[Federal Register Volume 80, Number 247 (Thursday, December 24, 2015)]
[Rules and Regulations]
[Pages 80284-80290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32264]



[[Page 80284]]

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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 845

RIN 3147-AA02
[Docket No. NTSB-GC-2012-0002]


Rules of Practice in Transportation: Investigative Hearings, 
Meetings, Reports, and Petitions for Reconsideration

AGENCY: National Transportation Safety Board (NTSB or Board).

ACTION: Final rule.

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SUMMARY: The NTSB amends its regulations which contain the NTSB's 
procedures for holding investigative hearings, various types of 
meetings, issuing reports, and responding to petitions for 
reconsideration. The NTSB introduced a number of substantive and 
technical changes in its notice of proposed rulemaking (NPRM). In the 
preamble to this final rule NTSB responds to the five comments the 
agency received, and explains the adopted changes, including 
reorganizing the regulation into different subparts to ensure the 
entire part is easy to follow.

DATES: Effective January 25, 2016.

ADDRESSES: A copy of the final rule, published in the Federal Register 
(FR), is available for inspection and copying in the NTSB's public 
reading room, located at 490 L'Enfant Plaza SW., Washington, DC 20594-
2003. Alternatively, a copy of the NPRM is available on the government-
wide Web site on regulations at http://www.regulations.gov (Docket ID 
Number NTSB-GC-2012-0002).

FOR FURTHER INFORMATION CONTACT: David Tochen, General Counsel, (202) 
314-6080.

SUPPLEMENTARY INFORMATION:

I. Notice of Proposed Rulemaking

    On March 19, 2015, the NTSB published an NPRM inviting public 
comments concerning the NTSB's procedural rules for investigative 
hearings, Board meetings, agency reports, and petitions for 
reconsideration, codified at 49 CFR part 845. 80 FR 14339. In addition 
to various technical changes, the NTSB proposed reorganizing the part 
into subparts and including descriptions of Board products.
    The NTSB issued its NPRM in accordance with its June 25, 2012 
notice indicating the agency's intent to undertake a review of all NTSB 
regulations to ensure they are updated. 77 FR 37865. Executive Order 
13579, ``Regulation and Independent Regulatory Agencies'' (76 FR 41587, 
July 14, 2011), prompted the NTSB to conduct its review of all NTSB 
regulations. The purpose of Executive Order 13579 is to ensure all 
agencies adhere to the key principles found in Executive Order 13563, 
``Improving Regulation and Regulatory Review'' (76 FR 3821, January 21, 
2011), which include promoting public participation in rulemaking, 
improving integration and innovation, promoting flexibility and freedom 
of choice, and ensuring scientific integrity during the rulemaking 
process in order to create a regulatory system that protects public 
health, welfare, safety, and the environment while promoting economic 
growth, innovation, competitiveness, and job creation. The NTSB 
explained in its June 25, 2012, notice that it is committed to ensuring 
its regulations remain updated and comply with these principles. The 
NTSB published an additional notice in the Federal Register on January 
8, 2013, describing the NTSB's plan for updating all regulations. 78 FR 
1193. In accordance with these two notices published in the Federal 
Register, the NTSB reviewed all sections within 49 CFR part 845, in the 
interest of ensuring they accomplish the objectives stated in Executive 
Order 13563. The NTSB published the NPRM pursuant to the agency's plan 
of retrospective review.

II. Comments Received and Responses Thereto

    The NTSB received five comments in response to the March 19, 2015 
NPRM. Two of the comments addressed proposed changes to 49 CFR part 
845, as well as the changes and additions we proposed in our August 12, 
2014 NPRM to reorganize and change 49 CFR part 831 (``Investigation 
Procedures''). 79 FR 47064. In this regard, Airlines for America (A4A) 
submitted a comment reiterating its concerns about our proposed use of 
the term ``event'' in our NPRM for part 831, and recommended we expand 
our protections of voluntarily submitted information in Sec.  831.6. In 
addition, The Boeing Company (Boeing) included a copy of its comment in 
response to our part 831 NPRM. Boeing also reiterated its 
recommendation that we adopt a practice of sharing draft Board reports 
with parties.
    The Air Line Pilots Association, International (ALPA) urged us to 
change the terms ``probable cause'' to ``probable cause(s)'' throughout 
the part. Similarly, the United States Coast Guard (USCG) submitted a 
comment requesting we remove the term ``event'' from part 845; in 
particular, the USCG mentioned Sec.  845.2 (``Investigative hearings'') 
in this suggestion. In addition, ALPA encouraged the NTSB to continue 
to use the terms ``accident'' and ``incident'' for aviation-specific 
investigations rather than the term ``event.''
    We understand commenters' concerns regarding use of the term 
``event'' throughout this part. Several commenters expressed similar 
concerns in response to our part 831 NPRM. In our forthcoming final 
rule to finalize the changes to part 831, we will explain our responses 
to such comments concerning the term ``event.'' For this final rule to 
finalize changes to part 845, we simply note we understand the concerns 
with the term, and we have removed it from the regulatory text 
appearing in this final rule.
    The commenters also submitted recommendations for specific 
sections, to which we respond below.

