Investigation Procedures: Marine Investigations, 29690-29697 [2017-12983]

Agencies

• National Transportation Safety Board

[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Rules and Regulations]
[Pages 29690-29697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12983]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 831

[Docket No. NTSB-GC-2012-0002]
RIN 3147-AA01


Investigation Procedures: Marine Investigations

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Interim final rule; request for comments.

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SUMMARY: The NTSB adds to its accident investigation procedures 
regulations a new subpart for marine casualty investigations. This 
interim final rule adopts a number of substantive and technical changes 
the NTSB proposed in its August 12, 2014 Notice of Proposed Rulemaking 
(NPRM), as those proposals were intended to apply to marine 
investigations. It also sets forth several changes specific to marine 
casualty investigations.

DATES: This rule is effective July 31, 2017. Comments must be received 
by July 31, 2017. Comments received after the deadline will be 
considered to the extent possible.

ADDRESSES: A copy of this interim final rule, published in the Federal 
Register, 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 East 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.

PRIVACY: We will post all comments we receive, without change, to 
https://www.regulations.gov, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: Ann Gawalt, Deputy General Counsel, 
202-314-6088.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Justification for Use of an Interim Final Rule

    The NTSB issues this interim final rule to create a distinct set of 
regulations for NTSB marine casualty investigations. As explained in 
further detail below, marine accident investigations involve unique 
factors that are not present in other NTSB investigations. To address 
these differences, NTSB promulgates several changes to subpart E that 
did not appear in the NPRM for part 831. 79 FR 47064 (Aug. 12, 2014).
    The Administrative Procedure Act (APA) generally requires an agency 
to provide notice of proposed rulemaking and a period of public comment 
before the promulgation of a new regulation. 5 U.S.C. 553(b) and (c). 
Section 553(b) of the APA provides that notice and comment requirements 
do not apply when the agency, for good cause, finds that notice and 
public comment procedure are impracticable, unnecessary, or contrary to 
the public interest. The NTSB will issue an interim final rule when it 
is in the public interest to promulgate an effective rule while keeping 
the rulemaking open for further refinement. 49 CFR 800.45.
    The interim final rule procedure is appropriate for this new 
subpart involving marine casualty investigations. Many provisions of 
subpart E, as implemented in this interim final rule, are similar to 
those the NTSB proposed in the NPRM dated August 12, 2014. When the 
NTSB solicited comments concerning its proposed changes to part 831, it 
received one comment specific to marine casualty investigations, 
submitted by the United States Coast Guard (USCG). As a result, 
utilizing the notice and comment rulemaking process anew for this 
subpart is unnecessary.

B. NTSB and USCG: Statutory and Regulatory Considerations

    In accordance with NTSB statutory authority (49 U.S.C. 
1131(a)(1)(E)) and USCG statutory authorities (46 U.S.C. Chapters 61 
and 63, and 14 U.S.C. 141)), for investigations involving any major 
marine casualty or any casualty involving public and nonpublic vessels, 
the NTSB works closely with the USCG, pursuant to the joint USCG-NTSB 
Marine Casualty Investigation Regulations. The NTSB's version of the 
joint regulations is codified at 49 CFR part 850 and the USCG's version 
is codified at 46 CFR subpart 4.40. Also as provided in those 
regulations, either agency may conduct investigations of certain types 
of marine casualties on its own, or with assistance from the other. As 
a result, the NTSB's relationship with the USCG during marine casualty 
investigations is distinct from the NTSB's relationship with other 
Federal agencies for investigations of transportation accidents in 
other modes, as described at Sec.  831.5 of this part.
    In addition, because of their separate authorities, NTSB and USCG 
investigations differ in some significant ways. The NTSB has the 
responsibility to evaluate the effectiveness of USCG regulations, 
policies, and practices in preventing casualties and examine the 
transport of hazardous materials. In addition to reporting on the 
probable cause, facts and circumstances of certain types of marine 
casualties, the NTSB also makes safety recommendations to reduce the 
likelihood of future casualties. The USCG is responsible for reporting 
on the cause of the casualty and identifying certification and 
licensure issues and potential criminal conduct. Specifically, Congress 
charged the USCG with the responsibility of

[[Page 29691]]

enforcing, or assisting in the enforcement of, all applicable laws on, 
under, and over the ``high seas and waters subject to the jurisdiction 
of the United States.'' 14 U.S.C. 2. In furtherance of this 
responsibility, 14 U.S.C. 89 authorizes USCG personnel to prevent, 
detect, and suppress violations of laws of the United States on waters 
subject to U.S. jurisdiction and in international waters, as well as on 
all vessels subject to U.S. jurisdiction. To carry out their respective 
missions, the NTSB and USCG closely coordinate to share evidence and 
information pertaining to marine casualty investigations.
    In conducting marine casualty investigations, the USCG and NTSB 
adhere to joint regulations and the terms of a memorandum of 
understanding, which states the two agencies are equal partners in 
collecting evidence, and presumes where one of the two agencies 
maintains expertise, the other agency will assist in the investigative 
activities. Moreover, the NTSB and USCG joint regulations describe 
which of the two agencies will serve as the lead during an 
investigation. 49 CFR 850.15 and 850.25; 46 CFR subpart 4.40.
    In this interim final rule, where appropriate and necessary, the 
NTSB has drafted text to exclude the USCG from certain requirements 
and/or otherwise accommodate the USCG's role in participating in NTSB 
marine safety casualty investigations. More generally, the agency 
promulgates this subpart for the purpose of establishing requirements 
for party participants in NTSB marine casualty investigations. In such 
investigations, the NTSB invites the participation of a variety of 
organizations and individuals. For example, the NTSB invites vessel 
operators, labor unions, manufacturers, and other organizations that 
can provide subject matter expertise in the specific marine casualty to 
participate in NTSB investigations. The investigative rules promulgated 
herein are distinct from the USCG investigative rules, due to the 
agencies' distinguishable missions, and to ensure the NTSB conducts 
independent investigations.
    We intend the following discussion to resolve the concerns the USCG 
expressed with regard to our NPRM's proposed changes to Sec.  831.1 
Applicability, Sec.  831.2 Responsibility of NTSB, Sec.  831.4 Nature 
of investigation, Sec.  831.5 Priority of NTSB investigations, Sec.  
831.7 Witness interviews, Sec.  831.8 Investigator-in-charge, Sec.  
831.9 Authority of NTSB representatives, Sec.  831.11 Parties to the 
investigation, and Sec.  831.13 Flow and dissemination of investigative 
information.
    A companion Final Rule that finalizes changes to part 831, subparts 
A through D, appears elsewhere in this issue of the Federal Register.

