Rules of Practice in Transportation: Investigative Hearings; Meetings; Reports; and Petitions for Reconsideration, 14339-14344 [2015-06187]
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Federal Register / Vol. 80, No. 53 / Thursday, March 19, 2015 / Proposed Rules
Higbee, Environmental Protection
Agency, Air Planning and Development
Branch, 11201 Renner Boulevard,
Lenexa, Kansas 66219. Comments may
also be submitted electronically or
through hand delivery/courier by
following the detailed instructions in
the ADDRESSES section of the direct final
rule located in the rules section of this
Federal Register.
FOR FURTHER INFORMATION CONTACT:
Paula Higbee, Environmental Protection
Agency, Air Planning and Development
Branch, 11201 Renner Boulevard,
Lenexa, Kansas 66219 at (913) 551–
7028, or by email at higbee.paula@
epa.gov.
SUPPLEMENTARY INFORMATION: In the
final rules section of the Federal
Register, EPA is approving the state’s
SIP and Title V revisions to 10 C.S.R.
10–6.110 ‘‘Reporting Emission Data,
Emission Fees, and Process
Information’’ as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
revision amendment and anticipates no
relevant adverse comments to this
action. A detailed rationale for the
approval is set forth in the direct final
rule. If no relevant adverse comments
are received in response to this action,
no further activity is contemplated in
relation to this action. If EPA receives
relevant adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed action. EPA will
not institute a second comment period
on this action. Any parties interested in
commenting on this action should do so
at this time. Please note that if EPA
receives adverse comment on part of
this rule and if that part can be severed
from the remainder of the rule, EPA may
adopt as final those parts of the rule that
are not the subject of an adverse
comment. For additional information,
see the direct final rule which is located
in the rules section of this Federal
Register.
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List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
40 CFR Part 70
Administrative practice and
procedure, Air pollution control,
Intergovernmental relations, Operating
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permits, Reporting and recordkeeping
requirements.
14339
RIN 3147–AA02
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For more information on the
rulemaking process, see the
SUPPLEMENTARY INFORMATION section of
this document.
Privacy: We will post all comments
we receive, without change, to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT:
David Tochen, General Counsel, (202)
314–6080.
SUPPLEMENTARY INFORMATION:
[Docket No. NTSB–GC–2012–0002]
I. Background
Rules of Practice in Transportation:
Investigative Hearings; Meetings;
Reports; and Petitions for
Reconsideration
On June 25, 2012, the NTSB
published a notice indicating its intent
to undertake a review of all NTSB
regulations to ensure they are updated.
77 FR 37865. The NTSB initiated this
review in accordance with Executive
Order 13579, ‘‘Regulation and
Independent Regulatory Agencies’’ (76
FR 41587, July 14, 2011). 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’s notice concerning its
plan for reviewing all NTSB regulations
indicated the NTSB would specifically
conduct a comprehensive review of 49
CFR part 831, which describes the
NTSB’s investigative process. The NTSB
completed this review and published an
NPRM proposing various changes to
part 831 on August 12, 2014. 79 FR
47064.
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 publishes this NPRM
in accordance with the NTSB’s plan.
Dated: March 4, 2015.
Mark J. Hague,
Acting Regional Administrator, Region 7.
[FR Doc. 2015–06126 Filed 3–18–15; 8:45 am]
BILLING CODE 6560–50–P
NATIONAL TRANSPORTATION
SAFETY BOARD
49 CFR Part 845
National Transportation Safety
Board (NTSB).
ACTION: Notice of Proposed Rulemaking.
AGENCY:
The NTSB is proposing to
amend provisions within its regulations,
which contains the NTSB’s procedures
for holding investigative hearings,
various types of meetings, issuing
reports, and responding to petitions for
reconsideration. This notice proposes a
number of substantive and technical
changes. In particular, the NTSB
proposes to reorganize parts of its
regulations into different subparts to
ensure the part is easy to follow.
DATES: Comments must be received by
May 18, 2015. Comments received after
the deadline will be considered to the
extent possible.
ADDRESSES: A copy of this NPRM,
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 is available on the
government-wide Web site on
regulations at https://
www.regulations.gov (Docket ID Number
NTSB–GC–2012–0002).
You may send comments identified
by Docket ID Number NTSB–GC–2012–
0002 using any of the following
methods:
Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the instructions for sending your
comments electronically.
Mail: Send comments to NTSB Office
of General Counsel, 490 L’Enfant Plaza
SW., Washington, DC 20594–2003.
Facsimile: Fax comments to 202–314–
6090.
