PART 825-RULES OF PROCEDURE FOR MERCHANT MARINE APPEALS FROM DECISIONS OF THE COMMANDANT, U.S. COAST GUARD
Sec.
825.1 Applicability.
825.5 Notice of appeal.
825.10 Referral of record.
825.15 Issues on appeal.
825.20 Briefs in support of appeal.
825.25 Oral argument.
825.30 Action by the Board.
825.35 Action after remand.
825.40 Ex parte communications.
AUTHORITY: Sec. 304(a)(9)(B), Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2169 (49 U.S.C. 1903(a)(9)(B)).
SOURCE: 40 FR 30248, July 17, 1975, unless otherwise noted.
§825.1 Applicability.
The provisions of this part govern all proceedings before the National Transportation Safety Board (Board) on appeals taken from decisions, on or after April 1, 1975, of the Commandant, U.S. Coast Guard, sustaining orders of an administrative law judge, revoking, suspending, or denying a license, certificate, document, or register in proceedings under:
(a) R.S. 4450, as amended (46 U.S.C. 239);
(b) Act of July 15, 1954 (46 U.S.C. 239ab); or
(c) Section 4, Great Lakes Pilotage Act (46 U.S.C. 216(b)).
Upon receipt of a notice of appeal, the Commandant shall immediately transmit to the Board the complete record of the hearing upon which his decision was based. This includes the charges, the transcript of testimony, and hearing proceedings (including exhibits), briefs filed by the party, the decision of the administrative law judge, and the Commandant's decision on appeal. It does not include intra-agency staff memoranda provided as advice to the Commandant to aid in his decision.
The only issues that may be considered on appeal are:
(1) The name and address of the appellant;
(2) The number and a description of the license, certificate, document, or register involved;
(3) A summary of the charges affirmed by the Commandant as proved;
(4) Fact findings by the Commandant disputed by the appellant;
(5) Specific statements of errors of laws asserted;
(6) Specific statements of any abuse of discretion asserted; and
(7) The relief requested.
(1) Set aside the entire decision and dismiss the charges if it finds the error incurable; or
(2) Set aside the order, or conclusions, or findings of the Commandant and remand the case to him for further consideration if it finds the error curable .
When a case has been remanded under §825.30, a party shall retain all rights of review under 46 CFR part 5 and this part, as applicable.
(1) No interested person outside the Board shall make or knowingly cause to be made to any Board employee an ex parte communication relevant to the merits of the proceeding;
(2) No Board employee shall make or knowingly cause to be made to any interested person outside the Board an ex parte communication relevant to the merits of the proceeding.
Ex parte communications regarding solely matters of Board procedure or practice are not prohibited by this paragraph.
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communication; and
(3) All written responses, and memoranda stating the substance of all oral responses, to materials described in paragraphs (d) (1) and (2) of this section.
(e) Upon receipt of a communication knowingly made or caused to be made in violation of paragraph (c) of this section, the Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his or her interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
(f) The Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the Board, consider a violation of this section sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.
(Authority: Sec. 4, Government in the Sunshine Act, Pub. L. 94-409, amending 5 U.S.C. 556 (d) and 5 U.S.C. 557; Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2166
(49 U.S.C. 1901 et seq.))
[42 FR 21614, Apr. 28, 1977]
PART 831-ACCIDENT/INCIDENT INVESTIGATION PROCEDURES
Sec.
831.1 Applicability of part.
831.2 Responsibility of Board.
831.3 Authority of Directors.
831.4 Nature of Investigation.
831.5 Priority of Board investigations.
831.6 Request to withhold information.
831.7 Right to representation.
831.8 Investigator-in-charge.
831.9 Authority of Board representatives.
831.10 Autopsies.
831.11 Parties to the investigation.
831.12 Access to and release of wreckage, records, mail, and cargo.
831.13 Flow and dissemination of accident or incident information.
831.14 Proposed findings.
AUTHORITY: Independent Safety Board Act of 1974, as amended (
49 U.S.C. 1101 et seq.); Federal Aviation Act of 1958, as amended (49 U.S.C. 40101 et seq.).
SOURCE: 53 FR 15847, May 4, 1988, unless otherwise noted.
