[Federal Register Volume 62, Number 17 (Monday, January 27, 1997)]
[Rules and Regulations]
[Pages 3806-3808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1810]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Part 831
Accident/Incident Investigation Procedures
AGENCY: National Transportation Safety Board.
ACTION: Final rule.
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SUMMARY: The Board is updating its regulations on accident and incident
investigation practices to reflect current operations and organization.
DATES: The new rules are effective February 26, 1997.
FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 314-6080.
SUPPLEMENTARY INFORMATION: The majority of the current rules at 49 CFR
Part 831 have not been updated since 1988. The changes adopted here for
the most part reflect current accident and incident investigation
practices. Because these rule changes affect only rules of agency
organization, procedure, or practice, notice and comment procedures are
not required and are not provided here. 5 U.S.C. 553(b)(B). Major
changes to the rules include the following: (1) the Board's wreckage
release form (6120.15) will be used, when needed, in all accident
investigations, not just aviation investigations; (2) participation in
accident investigations of individuals in legal positions has been
clarified; (3) the requirement that all party representatives in
aviation investigations sign the STATEMENT OF PARTY REPRESENTATIVES TO
NTSB INVESTIGATION has been codified; (4) the Board member's role at
accident sites has been clarified; (5) new sections have been added to
address Trade Secrets Act and voluntary data submission issues; and (6)
our policy regarding submissions received after a matter has been
calendared by the Board for a meeting has been codified.
List of Subjects in 49 CFR Part 831
Aviation safety, Highway safety, Investigations, Marine safety,
Pipeline safety, Railroad safety.
PART 831--ACCIDENT/INCIDENT INVESTIGATION PROCEDURES
1. The Authority citation for Part 831 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 831.2 is revised 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 and incident investigations (see
Sec. 830.2 of this chapter) within the Untied States, its territories
and possessions, where the accident or incident involves any civil
aircraft or certain public aircraft (as specified in Sec. 830.5 of this
chapter), including an investigation involving civil or public aircraft
(as specified in Sec. 830.5) on the one hand, and an Armed Forces or
intelligence agency aircraft on the other hand. It is also responsible
for investigating accidents/incidents that occur outside the United
States, and which involve civil aircraft and/or certain public
aircraft, when the accident/incident is not in the territory of another
country (i.e., in international waters).
(2) Certain aviation investigations may be conducted by the Federal
Aviation Administration (FAA), pursuant to a ``Request to the Secretary
of the Department of Transportation to Investigate Certain Aircraft
Accidents,'' effective February 10, 1977 (the text of the request is
contained in the appendix to part 800 of this chapter), but the Board
determines the probable cause of such accidents or incidents.\1\ Under
no circumstances are aviation investigations where the portion of the
investigation is so delegated to the FAA by the Board considered to be
joint investigations in the sense of sharing responsibility. These
investigations remain NTSB investigations.
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\1\ The authority of a representative of the FAA during such
investigations is the same as that of a Board investigator under
this part.
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(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.
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\2\ Part 850 also governs the conduct of certain investigations
in which the Board and the Coast Guard participate jointly.
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(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.
3. Section 831.3 is revised to read as follows:
Sec. 831.3 Authority of Directors.
The Director, Office of Aviation Safety, or the Director, Office of
Surface Transportation Safety, subject to the provisions of Sec. 831.2
and part 800 of this chapter, may order an investigation into any
accident or incident.
4. Section 831.4 is revised to read as follows:
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
[[Page 3807]]
in the future. The investigation includes the field investigation (on-
scene at the accident, testing, teardown, etc.), report preparation,
and, where ordered, a public hearing. The investigation results in
Board conclusions issued in the form of a report or ``brief'' of the
incident or accident. Accident/incident investigations are fact-finding
proceedings with no formal issues and no adverse parties. They are not
subject to the provisions of the Administrative Procedure Act (5 U.S.C.
504 et seq.), and are not conducted for the purpose of determining the
rights or liabilities of any person.
5. Section 831.5 is revised to read as follows:
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.
6. Section 831.6 is revised to read as follows:
Sec. 831.6 Request to withhold information.
(a) Trade Secrets Act (18 U.S.C. 1905), Exemption 4 of the Freedom
of Information Act (5 U.S.C. 552) (FOIA), and The Independent Safety
Board Act of 1974, as amended.
(1) General. The Trade Secrets Act provides criminal penalties for
unauthorized government disclosure of trade secrets and other specified
confidential commercial information. The Freedom of Information Act
authorizes withholding of such information; however, the Independent
Safety Board Act, at 49 U.S.C. 1114(b), provides that the Board may,
under certain circumstances, disclose information related to trade
secrets.
(2) Procedures. Information submitted to the Board that the
submitter believes qualifies as a trade secret or confidential
commercial information subject either to the Trade Secrets Act or FOIA
Exemption 4 shall be so identified by the submitter on each and every
page of such document. The Board shall give the submitter of any
information so identified, or information the Board has substantial
reason to believe qualifies as a trade secret or confidential
commercial information subject either to the Trade Secrets Act or FOIA
Exemption 4, the opportunity to comment on any contemplated disclosure,
pursuant to 49 U.S.C. 1114(b). In all instances where the Board
determines to disclose pursuant to 49 U.S.C. 1114(b) and/or 5 U.S.C.
552, at least 10 days' notice will be provided the submitter. Notice
may not be provided the submitter when disclosure is required by a law
other than FOIA if the information is not identified by the submitter
as qualifying for withholding, as is required by this paragraph, unless
the Board has substantial reason to believe that disclosure would
result in competitive harm.
(3) Voluntarily-provided Safety Information. It is the policy of
the Safety Board that commercial, safety-related information provided
to it voluntarily and not in the context of particular accident/
incident investigations will not be disclosed. Reference to such
information for the purposes of safety recommendations will be
undertaken with consideration for the confidential nature of the
underlying database(s).
(b) Other. Any person may make written objection to the public
disclosure of any other information contained in any report or document
filed, or otherwise obtained by the Board, stating the grounds for such
objection. The Board, on its own initiative or if such objection is
made, may order such information withheld from public disclosure when,
in its judgment, the information may be withheld under the provisions
of an exemption to the Freedom of Information Act (5 U.S.C. 552, see
part 801 of this chapter), and its release is found not to be in the
public interest.
7. Section 831.7 is revised to read as follows:
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.
8. Section 831.8 is revised to read as follows:
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).
9. Section 831.9 is amended by revising paragraph (a) to read as
follows:
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
[[Page 3808]]
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.
* * * * *
10. Section 831.11 is revised to read as follows:
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, actively
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.
11. Section 831.12 is revised to read as follows:
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.
12. Section 831.13 is amended by revising the heading and paragraph
(b) to read as follows:
Sec. 831.13 Flow and dissemination of accident or incident
information.
* * * * *
(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.
13. Section 831.14 is revised to read as follows:
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.
Issued in Washington, DC this 21st day of January, 1997.
Jim Hall,
Chairman.
[FR Doc. 97-1810 Filed 1-24-97; 8:45 am]
BILLING CODE 7533-01-M