A. Section 845.9, ``Prehearing Conference''

1. Comments Received
    Regarding Sec.  845.9, in which the NTSB proposed retaining most of 
the text of Sec.  845.23 describing prehearing conferences, ALPA 
recommends retaining the existing language in Sec.  845.23(b) and 
adding the following text to Sec.  845.9(b): ``copies of all exhibits 
proposed for admission by the board of inquiry and the parties shall be 
furnished to the board and to all the parties, insofar as available at 
the time.'' The text the NTSB proposed would require all parties be 
advised of the witnesses to be called, the areas in which the witnesses 
would be examined, and the evidence to be offered. The proposed text 
would also require parties to the hearing to submit, at the prehearing 
conference, copies of any additional documentary exhibits they desire 
to offer for admission at the hearing. The proposed text did not 
include the phrase, ``insofar as available at the time.''
2. Response to Comments
    The NTSB believes it is unnecessary to include the phrase, 
``insofar as available at the time [of the prehearing conference],'' as 
ALPA suggests. As proposed, the sentence requiring submission of copies 
of exhibits expected to be offered at hearings is sufficient to connote 
the exhibits would be available when offered. As ALPA noted, this 
requirement already exists in the current version of Sec.  845.23(b). 
In addition, paragraph (c) of Sec.  845.9 addresses the issue of a 
party to a hearing holding information the party

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knows it intends to produce at the hearing.

B. Section 845.13, ``Proposed Findings''

1. Comments Received
    Boeing recommends we adopt the International Civil Aviation 
Organization (ICAO) protocol of sharing draft reports with all parties 
to an NTSB investigation. Boeing contends not sharing draft reports can 
be detrimental to the quality of Board reports. In its submission, 
Boeing also attached a copy of its comment to our NPRM for part 831 
regarding this issue.\1\
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    \1\ While Boeing's comment is also applicable to Sec.  
845.30(a), the organization discussed sharing of draft reports only 
within the context of Sec.  845.13.
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    A4A generally supports all the changes we proposed in part 845. A4A 
does not object to our proposed text in Sec.  845.13 (``Proposed 
findings''), but asks us to remain cognizant that partial releases of 
information could cause ``unproductive speculation.'' In the comment 
A4A submitted in response to our NPRM proposing changes to part 831, 
A4A stated it strongly supports the practice of sharing draft reports 
for parties' review prior to the Board's review of the draft, in 
accordance with the ICAO practice.
2. Response to Comments
    The NTSB understands parties' interest in reviewing draft reports 
prior to the Board's review of them. In this regard, the agency has 
considered carefully the feedback we received in response to the part 
831 NPRM. The agency appreciates the candor and recommendations 
commenters offered concerning this issue, and we are mindful that our 
practice differs from that of ICAO. At present, the agency believes 
changing its practice of the review process for draft reports is best 
left to internal agency procedures and need not be the subject of a 
rulemaking exercise. As a result, the NTSB will not change the proposed 
text of Sec.  845.13 to address the sharing of draft reports.