§831.1 Applicability of part.
Unless otherwise specifically ordered by the National Transportation Safety Board (Board), the provisions of this part shall govern all accident or incident investigations, conducted under the authority of title VII of the Federal Aviation Act of 1958, as amended, and the Independent Safety Board Act of 1974. Rules applicable to accident hearings and reports are set forth in part 845.
§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 §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 §830.5 of this chapter), including an investigation involving civil or public aircraft (as specified in §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.
(*1):The authority of a representative of the FAA during such investigations is the same as that of a Board investigator under this part.
(3) The Board is the agency charged with fulfilling the obligations of the United States under Annex 13 to the Chicago Convention on International Civil Aviation (Eighth Edition, July 1994), and does so consistent with State Department requirements and in coordination with that department. Annex 13 contains specific requirements for the notification, investigation, and reporting of certain incidents and accidents involving international civil aviation. In the case of an accident or incident in a foreign state involving civil aircraft of U.S. registry or manufacture, where the foreign state is a signatory to Annex 13 to the Chicago Convention of the International Civil Aviation Organization, the state of occurrence is responsible for the investigation. If the accident or incident occurs in a foreign state not bound by the provisions of Annex 13 to the Chicago Convention, or if the accident or incident involves a public aircraft (Annex 13 applies only to civil aircraft), the conduct of the investigation shall be in consonance with any agreement entered into between the United States and the foreign state.
(b) Surface. The Board is responsible for the investigation of: railroad accidents in which there is a fatality, substantial property damage, or which involve a passenger train (see part 840 of this chapter); major marine casualties and marine accidents involving a public and non-public vessel or involving Coast Guard functions (see part 850 of this chapter*2); highway accidents, including railroad grade-crossing accidents, the investigation of which is selected in cooperation with the States; and pipeline accidents in which there is a fatality, significant injury to the environment, or substantial property damage.
(*2): Part 850 also governs the conduct of certain investigations in which the Board and the Coast Guard participate jointly.
(c) Other accidents/incidents. The Board is also responsible for the investigation of an accident/incident that occurs in connection with the transportation of people or property which, in the judgment of the Board, is catastrophic, involves problems of a recurring character, or would otherwise carry out the policy of the Independent Safety Board Act of 1974. This authority includes, but is not limited to, marine and boating accidents and incidents not covered by part 850 of this chapter, and accidents/incidents selected by the Board involving transportation and/or release of hazardous materials.
[62 FR 3806, Jan. 27, 1997]
§831.3 Authority of Directors.
The Directors, Office of Aviation Safety, Office of Railroad Safety, Office of Highway Safety, Office of Marine Safety, and Office of Pipeline and Hazardous Materials Safety, subject to the provisions of §831.2 and part 800 of this chapter, may order an investigation into any accident or Incident.
[63 FR 71606, Dec. 29, 1998]
§831.4 Nature of investigation.
Accident and incident investigations are conducted by the Board to determine the facts, conditions, and circumstances relating to an accident or incident and the probable cause(s) thereof. These results are then used to ascertain measures that would best tend to prevent similar accidents or incidents in the future. The investigation includes the field investigation (onscene 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.
[62 FR 3806, Jan. 27, 1997]
§831.5 Priority of Board investigations.
Any investigation of an accident or incident conducted by the Safety Board directly or pursuant to the appendix to part 800 of this chapter (except major marine investigations conducted under
49 U.S.C. 1131(a)(1)(E)) has priority over all other investigations of such accident or incident conducted by other Federal agencies. The Safety Board shall provide for the appropriate participation by other Federal agencies in any such investigation, except that such agencies may not participate in the Safety Board's determination of the probable cause of the accident or incident. Nothing in this section impairs the authority of other Federal agencies to conduct investigations of an accident or incident under applicable provisions of law or to obtain information directly from parties involved in, and witnesses to, the transportation accident or incident, provided they do so without interfering with the Safety Board's investigation. The Safety Board and other Federal agencies shall assure that appropriate information obtained or developed in the course of their investigations is exchanged in a timely manner.
