82 FR 29690 - Investigation Procedures: Marine Investigations
NATIONAL TRANSPORTATION SAFETY BOARD Federal Register Volume 82, Issue 124 (June 29, 2017)
Federal Register Volume 82, Issue 124 (June 29, 2017)
| Page Range | 29690-29697 | |
| FR Document | 2017-12983 |
[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)] [Rules and Regulations] [Pages 29690-29697] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-12983] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 http://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 http://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 http://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\ --------------------------------------------------------------------------- \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 http://www.ntsb.gov/investigations/AccidentReports/Reports/MAR1301.pdf. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \2\ Available at https://publicintelligence.net/dhs-nims-intel-guide/. --------------------------------------------------------------------------- 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
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of safeguards and procedures for the July 31, 2017. Comments received after unnecessary, or contrary to the public
transportation of hazardous materials, the deadline will be considered to the interest. The NTSB will issue an interim
and the performance of other entities of extent possible. final rule when it is in the public
the Federal government responsible for ADDRESSES: A copy of this interim final interest to promulgate an effective rule
the safe transportation of hazardous rule, published in the Federal Register, while keeping the rulemaking open for
materials. Such evaluations may take is available for inspection and copying further refinement. 49 CFR 800.45.
place as part of the investigation of a in the NTSB’s public reading room, The interim final rule procedure is
transportation accident subject to the located at 490 L’Enfant Plaza SW., appropriate for this new subpart
NTSB’s authority and include Washington, DC 20594–2003. involving marine casualty
applicable regulations in other subparts Alternatively, a copy is available on the investigations. Many provisions of
of this part. government-wide Web site on subpart E, as implemented in this
(b) Authority to examine or test. regulations at http:// interim final rule, are similar to those
Pursuant to § 831.9 of this part, during www.regulations.gov (Docket ID Number the NTSB proposed in the NPRM dated
an investigation, a credentialed NTSB–GC–2012–0002). August 12, 2014. When the NTSB
employee of the NTSB is authorized to You may send comments identified solicited comments concerning its
examine or test any rolling stock, track, by Docket ID Number NTSB–GC–2012– proposed changes to part 831, it
or pipeline component, or any part of 0002 using any of the following received one comment specific to
any such item (or contents therein) methods: marine casualty investigations,
when such examination or testing is submitted by the United States Coast
Federal eRulemaking Portal: Go to
determined to be required for purposes Guard (USCG). As a result, utilizing the
http://www.regulations.gov and follow
of such investigation. Examination or notice and comment rulemaking process
the instructions for sending your
testing will be conducted— anew for this subpart is unnecessary.
comments electronically.
(1) To the extent practicable, so as to Mail: Send comments to NTSB Office B. NTSB and USCG: Statutory and
not interfere with or obstruct the of General Counsel, 490 L’Enfant Plaza Regulatory Considerations
transportation services provided by the East SW., Washington, DC 20594–2003. In accordance with NTSB statutory
owner or operator of such rolling stock, Facsimile: Fax comments to 202–314– authority (49 U.S.C. 1131(a)(1)(E)) and
track, signal, rail shop, property, or 6090. USCG statutory authorities (46 U.S.C.
pipeline component; and Hand Delivery: Bring comments to Chapters 61 and 63, and 14 U.S.C. 141)),
(2) In a manner that preserves 490 L’Enfant Plaza East SW., 6th Floor, for investigations involving any major
evidence relating to the transportation Washington, DC, between 9 a.m. and 5 marine casualty or any casualty
accident consistent with the needs of p.m., Monday through Friday, except involving public and nonpublic vessels,
the investigation. Federal holidays. the NTSB works closely with the USCG,
Robert L. Sumwalt, III, PRIVACY: We will post all comments we pursuant to the joint USCG–NTSB
Acting Chairman. receive, without change, to http:// Marine Casualty Investigation
[FR Doc. 2017–12988 Filed 6–28–17; 8:45 am] www.regulations.gov, including any Regulations. The NTSB’s version of the
BILLING CODE 7533–01–P
personal information provided. joint regulations is codified at 49 CFR
FOR FURTHER INFORMATION CONTACT: Ann part 850 and the USCG’s version is
Gawalt, Deputy General Counsel, 202– codified at 46 CFR subpart 4.40. Also as
NATIONAL TRANSPORTATION 314–6088. provided in those regulations, either
SAFETY BOARD SUPPLEMENTARY INFORMATION:
agency may conduct investigations of
certain types of marine casualties on its
49 CFR Part 831 I. Background own, or with assistance from the other.
As a result, the NTSB’s relationship
[Docket No. NTSB–GC–2012–0002] A. Justification for Use of an Interim
with the USCG during marine casualty
Final Rule
RIN 3147–AA01 investigations is distinct from the
The NTSB issues this interim final NTSB’s relationship with other Federal
Investigation Procedures: Marine rule to create a distinct set of regulations agencies for investigations of
Investigations for NTSB marine casualty transportation accidents in other modes,
investigations. As explained in further as described at § 831.5 of this part.