C. Sections 845.20 (``Meetings'') and 845.21, ``Symposiums, Forums, and 
Conferences''

1. Comments Received
    The Association of American Railroads (AAR) stated it believes the 
NTSB is attempting impermissibly to expand our authority. AAR opines 
our description of our practice for holding forums, symposiums, and 
conferences in Sec.  845.21 is improper because these proceedings are 
``not within the scope of the NTSB's mandate or authority.'' In 
addition, AAR challenges our process for choosing which investigations 
are worthy of Board meetings. In the NPRM, the agency proposed Sec.  
845.20 to state the Board may hold a meeting whenever ``the Board 
determines holding a meeting is in the public interest.'' AAR believes 
``the `public interest' standard is not in the current regulation at 49 
CFR 804.3, and it essentially presumes an unrestricted ability to hold 
public meetings about any topic.''
    ALPA supports our proposed language in Sec.  845.21(b) stating 
symposiums, forums, and conferences are not intended to obtain evidence 
or establish facts for a particular NTSB investigation.
    Regarding Sec.  845.21, the USCG cautions, to the extent a 
proceeding may have a relationship to ongoing investigation(s) and the 
proceeding occurs prior to the completion of an investigation, holding 
the proceeding could result in premature or incomplete findings and 
recommendations. The USCG also states our proposed language ``does not 
consider other investigations that are conducted concurrently, such as 
internal agency investigations, and the facts and conclusions that may 
result from those efforts.'' The USCG recommends we remove the term 
``ongoing'' from the regulatory text.
2. Response to Comments
    We disagree with AAR's contention that we lack the authority to 
hold forums, symposiums, and conferences. Under 49 U.S.C. 1116, we have 
held such proceedings for purposes of educating the agency and the 
public on transportation trends or aspects of transportation that could 
benefit from safety improvements. Section 1116(b) provides broad 
authority to the NTSB to accomplish this purpose.
    Given this statutory language, it is axiomatic that the NTSB's 
responsibility is not limited to the requirements of 49 U.S.C. 1131 and 
1132 regarding investigations, or section 1133 regarding the review of 
aviation and mariner certificate and license appeals. The NTSB is also 
required to conduct special studies and investigations concerning 
transportation safety in general. The NTSB is best situated to exercise 
this mandate, given the expertise of its staff and the experiences the 
agency gains in investigations of accidents and incidents that safety 
improvements could prevent.
    In light of this responsibility, the NTSB holds forums, symposiums, 
and conferences concerning transportation issues the agency determines 
warrant further interest or research. The NTSB's proposed regulatory 
text for Sec.  845.21 reflects this objective, as it includes a 
statement that the agency does not hold such proceedings for purposes 
of obtaining evidence for a specific investigation of an accident or 
incident.
    We also appreciate the USCG's comment regarding Sec.  845.21(b). 
Specifically, our proposed text stated forums, symposiums, and 
conferences ``may have a relationship to previous or ongoing 
investigative activities; however, their purpose is not to obtain 
evidence for a specific investigation.''
    The clear purpose of NTSB forums, symposiums, and conferences is to 
focus attention on and educate the public, transportation regulators, 
and the NTSB itself on key transportation safety issues. Taking 
advantage of the educational opportunities these proceedings provide 
helps to ensure comprehensive NTSB investigations. Our acknowledgement 
in the regulatory text that such proceedings are not held for obtaining 
evidence, but for focusing attention, raising awareness, encouraging 
dialogue, educating the agency, or generally advancing or developing 
safety recommendations, is consistent with our past practices and our 
statutory responsibility, pursuant to 49 U.S.C. 1116. Given the purpose 
of these proceedings, as described in the proposed text for Sec.  
845.21, we decline to alter the text, as we do not believe the 
proceedings could result in premature or incomplete findings and 
recommendations.

D. Sections 845.30, ``Board Products,'' and 845.31, ``Public Docket''

1. Comments Received
    Regarding our proposed text describing public dockets, which 
contain information pertinent to an investigation, the USCG recommends 
we include text stating we will coordinate with the USCG concerning 
public release of information in marine investigations.
    In its comment, AAR mentions Sec.  845.31 in reiterating its 
position that the changes the NTSB proposed in part 845 are beyond the 
scope of the agency's authority. Regarding the text of Sec.  845.31, 
AAR states the language would allow the NTSB to open a public docket 
``concerning a safety study or report, special investigation report, or 
other agency product'' in addition to doing so for an actual 
investigation.
    AAR also mentions Sec.  845.30(b) in the context of whether the 
section encompasses documents beyond the scope of the NTSB's authority. 
AAR states Sec.  845.30(b) ``covers `Board Products' and now includes 
(a) NTSB studies and reports `of more than one event that share 
commonalities', (b)

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safety studies and reports, and (c) safety recommendations `as a stand-
alone Board product.' '' With regard to all the sections AAR identified 
as containing language that exceeds the scope of the NTSB's 
authorization, AAR states, ``NTSB occupying itself with these types of 
activities will divert resources from the critical mission given to 
NTSB by Congress at 49 U.S.C. 1131.'' AAR, however, mentions the 
railroads support public education and involvement, ``particularly in 
matters related to safety,'' but contends the NTSB's proposed text 
describes activities beyond the scope of NTSB's statutory authority.
2. Response to Comments
    Regarding the USCG's comment recommending we include text stating 
for marine investigations, we will coordinate release of public dockets 
in advance with the USCG, although we decline to adopt this change in 
Sec.  845.31. Section 845.31, which is largely duplicative of the 
existing version of Sec.  845.50, describes public dockets in general 
terms, and provides information concerning how the public may obtain a 
copy of a public docket. The NTSB believes specific protocols 
concerning coordination with other agencies is more suitable for an 
interagency agreement or discussion.
    The NTSB disagrees with AAR's opinion that the NTSB should not 
conduct safety studies and issue reports. As discussed above, Congress 
specifically directed the NTSB to conduct safety studies on a variety 
of issues. In addition, the NTSB's responsibility to issue safety 
recommendations is clear, both in the agency's authorizing legislation 
and legislative history. 49 U.S.C. 1135; H.R. Rep. No. 103-239(I) at 1 
(1993) (emphasizing the importance of the NTSB's safety recommendations 
and stating that such recommendations ``have saved countless human 
lives''). As a result of this statutory direction, the NTSB will not 
alter its practice of conducting safety studies, issuing safety 
recommendations, and creating and issuing other types of documents that 
will improve transportation safety. The agency can only achieve its 
broad mandate by issuing such documents. The NTSB's choice of the term 
``Board products'' will ensure adequate flexibility in the future, to 
encompass a variety of documents the agency determines will aid in 
achieving the ultimate goal of improving transportation safety.