[62 FR 3807, Jan. 27, 1997]
§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.
[62 FR 3807, Jan. 27, 1997]
§831.7 Right to representation.
Any person interviewed by an authorized representative of the Board during the investigation, regardless of the form of the interview (sworn, unsworn, transcribed, not transcribed, etc.), has the right to be accompanied, represented, or advised by an attorney or non-attorney representative.
[62 FR 3807, Jan. 27, 1997]
§831.8 Investigator-in-charge.
The designated investigator-incharge (IIC) organizes, conducts, controls, and manages the field phase of the investigation, regardless of whether a Board Member is also on-scene at the accident or incident site. (The role of the Board member at the scene of an accident investigation is as the official spokesperson for the Safety Board.) The IIC has the responsibility and authority to supervise and coordinate all resources and activities of all personnel, both Board and non-Board, involved in the on-site investigation. The IIC continues to have considerable organizational and management responsibilities throughout later phases of the investigation, up to and including Board consideration and adoption of a report or brief of probable cause(s).
[62 FR 3807, Jan. 27, 1997]
§831.9 Authority of Board representatives.
(a) General. Any employee of the Board, upon presenting appropriate credentials, is authorized to enter any property where an accident/incident subject to the Board's jurisdiction has occurred, or wreckage from any such accident/incident is located, and do all things considered necessary for proper investigation. Further, upon demand of an authorized representative of the Board and presentation of credentials, any Government agency, or person having possession or control of any transportation vehicle or component thereof, any facility, equipment, process or controls relevant to the investigation, or any pertinent records or memoranda, including all files, hospital records, and correspondence then or thereafter existing, and kept or required to be kept, shall forthwith permit inspection, photographing, or copying thereof by such authorized representative for the purpose of investigating an accident or incident, or preparing a study, or related to any special investigation pertaining to safety or the prevention of accidents.
The Safety Board may issue a subpoena, enforceable in Federal district court, to obtain testimony or other evidence. Authorized representatives of the Board may question any person having knowledge relevant to an accident/incident, study, or special investigation. Authorized representatives of the Board also have exclusive authority, on behalf of the Board, to decide the way in which any testing will be conducted, including decisions on the person that will conduct the test, the type of test that will be conducted, and any individual who will witness the test.
(b) Aviation. Any employee of the Board, upon presenting appropriate credentials, is authorized to examine and test to the extent necessary any civil or public aircraft (as specified in §830.5), aircraft engine, propeller, appliance, or property aboard such aircraft involved in an accident in air commerce.
(c) Surface. (1) Any employee of the Board, upon presenting appropriate credentials, is authorized to test or examine any vehicle, vessel, rolling stock, track, pipeline component, or any part of any such item when such examination or testing is determined to be required for purposes of such investigation.
(2) Any examination or testing shall be conducted in such a manner so as not to interfere with or obstruct unnecessarily the transportation services provided by the owner or operator of such vehicle, vessel, rolling stock, track, or pipeline component, and shall be conducted in such a manner so as to preserve, to the maximum extent feasible, any evidence relating to the transportation accident, consistent with the needs of the investigation and with the cooperation of such owner or operator.
[53 FR 15847, May 4, 1988, as amended at 60 FR 40113, Aug. 7, 1995; 62 FR 3807, Jan. 27, 1997]
§831.10 Autopsies.
The Board is authorized to obtain, with or without reimbursement, a copy of the report of autopsy performed by State or local officials on any person who dies as a result of having been involved in a transportation accident within the jurisdiction of the Board. The investigator-in-charge, on behalf of the Board, may order an autopsy or seek other tests of such persons as may be necessary to the investigation, provided that to the extent consistent with the needs of the accident investigation, provisions of local law protecting religious beliefs with respect to autopsies shall be observed.