AGENCY: National Transportation Safety detail below, marine accident In addition, because of their separate
Board (NTSB). investigations involve unique factors authorities, NTSB and USCG
ACTION: Interim final rule; request for that are not present in other NTSB investigations differ in some significant
comments. investigations. To address these ways. The NTSB has the responsibility
differences, NTSB promulgates several to evaluate the effectiveness of USCG
SUMMARY: The NTSB adds to its accident changes to subpart E that did not appear regulations, policies, and practices in
investigation procedures regulations a in the NPRM for part 831. 79 FR 47064 preventing casualties and examine the
new subpart for marine casualty (Aug. 12, 2014). transport of hazardous materials. In
investigations. This interim final rule The Administrative Procedure Act addition to reporting on the probable
adopts a number of substantive and (APA) generally requires an agency to cause, facts and circumstances of certain
technical changes the NTSB proposed in provide notice of proposed rulemaking types of marine casualties, the NTSB
its August 12, 2014 Notice of Proposed and a period of public comment before also makes safety recommendations to
sradovich on DSK3GMQ082PROD with RULES2
Rulemaking (NPRM), as those proposals the promulgation of a new regulation. 5 reduce the likelihood of future
were intended to apply to marine U.S.C. 553(b) and (c). Section 553(b) of casualties. The USCG is responsible for
investigations. It also sets forth several the APA provides that notice and reporting on the cause of the casualty
changes specific to marine casualty comment requirements do not apply and identifying certification and
investigations. when the agency, for good cause, finds licensure issues and potential criminal
DATES: This rule is effective July 31, that notice and public comment conduct. Specifically, Congress charged
2017. Comments must be received by procedure are impracticable, the USCG with the responsibility of
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G. Section 831.54 Nature of with the safety investigation for the and procedures for the transportation of
Investigation reasons explained in the preamble to hazardous material and the performance
Section 831.54, also includes subpart A of part 831 (as published of other departments, agencies, and
language similar to that found in § 831.4 elsewhere in this issue of the Federal instrumentalities of the Government
of the final rule. This regulatory text Register). responsible for the safe transportation of
The USCG also raised a concern about that material.’’ Id. § 1116(b)(5). The
describes the general nature of NTSB
the NTSB’s exclusive authority to NTSB cannot accomplish these
investigations, including language
decide the time and manner to extract mandated objectives without collecting
confirming that our investigations are
data from evidence. The NTSB retains evidence from incident command
not for the purpose of assigning blame
this proposed language now found in systems. The NTSB does not intend the
and are not subject to the APA. The
§ 831.55(c). The complete discussion of regulatory text to lead to an
NTSB agrees with the USCG’s concern the USCG comments can be found in the
that the use of the proposed term interpretation that the NTSB could
preamble discussion for § 831.59. impede on-going USCG activities in an
‘‘preliminary’’ investigation would not As requested by the USCG, the NTSB
accurately reflect the process codified in incident command system.
adopts language that clarifies that In recent years, the NTSB was a part
our joint regulations at 49 CFR part 850 Federal agencies are not prohibited from
and 46 CFR 4.40–10. Specifically, these of the Federal, state, and local incident
conducting investigations under their command structures in certain
joint regulations call for the USCG to own statutory authorities. To avoid
conduct preliminary investigations to accidents. These include the NTSB’s
duplicative efforts, we have also investigation into transportation
assess whether a casualty constitutes a adopted language stating that those
major marine casualty or if the accidents in Paulsboro, New Jersey;
Federal agencies that conduct separate
occurrence appears to meet any other Marshall, Michigan; Port Arthur, Texas;
investigations are expected to
criteria outlined in the joint regulations. Cherry Valley, Illinois; Casselton, North
coordinate with the NTSB.