C. Section 831.50 Applicability

    This section states that subpart E will apply to marine and major 
marine casualties for which the NTSB leads the investigation. When the 
USCG leads an investigation, that agency's rules and procedures apply. 
The section also enumerates two situations where these rules apply when 
the USCG leads an investigation: (1) When the USCG requests the NTSB to 
conduct an investigative activity and (2) when the NTSB seeks to 
collect evidence outside the scope of the USCG investigation.

D. Section 831.51 Definitions

    The terms ``casualty'' and investigative activities are defined in 
Sec.  831.51 in this Interim Final Rule. The NTSB adopts the term 
``casualty'' as a general descriptor of marine occurrences that NTSB 
has the authority to investigate. In the NTSB's August 12, 2014, NPRM, 
the NTSB proposed using the term ``event'' to describe a lengthy 
listing of occurrences the NTSB would investigate under its rules 
codified at 49 CFR part 831. The USCG comment questioned the NTSB's 
proposed use of the term because it indicated the NTSB may investigate 
more than accidents and incidents (or, in the case of marine 
investigations, casualties). The NTSB agrees the term ``event,'' could 
cause confusion as to the types of occurrences NTSB will investigate, 
and therefore declines to adopt it.
    Based on a USCG suggestion, the NTSB incorporates the definition of 
``marine casualty'' in 46 CFR 4.03-1. We also add subparagraph (3) to 
the definition of ``marine casualty,'' to include, other marine 
occurrences that the NTSB or USCG, or both, determine require 
investigation.''
    This regulatory definition of ``marine casualty'' does not expand 
or affect the NTSB's authority and responsibility; in receiving 
notifications from the USCG of casualties, the NTSB's actions will 
continue to be circumscribed by 49 U.S.C. 1131 and the agencies' joint 
regulations at 49 CFR part 850 and 46 CFR subpart 4.40.
    Although requested by the USCG, we decline to remove the term 
``abandonment'' from the definition of marine casualty because we have 
conducted investigations of vessel abandonments. For example, the NTSB 
investigated the abandonment of Trinity II, which personnel abandoned 
September 8, 2011.\1\
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    \1\ The 78.5-foot-long liftboat Trinity II sustained damage from 
severe weather associated with Hurricane Nate about fifteen miles 
offshore in the Gulf of Mexico. The four crewmembers and six 
contractors on board abandoned ship. All ten persons, wearing 
lifejackets, entered the water where they clung to a life float. By 
the time rescuers located the survivors three days later, three had 
died and another would die later at a hospital. The six survivors 
sustained serious injuries. See National Transportation Safety 
Board. 2013. Personnel Abandonment of Weather-Damaged US Liftboat 
Trinity II, with Loss of Life, Bay of Campeche, Gulf of Mexico, 
September 8, 2011, NTSB/MAR-13/01. Washington, DC. NTSB, available 
at https://www.ntsb.gov/investigations/AccidentReports/Reports/MAR1301.pdf.
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    In this subpart, we also use the term ``investigative activity.'' 
Section 831.51 defines ``investigative activity'' as activities the 
NTSB directs during an investigation the USCG is leading. For example, 
the NTSB operates materials and recorder laboratories and employs 
experts who offer specialized skills and knowledge. When the USCG leads 
an investigation but seeks the NTSB's assistance with downloading data 
from a recorder or creating a transcript from an audio recording, the 
NTSB will create a group and supervise the actions of that particular 
investigative activity. In those instances, the NTSB's regulations will 
apply to the activity. Also, the NTSB may engage in investigative 
activities when the NTSB examines USCG regulations, policies, and 
practices. In doing so, the NTSB is fulfilling its statutory 
responsibility to evaluate the effectiveness of other departments 
responsible for transportation safety. 49 U.S.C. 1116(b)(4).
    Finally, we add text to define the use of the abbreviation ``IIC'' 
throughout the subpart.

E. Section 831.52 Responsibility of NTSB in Marine Investigations

    This section describes the authority of the NTSB to investigate 
marine and major marine casualties. This section also recognizes that 
while the NTSB may conduct separate investigative activities from the 
USCG, the two agencies will coordinate to avoid duplicative efforts.

F. Section 831.53 Authority of Director, Office of Marine Safety

    The majority of text of Sec.  831.53 derives from the final 
language adopted in Sec.  831.3 of the final rule to subpart A of this 
part, but replaces the term ``accident'' with the phrase ``major marine 
casualty or marine casualty.''