§831.11 Parties to the investigation.
(a) All Investigations, regardless of mode.
(1) The investigator-in-charge designates parties to participate in the investigation. Parties shall be limited to those persons, government agencies, companies, and associations whose employees, functions, activities, or products were involved in the accident or incident and who can provide suitable qualified technical personnel actively to assist in the investigation. Other than the FAA in aviation cases, no other entity is afforded the right to participate in Board investigations.
(2) Participants in the investigation (i.e., party representatives, party coordinators, and/or the larger party organization) shall be responsive to the direction of Board representatives and may lose party status if they do not comply with their assigned duties and activity proscriptions or instructions, or if they conduct themselves in a manner prejudicial to the investigation.
(3) No party to the investigation shall be represented in any aspect of the NTSB investigation by any person who also represents claimants or insurers. No party representative may occupy a legal position (see §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 §1132 provides for the appropriate participation of the FAA in Board investigations, and §1131(a)(2) provides for such participation by other departments, agencies, or instrumentalities. The FAA and those other entities that meet the requirements of paragraph (a)(1) of this section will be parties to the investigation with the same rights and privileges and subject to the same limitations as other parties, provided however that representatives of the FAA need not sign the “Statement of Party Representatives to NTSB Investigation” (see paragraph (b) of this section).
(b) Aviation investigations. In addition to compliance with the provisions of paragraph (a) of this section, and to assist in ensuring complete understanding of the requirements and limitations of party status, all party representatives in aviation investigations shall sign “Statement of Party Representatives to NTSB Investigation” immediately upon attaining party representative status. Failure timely to sign that statement may result in sanctions, including loss of status as a party.
[62 FR 3808, Jan. 27, 1997, as amended at 63 FR 71606, Dec. 29, 1998]
§831.12 Access to and release of wreckage, records, mail, and cargo.
(a) Only the Board's accident investigation personnel, and persons authorized by the investigator-in-charge to participate in any particular investigation, examination or testing shall be permitted access to wreckage, records, mail, or cargo in the Board's custody.
(b) Wreckage, records, mail, and cargo in the Board's custody shall be released by an authorized representative of the Board when it is determined that the Board has no further need of such wreckage, mail, cargo, or records. When such material is released, Form 6120.15, “Release of Wreckage,” will be completed, acknowledging receipt.
[62 FR 3808, Jan. 27, 1997]
§831.13 Flow and dissemination of accident or incident information.
(a) Release of information during the field investigation, particularly at the accident scene, shall be limited to factual developments, and shall be made only through the Board Member present at the accident scene, the representative of the Board's Office of Public Affairs, or the investigator-incharge.
(b) All information concerning the accident or incident obtained by any person or organization participating in the investigation shall be passed to the IIC through appropriate channels before being provided to any Individual outside the investigation. Parties to the investigation may relay to their respective organizations information necessary for purposes of prevention or remedial action. However, no information concerning the accident or incident may be released to any person not a party representative to the investigation (including non-party representative employees of the party organization) before initial release by the Safety Board without prior consultation and approval of the IIC.
[53 FR 15847, May 4, 1988, as amended at 62 FR 3808, Jan. 27, 1997]
§831.14 Proposed findings.
(a) General. Any person, government agency, company, or association whose employees, functions, activities, or products were involved in an accident or incident under investigation may submit to the Board written proposed findings to be drawn from the evidence produced during the course of the investigation, a proposed probable cause, and/or proposed safety recommendations designed to prevent future accidents.
(b) Timing of submissions. To be considered, these submissions must be received before the matter is calendared for consideration at a Board meeting. All written submissions are expected to have been presented to staff in advance of the formal scheduling of the meeting. This procedure ensures orderly and thorough consideration of all views.
(c) Exception. This limitation does not apply to safety enforcement cases handled by the Board pursuant to part 821 of this chapter. Separate ex parte rules, at part 821, subpart J, apply to those proceedings.