Hand Delivery: Bring comments to
490 L’Enfant Plaza East SW., 6th Floor,
SUMMARY:
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II. Description of Changes
The NTSB proposes reorganizing 49
CFR part 845 and adding two new
sections to describe Board meetings
concerning NTSB products. The current
version of part 845 consists of three
general sections (titled ‘‘Applicability,’’
‘‘Nature of hearing,’’ and ‘‘Sessions
open to the public’’) followed by four
subparts (titled ‘‘Initial procedure,’’
‘‘Conduct of hearing,’’ ‘‘Board reports,’’
and ‘‘Public record’’). The NTSB
carefully has reviewed part 845 and
determined the current format could be
improved for clarity and ease of
understanding. In addition, part 845
does not discuss Board meetings
concerning investigations and NTSB
products, even though meetings
concerning such topics are a key
component of the Board’s work and
provide transparency in agency
activities and operations. Therefore, the
NTSB proposes organizing part 845 into
three subparts, titled ‘‘Investigative
hearings,’’ ‘‘Meetings,’’ and ‘‘Reports.’’
Subject to a number of proposed
changes, this NPRM would maintain
most of the text from the existing
sections addressing investigative
hearings, which are currently codified at
sections 845.2 (‘‘Nature of hearing’’),
845.3 (‘‘Sessions open to the public’’),
845.10 (‘‘Determination to hold
hearing’’), 845.11 (‘‘Board of inquiry’’),
845.12 (‘‘Notice of hearing’’), 845.13
(‘‘Designation of parties’’), 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’’), and 845.29 (‘‘Payment of
witnesses’’). The NTSB suggests changes
to the text of these sections, which
include changing terminology to
describe transportation events and
substituting ‘‘NTSB’’ in place of the
term ‘‘Board,’’ unless the term ‘‘Board’’
refers to the statutorily appointed
members of the Board. The NTSB also
proposes numbering these sections
sequentially within the proposed
subpart addressing investigative
hearings.
In order to ensure the initial sections
of part 845 are clear, the NTSB proposes
removing the term ‘‘formal issues’’ from
§ 845.2, which currently states (in part),
‘‘[s]uch hearings are fact-finding
proceedings with no formal issues and
no adverse parties . . .’’ The term
‘‘formal issues’’ is not a legal term of art,
and is not defined in NTSB regulations.
The NTSB does not believe the
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inclusion of this term in § 845.2 is
necessary. In addition, the NTSB
proposes reorganizing the text of § 845.2
to explain the purpose of an
investigative hearing is to develop
further the facts, conditions, and
circumstances of the transportation
event. The NTSB also proposes
including text stating investigative
hearings are not conducted for the
purpose of determining the rights or
liabilities of any person. The NTSB
proposes this language because, in
recent years, witnesses and parties who
attend investigative hearings have been
involved in ongoing litigation relating to
the subject of a hearing with greater
frequency or may become involved in
litigation. In this section, the NTSB
seeks to emphasize the purpose of
investigative hearings is to obtain
accurate, complete, and welldocumented factual information related
to NTSB investigations.1
In addition, the NTSB proposes
removing a sentence from the existing
version of 845.11 (‘‘Board of inquiry’’),
which currently states, ‘‘[a]ssignment of
a Member to serve as the chairman of
each board of inquiry shall be
determined by the Board.’’ The NTSB
believes such assignments are internal
agency procedures. As a result, the
agency does not believe it is necessary
to codify a procedure specifying how
the Board might assign a Member to
serve as the chairman of each board of
inquiry. The NTSB will handle such
assignments via Board policies.
As a point of clarification, the NTSB
notes it does not suggest changes to the
text of proposed section § 845.15
(‘‘Payment of witnesses’’); this text is
duplicative of the existing text of
§ 845.29. However, the NTSB notes its
practice is to pay witnesses who would
not attend if the agency did not pay the
travel expenses associated with
attendance. In addition, we note the
Invitational Travel statute, codified at 5
U.S.C. 5703, allows the NTSB to
reimburse a speaker or witness if the
person is providing a direct service to
the agency for which he or she is not
receiving any compensation.
Regarding the proposed new subpart
addressing Board meetings, the NTSB
proposes two new sections. The first
section, to be codified at 845.20
(‘‘Meetings’’), states the Board may hold
a meeting when the Board determines
such a meeting is in the public interest.
The NTSB also proposes adding
§ 845.21 (‘‘Symposiums, forums, and
conferences’’) to apply some of the
1 Part 845 does not apply to oral arguments before
the Board under 49 CFR part 821, which governs
appeals of aviation certificate enforcement actions.
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provisions of § 845.20 to symposiums,
forums, and conferences. The NTSB
proposes three paragraphs within the
new § 845.21, the first of which will
provide definitions for these three types
of proceedings. The NTSB proposes
adding within paragraph (a) of § 845.21
the statement, ‘‘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.’’
This proposed version of paragraph
(a)(2) will also state the ‘‘goals of the
proceeding will be clearly articulated
and outlined, and will be consistent
with the mission of the NTSB.’’ The
NTSB also proposes adding paragraph
(b) within § 845.21, to clarify a quorum
of the Board is not required to
participate in symposiums, forums, or
conferences.
Also in paragraph (b), the NTSB
proposes adding a statement that
symposiums, forums, and conferences
are not intended to be used as a means
to obtain evidence or establish facts for
a particular NTSB investigation. The
NTSB expects this language will
provide clarity to potential participants
or people who are interested in
attending an NTSB symposium, forum,
or conference. The proposed language
also provides the proceedings may have
a relationship to previous, ongoing, or
future investigative activities, the
purpose of which is to provide
supporting and collaborative
information, but not to obtain direct
evidence for a specific investigation.