[[Page 29692]]

G. Section 831.54 Nature of Investigation

    Section 831.54, also includes language similar to that found in 
Sec.  831.4 of the final rule. This regulatory text describes the 
general nature of NTSB investigations, including language confirming 
that our investigations are not for the purpose of assigning blame and 
are not subject to the APA. The NTSB agrees with the USCG's concern 
that the use of the proposed term ``preliminary'' investigation would 
not accurately reflect the process codified in our joint regulations at 
49 CFR part 850 and 46 CFR 4.40-10. Specifically, these joint 
regulations call for the USCG to conduct preliminary investigations to 
assess whether a casualty constitutes a major marine casualty or if the 
occurrence appears to meet any other criteria outlined in the joint 
regulations.

H. Section 831.55 Relationship With Other Agencies

    Section 831.55 describes the NTSB's relationship with the USCG and 
other Federal agencies during a marine casualty investigation. With 
respect to the USCG, we note the NTSB's authorizing legislation, at 49 
U.S.C. 1131(a)(1)(E), specifies the NTSB and USCG will maintain a 
joint-working relationship in conducting investigations, and must 
prescribe joint regulations to do so. The NTSB joint regulations are 
codified at part 850 of this chapter.
    As the regulatory text makes clear, the NTSB will inform the USCG 
and coordinate with it, as necessary, in activities relating to the 
collection of evidence. This will ensure both agencies have the 
information and evidence they need.
    This section also describes how the NTSB interacts with other 
Federal agencies in marine casualty investigations. We have codified in 
this section the principle that the NTSB maintains priority in marine 
safety investigations over agencies other than the USCG. For example, 
for certain investigations, the Environmental Protection Agency, the 
Occupational Safety and Health Administration, the National Oceanic and 
Atmospheric Administration, the Navy, and the Army Corps of Engineers 
may need information. The NTSB will exchange such information in a 
timely manner, while maintaining its priority to work first with the 
USCG in achieving a robust, comprehensive collection of evidence and 
information. Similarly, the NTSB will require other Federal agencies 
coordinate with the NTSB to ensure their activities do not interfere 
with the safety investigation for the reasons explained in the preamble 
to subpart A of part 831 (as published elsewhere in this issue of the 
Federal Register).
    The USCG also raised a concern about the NTSB's exclusive authority 
to decide the time and manner to extract data from evidence. The NTSB 
retains this proposed language now found in Sec.  831.55(c). The 
complete discussion of the USCG comments can be found in the preamble 
discussion for Sec.  831.59.
    As requested by the USCG, the NTSB adopts language that clarifies 
that Federal agencies are not prohibited from conducting investigations 
under their own statutory authorities. To avoid duplicative efforts, we 
have also adopted language stating that those Federal agencies that 
conduct separate investigations are expected to coordinate with the 
NTSB.
    By this interim final rule, the NTSB clarifies regulatory text 
proposed in the part 831 NPRM as it relates to evidence collection from 
USCG incident command systems. The revised text defines the role of the 
NTSB in the incident command system which is to identify investigative 
needs and request preservation of evidence. The text makes clear that 
the NTSB will coordinate these requests with the USCG investigative 
officer. The text also states that the NTSB will collect casualty 
information in a manner so as not to interfere with the operations of 
the incident command.
    In the comment, the USCG questioned whether the NTSB is authorized 
to compel the production of information from incident or unified 
command systems during an ongoing marine casualty response. We note our 
authorizing legislation specifically tasks us with developing and 
issuing reports to ``propose corrective action to make the 
transportation of individuals as safe and free from risk of injury as 
possible, including action to minimize personal injuries that occur in 
transportation accidents.'' 49 U.S.C. 1116(a)(2). Moreover, the 
legislation requires us to ``examine techniques and methods of accident 
investigation and periodically publish recommended procedures for 
accident investigations,'' and ``evaluate, examine the effectiveness 
of, and publish the findings of the Board about the transportation 
safety consciousness of other departments, agencies, and 
instrumentalities of the Government and their effectiveness in 
preventing accidents.'' Id. Sec.  1116(b)(2), (4). Also, when 
transportation of hazardous materials is a subject of an investigation, 
Congress has charged the NTSB with ``[evaluating] the adequacy of 
safeguards and procedures for the transportation of hazardous material 
and the performance of other departments, agencies, and 
instrumentalities of the Government responsible for the safe 
transportation of that material.'' Id. Sec.  1116(b)(5). The NTSB 
cannot accomplish these mandated objectives without collecting evidence 
from incident command systems. The NTSB does not intend the regulatory 
text to lead to an interpretation that the NTSB could impede on-going 
USCG activities in an incident command system.
    In recent years, the NTSB was a part of the Federal, state, and 
local incident command structures in certain accidents. These include 
the NTSB's investigation into transportation accidents in Paulsboro, 
New Jersey; Marshall, Michigan; Port Arthur, Texas; Cherry Valley, 
Illinois; Casselton, North Dakota; Graniteville, South Carolina; and 
San Bruno, California. Based on these investigations, the NTSB has 
issued dozens of safety recommendations in the interest of improving 
safety of various modes of transportation.
    Furthermore, the NTSB's authority to participate in the incident 
command structure during an investigation is consistent with the 
Department of Homeland Security's National Incident Management System: 
Intelligence/Investigations Function Guidance and Field Operations 
Guide (Oct. 2013).\2\ The Guide specifically describes the NTSB's 
participation in the Intelligence/Investigation element at the site of 
investigations as part of the unified command system structure. Id. at 
3, 5, 11.
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    \2\ Available at https://publicintelligence.net/dhs-nims-intel-guide/.
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I. Section 831.56 Request To Withhold Information

    We adopt the same language in this section as set forth in the 
final rule Sec.  831.6. For a discussion of the comments, see the 
discussion in the preamble to the final rule for that section.