[62 FR 3808, Jan. 27, 1997]
PART 845-RULES OF PRACTICE IN TRANSPORTATION; ACCIDENT/INCIDENT HEARINGS AND REPORTS
Sec.
845.1 Applicability.
845.2 Nature of hearing.
845.3 Sessions open to the public.
Subpart A-Initial Procedure
845.10 Determination to hold hearing.
845.11 Board of inquiry.
845.12 Notice of hearing.
845.13 Designation of parties.
Subpart B-Conduct of Hearing
845.20 Powers of chairman of board of inquiry.
845.21 Hearing officer.
845.22 Technical panel.
845.23 Prehearing conference.
845.24 Right of representation.
845.25 Examination of witnesses.
845.26 Evidence.
845.27 Proposed findings.
845.28 Stenographic transcript.
845.29 Payment of witnesses.
Subpart C-Board Reports
845.40 Accident report.
845.41 Petitions for reconsideration or modification.
Subpart D-Public Record
845.50 Public docket.
845.51 Investigation to remain open.
AUTHORITY: Title VII, Federal Aviation Act of 1958, as amended (49 U.S.C. 1441 et seq.); and the Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.).
SOURCE: 44 FR 34419, June 14, 1979, unless otherwise noted.
Unless otherwise specifically ordered by the National Transportation Safety Board (Board), the provisions of this part shall govern all transportation accident investigation hearings conducted under the authority of section 304(b) of the Independent Safety Board Act of 1974 (49 U.S.C. 1903(b)) and accident reports issued by the Board.
Transportation accident hearings are convened to assist the Board in determining cause or probable cause of an accident, in reporting the facts, conditions, and circumstances of the accident, and in ascertaining measures which will tend to prevent accidents and promote transportation safety. Such hearings are factfinding proceedings with no formal issues and no adverse parties and are not subject to the provisions of the Administrative Procedure Act (Pub. L. 89-554, 80 Stat. 384 (5 U.S.C. 554)).
[44 FR 34419, June 14, 1979; 44 FR 39181, July 5, 1979]
(a) All hearings shall normally be open to the public (subject to the provision that any person present shall not be allowed at any time to interfere with the proper and orderly functioning of the board of inquiry).
(b) Sessions shall not be open to the public when evidence of a classified nature or which affects national security is to be received.
Subpart A-Initial Procedure
The Board may order a public hearing as part of an accident investigation whenever such hearing is deemed necessary in the public interest: Provided, that if a quorum of the Board is not immediately available in the event of a catastrophic accident, the determination to hold a public hearing may be made by the Chairman of the Board.
The board of inquiry shall consist of a Member of the Board who shall be chairman of the board of inquiry, and such other employees as may be designated by the chairman of the board of inquiry. Assignment of a Member to serve as the chairman of each board of inquiry shall be determined by the Board. The board of inquiry shall examine witnesses and secure, in the form of a public record, all known facts pertaining to the accident or incident and surrounding circumstances and conditions from which cause or probable cause may be determined and recommendations for corrective action may be formulated.
[49 FR 32853, Aug. 17. 1984]
The chairman of the board of inquiry shall designate a time and place for the hearing which meets the needs of the Board. Notice to all known interested persons shall be given.
[44 FR 34419, June 14, 1979, as amended at 51 FR 7278, Mar. 3, 1986]
Subpart B-Conduct of Hearing
The chairman of the board of inquiry, or his designee, shall have the following powers:
(a) To designate parties to the hearing and revoke such designations;
(b) To open, continue, or adjourn the hearing;
(c) To determine the admissibility of and to receive evidence and to regulate the course of the hearing;
(d) To dispose of procedural requests or similar matters; and
(e) To take any other action necessary or incident to the orderly conduct of the hearing.
[44 FR 34419, June 14, 1979; 44 FR 39181. July 5, 1979]
The hearing officer, upon designation by the Chairman of the Board, shall have the following powers:
(a) To give notice concerning the time and place of hearing;
(b) To administer oaths and affirmations to witnesses; and
(c) To issue subpenas requiring the attendance and testimony of witnesses and production of documents.