Following paragraph (b), the NTSB
proposes paragraph (c), which simply
states participation in a symposium,
forum, or conference is voluntary. This
statement will clarify the NTSB will not
issue a subpoena for attendance at such
proceedings. The paragraphs within
§ 845.21 will function to educate the
public and the transportation
community that the NTSB may hold
forums, symposiums, and conferences,
to fulfill Congress’s intent of ensuring
NTSB staff and Board Members remain
educated and adhere to a well-rounded
approach for improving transportation
safety in a variety of ways.
In the new subpart C of part 845
(‘‘Reports’’), the NTSB proposes keeping
the text of existing §§ 845.40 (currently
titled ‘‘Accident report’’), 845.41
(‘‘Petitions for reconsideration or
modification’’), 845.50 (‘‘Public
dockets’’), and 845.51 (‘‘Investigation to
remain open’’) largely unchanged, but
updating the terminology in these
sections, and re-codifying them with
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sequential numbers beginning at
§ 845.30.
In § 845.30, to be titled, ‘‘Board
products,’’ the NTSB proposes
maintaining essentially unchanged
within paragraph (a) the text currently
in § 845.40(a), which describes reports.
The NTSB proposes adding language to
§ 845.30(a)(2) pointing out the Board,
consistent with longstanding agency
process and procedure, allows the
appropriate office director to issue a
brief, which will include the probable
cause and relevant facts, conditions, and
circumstances concerning the event
investigated. The Board has delegated to
office directors the authority to issue
such determinations in 49 CFR 800.25.
Section 845.30(a)(2), as proposed,
includes a description of ‘‘brief’’ as a
document that includes the probable
cause and relevant facts, conditions, and
circumstances. The proposed language
includes a citation to § 800.25, which
provides office directors the authority to
determine the probable cause by issuing
such briefs. In addition, the NTSB
proposes adding a new paragraph to
§ 845.30 to describe safety
recommendations, which the Board may
adopt and issue as a stand-alone Board
product outside the context of a specific
report or other type of Board product.
The NTSB proposes including the
section discussing public dockets
immediately following the section
describing reports and briefs, as NTSB
public dockets contain information
supporting the statements in reports and
briefs. Within § 845.31, the NTSB
proposes only a few minor changes,
such as including a reference to the
definition of ‘‘public docket’’ in § 801.3
of this chapter, and removing the term
‘‘accident,’’ to ensure consistency with
the NTSB’s Notice of Proposed
Rulemaking for changes to 49 CFR part
831.2 The NTSB also proposes updating
paragraph (c), which advises the public
of how it might access material in the
public docket. The NTSB places public
dockets on its Web page at
www.ntsb.gov, to allow the public to
download them free of charge.
Therefore, the NTSB proposes adding its
Web site link to § 845.31(c).
The NTSB proposes moving the
section currently located at 49 CFR
845.41 (‘‘Petitions for reconsideration or
modification’’) to § 845.32. The NTSB
also proposes organizing this section
with headings for each paragraph, to
ensure the public and interested parties
2 79 FR 47064 (Aug. 12, 2014). The NPRM
concerning proposed changes to 49 CFR part 831
explained the NTSB’s proposal to modify its
terminology within its regulations by utilizing the
term ‘‘event,’’ and, in some sections, other
descriptive terms. Id. at 47065.
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can easily follow it. The first proposed
heading will be titled ‘‘requirements,’’
and will state the requirements
applicable to submissions of petitions
for reconsideration or modification
currently listed in scattered places
within § 845.41. Therefore, the
‘‘requirements’’ paragraph (§ 845.32(a))
will state only individuals or entities
having a ‘‘direct interest’’ in the
investigation may submit petitions. The
paragraph will also require petitions be
in writing and be based on the discovery
of new evidence or a showing the
Board’s findings were erroneous.
The NTSB proposes titling the second
paragraph as ‘‘acceptance of petitions,’’
which will include some of the same
text as is currently located in § 845.41.
The NTSB, however, proposes to delete
the statement the Board will not
consider petitions filed by an individual
or entity who could have submitted
proposed findings, as described in the
current version of § 845.27. Individuals
and entities have interpreted § 845.41 to
mean they cannot submit a petition for
reconsideration. Under the current text,
if the individual or entity failed to
submit a comment, the individual or
entity would ostensibly waive the right
to petition the Board for
reconsideration. However, the NTSB is
unlikely to prohibit such an individual
or entity from later filing a petition for
reconsideration. As a result, in the
proposed version of § 845.13, the NTSB
removes the statement that it will not
consider petitions for reconsideration
from an individual or entity who could
have submitted proposed findings.
The NTSB also proposes retaining the
requirement that any individual or
entity filing a petition for
reconsideration or modification submit
with its petition proof it served the
petition on all parties to the
investigation or investigative hearing.