J. Section 831.57 Representation During an Interview

    We agree with the USCG comment that the proposed phrase ``an 
investigator working on behalf of the NTSB'' could be problematic and 
we decline to include such language. We adopt the same language in this 
section as set forth in the final rule Sec.  831.7. For a discussion of 
the comments, see the discussion in the preamble to the final rule for 
that section.

[[Page 29693]]

K. Section 831.58 Investigator-in-Charge

    Section 831.58 largely parallels the language we codified in Sec.  
831.8. The section provides IICs the authority to sign and issue 
subpoenas, administer oaths and affirmations, and take depositions (or 
cause them to be taken) in furtherance of an investigation. In 
addition, the NTSB removes the word ``considerable'' from the final 
sentence in Sec.  831.8, because it is unnecessary.
    The USCG requested we add language that investigations be conducted 
in accordance with the joint regulations instead of adopting the 
language from Sec.  831.8. The USCG suggests its personnel could be 
subject to the direction of the NTSB's IIC and such an interpretation 
is contrary to the current memorandum of understanding to which the 
USCG and the NTSB have agreed. We respectfully disagree that describing 
the authority of the IIC would be contrary to the NTSB-USCG memorandum 
of understanding. Rather, the memorandum of understanding recognizes 
the importance of designating one agency to lead during the on-scene 
portion of the investigation, while the agencies work together as equal 
partners in the collection of evidence. This designation serves to 
avoid confusion and duplication. When the NTSB leads a marine casualty 
investigation, the rules of part 831, subpart E, will apply. In this 
regard, accurately describing the IIC's role is critical.
    We add paragraphs (c) and (d), which specifically state the NTSB 
IIC is responsible for ensuring that Federal agencies have the 
information they need. The newly added paragraphs also make clear that 
the IIC is responsible for coordinating with the USCG during the 
investigation.

L. Section 831.59 Authority During Investigations

    The NTSB adopts the language of Sec.  831.9 of this part. 
Consistent with that section, we remove the term ``authorized 
representative.'' We retain the text concerning our exclusive authority 
to conduct testing. This text closely follows the statutory text found 
in 49 U.S.C. 1134(d).
    The USCG expressed concern that potential conflicts between NTSB 
and USCG investigators could arise during the course of an 
investigation, due to our proposed language concerning the NTSB's 
exclusive authority to test and/or extract data. We note that Sec.  
831.9 has long contained similar language and the USCG did not identify 
any specific investigation where a conflict regarding testing and 
extraction of data arose between the NTSB and USCG. Nor are we aware of 
any instances where the USCG investigation was impeded as a result of 
this text. The operational history between the agencies shows that the 
NTSB consults with the USCG when testing evidence or extracting data. 
This authority primarily functions to ensure private-sector parties do 
not conduct independent testing in the absence of NTSB approval. Courts 
have recognized the NTSB's authority in this regard. See U.S. v. 
Pizzitola, No. 4:14-CV-2335 (S.D. Tex. Dec. 4, 2014)(order to comply 
with subpoena).

M. Section 831.60 Autopsies and Postmortem Testing

    This section was redrafted to more clearly state the content. No 
substantive changes were made from the proposed text. The regulation is 
adopted with these changes.

N. Section 831.61 Parties to the Investigation

    The USCG requested that we revise our proposed statement indicating 
no entity maintains a right to party status. In its comment, the USCG 
stated this provision does not recognize its ``independent statutory 
investigative authority to conduct marine casualty investigations,'' 
nor does the rule recognize the USCG's authority to partner with the 
NTSB in marine casualty investigations. The USCG stated this 
partnership is outlined in the agencies' memorandum of understanding. 
The USCG recommended we add the following sentence to the section 
concerning parties: ``With regard to the investigation of marine 
casualties, the USCG has the right to participate as an equal partner 
in gathering evidence and establishing facts.''
    In this interim final Rule, the NTSB has added text that the NTSB 
will provide the USCG the opportunity to participate as a party in all 
NTSB marine casualty investigations and investigative activities. In 
paragraph (a)(2) of the section, the NTSB specifically exempts the USCG 
from the statement that no entity shall automatically have the right to 
participate in an NTSB investigation as a party. These edits are 
intended to ensure the public is aware the two agencies function as 
investigative partners.
    All other changes are consistent with Sec.  831.11 and the preamble 
for that section sets forth the agency's reasons for the changes.

O. Section 831.62 Access to and Release of Wreckage, Records, Mail, and 
Cargo

    This section adopts the text of Sec.  831.12. For a discussion of 
the comments, please see the preamble to the final rule for that 
section.

P. Section 831.63 Provision and Dissemination of Investigative 
Information

    For the regulatory text pertaining to release of information, the 
USCG requested we include text stating we will coordinate with its 
personnel prior to public release of investigative information. We 
include regulatory text that states we will inform the USCG concerning 
releases and decisions to disseminate information, as long as such 
coordination would not affect the investigation. Because we understand 
the USCG needs to be aware of a planned release of information from an 
investigation by the NTSB, we will coordinate to the maximum extent 
practicable.
    The USCG also stated our proposed text for Sec.  831.13 ``does not 
consider the privacy protection laws and requirements to which the 
Coast Guard must adhere.'' In addition, as with its comments on other 
proposed regulatory sections, the USCG states the section does not 
consider ``the Coast Guard's role as a joint-investigating agency (or, 
in some circumstances, the lead investigating agency) and its policies 
and discretion on the release of information.'' Based on these 
concerns, the USCG recommends we explicitly recognize, in the 
regulatory text of Sec.  831.13, ``other agencies' responsibilities to 
protect privacy information under applicable Federal laws.''
    The NTSB takes seriously its obligations under Federal privacy and 
information laws. Regulatory text, however, stating our practices for 
complying with applicable Federal law is unnecessary. For example, if 
information would be exempt from public disclosure under Exemption 6 of 
the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(6), and that 
record originated from the USCG, we would refer the document to the 
USCG for any redactions. Analysis under FOIA Exemption 6 requires a 
balancing of the privacy interest and the public interest in the 
information. If such information is related to the probable or 
contributory cause of a casualty, we limit the release to only that 
information required to explain a finding or a recommendation.
    We note the practice the NTSB and USCG have agreed to follow with