The Director, Bureau of Accident Investigation, or the Director, Bureau of Field Operations, shall designate members of the Board's technical staff to participate in the hearing and initially develop the testimony of witnesses.
[49 FR 32853, Aug. 17, 1984]
(a) Except as provided in paragraph (d) of this section for expedited hearings, the chairman of the board of inquiry shall hold a prehearing conference with the parties to the hearing at a convenient time and place prior to the hearing. At such prehearing conference, the parties shall be advised of the witnesses to be called at the hearing, the areas in which they will be examined, and the exhibits which will be offered in evidence.
(b) Parties shall submit at the prehearing conference copies of any additional documentary exhibits they desire to offer. (Copies of all exhibits proposed for admission by the board of inquiry and the parties shall be furnished to the board of inquiry and to all parties, insofar as available at that time.)
(c) A party who, at the time of the prehearing conference, fails to advise the chairman of the board of inquiry of additional exhibits he intends to submit, or additional witnesses he desires to examine, shall be precluded from introducing such evidence unless the chairman of the board of inquiry determines for good cause shown that such evidence should be admitted.
(d) Expedited hearings. When time permits, the chairman of the board of inquiry may hold a prehearing conference. In the event that an expedited hearing is held, the requirements in paragraphs (b) and (c) of this section concerning the identification of witnesses, exhibits or other evidence may be waived by the chairman of the board of inquiry.
Any person who appears to testify at a public hearing shall be accorded the right to be accompanied, represented, or advised by counsel or by any other duly qualified representative.
(a) Witnesses shall be initially examined by the board of inquiry or its technical panel. Following such examination, parties to the hearing shall be given the opportunity to examine such witnesses.
(b) Materiality, relevancy, and competency of witness testimony, exhibits, or physical evidence shall not be the subject of objections in the legal sense by a party to the hearing or any other person. Such matters shall be controlled by rulings of the chairman of the board of inquiry on his own motion. If the examination of a witness by a party is interrupted by a ruling of the chairman of the board of inquiry, opportunity shall be given to show materiality, relevancy, or competency of the testimony or evidence sought to be elicited from the witness.
The chairman of the board of inquiry shall receive all testimony and evidence which may be of aid in determining the cause of accident. He may exclude any testimony or exhibits which are not pertinent to the investigation or are merely cumulative.
Any party may submit proposed findings to be drawn from the testimony and exhibits, a proposed probable cause, and proposed safety recommendations designed to prevent future accidents. The proposals shall be submitted within the time specified by the presiding officer at the close of the hearing, and shall be made a part of the public docket. Parties to the hearing shall serve copies of their proposals on all other parties to the hearing.
[48 FR 52740, Nov. 22, 1983]
A verbatim report of the hearing shall be taken. Copies of the transcript may be obtained by any interested person from the Board or from the court reporting firm preparing the transcript upon payment of the fees fixed therefor. (See part 801, Appendix-Fee Schedule.)
Any witness subpenaed to attend the hearing under this part shall be paid such fees for his travel and attendance as shall be certified by the hearing officer.
Subpart C-Board Reports
(a) The Board will issue a detailed narrative accident report in connection with the investigation into those accidents which the Board determines to warrant such a report. The report will set forth the facts, conditions and circumstances relating to the accident and the probable cause thereof, along with any appropriate recommendations formulated on the basis of the investigation.
(b) The probable cause and facts, conditions, and circumstances of all other accidents will be reported in a manner and form prescribed by the Board.
(a) Petitions for reconsideration or modification of the Board's findings and determination of probable cause filed by a party to an investigation or hearing or other person having a direct interest in the accident investigation will be entertained only if based on the discovery of new evidence or on a showing that the Board's findings are erroneous. The petitions shall be in writing. Petitions which are repetitious of proposed findings submitted pursuant to §845.27, or of positions previously advanced, and petitions filed by a party to the hearing who failed to submit proposed findings pursuant to §845.27 will not be entertained. Petitions based on the discovery of new matter shall: identify the new matter; contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and state why the new matter was not available prior to Board's adoption of its findings. Petitions based on a claim of erroneous findings shall set forth in detail the grounds relied upon.