The paragraph will also include the
deadline of 90 days, within which
interested individuals or entities may
file comments to the petition. These
provisions within the ‘‘proof of service’’
paragraph are currently located at 49
CFR 845.41(b) of the NTSB’s
regulations.
Lastly, the NTSB proposes titling
§ 845.32(d) ‘‘oral presentation.’’ The
current version of § 845.41(c) includes
the same provisions as this new
paragraph, but dividing it into two
portions, the first of which states oral
presentation will not normally be a part
of the proceedings within part 845, and
the second of which states the Board,
upon granting a request for an oral
presentation, will specify which issues
will be addressed at the presentation.
The NTSB believes dividing this
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14341
paragraph into two numbered sentences,
as well as using the term ‘‘party or
interested person,’’ will provide greater
clarity.
The NTSB proposes moving § 845.51
(‘‘Investigation to remain open’’) to
§ 845.33. The NTSB plans to retain the
title ‘‘investigation to remain open,’’
with the addition of the word ‘‘event.’’
III. Regulatory Analysis
This NPRM is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of the potential
costs and benefits under section 6(a)(3)
of that Order. As such, the Office of
Management and Budget has not
reviewed this proposed rule under
Executive Order 12866. Likewise, this
proposed rule does not require an
analysis under the Unfunded Mandates
Reform Act, 2 U.S.C. 1501–1571, or the
National Environmental Policy Act, 42
U.S.C. 4321–4347.
In addition, the NTSB has considered
whether this NPRM would have a
significant economic impact on a
substantial number of small entities,
under the Regulatory Flexibility Act (5
U.S.C. 601–612). The NTSB certifies
under 5 U.S.C. 605(b) that this NPRM
would not have a significant economic
impact on a substantial number of small
entities. Moreover, in accordance with 5
U.S.C. 605(b), the NTSB will submit this
certification to the Chief Counsel for
Advocacy at the Small Business
Administration. Moreover, the NTSB
does not anticipate this NPRM will have
a substantial, direct effect on state or
local governments or will preempt state
law; as such, this NPRM does not have
implications for federalism under
Executive Order 13132, Federalism.
This NPRM 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 NPRM 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 that this
NPRM does not contravene any of the
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requirements set forth in these
Executive Orders or statutes, nor does
this NPRM prompt further consideration
with regard to such requirements.
The NTSB invites comments relating
to any of the foregoing determinations
and notes the most helpful comments
reference a specific portion of the
proposal, explain the reason for any
recommended change, and include
supporting data.
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 proposes to amend
49 CFR part 845 as follows:
Title 49—Transportation
PART 845—RULES OF PRACTICE IN
TRANSPORTATION: INVESTIGATIVE
HEARINGS; MEETINGS; AND
REPORTS; PETITIONS FOR
RECONSIDERATION
1. The authority citation for 49 CFR
part 845 is revised to read as follows:
■
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.
■
2. Revise part 845 to read as follows:
845.1
Applicability of part.
Subpart A—Investigative Hearings
845.2
845.3
845.4
845.5
845.6
845.7
845.8
845.9
845.10
845.11
845.12
845.13
845.14
845.15
Investigative hearings.
Sessions open to the public.
Determination to hold hearing.
Board of inquiry.
Designation of parties.
Hearing officer.
Technical panel.
Prehearing conference.
Right of representation.
Examination of witnesses.
Evidence.
Proposed findings.
Transcript.
Payment of witnesses.
PART 845—RULES OF PRACTICE IN
TRANSPORTATION: INVESTIGATIVE
HEARINGS; MEETINGS; AND
REPORTS; PETITIONS FOR
RECONSIDERATION
§ 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
§ 845.2
Investigative hearings.
Investigative hearings are convened to
assist the NTSB in further developing
the facts, conditions, and circumstances
of the transportation event, which will
ultimately assist the Board in
determining the cause or probable cause
of the event, and in ascertaining
measures that will tend to prevent such
events and promote transportation
safety. Investigative hearings are factfinding 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.
§ 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.
§ 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, the
determination to hold an investigative
hearing may be made by the Chairman
of the Board.
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Subpart B—Meetings
§ 845.5
845.20 Meetings.
845.21 Symposiums, forums, and
conferences.
(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
event under investigation and
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.
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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.
(1) The NTSB will provide notice of
the time and place of the investigative
hearing to all known interested persons.
(2) The chairman of the board of
inquiry, or his or her designee, shall
have the following powers:
(A) To designate parties to the
investigative hearing and revoke such
designations;
(B) To open, continue, or adjourn the
investigative hearing;
(C) To determine the admissibility of
and to receive evidence and to regulate
the course of the investigative hearing;
(D) To dispose of procedural requests
or similar matters; and
(E) To take any other appropriate
action to ensure the orderly conduct of
the investigative hearing.
§ 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.
§ 845.7
Hearing officer.
The investigative hearing officer,
upon designation by the NTSB
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 Managing
Director, add witnesses until the time of
the prehearing conference.
§ 845.8
Technical panel.