[[Page 29694]]

respect to Privacy Act protected information from USCG system of 
records. If the NTSB determines it needs to disclose information for 
safety purposes in a final NTSB report or supporting factual material, 
and the USCG has already redacted the information on privacy grounds, 
the NTSB will provide the USCG notice of, and an opportunity to comment 
on, the proposed release and rationale. The NTSB will also comply with 
the USCG's requested redaction. The NTSB and the USCG have been 
successfully using this practice.

Q. Section 831.64 Proposed Findings

    This section adopts the text of Sec.  831.14. For a discussion of 
the comments, please see the preamble to the final rule for that 
section.

II. Regulatory Analysis

    This interim final rule 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 interim final rule under 
Executive Order 12866. Likewise, this interim final 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 interim final 
rule 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 interim final 
rule 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.
    The NTSB does not anticipate this interim final rule will have a 
substantial, direct effect on state or local governments or will 
preempt state law; as such, this interim final rule does not have 
implications for Federalism under Executive Order 13132, Federalism. 
This interim final rule also complies with all applicable standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform, to minimize litigation, eliminate ambiguity, and reduce burden. 
In addition, the NTSB has evaluated this interim final rule under: 
Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights; Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks; Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments; Executive Order 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use; and the National Technology Transfer and Advancement Act, 15 
U.S.C. 272 note. The NTSB has concluded this interim final rule does 
not contravene any of the requirements set forth in these Executive 
Orders or statutes, nor does this rule prompt further consideration 
with regard to such requirements.

List of Subjects in 49 CFR Part 831

    Aircraft accidents, Aircraft incidents, Aviation safety, Hazardous 
materials transportation, Highway safety, Investigations, Marine 
safety, Pipeline safety, Railroad safety.

    For the reasons discussed in the preamble, the NTSB adds 49 CFR 
part 831, subpart E, to read as follows:

PART 831--ACCIDENT/INCIDENT INVESTIGATION PROCEDURES

0
1. The authority citation for part 831 continues to read as follows:

    Authority: 49 U.S.C. 1113(f).


0
2. Add subpart E to read as follows:
Subpart E--Marine Investigations
Sec.
831.50 Applicability of this subpart.
831.51 Definitions.
831.52 Responsibility of NTSB in marine investigations.
831.53 Authority of Director, Office of Marine Safety.
831.54 Nature of investigation.
831.55 Relationships with other agencies.
831.56 Request to withhold information.
831.57 Representation during an interview.
831.58 Investigator-in-charge.
831.59 Authority during investigations.
831.60 Autopsies and postmortem testing.
831.61 Parties to the investigation.
831.62 Access to and release of wreckage, records, mail, and cargo.
831.63 Provision and dissemination of investigative information.
831.64 Proposed findings.

    Authority:  49 U.S.C. 1113(f), 1116, 1131, 1134, unless 
otherwise noted.

Subpart E Marine Investigations


Sec.  831.50   Applicability of this subpart.

    (a) The regulations in this subpart apply when the NTSB is leading 
a marine or major marine casualty investigation.
    (b) In a marine or major marine casualty investigation led by the 
United States Coast Guard (USCG), this subpart applies if:
    (1) Upon USCG's request for assistance, the NTSB is leading an 
associated investigative activity; or
    (2) Upon coordination with the USCG, the NTSB elects to collect, 
test or analyze additional evidence beyond the scope of the USCG's 
investigation.


Sec.  831.51   Definitions.

    The following definitions apply throughout this subpart.
    IIC means the NTSB investigator-in-charge.
    Investigative activity means an activity performed by or under the 
direction of the NTSB during a casualty investigation led by the USCG.
    Major marine casualty is defined in joint regulations of the NTSB 
and USCG at 49 CFR 850.5(e) and 46 CFR 4.40-5(d), respectively.
    Marine casualty means--
    (1) Any casualty, accident or event described in 46 CFR 4.03-1
    (2) An occurrence that results in an abandonment of a vessel
    (3) Other marine occurrences that the NTSB or USCG, or both, 
determine require investigation.


Sec.  831.52   Responsibility of NTSB in marine investigations.

    (a) The NTSB may conduct an investigation of a major marine 
casualty or a marine casualty of a vessel (including, but not limited 
to, allisions, abandonments, and accidents) alone or jointly with the 
USCG pursuant to the joint regulations in part 850 of this chapter.
    (b) Nothing in this part may be construed to conflict with the 
regulations in part 850 of this chapter, which were prescribed jointly 
by the NTSB and USCG under the authority of 49 U.S.C. 1131(a)(1)(E).
    (c) In an investigation led by the USCG, the NTSB may perform 
separate activities in furtherance of its own analysis or at the 
request of the USCG. The NTSB and USCG will coordinate to ensure the 
agencies do not duplicate work or hinder the progress of the 
investigation.
    (d) Pursuant to 49 U.S.C. 1131(a)(1)(F), the NTSB is responsible 
for the investigation of other accidents that may include marine and 
boating accidents not covered by part 850 of this chapter, and certain 
accidents involving transportation and/or release of hazardous 
materials.