E. Section 845.32, ``Petitions for Reconsideration or Modification of 
Report''

    Although no comments addressed the issue of whether the NTSB's 
disposition of a petition for reconsideration or modification should be 
subject to judicial review, the agency notes a recent judicial order 
denying a petition for review. On June 19, 2015, the Court of Appeals 
for the District of Columbia Circuit held the NTSB's disposition of a 
petition for reconsideration was not subject to a federal court's 
review. Joshi v. Nat'l Transp. Safety Bd., 791 F.3d 8 (D.C. Cir. 2015), 
pet. for cert. filed, 2015 WL 7593160 (Nov. 17, 2015). The Joshi case 
arose out of an aircraft accident in which the pilot and four 
passengers died in Indiana in April 2006.
    The agency denied the petition for reconsideration, and the 
petitioner sought review of both the NTSB's reports of its 
investigation and the response to his petition for reconsideration. The 
appellate court held that, because neither the reports nor the response 
can be considered a final order subject to judicial review, the court 
lacked jurisdiction to hear the case.
    In reaching its conclusion, the court cited 49 CFR 831.4 (``Nature 
of investigation''), which states the NTSB uses its investigations ``to 
ascertain measures that would best tend to prevent similar accidents or 
incidents in the future.'' 49 CFR 831.4. The court went on to quote the 
regulation further, which states NTSB investigations are considered 
``fact-finding proceedings with no formal issues and no adverse 
parties. They are not subject to the provisions of the Administrative 
Procedure Act and are not conducted for the purpose of determining the 
rights or liabilities of any person.'' Id.; Joshi, 791 F.3d at 12.
    The court stated it lacked jurisdiction to consider not only the 
agency's reports and conclusions, but it also could not review the 
NTSB's denial of the petition for reconsideration. The court based this 
conclusion on the fact that the reconsideration procedure the 
petitioner used was not created by any statute, but was a process set 
forth in the NTSB's regulations. The court described the process as one 
that allows the agency to receive new evidence after it completes an 
accident investigation and noted this procedure functions to ensure the 
NTSB ``develops safety recommendations based on the most complete 
record possible.'' 791 F.3d at 12. As a result, the court characterized 
petitions for reconsideration as ``simply another stage of the accident 
investigation procedure.'' Id. Therefore, the NTSB's disposition of 
petitions are not subject to review in federal court. The NTSB believes 
it is worthwhile to mention the Joshi decision in this rulemaking 
document, due to its relevance to the NTSB's disposition of petitions 
for reconsideration.

F. Additional Edits

    In this final rule, the NTSB re-inserts the phrase ``in the event 
of a catastrophic accident'' within Sec.  845.4 (``Determination to 
hold hearing''). The regulatory text of the NPRM did not include this 
phrase, even though the phrase currently exists in the regulatory text 
of Sec.  845.10. Upon further evaluation of the regulation, the NTSB 
has determined it is prudent to retain the phrase.
    The NTSB's NPRM proposed two sections that both described the 
procedure of providing notice of the time and place of the 
investigative hearing. Section 845.5(c)(1) proposed text stating the 
``NTSB'' would provide notice of the time and place of the 
investigative hearing to all known interested persons. Section 845.7 
proposed text stating the investigative hearing officer, upon 
designation by the NTSB Chairman, would have the authority to give 
notice concerning the time and place of investigative hearing. While 
the text of these sections is not inconsistent, and is identical to the 
language that exists in the current versions of Sec. Sec.  845.12 and 
845.21, the NTSB nevertheless believes, as an administrative matter, it 
is appropriate to remove from Sec.  845.5(c)(1) the statement that, 
``[t]he NTSB will provide notice of the time and place of the 
investigative hearing. . . .'' The NTSB provides such notice by way of 
delegating to the hearing officer the responsibility and the authority 
to do so. In the interest of providing regulations that are concise and 
abundantly clear, the NTSB removes the aforementioned statement from 
Sec.  845.5(c)(1). In addition, in Sec.  845.7, the NTSB herein adds 
the phrase, ``or a Board Member designated by the Chairman'' to the 
introductory text stating the investigative hearing officer, upon 
designation by the NTSB Chairman or a Board Member designated by the 
Chairman will have the list of ``powers'' that follows within the 
section. This addition will ensure the designation of a hearing officer 
can occur at times the NTSB Chairman has delegated his or her 
authority.