The appropriate office director(s) and/
or the hearing officer, in consultation
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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 prescreening 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 event under investigation and
surrounding circumstances and
conditions.
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§ 845.9
Prehearing conference.
(a) Except as provided in paragraph
(d) of this section, the chairman of the
board of inquiry 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
areas in 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) Expedited hearings. 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.
§ 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.
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§ 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.
§ 845.12
Evidence.
In accordance with § 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
event. He or she may exclude any
testimony or exhibits that are not
pertinent to the investigation or are
merely cumulative.
§ 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 events. 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.
§ 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.)
§ 845.15
Payment of witnesses.
Any witness subpoenaed to attend the
investigative hearing under this part
shall be paid such fees for travel and
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Fmt 4702
Sfmt 4702
14343
attendance for which the hearing officer
shall certify.
Subpart B—Meetings
§ 845.20
Meetings.
The Board may hold a meeting
concerning an investigation or Board
product, as described in § 804.3 of this
chapter or any other circumstance,
when the Board determines holding a
meeting is in the public interest.
§ 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-andanswer 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
§ 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 event and
the probable cause thereof, along with
any appropriate safety
recommendations and/or safety alerts
formulated on the basis of the
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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
events 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 § 800.25 of this
chapter, to issue a ‘‘brief,’’ which
includes the probable cause and
relevant facts, conditions, and
circumstances concerning the event. In
particular circumstances, the Board in
its discretion may choose to approve a
brief. Such briefs do not include
recommendations.
(b) NTSB studies and reports. (1) The
NTSB may issue reports describing
investigations of more than one event
that share commonalities. Such reports
are similar to event 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 events 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.
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§ 845.31
Public docket.
(a) Investigations. (1) As described in
§ 801.3 of this chapter, the public docket
shall include factual information
concerning the event. Proposed findings
submitted pursuant to §§ 831.14 or
845.13 and petitions for reconsideration
and modification submitted pursuant to
§ 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 event, 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
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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 § 801.30 of
this chapter. Records within the public
docket are available at www.ntsb.gov.
§ 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
correspondence@ntsb.gov. 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 § 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
which to present the party’s or person’s
position.
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Fmt 4702
Sfmt 4702
§ 845.33
Investigation to remain open.
The Board never officially closes, 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,
Acting Chairman.
[FR Doc. 2015–06187 Filed 3–18–15; 8:45 am]
BILLING CODE 7533–01–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2014–0065;
4500030114]
RIN 1018–BA03
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Black Pinesnake;
Correction
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; correction.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), published a
proposed rule in the Federal Register on
March 11, 2015, to designate critical
habitat for the black pinesnake
(Pituophis melanoleucus lodingi) under
the Endangered Species Act of 1973, as
amended (Act). In that proposed rule,
we provided the wrong address for the
submission of hard-copy comments.
With this document, we correct our
error.
SUMMARY:
We will accept comments on the
March 11, 2015 (80 FR 12846), proposed
rule that are received or postmarked on
or before May 11, 2015.
ADDRESSES: You may submit comments
on the March 11, 2015, proposed rule by
one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R4–ES–2014–0065, which is
the docket number for this rulemaking.
You may submit a comment by clicking
on ‘‘Comment Now!’’
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R4–ES–2014–
0065; Division of Policy, Performance,
and Management Programs; U.S. Fish
and Wildlife Service, MS: BPHC; 5275
DATES:
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]]>Agencies
[Federal Register Volume 80, Number 53 (Thursday, March 19, 2015)]
[Proposed Rules]
[Pages 14339-14344]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-06187]
=======================================================================
-----------------------------------------------------------------------
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).
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: The NTSB is proposing to amend provisions within its
regulations, which contains the NTSB's procedures for holding
investigative hearings, various types of meetings, issuing reports, and
responding to petitions for reconsideration. This notice proposes a
number of substantive and technical changes. In particular, the NTSB
proposes to reorganize parts of its regulations into different subparts
to ensure the part is easy to follow.
DATES: Comments must be received by May 18, 2015. Comments received
after the deadline will be considered to the extent possible.
ADDRESSES: A copy of this NPRM, 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 is available on the government-wide Web site on
regulations at https://www.regulations.gov (Docket ID Number NTSB-GC-
2012-0002).
You may send comments identified by Docket ID Number NTSB-GC-2012-
0002 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov and
follow the instructions for sending your comments electronically.
Mail: Send comments to NTSB Office of General Counsel, 490 L'Enfant
Plaza SW., Washington, DC 20594-2003.
Facsimile: Fax comments to 202-314-6090.
Hand Delivery: Bring comments to 490 L'Enfant Plaza East SW., 6th
Floor, Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
For more information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
https://www.regulations.gov, including any personal information
provided.
FOR FURTHER INFORMATION CONTACT: David Tochen, General Counsel, (202)
314-6080.