Sec.  831.53   Authority of Director, Office of Marine Safety.

    The Director, Office of Marine Safety, subject to the provisions of 
Sec.  831.52 of this part and part 800 of this chapter, may order an 
investigation into any

[[Page 29695]]

major marine casualty or marine casualty.


Sec.  831.54   Nature of investigation.

    (a) General. The NTSB conducts investigations, or has them 
conducted, to determine the facts, conditions, and circumstances 
relating to a major marine casualty or a marine casualty. The NTSB uses 
these results to determine one or more probable causes of a major 
marine casualty or a marine casualty, and to issue safety 
recommendations to prevent or mitigate the effects of a similar major 
marine casualty or a marine casualty. The NTSB is required to report on 
the facts and circumstances of major marine casualties or marine 
casualties it investigates. The NTSB begins an investigation by 
monitoring casualty situations and assessing available facts to 
determine the appropriate investigative response. Following an initial 
assessment, the NTSB notifies persons and organizations it anticipates 
will be affected as to the extent of its expected investigative 
response.
    (b) NTSB products. An investigation may result in a report or brief 
of the NTSB's conclusions and other products designed to improve 
transportation safety. Other products may include factual records, 
safety recommendations, and other safety information.
    (c) NTSB investigations are fact-finding proceedings with no 
adverse parties. The investigative proceedings are not subject to the 
Administrative Procedure Act (5 U.S.C. 551 et seq.), and are not 
conducted for the purpose of determining the rights, liabilities, or 
blame of any person or entity, as they are not adjudicatory 
proceedings.


Sec.  831.55   Relationships with other agencies.

    (a) Relationship with the USCG. (1) The NTSB conducts marine 
casualty and major marine casualty investigations, in accordance with 
49 U.S.C. 1131(a)(1)(E) and (F), and part 850 of this chapter. The NTSB 
and USCG work together to collect evidence related to marine casualties 
and major marine causalities.
    (2) The NTSB and USCG coordinate to avoid duplicative efforts to 
the maximum extent practicable.
    (3) The NTSB independently analyzes the evidence and determines the 
probable cause of marine casualties and major marine causalities.
    (b) Relationships with other Federal agencies. (1) Except as 
provided in 49 U.S.C. 1131(a)(2)(B) and (C) regarding suspected 
criminal actions, an investigation conducted under the authority of the 
NTSB has priority over any investigation conducted by another Federal 
agency.
    (2) The NTSB will provide for appropriate participation by other 
Federal agencies in any NTSB investigation. Such agencies may not 
participate in the NTSB's probable cause determination.
    (3) The NTSB has first right to access wreckage, information, and 
resources, and to interview witnesses the NTSB deems pertinent to its 
investigation.
    (4) The NTSB and other Federal agencies will exchange information 
obtained or developed in the course of their investigations in a timely 
manner. Nothing in this section prohibits the NTSB from sharing factual 
information with other agencies.
    (c) As indicated in Sec.  831.59(c) of this part, the NTSB has 
exclusive authority to determine when and how the testing and 
examination of evidence will occur.
    (d) The NTSB may take possession of records, wreckage, or 
information if it determines such possession is necessary for an 
investigation.
    (e) Investigations by Federal agencies. (1) Nothing in this section 
impairs the authority of any other Federal agency to conduct an 
investigation of a marine casualty or major marine casualty.
    (f) Incident command system. (1) The NTSB recognizes the role of 
incident command systems to address emergencies. The NTSB does not 
assume the role of a first responder agency.
    (2) The NTSB IIC or his designee will participate in the incident 
command system to identify and coordinate investigative needs as it 
relates to the preservation and collection of information and evidence.
    (3) The NTSB IIC or his designee will coordinate with the Coast 
Guard Investigation Officer to identify and coordinate investigative 
needs as it relates to the preservation and collection of information 
and evidence.
    (4) The NTSB may collect information and evidence from an incident 
command in a timely and reasonable manner so as not to interfere with 
its operations.


Sec.  831.56   Request to withhold information.

    (a) Applicability. This section applies to information the NTSB 
receives from any source that may be subject to the Trade Secrets Act 
(18 U.S.C. 1905) or the Freedom of Information Act (FOIA, 5 U.S.C. 
552).
    (b) Disclosure. The NTSB is authorized by 49 U.S.C. 1114(b) to 
disclose, under certain circumstances, confidential commercial 
information that would otherwise be subject to penalties for disclosure 
under the Trade Secrets Act, or excepted from disclosure under FOIA. 
The NTSB may exercise this authority when disclosure is necessary to 
support a key finding, a safety recommendation, or the NTSB's statement 
of probable cause of a major marine casualty or a marine casualty.
    (c) Disclosure procedures. Information submitted to the NTSB that 
the submitter believes qualifies as a trade secret or as confidential 
commercial information subject either to the Trade Secrets Act or 
Exemption 4 of FOIA must be so identified by the submitter on each page 
that contains such information. In accordance with 48 U.S.C. 1114(b), 
the NTSB will provide the submitter of identified information (or 
information the NTSB has reason to believe qualifies as subject to the 
Trade Secrets Act or Exemption 4 of FOIA) the opportunity to comment on 
any disclosure contemplated by the NTSB. In all instances in which the 
NTSB decides to disclose such information pursuant to 49 U.S.C. 1114(b) 
or 5 U.S.C. 552, the NTSB will provide at least 10 days' notice to the 
submitter.
    (d) Voluntarily provided safety information. (1) The NTSB will not 
disclose safety-related information voluntarily submitted to the NTSB 
if the information is not related to the exercise of the NTSB's 
investigation authority, and if the NTSB finds disclosure of the 
information might inhibit the voluntary provision of that type of 
information.
    (2) The NTSB will review voluntarily provided safety information 
for confidential content, and will de-identify or anonymize any 
confidential content referenced in its products.
    (e) Other. Any person may make written objection to the public 
disclosure of any other information, such as interview summaries or 
transcripts, 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.