By this interim final rule, the NTSB Dakota; Graniteville, South Carolina;
H. Section 831.55 Relationship With and San Bruno, California. Based on
Other Agencies clarifies regulatory text proposed in the
part 831 NPRM as it relates to evidence these investigations, the NTSB has
Section 831.55 describes the NTSB’s collection from USCG incident issued dozens of safety
relationship with the USCG and other command systems. The revised text recommendations in the interest of
Federal agencies during a marine defines the role of the NTSB in the improving safety of various modes of
casualty investigation. With respect to incident command system which is to transportation.
the USCG, we note the NTSB’s identify investigative needs and request Furthermore, the NTSB’s authority to
authorizing legislation, at 49 U.S.C. preservation of evidence. The text participate in the incident command
1131(a)(1)(E), specifies the NTSB and makes clear that the NTSB will structure during an investigation is
USCG will maintain a joint-working coordinate these requests with the consistent with the Department of
relationship in conducting USCG investigative officer. The text also Homeland Security’s National Incident
investigations, and must prescribe joint states that the NTSB will collect Management System: Intelligence/
regulations to do so. The NTSB joint casualty information in a manner so as Investigations Function Guidance and
regulations are codified at part 850 of not to interfere with the operations of Field Operations Guide (Oct. 2013).2
this chapter. the incident command. The Guide specifically describes the
As the regulatory text makes clear, the In the comment, the USCG questioned NTSB’s participation in the Intelligence/
NTSB will inform the USCG and whether the NTSB is authorized to Investigation element at the site of
coordinate with it, as necessary, in compel the production of information investigations as part of the unified
activities relating to the collection of from incident or unified command command system structure. Id. at 3, 5,
evidence. This will ensure both agencies systems during an ongoing marine 11.
have the information and evidence they casualty response. We note our
I. Section 831.56 Request To Withhold
need. authorizing legislation specifically tasks
This section also describes how the Information
us with developing and issuing reports
NTSB interacts with other Federal to ‘‘propose corrective action to make We adopt the same language in this
agencies in marine casualty the transportation of individuals as safe section as set forth in the final rule
investigations. We have codified in this and free from risk of injury as possible, § 831.6. For a discussion of the
section the principle that the NTSB including action to minimize personal comments, see the discussion in the
maintains priority in marine safety injuries that occur in transportation preamble to the final rule for that
investigations over agencies other than accidents.’’ 49 U.S.C. 1116(a)(2). section.
the USCG. For example, for certain Moreover, the legislation requires us to
investigations, the Environmental ‘‘examine techniques and methods of J. Section 831.57 Representation
Protection Agency, the Occupational accident investigation and periodically During an Interview
Safety and Health Administration, the publish recommended procedures for We agree with the USCG comment
National Oceanic and Atmospheric accident investigations,’’ and ‘‘evaluate, that the proposed phrase ‘‘an
Administration, the Navy, and the Army examine the effectiveness of, and investigator working on behalf of the
Corps of Engineers may need publish the findings of the Board about NTSB’’ could be problematic and we
information. The NTSB will exchange the transportation safety consciousness decline to include such language. We
such information in a timely manner, of other departments, agencies, and adopt the same language in this section
sradovich on DSK3GMQ082PROD with RULES2
while maintaining its priority to work instrumentalities of the Government and as set forth in the final rule § 831.7. For
first with the USCG in achieving a their effectiveness in preventing a discussion of the comments, see the
robust, comprehensive collection of accidents.’’ Id. § 1116(b)(2), (4). Also, discussion in the preamble to the final
evidence and information. Similarly, the when transportation of hazardous rule for that section.
NTSB will require other Federal materials is a subject of an investigation,
agencies coordinate with the NTSB to Congress has charged the NTSB with 2 Available at https://publicintelligence.net/dhs-
ensure their activities do not interfere ‘‘[evaluating] the adequacy of safeguards nims-intel-guide/.