 III. Regulatory Analysis

    In the NPRM, the NTSB included a regulatory analysis section 
concerning

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various Executive Orders and statutory provisions. 80 FR 14341 (Mar. 
19, 2015). The NTSB did not receive any comments concerning the results 
of the analysis. The NTSB again notes the following concerning such 
Executive Orders and statutory provisions.
    This final rule is not a significant regulatory action under 
Executive Order 12866, ``Regulatory Planning and Review.'' Therefore, 
Executive Order 12866 does not require a Regulatory Assessment, and the 
Office of Management and Budget (OMB) has not reviewed this proposed 
rule under Executive Order 12866. In addition, on July 11, 2011, the 
President issued Executive Order 13579, ``Regulation and Independent 
Regulatory Agencies,'' 76 FR 41587, July 14, 2011). Section 2(a) of the 
Executive Order states:

    Independent regulatory agencies ``should consider how best to 
promote retrospective analysis of rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them in accordance with what has been 
learned.''

76 FR at 41587. Consistent with Executive Order 13579, the NTSB's 
amendments to 49 CFR part 845 reflect its judgment that this part 
should be updated and streamlined.
    This rule does not require an analysis under the Unfunded Mandates 
Reform Act, 2 United States Code (U.S.C.) 1501-1571, or the National 
Environmental Policy Act, 42 U.S.C. 4321-4347.
    The NTSB has also analyzed these amendments in accordance with the 
principles and criteria contained in Executive Order 13132, 
``Federalism.'' This final rule does not contain any regulations that 
would: (1) Have a substantial direct effect on the states, the 
relationship between the national government and the states, or the 
distribution of power and responsibilities among the various levels of 
government; (2) impose substantial direct compliance costs on state and 
local governments; or (3) preempt state law. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    The NTSB is also aware that the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) requires each agency to review its rulemaking to 
assess the potential impact on small entities, unless the agency 
determines a rule is not expected to have a significant economic impact 
on a substantial number of small entities. The NTSB certifies this 
final rule will not have a significant economic impact on a substantial 
number of small entities.
    Regarding other Executive Orders and statutory provisions, this 
final rule also complies with all applicable standards in sections 3(a) 
and 3(b)(2) of Executive Order 12988, ``Civil Justice Reform,'' to 
minimize litigation, eliminate ambiguity, and reduce burden. In 
addition, the NTSB has evaluated this rule under: Executive Order 
12630, ``Governmental Actions and Interference with Constitutionally 
Protected Property Rights''; Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks''; Executive 
Order 13175, ``Consultation and Coordination with Indian Tribal 
Governments''; Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''; and 
the National Technology Transfer and Advancement Act, 15 U.S.C. 272 
note. The NTSB has concluded this rule does not contravene any of the 
requirements set forth in these Executive Orders or statutes, nor does 
this rule prompt further consideration with regard to such 
requirements.

List of Subjects in 49 CFR Part 845

    Administrative practice and procedure, Investigations, Organization 
and functions (Government agencies), Reporting and recordkeeping 
requirements, Safety, Transportation.

    For the reasons discussed in the preamble, the NTSB revises 49 CFR 
part 845 to read as follows:

PART 845--RULES OF PRACTICE IN TRANSPORTATION: INVESTIGATIVE 
HEARINGS; MEETINGS, REPORTS, AND PETITIONS FOR RECONSIDERATION

Sec.
845.1 Applicability.
Subpart A--Investigative Hearings
845.2 Investigative hearings.
845.3 Sessions open to the public.
845.4 Determination to hold hearing.
845.5 Board of inquiry.
845.6 Designation of parties.
845.7 Hearing officer.
845.8 Technical panel.
845.9 Prehearing conference.
845.10 Right of representation.
845.11 Examination of witnesses.
845.12 Evidence.
845.13 Proposed findings.
845.14 Transcript.
845.15 Payment of witnesses.
Subpart B--Meetings
845.20 Meetings.
845.21 Symposiums, forums, and conferences.
Subpart C--Miscellaneous Provisions
845.30 Board products.
845.31 Public docket.
845.32 Petitions for reconsideration or modification of report.
845.33 Investigation to remain open.