(b) When a petition for reconsideration or modification is filed with the Board, copies of the petition and any supporting documentation shall be served on all other parties to the investigation or hearing and proof of service shall be attached to the petition. The other parties may file comments no later than 90 days after service of the petition.
(c) Oral presentation before the Board normally will not form a part of proceedings under this part. However, the Board may permit oral presentation where a party or interested person makes an affirmative showing that the written petition for reconsideration or modification is an insufficient means to present the party's or person's position to the Board. Where oral presentation is allowed, the Board will specify the issues to be addressed and all parties to the investigation or hearing will be given notice and the opportunity to participate.
[48 FR 52740, Nov. 22, 1983]
Subpart D-Public Record
§845.50 Public docket.
(a) The public docket shall include all factual information concerning the accident. Proposed findings submitted pursuant to §831.12 or §845.27 and petitions for reconsideration and modification submitted pursuant to §845.41, comments thereon by other parties, and the Board's rulings, shall also be placed in the public docket.
(b) The docket shall be established as soon as practicable following the accident, and material shall be added thereto as it becomes available. Where a hearing is held, the exhibits will be introduced into the record at the hearing.
(c) A copy of the docket shall be made available to any person for review at the Washington office of the Board. Copies of the material in the docket may be obtained, upon payment of the cost of reproduction, from the Public Inquiries Section, Bureau of Administration, National Transportation Safety Board, Washington, DC 20594.
[44 FR 34419, June 14, 1979, as amended at 48 FR 52740, Nov. 22, 1983]
§845.51 Investigation to remain open.
Accident investigations are never officially closed but are kept open for the submission of new and pertinent evidence by any interested person. If the Board finds that such evidence is relevant and probative, it shall be made a part of the docket and, where appropriate, parties will be given an opportunity to examine such evidence and to comment thereon.
PART 850-COAST GUARD-NATIONAL TRANSPORTATION SAFETY BOARD MARINE CASUALTY INVESTIGATIONS
Sec.
850.1 Purpose.
850.3 Relationship to Coast Guard marine investigation regulations and procedures.
850.5 Definitions.
850.10 Preliminary investigation by the Coast Guard.
850.15 Marine casualty Investigation by the Board.
850.20 Cause or probable cause determinations from Board investigation.
850.25 Coast Guard marine casualty investigation for the Board.
850.30 Procedures for Coast Guard investigation. 850.35 Records of the Coast Guard and the Board.
AUTHORITY: Sec. 304(a)(1)(E), Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2168 (49 U.S.C. 1903).
SOURCE: 42 FR 61204, Dec. 1, 1977, unless otherwise noted.
§850.1 Purpose.
This part prescribes the joint regulations of the National Transportation Safety Board and the Coast Guard for the investigation of marine casualties.
[47 FR 46089, Oct. 15, 1982]
§850.3 Relationship to Coast Guard marine investigation regulations and procedures.
(a) The Coast Guard's responsibility to investigate marine casualties is not eliminated nor diminished by the regulations in this part.
(b) In those instances where the Board conducts an investigation in which the Coast Guard also has responsibility under R.S. 4450 (46 U.S.C. 239), the proceedings are conducted independently, but so as to avoid duplication as much as possible.
§850.5 Definitions.
As used in this part:
(a) Act means Title III of Pub. L. 93-633, the Independent Safety Board Act of 1974 (49 U.S.C. 1901, et seq.).
(b) Board means the National Transportation Safety Board.
(c) Chairman means the Chairman of the National Transportation Safety Board.
(d) Commandant means the Commandant of the Coast Guard.