Sec.  831.57   Representation during an interview.

    (a) Any person interviewed in any manner by the NTSB has the right 
to be accompanied during the interview by no more than one 
representative of the witness's choosing. The representative--

[[Page 29696]]

    (1) May be an attorney;
    (2) May provide support and counsel to the witness;
    (3) May not supplement the witness's testimony; and
    (4) May not advocate for the interests of a witness's other 
affiliations.
    (b) An investigator conducting the interview may take any necessary 
action (including removal of the representative from the interview) to 
ensure a witness's representative acts in accordance with the 
provisions of paragraph (a) of this section during the interview, and 
to prevent conduct that may be disruptive to the interview.


Sec.  831.58   Investigator-in-charge.

    (a) In addition to the subpoena and deposition authority delegated 
to investigative officers under this chapter, a person designated as 
IIC for an investigation is authorized to--
    (1) Organize, conduct, control, and manage the field phase of an 
investigation, even when a Board Member is present.
    (2) Coordinate all resources and provide direction to all persons 
(including persons not employed by the NTSB) involved in an on-site 
investigation.
    (3) Work with other Federal agencies in the investigation of a 
marine casualty or major marine casualty when other agencies are 
participating, to ensure all agencies will obtain the information, 
evidence, and resources needed for the investigation(s) or 
investigative activities.
    (4) Work with the USCG to ensure the agencies do not duplicate work 
to the maximum extent practicable.
    (5) Continue his or her organizational and management 
responsibilities through all phases of the investigation, including 
consideration and adoption of a report or brief determining one or more 
probable causes of a marine casualty or major marine casualty.


Sec.  831.59   Authority during investigations.

    (a) General authority of investigators. To carry out the statutory 
responsibilities of the agency, an NTSB investigator may--
    (1) Conduct hearings;
    (2) Administer oaths;
    (3) Require, by subpoena or other means, the production of evidence 
and witnesses;
    (4) Enter any property where a major marine casualty or marine 
casualty subject to the NTSB's jurisdiction has occurred, or wreckage 
from any such major marine casualty or marine casualty is located, and 
take all actions necessary to conduct a complete investigation;
    (5) Inspect, photograph, or copy any records or information 
(including medical records pursuant to paragraph (b)(2) of this 
section), and correspondence regardless of the date of its creation or 
modification, for the purpose of investigating an accident;
    (6) Question any person having knowledge relevant to a marine 
casualty or major marine casualty.
    (b) Subpoenas. The NTSB may issue a subpoena, enforceable in 
Federal District Court, to obtain testimony or evidence related to its 
investigation of a marine casualty or major marine casualty, including 
but not limited to personal electronic devices.
    (1) The NTSB's authority to issue subpoenas includes access to 
medical records and specimens.
    (2) For purposes of the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA), Public Law 104-191, and the 
regulations promulgated by the Department of Health and Human Services, 
45 CFR 164.501 et seq., the NTSB is a ``public health authority'' to 
which protected health information may be disclosed by a HIPAA 
``covered entity'' without the prior written authorization of the 
subject of the records. In addition, the NTSB may issue a subpoena to 
gain access to such information.
    (c) Examination of evidence. In accordance with 49 U.S.C. 1134(d), 
the NTSB has exclusive authority to decide when, and in what manner, 
testing, extraction of data, and examination of evidence will occur.


Sec.  831.60   Autopsies and postmortem testing.

    When a person dies as a result of having been involved in a marine 
casualty or major marine casualty within the jurisdiction of the NTSB--
    (a) The NTSB is authorized to obtain, with or without 
reimbursement, a copy of a report of autopsy performed by a State or 
local authority on such person.
    (b) The NTSB may order an autopsy or other postmortem tests of any 
person as may be related to its investigation of a marine casualty or 
major marine casualty. The IIC may direct that an autopsy or other test 
be performed if necessary for an investigation. Provisions of local law 
protecting religious beliefs with respect to autopsies shall be 
observed to the extent they are consistent with the needs of the 
investigation.


Sec.  831.61  Parties to the investigation.

    (a) Participants. (1) The IIC may designate one or more entities to 
serve as parties in an investigation. The NTSB will provide to the USCG 
the opportunity to participate in all NTSB investigations and 
investigative activities the NTSB conducts under this subpart. For all 
other organizations, party status is limited to those persons, 
government agencies (Federal, state, or local), companies, and 
organizations whose employees, functions, activities, or products were 
involved in the marine casualty or major marine casualty and that can 
provide suitable qualified technical personnel actively to assist in an 
investigation. To the extent practicable, a representative proposed by 
party organizations to participate in the investigation may not be a 
person who had direct involvement in the major marine casualty or 
marine casualty under investigation.
    (2) Except the USCG, no entity has a right to participate in an 
NTSB marine investigation as a party.
    (3) Participants in an investigation (e.g., party representatives, 
party coordinators, and the larger party organization) must respond to 
direction from NTSB representatives.
    (4) No party representative may--
    (i) Occupy a legal position; or
    (ii) Be a person who also represents claimants or insurers.
    (5) Party status may be revoked or suspended if a party fails to 
comply with either paragraph (a)(3) or (a)(4) of this section. 
Sanctions may also be imposed if a party withholds information or acts 
in a manner prejudicial or disruptive to an investigation.
    (b) Disclosures. (1) The name of a party or its representative may 
be disclosed in documents the NTSB places in the public docket for the 
investigation.
    (2) The NTSB may share information considered proprietary or 
confidential by one party with other parties during the course of an 
investigation, but will preserve the confidentiality of the information 
to the greatest extent possible.
    (3) Section 831.6(c) of this part describes how the NTSB will 
handle voluntarily submitted safety information, and the NTSB's 
determination whether to share any such information. The NTSB will de-
identify the source of such information when deciding to share it.
    (c) Party agreement. All party representatives must sign the 
``Statement of Party Representatives to NTSB Investigation'' 
(Statement) upon acceptance of party status. Failure to timely sign the 
Statement may result in sanctions, including loss of party status. 
Representatives of Federal agencies are not required to sign the 
Statement, but

