United States: NTSB Publishes Two Rules Governing Agency Investigative Regulations

Jim Rodriguez is a Senior Counsel attorney in Holland & Knight's Washington, D.C., office

HIGHLIGHTS:

  • The National Transportation Safety Board (NTSB) has published a final rule covering 49 C.F.R. 831 subparts A-D and an interim final rule for 49 C.F.R. 831 subpart E, both of which are effective July 31, 2017.
  • Subparts A-D update the NTSB regulations for general investigative procedures (subpart A) and mode-specific regulations for aviation (subpart B), highway (subpart C), and railroad, pipeline and hazardous materials (subpart D) accidents.
  • Due to the nature of the authorities governing marine casualty investigations by both the NTSB and the U.S. Coast Guard (USCG), the NTSB created subpart E as a stand-alone regulation applicable to marine investigations.

The National Transportation Safety Board (NTSB) on June 29, 2017, published a final rule covering 49 C.F.R. 831 subparts A-D and an interim final rule for 49 C.F.R. 831 subpart E, both of which are effective July 31, 2017.

Subparts A-D update the NTSB regulations for general investigative procedures (subpart A) and mode-specific regulations for aviation (subpart B), highway (subpart C), and railroad, pipeline and hazardous materials (subpart D) accidents. The final rule addresses comments received following the NTSBs publication of a Notice of Proposed Rulemaking (NPRM) in August 2014. See Final Rule, 82 Fed. Reg. 29670–90 (June 29, 2017).

The interim final rule for 49 C.F.R. 831 subpart E is applicable to marine investigations. Due to the nature of the authorities governing marine casualty investigations by both the NTSB and the U.S. Coast Guard (USCG), the NTSB created subpart E as a stand-alone regulation, thus it is somewhat repetitive of information in subpart A. Subpart E is also effective July 31, 2017. In response to the August 2014 NPRM, only the USCG commented on marine investigations. See Interim Final Rule, 82 Fed. Reg. 29690–97 (June 29, 2017).

Final Rule: Investigative Procedures

In the Final Rule for 49 C.F.R. 831 subparts A-D, the NTSB published the following determinations.

  • The NTSB declined to adopt the general term "event" to describe mode-specific terms for accidents and incidents the agency investigates, such as collisions, crashes, mishaps and ruptures. This was in response to comments to the NPRM raising concerns that the use of the term "event" could be read as an attempt to expand agency authority, whether intentional or not. 82 Fed. Reg. at 29671.
  • The NTSB declined to distinguish between preliminary and formal phases of investigations, noting that "investigative activities may vary widely from case to case [and] decisions by NTSB investigators ... are often made ... without reference to a formalized determination of status of the investigation." Id. at 29672.
  • The NTSB declined to adopt a requirement to conduct cost-benefit analysis when issuing Safety Recommendations, noting such "analyses are resource and time intense using specialized staff, and could result in delayed issuance of safety critical recommendations." Id.
  • The NTSB revised regulatory text to clarify the NTSB's investigative priority over other federal investigations, where applicable, and to more closely tracked statutory language. Id. at 29672–74, 29686.
  • The NTSB reformatted the discussion of agency requirements and processes for disclosing trade secrets and confidential commercial information when statutorily authorized. Id. at 29674–75. Revised 49 C.F.R. §831.6(b) states that the agency may exercise its statutory disclosure authority to "support a key finding, a safety recommendation, or the ... statement of probable cause of an accident." The NTSB declined to distinguish between foreign and domestic investigations for such determinations as it had suggested in the NPRM. 82 Fed. Reg. at 29675.
  • The NTSB did not substantively revise its regulations for protection of voluntarily submitted information. It indicated it would issue additional interpretive guidance in this area. Id. at 29675–76.
  • The NTSB declined to revise its practices regarding representation in witness interviews. It retaining the restriction that a witness may only have one representative, who may be an attorney or otherwise. Id. at 29676. Revised 49 C.F.R. §831.7 provides that an NTSB investigator may exclude a witness representative who becomes disruptive from the interview.
  • Transcripts or summaries of witness interviews are usually published in the NTSB public docket for an investigation. New 49 C.F.R. §831.6(e) notes that witnesses may object to such public disclosure, though the NTSB promises only that a transcript or summary "may be withheld" from public disclosure when consistent with "an exemption to the [Freedom of Information Act] ... and its release is found not to be in the public interest." 82 Fed. Reg. 29677, 29687.
  • The NTSB revised 49 C.F.R. §831.9 to explain and document its historic practice of obtaining medical records from "covered entities" under the Health Insurance Portability and Accountability Act (HIPAA) without the consent of the record owner in the NTSB's role as a public health authority. Id. at 29677–78.
  • New 49 C.F.R. §831.11(c) requires investigative parties that undertake internal reviews of accidents or incidents under NTSB investigation to timely inform the NTSB of such inquiries and coordinate such activities so as not to interfere with the NTSB's investigation. The NTSB notes it is "generally not interested in obtaining information that would be considered privileged in litigation." 82 Fed. Reg. at 29680.
  • The NTSB declined to adopt in its domestic investigations the practice in international aviation investigations of sharing draft final report with parties to the investigation. Id. at 29683. In international aviation investigations, including when a foreign state is invited to participate in a domestic NTSB aviation investigation, the state conducting the investigation sends a copy of its draft final report to the accredited representatives of other participating states for comment. Annex 13 to the Convention on International Civil Aviation ¶ 6.3 (11th Ed. July 2016).

Interim Final Rule: Marine Investigations

The Interim Final Rule for 49 C.F.R. 831 subpart E, applicable to marine investigations, largely tracks the Final Rule discussed above, with distinctions relevant to NTSB and USCG conduct of marine casualty investigations.

  • In the Interim Final Rule, the NTSB recognized the equal authority of the USCG and NTSB to investigate major marine casualties under statute (49 U.S.C. § 1131(a)(1)(E), 46 U.S.C. Chapters 61 and 63, and 14 U.S.C. §141), joint regulations (49 C.F.R. part 850 and 46 C.F.R. subpart 4.40), and a memorandum of understanding that provides for participation as equal partners by each agency in the investigations of the other. See 82 Fed. Reg. 29690–91; Memorandum of Understanding between the NTSB and the USCG Regarding Marine Casualty Investigations.
  • The NTSB also defined the term "'investigative activity' as activities the NTSB directs during an investigation the USCG is leading" and notes that the NTSB's regulations and practices will govern such NTSB-led investigative activities. Id. at 29691. NTSB regulations, unlike USCG rules, generally preclude attorney participation in investigative activities. See 49 C.F.R. § 831.11(a)(3) (recodified in new §831.11(b)(1)).

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