SUPPLEMENTARY INFORMATION:
I. Background
On June 25, 2012, the NTSB published a notice indicating its intent
to undertake a review of all NTSB regulations to ensure they are
updated. 77 FR 37865. The NTSB initiated this review in accordance with
Executive Order 13579, ``Regulation and Independent Regulatory
Agencies'' (76 FR 41587, July 14, 2011). 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's notice concerning its plan for reviewing all NTSB
regulations indicated the NTSB would specifically conduct a
comprehensive review of 49 CFR part 831, which describes the NTSB's
investigative process. The NTSB completed this review and published an
NPRM proposing various changes to part 831 on August 12, 2014. 79 FR
47064.
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 publishes this NPRM in
accordance with the NTSB's plan.
[[Page 14340]]
II. Description of Changes
The NTSB proposes reorganizing 49 CFR part 845 and adding two new
sections to describe Board meetings concerning NTSB products. The
current version of part 845 consists of three general sections (titled
``Applicability,'' ``Nature of hearing,'' and ``Sessions open to the
public'') followed by four subparts (titled ``Initial procedure,''
``Conduct of hearing,'' ``Board reports,'' and ``Public record''). The
NTSB carefully has reviewed part 845 and determined the current format
could be improved for clarity and ease of understanding. In addition,
part 845 does not discuss Board meetings concerning investigations and
NTSB products, even though meetings concerning such topics are a key
component of the Board's work and provide transparency in agency
activities and operations. Therefore, the NTSB proposes organizing part
845 into three subparts, titled ``Investigative hearings,''
``Meetings,'' and ``Reports.''
Subject to a number of proposed changes, this NPRM would maintain
most of the text from the existing sections addressing investigative
hearings, which are currently codified at sections 845.2 (``Nature of
hearing''), 845.3 (``Sessions open to the public''), 845.10
(``Determination to hold hearing''), 845.11 (``Board of inquiry''),
845.12 (``Notice of hearing''), 845.13 (``Designation of parties''),
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''), and
845.29 (``Payment of witnesses''). The NTSB suggests changes to the
text of these sections, which include changing terminology to describe
transportation events and substituting ``NTSB'' in place of the term
``Board,'' unless the term ``Board'' refers to the statutorily
appointed members of the Board. The NTSB also proposes numbering these
sections sequentially within the proposed subpart addressing
investigative hearings.
In order to ensure the initial sections of part 845 are clear, the
NTSB proposes removing the term ``formal issues'' from Sec. 845.2,
which currently states (in part), ``[s]uch hearings are fact-finding
proceedings with no formal issues and no adverse parties . . .'' The
term ``formal issues'' is not a legal term of art, and is not defined
in NTSB regulations. The NTSB does not believe the inclusion of this
term in Sec. 845.2 is necessary. In addition, the NTSB proposes
reorganizing the text of Sec. 845.2 to explain the purpose of an
investigative hearing is to develop further the facts, conditions, and
circumstances of the transportation event. The NTSB also proposes
including text stating investigative hearings are not conducted for the
purpose of determining the rights or liabilities of any person. The
NTSB proposes this language because, in recent years, witnesses and
parties who attend investigative hearings have been involved in ongoing
litigation relating to the subject of a hearing with greater frequency
or may become involved in litigation. In this section, the NTSB seeks
to emphasize the purpose of investigative hearings is to obtain
accurate, complete, and well-documented factual information related to
NTSB investigations.\1\
---------------------------------------------------------------------------
\1\ Part 845 does not apply to oral arguments before the Board
under 49 CFR part 821, which governs appeals of aviation certificate
enforcement actions.
---------------------------------------------------------------------------
In addition, the NTSB proposes removing a sentence from the
existing version of 845.11 (``Board of inquiry''), which currently
states, ``[a]ssignment of a Member to serve as the chairman of each
board of inquiry shall be determined by the Board.'' The NTSB believes
such assignments are internal agency procedures. As a result, the
agency does not believe it is necessary to codify a procedure
specifying how the Board might assign a Member to serve as the chairman
of each board of inquiry. The NTSB will handle such assignments via
Board policies.
As a point of clarification, the NTSB notes it does not suggest
changes to the text of proposed section Sec. 845.15 (``Payment of
witnesses''); this text is duplicative of the existing text of Sec.
845.29. However, the NTSB notes its practice is to pay witnesses who
would not attend if the agency did not pay the travel expenses
associated with attendance. In addition, we note the Invitational
Travel statute, codified at 5 U.S.C. 5703, allows the NTSB to reimburse
a speaker or witness if the person is providing a direct service to the
agency for which he or she is not receiving any compensation.
Regarding the proposed new subpart addressing Board meetings, the
NTSB proposes two new sections. The first section, to be codified at
845.20 (``Meetings''), states the Board may hold a meeting when the
Board determines such a meeting is in the public interest.
The NTSB also proposes adding Sec. 845.21 (``Symposiums, forums,
and conferences'') to apply some of the provisions of Sec. 845.20 to
symposiums, forums, and conferences. The NTSB proposes three paragraphs
within the new Sec. 845.21, the first of which will provide
definitions for these three types of proceedings. The NTSB proposes
adding within paragraph (a) of Sec. 845.21 the statement, ``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.'' This proposed version of paragraph
(a)(2) will also state the ``goals of the proceeding will be clearly
articulated and outlined, and will be consistent with the mission of
the NTSB.'' The NTSB also proposes adding paragraph (b) within Sec.