    Authority: Sec. 515, Pub. L. 106-554, App. C, 114 Stat. 2763, 
2763A-153 (44 U.S.C. 3516 note); 49 U.S.C. 1112, 1113(f), 1116, 
1131, unless otherwise noted.


Sec.  845.1  Applicability.

    Unless otherwise specifically ordered by the National 
Transportation Safety Board (NTSB), the provisions of this part shall 
govern all NTSB proceedings conducted under the authority of 49 U.S.C. 
1113 and 1131, and reports issued by the Board.

Subpart A--Investigative Hearings


Sec.  845.2  Investigative hearings.

    Investigative hearings are convened to assist the NTSB in further 
developing the facts, conditions, and circumstances of the 
transportation accident or incident, which will ultimately assist the 
Board in determining the cause or probable cause of the accident or 
incident, and in ascertaining measures that will tend to prevent such 
accidents or incidents and promote transportation safety. Investigative 
hearings are fact-finding proceedings with no adverse parties. They are 
not subject to the provisions of the Administrative Procedure Act (5 
U.S.C. 554) and are not conducted for the purpose of determining the 
rights, liabilities, or blame of any person or entity.


Sec.  845.3  Sessions open to the public.

    (a) All investigative hearings shall normally be open to the 
public. However, no person shall be allowed at any time to interfere 
with the proper and orderly functioning of the hearing.
    (b) Sessions shall not be open to the public when evidence of a 
classified nature or which affects national security is to be received.


Sec.  845.4  Determination to hold hearing.

    (a) The Board may order an investigative hearing as part of an 
investigation whenever a hearing is deemed necessary in the public 
interest.
    (b) If a quorum of the Board is not immediately available in the 
event of a catastrophic accident, the determination to hold an 
investigative hearing may be made by the Chairman of the Board.


Sec.  845.5  Board of inquiry.

    (a) Composition of board of inquiry. The board of inquiry shall 
consist of a chairman of the board of inquiry, as specified in 
paragraph (c) of this section, and other members in accordance with 
Board policy.
    (b) Duties of board of inquiry. The board of inquiry shall examine 
witnesses and secure, in the form of a public record, facts pertaining 
to the

[[Page 80288]]

accident or incident under investigation and surrounding circumstances 
and conditions from which the Board may determine probable cause and 
may formulate recommendations and/or other documents for corrective or 
preventative action.
    (c) Chairman of board of inquiry. The chairman of the board of 
inquiry, or his or her designee, shall have the following powers:
    (1) To designate parties to the investigative hearing and revoke 
such designations;
    (2) To open, continue, or adjourn the investigative hearing;
    (3) To determine the admissibility of and to receive evidence and 
to regulate the course of the investigative hearing;
    (4) To dispose of procedural requests or similar matters; and
    (5) To take any other appropriate action to ensure the orderly 
conduct of the investigative hearing.


Sec.  845.6  Designation of parties.

    (a) The chairman of the board of inquiry shall designate as parties 
to the investigative hearing those persons and organizations 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 to the investigative hearing shall be 
represented by suitable representatives who do not occupy legal 
positions.
    (b) No party to the investigation and/or investigative hearing 
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 to the investigative hearing.


Sec.  845.7  Hearing officer.

    The investigative hearing officer, upon designation by the NTSB 
Chairman or a Board Member designated by the Chairman, shall have the 
following powers:
    (a) To give notice concerning the time and place of investigative 
hearing;
    (b) To administer oaths and affirmations to witnesses; and
    (c) To issue subpoenas requiring the attendance and testimony of 
witnesses and production of documents. The investigative hearing 
officer may, in consultation with the chairman of the board of inquiry 
and the NTSB Managing Director, add witnesses until the time of the 
prehearing conference.


Sec.  845.8  Technical panel.

    The appropriate office director(s) and/or the hearing officer, in 
consultation with the NTSB Managing Director, shall determine if a 
technical panel is needed and, if so, shall designate members of the 
NTSB technical staff to participate in the investigative hearing. 
Members of the technical panel may conduct pre-screening of witnesses 
through interviews, and may take other actions to prepare for the 
hearing. At the hearing, the technical panel will initially examine the 
witnesses through questioning. The technical panel shall examine 
witnesses and secure, in the form of a public record, facts pertaining 
to the accident or incident under investigation and surrounding 
circumstances and conditions.


Sec.  845.9  Prehearing conference.

