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


  • 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)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.