845.21, to clarify a quorum of the Board is not required to participate
in symposiums, forums, or conferences.
Also in paragraph (b), the NTSB proposes adding a statement that
symposiums, forums, and conferences are not intended to be used as a
means to obtain evidence or establish facts for a particular NTSB
investigation. The NTSB expects this language will provide clarity to
potential participants or people who are interested in attending an
NTSB symposium, forum, or conference. The proposed language also
provides the proceedings may have a relationship to previous, ongoing,
or future investigative activities, the purpose of which is to provide
supporting and collaborative information, but not to obtain direct
evidence for a specific investigation.
Following paragraph (b), the NTSB proposes paragraph (c), which
simply states participation in a symposium, forum, or conference is
voluntary. This statement will clarify the NTSB will not issue a
subpoena for attendance at such proceedings. The paragraphs within
Sec. 845.21 will function to educate the public and the transportation
community that the NTSB may hold forums, symposiums, and conferences,
to fulfill Congress's intent of ensuring NTSB staff and Board Members
remain educated and adhere to a well-rounded approach for improving
transportation safety in a variety of ways.
In the new subpart C of part 845 (``Reports''), the NTSB proposes
keeping the text of existing Sec. Sec. 845.40 (currently titled
``Accident report''), 845.41 (``Petitions for reconsideration or
modification''), 845.50 (``Public dockets''), and 845.51
(``Investigation to remain open'') largely unchanged, but updating the
terminology in these sections, and re-codifying them with
[[Page 14341]]
sequential numbers beginning at Sec. 845.30.
In Sec. 845.30, to be titled, ``Board products,'' the NTSB
proposes maintaining essentially unchanged within paragraph (a) the
text currently in Sec. 845.40(a), which describes reports. The NTSB
proposes adding language to Sec. 845.30(a)(2) pointing out the Board,
consistent with longstanding agency process and procedure, allows the
appropriate office director to issue a brief, which will include the
probable cause and relevant facts, conditions, and circumstances
concerning the event investigated. The Board has delegated to office
directors the authority to issue such determinations in 49 CFR 800.25.
Section 845.30(a)(2), as proposed, includes a description of ``brief''
as a document that includes the probable cause and relevant facts,
conditions, and circumstances. The proposed language includes a
citation to Sec. 800.25, which provides office directors the authority
to determine the probable cause by issuing such briefs. In addition,
the NTSB proposes adding a new paragraph to Sec. 845.30 to describe
safety recommendations, which the Board may adopt and issue as a stand-
alone Board product outside the context of a specific report or other
type of Board product.
The NTSB proposes including the section discussing public dockets
immediately following the section describing reports and briefs, as
NTSB public dockets contain information supporting the statements in
reports and briefs. Within Sec. 845.31, the NTSB proposes only a few
minor changes, such as including a reference to the definition of
``public docket'' in Sec. 801.3 of this chapter, and removing the term
``accident,'' to ensure consistency with the NTSB's Notice of Proposed
Rulemaking for changes to 49 CFR part 831.\2\ The NTSB also proposes
updating paragraph (c), which advises the public of how it might access
material in the public docket. The NTSB places public dockets on its
Web page at www.ntsb.gov, to allow the public to download them free of
charge. Therefore, the NTSB proposes adding its Web site link to Sec.
845.31(c).
---------------------------------------------------------------------------
\2\ 79 FR 47064 (Aug. 12, 2014). The NPRM concerning proposed
changes to 49 CFR part 831 explained the NTSB's proposal to modify
its terminology within its regulations by utilizing the term
``event,'' and, in some sections, other descriptive terms. Id. at
47065.
---------------------------------------------------------------------------
The NTSB proposes moving the section currently located at 49 CFR
845.41 (``Petitions for reconsideration or modification'') to Sec.
845.32. The NTSB also proposes organizing this section with headings
for each paragraph, to ensure the public and interested parties can
easily follow it. The first proposed heading will be titled
``requirements,'' and will state the requirements applicable to
submissions of petitions for reconsideration or modification currently
listed in scattered places within Sec. 845.41. Therefore, the
``requirements'' paragraph (Sec. 845.32(a)) will state only
individuals or entities having a ``direct interest'' in the
investigation may submit petitions. The paragraph will also require
petitions be in writing and be based on the discovery of new evidence
or a showing the Board's findings were erroneous.
The NTSB proposes titling the second paragraph as ``acceptance of
petitions,'' which will include some of the same text as is currently
located in Sec. 845.41. The NTSB, however, proposes to delete the
statement the Board will not consider petitions filed by an individual
or entity who could have submitted proposed findings, as described in
the current version of Sec. 845.27. Individuals and entities have
interpreted Sec. 845.41 to mean they cannot submit a petition for
reconsideration. Under the current text, if the individual or entity
failed to submit a comment, the individual or entity would ostensibly
waive the right to petition the Board for reconsideration. However, the
NTSB is unlikely to prohibit such an individual or entity from later
filing a petition for reconsideration. As a result, in the proposed
version of Sec. 845.13, the NTSB removes the statement that it will
not consider petitions for reconsideration from an individual or entity
who could have submitted proposed findings.
