[Federal Register Volume 63, Number 249 (Tuesday, December 29, 1998)]
[Rules and Regulations]
[Pages 71606-71608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34091]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 835


Testimony of Board Employees

AGENCY: National Transportation Safety Board.

ACTION: Final rule.

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SUMMARY: The Board is modifying rules regarding the testimony of Board 
employees to clarify and codify existing policies.

DATES: The new rules are effective January 28, 1999.

FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 314-6080.

SUPPLEMENTARY INFORMATION: The amendments made here are intended 
primarily to answer questions that often arise: regarding the use of 
Board reports in litigation; regarding the scope of permissible 
testimony; regarding procedures and policies in criminal matters; and 
regarding testimony of current Board employees concerning their 
activities before joining the Safety Board. 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).

List of Subjects in 49 CFR Part 835

    Courts, Government employees.
    Accordingly, 49 CFR Part 835 is amended as follows:

[[Page 71607]]

PART 835--TESTIMONY OF BOARD EMPLOYEES

    1. The Authority citation for Part 835 is revised to read as 
follows:

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

    2. Section 835.1 is revised to read as follows:


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.
    3. Section 835.2 is revised to read as follows:


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 probably cause of an accident, issued 
either as a narrative report or in a computer format (``briefs'' of 
accidents). Pursuant to section 701(e) of the Federal Aviation Act of 
1958 (FA Act), and section 304(c) of the Independent Safety Board Act 
of 1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident 
report may be admitted as evidence or used in any suit or action for 
damages growing out of any matter mentioned in such reports.
    Factual accident report means the report containing the results of 
the investigator's investigation of the accident. The Board does not 
object to, and there is no statutory bar to, admission in litigation of 
factual accident reports. In the case of a major investigation, group 
chairman factual reports are factual accident reports.
    4. Section 835.3 is amended by adding paragraphs (c) through (f) to 
read as follows:


Sec. 835.3  Scope of permissible 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, 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.
    5. Section 835.4 is amended by revising paragraph (a) to read as 
follows:


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.
* * * * *
    6. Section 835.5 is amended by revising the section heading and 
paragraphs (a), (c) and (d) to read as follows:


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

    (a) Testimony of Board employees with unique, firsthand information 
may be made available for use in civil actions or civil suits for 
damages arising out of accidents through depositions or written 
interrogatories. Board employees are not permitted to appear and 
testify in court in such actions.
* * * * *
    (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.
    7. Section 835.6 is revised to read as follows:


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.

[[Page 71608]]

    8. Section 835.7 is revised to read as follows:


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.
    9. Section 835.8 is revised to read as follows:


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

    Any testimony regarding any accident within the Board's 
jurisdiction, or any expert testimony arising from employment prior to 
Board service is prohibited absent approval by the General Counsel. 
Approval shall only be given if testimony will not violate Sec. 835.1 
and Sec. 835.3, and is subject to whatever conditions the General 
Counsel finds necessary to promote the purposes of this part as set 
forth in Sec. 835.1 and Sec. 835.3.
    10. Section 835.9 is revised to read as follows:


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.
    11. Section 835.10 is added to read as follows:


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.
    12. Section 835.11 is added to read as follows:


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.

    Issued in Washington, DC this 17th day of December, 1998.
Jim Hall,
Chairman.
[FR Doc. 98-34091 Filed 12-28-98; 8:45 am]
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