[[Page 29697]]

must comply with the responsibilities and limitations set forth in the 
agreement.
    (d) Internal review by a party. (1) To assure coordination of 
concurrent efforts, a party to an investigation that conducts or 
authorizes a review of its own processes and procedures as a result of 
a major marine casualty or a marine casualty the NTSB is investigating 
must inform the IIC in a timely manner of the nature of its review. A 
party performing such review must provide the IIC with the findings 
from this review.
    (2) If the findings from a review contain privileged information--
    (i) The submitting party must inform the IIC that the review 
contains privileged information;
    (ii) The submitting party must identify the privileged content at 
the time of submission to the IIC;
    (iii) The NTSB must, when informed that such information is being 
submitted, review the information for relevancy to the investigation, 
and determine whether the information is needed for the investigation 
or may be excluded from the party's response.
    (3) The NTSB may use the protections described in Sec.  831.56 of 
this part, as applicable, to protect certain findings from public 
disclosure.
    (4) Investigations performed by other Federal agencies during an 
NTSB investigation are addressed in Sec.  831.55 of this part.


Sec.  831.62   Access to and release of wreckage, records, mail, and 
cargo.

    (a) Only persons authorized by the NTSB to participate in any 
particular investigation, examination or testing may be permitted 
access to wreckage, records, mail, or cargo.
    (b) Wreckage, records, mail, and cargo in the NTSB's custody will 
be released when the NTSB determines it has no further need for such 
items. Prior to release, the NTSB will inform the USCG of the upcoming 
release of wreckage or evidence. Recipients of released wreckage must 
sign an acknowledgement of release provided by the NTSB.


Sec.  831.63   Provision and dissemination of investigative 
information.

    (a) Applicability. This section applies to:
    (1) Any information related to a marine casualty or major marine 
casualty;
    (2) Any information collected or compiled by the NTSB as part of 
its investigation, such as photographs, visual representations of 
factual data, physical evidence from the scene of the major marine 
casualty or the marine casualty, interview statements, wreckage 
documentation, voyage data recorder information, and surveillance 
video;
    (3) Any information regarding the status of an investigation, or 
activities conducted as part of the investigation.
    (b) Provision of information. All information described in 
paragraph (a) of this section and obtained by any person or 
organization participating in the investigation must be provided to the 
NTSB, except for information the NTSB authorizes the party to retain.
    (c) Release of information. Parties are prohibited from releasing 
information obtained during an investigation at any time prior to the 
NTSB's public release of information unless the release is consistent 
with the following criteria:
    (1) Information released at the scene of a marine casualty or major 
marine casualty:
    (i) Is limited to factual developments concerning the accident and 
the investigation released in coordination with the IIC; and
    (ii) Will be made by the Board Member present at the scene as the 
official spokesperson for the NTSB. If no Board Member is present, 
information will be released by a representative of the NTSB's Office 
of Media Relations or the IIC. To the maximum extent practicable, the 
NTSB will inform the USCG of its planned releases of information before 
the release occurs.
    (2) The release of information described in paragraph (a)(1) of 
this section by the NTSB at the scene of a marine casualty or major 
marine casualty does not authorize any party to the investigation to 
comment publicly on the information during the course of the 
investigation. Any dissemination of factual information by a party may 
be made only as provided in this section.
    (3) A party may disseminate information related to an investigation 
to those individuals within its organization who have a need to know 
for the purpose of addressing a safety issue, including preventive or 
remedial actions. If such internal release of information results in a 
planned safety improvement, the party must inform the IIC of such 
planned improvement in a timely manner before it is implemented.
    (4) Any other release of factual information related to the 
investigation must be approved by the IIC prior to release, including:
    (i) Dissemination within a party organization, for a purpose not 
described in paragraph (b)(3) of this section;
    (ii) Documents that provide information concerning the 
investigation, such as written directives or informational updates for 
release to employees or customers of a party; and
    (iii) Information related to the investigation released to an 
organization or person that is not a party to the investigation.
    (d) The release of recordings or transcripts from certain recorders 
may be made only in accordance with the statutory limitations of 49 
U.S.C. 1114(c), 1114(d), and 1154(a).


Sec.  831.64   Proposed findings.

    (a) General. Any party to an investigation designated under Sec.  
831.61 may submit to the NTSB written proposed findings to be drawn 
from the evidence produced during the course of the investigation, a 
proposed probable cause, and/or proposed safety recommendation(s) 
designed to prevent future major marine casualties and marine 
casualties.
    (b) Timing of submissions. The IIC will inform parties when 
submissions are due. All written submissions must be received by the 
due date. If there is a Board meeting, the due date will be set prior 
to the date the matter is published in the Federal Register.

Robert L. Sumwalt, III,
Acting Chairman.
[FR Doc. 2017-12983 Filed 6-28-17; 8:45 am]
 BILLING CODE 7533-01-P