The NTSB also proposes retaining the requirement that any
individual or entity filing a petition for reconsideration or
modification submit with its petition proof it served the petition on
all parties to the investigation or investigative hearing. The
paragraph will also include the deadline of 90 days, within which
interested individuals or entities may file comments to the petition.
These provisions within the ``proof of service'' paragraph are
currently located at 49 CFR 845.41(b) of the NTSB's regulations.
Lastly, the NTSB proposes titling Sec. 845.32(d) ``oral
presentation.'' The current version of Sec. 845.41(c) includes the
same provisions as this new paragraph, but dividing it into two
portions, the first of which states oral presentation will not normally
be a part of the proceedings within part 845, and the second of which
states the Board, upon granting a request for an oral presentation,
will specify which issues will be addressed at the presentation. The
NTSB believes dividing this paragraph into two numbered sentences, as
well as using the term ``party or interested person,'' will provide
greater clarity.
The NTSB proposes moving Sec. 845.51 (``Investigation to remain
open'') to Sec. 845.33. The NTSB plans to retain the title
``investigation to remain open,'' with the addition of the word
``event.''
III. Regulatory Analysis
This NPRM is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of the potential costs and benefits under
section 6(a)(3) of that Order. As such, the Office of Management and
Budget has not reviewed this proposed rule under Executive Order 12866.
Likewise, this proposed rule does not require an analysis under the
Unfunded Mandates Reform Act, 2 U.S.C. 1501-1571, or the National
Environmental Policy Act, 42 U.S.C. 4321-4347.
In addition, the NTSB has considered whether this NPRM would have a
significant economic impact on a substantial number of small entities,
under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB
certifies under 5 U.S.C. 605(b) that this NPRM would not have a
significant economic impact on a substantial number of small entities.
Moreover, in accordance with 5 U.S.C. 605(b), the NTSB will submit this
certification to the Chief Counsel for Advocacy at the Small Business
Administration. Moreover, the NTSB does not anticipate this NPRM will
have a substantial, direct effect on state or local governments or will
preempt state law; as such, this NPRM does not have implications for
federalism under Executive Order 13132, Federalism. This NPRM 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 NPRM 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 that this
NPRM does not contravene any of the
[[Page 14342]]
requirements set forth in these Executive Orders or statutes, nor does
this NPRM prompt further consideration with regard to such
requirements.
The NTSB invites comments relating to any of the foregoing
determinations and notes the most helpful comments reference a specific
portion of the proposal, explain the reason for any recommended change,
and include supporting data.
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 proposes to
amend 49 CFR part 845 as follows:
Title 49--Transportation
PART 845--RULES OF PRACTICE IN TRANSPORTATION: INVESTIGATIVE
HEARINGS; MEETINGS; AND REPORTS; PETITIONS FOR RECONSIDERATION
0
1. The authority citation for 49 CFR part 845 is revised to read as
follows:
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.
0
2. Revise part 845 to read as follows:
845.1 Applicability of part.
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.
PART 845--RULES OF PRACTICE IN TRANSPORTATION: INVESTIGATIVE
HEARINGS; MEETINGS; AND REPORTS; PETITIONS FOR RECONSIDERATION
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 event, which will ultimately assist the Board in
determining the cause or probable cause of the event, and in
ascertaining measures that will tend to prevent such events 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, 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 event 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.
(1) The NTSB will provide notice of the time and place of the
investigative hearing to all known interested persons.
(2) The chairman of the board of inquiry, or his or her designee,
shall have the following powers:
(A) To designate parties to the investigative hearing and revoke
such designations;
(B) To open, continue, or adjourn the investigative hearing;
(C) To determine the admissibility of and to receive evidence and
to regulate the course of the investigative hearing;
(D) To dispose of procedural requests or similar matters; and
(E) 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, 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 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
[[Page 14343]]
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 event
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 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 areas in 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) Expedited hearings. 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 event. 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 events. 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.
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 event and the probable
cause thereof, along with any appropriate safety recommendations and/or
safety alerts formulated on the basis of the
[[Page 14344]]
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 events 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 event. In
particular circumstances, the Board in its discretion may choose to
approve a brief. Such briefs do not include recommendations.
(b) NTSB studies and reports. (1) The NTSB may issue reports
describing investigations of more than one event that share
commonalities. Such reports are similar to event 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 events 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 event. Proposed findings submitted pursuant to Sec. Sec. 831.14 or
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 event,
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
correspondence@ntsb.gov. 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 which to present the party's or person's position.
Sec. 845.33 Investigation to remain open.
The Board never officially closes, 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,
Acting Chairman.
[FR Doc. 2015-06187 Filed 3-18-15; 8:45 am]
BILLING CODE 7533-01-P