    (a) Except as provided in paragraph (d) of this section, the 
chairman of the board of inquiry, or his/her designee, shall hold a 
prehearing conference with the parties to the investigative hearing at 
a convenient time and place prior to the hearing. At the prehearing 
conference, the parties shall be advised of the witnesses to be called 
at the investigative hearing, the topics about which they will be 
examined, and the exhibits that will be offered in evidence.
    (b) At the prehearing conference, parties to the investigative 
hearing shall submit copies of any additional documentary exhibits they 
desire to offer for admission at the hearing.
    (c) A party to the investigative hearing who, at the time of the 
prehearing conference, fails to advise the chairman of the board of 
inquiry of additional exhibits he or she intends to submit, or 
additional witnesses he or she desires to examine, shall be prohibited 
from introducing such evidence unless the chairman of the board of 
inquiry determines for good cause shown that such evidence should be 
admitted.
    (d) The board of inquiry may hold an investigative hearing on an 
expedited schedule. The chairman of the board of inquiry may hold a 
prehearing conference for an expedited investigative hearing. When an 
expedited investigative hearing is held, the chairman of the board of 
inquiry may waive the requirements in paragraphs (b) and (c) of this 
section concerning the identification of witnesses, exhibits or other 
evidence.


Sec.  845.10  Right of representation.

    Any person who appears to testify at an investigative hearing has 
the right to be accompanied, represented, or advised by counsel or by 
any other representative.


Sec.  845.11  Examination of witnesses.

    (a) Examination. In general, the technical panel shall initially 
examine witnesses. Following such examination, parties to the 
investigative hearing shall be given the opportunity to examine such 
witnesses. The board of inquiry shall then conclude the examination 
following the parties' questions.
    (b) Objections. (1) 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 
investigative hearing or any other person.
    (2) Such matters shall be controlled by rulings of the chairman of 
the board of inquiry on his or her own motion. If the examination of a 
witness by a party to the investigative hearing is interrupted by a 
ruling of the chairman of the board of inquiry, the party shall have 
the opportunity to show materiality, relevancy, or competency of the 
testimony or evidence sought to be elicited from the witness.


Sec.  845.12  Evidence.

    In accordance with Sec.  845.2, the chairman of the board of 
inquiry shall receive all testimony and evidence that may be of aid in 
determining the probable cause of the transportation accident or 
incident. He or she may exclude any testimony or exhibits that are not 
pertinent to the investigation or are merely cumulative.


Sec.  845.13  Proposed findings.

    Following the investigative hearing, any party to the hearing 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 or incidents. The proposals shall be 
submitted within the time specified by the investigative hearing 
officer at the close of the hearing, and shall be made a part of the 
public docket. Parties to the investigative hearing shall serve copies 
of their proposals on all other parties to the hearing.


Sec.  845.14  Transcript.

    A verbatim report of the investigative hearing shall be taken. Any 
interested person may obtain copies of the transcript from the NTSB or 
from the court reporting firm preparing the transcript upon payment of 
the fees fixed therefor. (See part 801, subpart G, Fee schedule.)


Sec.  845.15  Payment of witnesses.

    Any witness subpoenaed to attend the investigative hearing under 
this part shall be paid such fees for travel and attendance for which 
the hearing officer shall certify.

[[Page 80289]]

Subpart B--Meetings


Sec.  845.20  Meetings.

    The Board may hold a meeting concerning an investigation or Board 
product, as described in Sec.  804.3 of this chapter or any other 
circumstance, when the Board determines holding a meeting is in the 
public interest.


Sec.  845.21  Symposiums, forums, and conferences.

    (a)(1) Definitions. (i) A symposium is a public proceeding focused 
on a specific topic, where invited participants provide presentations 
of their research, views or expertise on the topic and are available 
for questions.
    (ii) A forum is a public proceeding generally organized in a 
question-and-answer format with various invited participants who may 
make presentation and are available for questioning by the Board or 
designated NTSB staff as individuals in a panel format.
    (iii) A conference is a large, organized proceeding where 
individuals present materials, and a moderator or chairperson 
facilitates group discussions.
    (2) These proceedings are related to transportation safety matters 
and will be convened for the purpose of focusing attention, raising 
awareness, encouraging dialogue, educating the NTSB, or generally 
advancing or developing safety recommendations. The goals of the 
proceeding will be clearly articulated and outlined, and will be 
consistent with the mission of the NTSB.
    (b) A quorum of Board Members is not required to attend a forum, 
symposium, or conference. All three types of proceedings described in 
paragraph (a) of this section may have a relationship to previous or 
ongoing investigative activities; however, their purpose is not to 
obtain evidence for a specific investigation.
    (c) Symposiums, forums, and conferences are voluntary for all 
invited participants.

