.).
2. Section 800.3 is amended by revising paragraph (a) to read as
follows:
Sec. 800.3 Functions.
(a) The primary function of the Safety Board is to promote safety
in transportation. The Safety 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 or
substantial property damage; and major marine casualties and marine
accidents involving a public and non-public vessel or involving Coast
Guard functions. The Safety Board makes transportation safety
recommendations to Federal, State, and local agencies and private
organizations to reduce the likelihood of recurrence 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.
* * * * *
PART 830--NOTIFICATION AND REPORTING OF AIRCRAFT ACCIDENTS OR
INCIDENTS AND OVERDUE AIRCRAFT, AND PRESERVATION OF AIRCRAFT
WRECKAGE, MAIL, CARGO, AND RECORDS
3. The authority citation for part 830 is revised to read as
follows:
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.).
4. Section 830.1 is revised to read as follows:
Sec. 830.1 Applicability.
This part contains rules pertaining to:
(a) Initial notification and later reporting of aircraft incidents
and accidents and certain other occurrences in the operation of
aircraft, wherever they occur, when they involve civil aircraft of the
United States; when they involve certain public aircraft, as specified
in this part, wherever they occur; and when they involve foreign civil
aircraft where the events occur in the United States, its territories,
or its possessions.
(b) Preservation of aircraft wreckage, mail, cargo, and records
involving all civil and certain public aircraft accidents, as specified
in this Part, in the United States and its territories or possessions.
* * * * *
5. Section 830.2 is amended by revising the definition of ``public
aircraft'' to read as follows:
Sec. 830.2 Definitions.
* * * * *
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
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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.
* * * * *
6. Section 830.5 is amended by revising the introductory text to
read as follows:
Sec. 830.5 Immediate notification.
The operator of any civil aircraft, or any public aircraft not
operated by the Armed Forces or an intelligence agency of the United
States, or any foreign aircraft shall immediately, and by the most
expeditious means available, notify the nearest National Transportation
Safety Board (Board) field office \1\ when:
\1\ The Board field offices are listed under U.S. Government in
the telephone directories of the following cities: Anchorage, AK,
Atlanta, GA, West Chicago, IL, Denver, CO, Arlington, TX, Gardena
(Los Angeles), CA, Miami, FL, Parsippany, NJ (metropolitan New York,
NY), Seattle, WA, and Washington, DC.
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7. Section 830.15 is amended by revising paragraph (a) to read as
follows:
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.
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* * * * *
Sec. 830.20 (Subpart E)--[Removed]
8. Subpart E consisting of Sec. 830.20 of Part 830 is removed.
PART 831--ACCIDENT/INCIDENT INVESTIGATION PROCEDURES
9. The Authority citation for part 831 is revised to read as
follows:
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.).
10. Section 831.2 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 831.2 Responsibility of Board.
(a) Aviation. (1) The Board is responsible for the organization,
conduct and control of all accident investigations within the United
States, its territories and possessions, where the accident involves
any civil aircraft or certain public aircraft (as specified in
Sec. 830.5 of this chapter), including an accident 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 that
occur outside the United States, and which involve civil aircraft and
certain public aircraft, when the accident is not in the territory of
another state (i.e., in international waters).
* * * * *
11. Section 831.9 is amended to revise paragraph (b) to read as
follows:
Sec. 831.9 Authority of Board Representatives.
* * * * *
(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.
* * * * *
Issued in Washington, DC, on this 1st day of August, 1995.
Jim Hall,
Chairman.
[FR Doc. 95-19356 Filed 8-4-95; 8:45 am]
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