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must comply with the responsibilities § 831.63 Provision and dissemination of factual information by a party may be
and limitations set forth in the investigative information. made only as provided in this section.
agreement. (a) Applicability. This section applies (3) A party may disseminate
(d) Internal review by a party. (1) To to: information related to an investigation
assure coordination of concurrent (1) Any information related to a to those individuals within its
efforts, a party to an investigation that marine casualty or major marine organization who have a need to know
conducts or authorizes a review of its casualty; for the purpose of addressing a safety
own processes and procedures as a (2) Any information collected or issue, including preventive or remedial
result of a major marine casualty or a compiled by the NTSB as part of its actions. If such internal release of
marine casualty the NTSB is investigation, such as photographs, information results in a planned safety
investigating must inform the IIC in a visual representations of factual data, improvement, the party must inform the
timely manner of the nature of its physical evidence from the scene of the IIC of such planned improvement in a
review. A party performing such review major marine casualty or the marine timely manner before it is implemented.
must provide the IIC with the findings casualty, interview statements, (4) Any other release of factual
from this review. wreckage documentation, voyage data information related to the investigation
recorder information, and surveillance must be approved by the IIC prior to
(2) If the findings from a review release, including:
contain privileged information— video;
(3) Any information regarding the (i) Dissemination within a party
(i) The submitting party must inform status of an investigation, or activities organization, for a purpose not
the IIC that the review contains conducted as part of the investigation. described in paragraph (b)(3) of this
privileged information; (b) Provision of information. All section;
(ii) The submitting party must information described in paragraph (a) (ii) Documents that provide
identify the privileged content at the of this section and obtained by any information concerning the
time of submission to the IIC; person or organization participating in investigation, such as written directives
the investigation must be provided to or informational updates for release to
(iii) The NTSB must, when informed employees or customers of a party; and
that such information is being the NTSB, except for information the
NTSB authorizes the party to retain. (iii) Information related to the
submitted, review the information for investigation released to an organization
relevancy to the investigation, and (c) Release of information. Parties are
prohibited from releasing information or person that is not a party to the
determine whether the information is investigation.
needed for the investigation or may be obtained during an investigation at any
time prior to the NTSB’s public release (d) The release of recordings or
excluded from the party’s response.
of information unless the release is transcripts from certain recorders may
(3) The NTSB may use the protections be made only in accordance with the
consistent with the following criteria:
described in § 831.56 of this part, as statutory limitations of 49 U.S.C.
applicable, to protect certain findings (1) Information released at the scene
of a marine casualty or major marine 1114(c), 1114(d), and 1154(a).
from public disclosure.
casualty: § 831.64 Proposed findings.
(4) Investigations performed by other (i) Is limited to factual developments
Federal agencies during an NTSB (a) General. Any party to an
concerning the accident and the investigation designated under § 831.61
investigation are addressed in § 831.55 investigation released in coordination
of this part. may submit to the NTSB written
with the IIC; and proposed findings to be drawn from the
§ 831.62 Access to and release of (ii) Will be made by the Board evidence produced during the course of
wreckage, records, mail, and cargo. Member present at the scene as the the investigation, a proposed probable
official spokesperson for the NTSB. If no cause, and/or proposed safety
(a) Only persons authorized by the Board Member is present, information recommendation(s) designed to prevent
NTSB to participate in any particular will be released by a representative of future major marine casualties and
investigation, examination or testing the NTSB’s Office of Media Relations or marine casualties.
may be permitted access to wreckage, the IIC. To the maximum extent (b) Timing of submissions. The IIC
records, mail, or cargo. practicable, the NTSB will inform the will inform parties when submissions
(b) Wreckage, records, mail, and cargo USCG of its planned releases of are due. All written submissions must
in the NTSB’s custody will be released information before the release occurs. be received by the due date. If there is
when the NTSB determines it has no (2) The release of information a Board meeting, the due date will be set
further need for such items. Prior to described in paragraph (a)(1) of this prior to the date the matter is published
release, the NTSB will inform the USCG section by the NTSB at the scene of a in the Federal Register.
of the upcoming release of wreckage or marine casualty or major marine
evidence. Recipients of released casualty does not authorize any party to Robert L. Sumwalt, III,
wreckage must sign an the investigation to comment publicly Acting Chairman.
acknowledgement of release provided on the information during the course of [FR Doc. 2017–12983 Filed 6–28–17; 8:45 am]
by the NTSB. the investigation. Any dissemination of BILLING CODE 7533–01–P
sradovich on DSK3GMQ082PROD with RULES2
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Document Created: 2018-11-14 10:17:36
Document Modified: 2018-11-14 10:17:36
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule; request for comments. | |
| 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. | |
| Contact | Ann Gawalt, Deputy General Counsel, 202-314-6088. | |
| FR Citation | 82 FR 29690 | |
| RIN Number | 3147-AA01 | |
| CFR Associated | Aircraft Accidents; Aircraft Incidents; Aviation Safety; Hazardous Materials Transportation; Highway Safety; Investigations; Marine Safety; Pipeline Safety and Railroad Safety |
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