Subpart C--Miscellaneous Provisions


Sec.  845.30  Board products.

    (a) Reports of investigations. (1) The Board will adopt a report on 
the investigation. The report will set forth the relevant facts, 
conditions, and circumstances relating to the accident or incident and 
the probable cause thereof, along with any appropriate safety 
recommendations and/or safety alerts formulated on the basis of the 
investigation. The scope and format of the report will be determined in 
accordance with Board procedures.
    (2) The probable cause and facts, conditions, and circumstances of 
other accidents or incidents will be reported in a manner and form 
prescribed by the Board. The NTSB allows the appropriate office 
director, under his or her delegated authority as described in Sec.  
800.25 of this chapter, to issue a ``brief,'' which includes the 
probable cause and relevant facts, conditions, and circumstances 
concerning the accident or incident. Such briefs do not include 
recommendations. In particular circumstances, the Board in its 
discretion may choose to approve a brief.
    (b) Studies and reports--(1) NTSB studies and reports. The NTSB may 
issue reports describing investigations of more than one accident or 
incident that share commonalities. Such reports are similar to accident 
or incident investigation reports, as described in paragraph (a)(1) of 
this section. Such reports often include safety recommendations and/or 
safety alerts, which the Board adopts.
    (2) Safety studies and reports. The NTSB issues safety studies and 
reports, which usually examine safety concerns that require the 
investigation of a number of related accidents or incidents to 
determine the extent and severity of the safety issues. Such studies 
and reports often include safety recommendations and/or safety alerts, 
which the Board adopts.
    (c) Safety recommendations. The Board may adopt and issue safety 
recommendations, either as part of a Board report or as a stand-alone 
Board product.


Sec.  845.31  Public docket.

    (a) Investigations. (1) As described in Sec.  801.3 of this 
chapter, the public docket shall include factual information concerning 
the accident or incident. Proposed findings submitted pursuant to Sec.  
831.14 or Sec.  845.13 and petitions for reconsideration and 
modification submitted pursuant to Sec.  845.32, comments thereon by 
other parties, and the Board's rulings on proposed findings and 
petitions shall also be placed in the public docket.
    (2) The NTSB shall establish the public docket following the 
accident or incident, and material shall be added thereto as it becomes 
available. Where an investigative hearing is held, the exhibits will be 
introduced into the record at the hearing and will be included in the 
public docket.
    (b) Other Board reports and documents. The NTSB may elect to open 
and place materials in a public docket concerning a safety study or 
report, special investigation report, or other agency product. The NTSB 
will establish the public docket following its issuance of the study or 
report.
    (c) Availability. The public docket shall be made available to any 
person for review, as described in Sec.  801.30 of this chapter. 
Records within the public docket are available at www.ntsb.gov.


Sec.  845.32  Petitions for reconsideration or modification of report.

    (a) Requirements. (1) The Board will only consider petitions for 
reconsideration or modification of findings and determination of 
probable cause from a party or other person having a direct interest in 
an investigation.
    (2) Petitions must be in writing and addressed to the NTSB 
Chairman. Please send your petition via email to 
[email protected]. In the alternative, you may send your petition 
via postal mail to: NTSB Headquarters at 490 L'Enfant Plaza SW., 
Washington, DC 20594.
    (3) Petitions must be based on the discovery of new evidence or on 
a showing that the Board's findings are erroneous. (i) 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.
    (ii) Petitions based on a claim of erroneous findings shall set 
forth in detail the grounds upon which the claim is based.
    (b) Acceptance of petitions. The Board will not consider petitions 
that are repetitious of proposed findings submitted pursuant to Sec.  
845.13, or of positions previously advanced.
    (c) Proof of service. (1) 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 investigative hearing and proof of service shall be 
attached to the petition.
    (2) Any party served with a copy of the petition may file comments 
no later than 90 days after service of the petition.
    (d) Oral presentation. Oral presentation normally will not form a 
part of proceedings under this section. However, oral presentation may 
be permitted where a party or interested person specifically shows the 
written petition for reconsideration or modification is an insufficient 
means by

[[Page 80290]]

which to present the party's or person's position.


Sec.  845.33  Investigation to remain open.

    The Board never officially closes an investigation, but provides 
for the submission of new and pertinent evidence by any interested 
person. If the Board finds such evidence is relevant and probative, the 
evidence shall be made a part of the public docket and, where 
appropriate, the Board will provide parties an opportunity to examine 
such evidence and to comment thereon.

Christopher A. Hart,
Chairman.
[FR Doc. 2015-32264 Filed 12-23-15; 8:45 am]
 BILLING CODE 7533-01-P