(e) Major marine casualty means a casualty involving a vessel, other than a public vessel, that results in-
(1) The loss of six or more lives;
(2) The loss of a mechanically propelled vessel of 100 or more gross tons;
(3) Property damage initially estimated as $500,000 or more; or
(4) Serious threat, as determined by the Commandant and concurred in by the Chairman, to life, property, or the environment by hazardous materials.
(f) Public vessel means a vessel owned by the United States, except a vessel to which the Act of October 25, 1919, c. 82 (41 Stat. 305, 46 U.S.C. 363) applies.
(g) Vessel of the United States means a vessel-
(1) Documented, or required to be documented, under the laws of the United States;
(2) Owned in the United States; or
(3) Owned by a citizen or resident of the United States and not registered under a foreign flag.
§850.10 Preliminary investigation by the Coast Guard.
(a) The Coast Guard conducts the preliminary investigation of marine casualties.
(b) The Commandant determines from the preliminary investigation whether:
(1) The casualty is a major marine casualty; or
(2) The casualty involves a public and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(3) The casualty involves a Coast Guard and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(4) The casualty is a major marine casualty which involves significant safety issues relating to Coast Guard safety functions, e.g., search and rescue, aids to navigation, vessel traffic systems, commercial vessel safety, etc.
(c) The Commandant notifies the Board of a casualty described in paragraph (b) of this section.
[42 FR 61204, Dec. 1, 1977, as amended at 47 FR 46089, Oct. 15, 1982]
§850.15 Marine casualty investigation by the Board.
(a) The Board may conduct an investigation under the Act of any major marine casualty or any casualty involving public and nonpublic vessels. Where the Board determines it will convene a hearing in connection with such an investigation, the Board's rules of practice for transportation accident hearings in 49 CFR part 845 shall apply.
(b) The Board shall conduct an investigation under the Act when:
(1) The casualty involves a Coast Guard and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(2) The Commandant and the Board agree that the Board shall conduct the investigation, and the casualty involves a public and a nonpublic vessel and at least one fatality or $75,000 in property damage; or
(3) The Commandant and the Board agree that the Board shall conduct the investigation, and the casualty is a major marine casualty which involves significant safety issues relating to Coast Guard safety functions.
[47 FR 46090, Oct. 15, 1982]
§850.20 Cause or probable cause determinations from Board investigation.
After an investigation conducted by the Board under §850.15, the Board determines cause or probable cause and issues a report of that determination.
(b) The Board will request the Coast Guard to conduct an investigation under paragraph (a) of this section within 48 hours of receiving notice under §850.10(c).
(c) The Coast Guard will advise the Board within 24 hours of receipt of a request under paragraph (b) of this section whether the Coast Guard will conduct an investigation under the Act.
[47 FR 46090, Oct. 15, 1982]
§850.30 Procedures for Coast Guard investigation.
(a) The Coast Guard conducts an investigation under §850.25 using the procedures in 46 CFR 4.01-1 through 4.23-1.
(b) The Board may designate a person or persons to participate in every phase of an investigation, including on-scene investigation, that is conducted under the provisions of §850.25.
(c) Consistent with Coast Guard responsibility to direct the course of the investigation, the person or persons designated by the Board under paragraph (b) of this section may:
(1) Make recommendations about the scope of the investigation.
(2) Call and examine witnesses.
(3) Submit or request additional evidence.
(d) The Commandant provides a record of the proceedings to the Board of an investigation of a major marine casualty under paragraph (a) of this section.
(e) The Board, under the Act, makes its determination of the facts, conditions, and circumstances, and the cause or probable cause of a major marine casualty, using the record of the proceedings provided by the Commandant under paragraph (d) of this section and any additional evidence the Board may acquire under its own authority.
(f) An investigation by the Coast Guard under this section is both an investigation under the Act and under R.S. 4450 (46 U.S.C. 239).
(a) Records of the Coast Guard made under §850.30 are available to the public under 49 CFR part 7.
(b) Records of the Board made under §§850.20 and 850.30 are available to the public under 49 CFR part 801.
